Jamil Sahyoun v Aurora Stone Pty Ltd

[2013] FWC 9041

[2013] FWC 9041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamil Sahyoun
v
Aurora Stone Pty Ltd
(U2013/6356)

COMMISSIONER WILLIAMS PERTH, 19 NOVEMBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Jamil Sahyoun (Mr Sahyoun or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Aurora Stone Pty Ltd (Aurora or the respondent).

[2] The matter was the subject of a conciliation conference before a Fair Work Commission conciliator however the matter was not resolved and has been referred to me for determination.

[3] The form F4−Application for Unfair Dismissal Remedy completed by the applicant states that he was notified on 25 January 2013 of his dismissal and that the dismissal took effect the same day.

[4] The respondent submits that the applicant was not dismissed.

[5] The applicant in the hearing of this matter was self represented and gave evidence on his own behalf. Mr Bassam Taweel (Mr Taweel) a Director of Aurora Stone Pty Ltd gave evidence for the respondent.

Factual findings

[6] Much of the evidence both witnesses gave was not relevant to the central issue of whether the applicant was dismissed and if he was whether that dismissal was unfair.

[7] The statement of evidence the applicant swore under oath to be true and correct to the best of his knowledge was in the form of an affidavit he had previously sworn in Federal Court proceedings WAD365/2012. This affidavit was dated 13 February 2013.

[8] Considering both the applicant’s affidavit and his oral evidence in these proceedings I find as follows.

[9] The applicant was first employed by the respondent in 2007. At that time he had come to Australia on a section 457 visa sponsored by the respondent.

[10] Subsequently in February 2012 the applicant became a permanent Australian resident.

[11] On or about 21 January 2013 the applicant says in his affidavit that he ceased employment with the respondent.

[12] The evidence of the applicant demonstrates that for an extended period of time there had been conflict between Mr Taweel and another Director of the respondent Mr Paul Shehade (Mr Shehade).

[13] Prior to this the applicant explained that working for the respondent had been like working with family. The applicant, Mr Taweel and Mr Shehade having all come to Australia from Lebanon. Mr Shehade had offered employment originally to the applicant at the urging of Mr Shehade’s father because the applicant was the son of one of Mr Shehade’s father’s friends.

[14] The essence of the applicant’s evidence was that Mr Taweel on a number of occasions had urged the applicant not to side with Mr Shehade sometimes to the point of saying to him that if the applicant did side with Mr Shehade then Mr Taweel wanted the applicant to leave the business.

[15] On at a least one occasion Mr Taweel said to the applicant that he was “...taking your and your brother’s file to the Immigration Department and you will both be deported.”

[16] In August or September 2012 the applicant with the agreement of Mr Taweel installed a bench top in his kitchen using the respondent’s materials. On 14 September 2012 the applicant was issued with an invoice from the respondent for the work done in his kitchen. Subsequently there was disagreement between the applicant and Mr Taweel over how much per pay period was to be deducted from the applicant’s pay to clear the invoice.

[17] The respondent sent out to all employees, around 20 December 2012, a Christmas roster advising when they each would be returning from leave.

[18] The roster showed the applicant taking more leave than he had annual leave credits accrued resulting in the applicant having to take three or four days of unpaid leave.

[19] On Friday, 18 January 2013 a stone supplier to the respondent spoke to the applicant and mentioned that it seemed somebody was suggesting the applicant had used stone slabs at his house that he had taken from the respondent although the stone supplier was aware that these had been supplied by them and the applicant had paid the supplier for the stone.

[20] Consequently the applicant rang the respondent’s factory and spoke to a Mr Santiago who told him that Mr Taweel had questioned him and Mr Santiago told the applicant “...they are accusing you of stealing stone for your laundry and for your barbecue.”

[21] The applicant spoke to another of the respondent’s employees Mr Derbyshire who told the applicant that “...they asked me where you got this stone slabs from, they think that you stole them.”

[22] During this time the applicant was on annual leave as provided for in the Christmas roster and he was due to resume work on Monday, 21 January 2013.

[23] The applicant’s evidence is that:

“After I heard that I had been accused of stealing from Aurora Stone, I decided that I could no longer continue my employment with the company.

On Monday 21 January 2013 Idid not attend work as I was feeling unwell. I rang to make a doctor's appointment, however my GP was not available until the next day.

On Tuesday, 22 January 2013, I attempted to call Aurora Stone’s office on my Aurora Stone mobile to advise them that I was unwell and could not attend work. However I could not make any calls or send any texts from my Aurora Stone mobile. I recall thinking to myself that my Aurora Stone mobile had been blocked.

I used another phone and called the Aurora Stone office where I spoke to an employee Pirelle Heinrich and said to her words to the effect that I was not well and was not able to attend work. I said to Pirelle words to the effect “They have blocked my company phone”.

Pirelle responded words to the effect “They may well have”.

At this point I was very upset because I felt that I could no longer continue my employment with Aurora Stone when I was being treated this way. They had threatened to have me deported, taken my company car and mobile, deducted amounts from my pay without authorisation, and accused me of stealing.

I spent the remainder of that week seeking legal advice and speaking to Fair Work Australia about my employment rights.”

[24] The applicant’s evidence which I accept is that from 21 January 2013 he had no intention of going back to work at Aurora 1.

[25] The applicant rang Mr Larry Watkins of Wave Surfaces who suggested the applicant meet with him. On 25 January 2013 the applicant went and saw Mr Watkins and told him that he needed a job 2.

[26] The applicant obtained alternative employment with Wave Surfaces as the Stone Manager and began in this new job on Monday, 28 January 2013.

[27] On 25 January 2013, the applicant received via email a letter from Mr Taweel 3.

[28] The letter from Mr Taweel reads as follows:

“Dear Sir

Your employment

We confirm that on Monday, 21 January 2013 you failed to attend your place of employment and further, you failed to notify management as to the reason why you were unable to attend your work place during working hours.

On Tuesday, 22 January 2013 you also failed to attend your work place during working hours and, at approximately 11:30am on 22 January 2013 you telephoned Ms Pirelle Heinrich, the office secretary, advising that you were unwell and unable to attend work and that you would endeavour to obtain a medical certificate.

To date we have heard nothing further from you, nor have we received a medical certificate certifying that you are unfit for work.

We note that you had advised Mr Bill Edwards, Director of Furntech, that you are no longer employed by Aurora Stone.

On 17 January 2013 you were advised in writing that arrangements had been made for you to attend a medical assessment on 21 January 2013. The medical assessment was required to enable the company to comply with contractual safety issues.

We note that you failed to attend the appointment.

We can only conclude that you have abandoned your employment contract and, consequently, we accept the termination of your employment contract as of 25 January 2013.”

[29] From the evidence of Mr Taweel I find that, there has been an ongoing dispute which has resulted in Federal Court action between Mr Taweel and Mr Shehade both Directors of the respondent.

[30] It had been reported to Mr Taweel by other staff of the respondent that the applicant had manufactured splash backs, a laundry top and a barbecue top for his house and had not prepared any documentation in relation to that work being carried out or for the materials that he had used. The staff of the respondent are allowed to use the workshop and the company’s materials to manufacture a product for their own use but there is a system whereby this is to be documented. Following this report there was an investigation by the respondent and it was ascertained that the applicant did not manufacture the items in the respondent’s workshop.

[31] Notwithstanding the applicant’s evidence as to what he was told by other employees on the telephone on 18 January 2013, whilst there was an investigation around this time I accept that Mr Taweel did not make any allegations of theft regarding the applicant. There was no discussion between Mr Taweel and the applicant about this issue.

[32] Mr Taweel had changed the company policies regarding the use of company vehicles which had affected the applicant’s and other employees’ ability to use the company vehicles.

[33] The respondent had extended a number of loans to the applicant including one for his wedding in Lebanon in 2009/2010. The respondent has repaid to the applicant all deductions from his wages for repayment of those loans.

[34] The applicant did not return to work from the Christmas holidays on 21 January 2013 as expected and did not attend again on 22 January 2013. The respondent’s Receptionist rang him on 22 January 2013 and he advised he was unwell and would obtain a medical certificate.

[35] On 21 January 2013 Mr Taweel in the course of his normal business activities spoke to Mr Bill Edwards of Ferntech Pty Ltd. Mr Edwards told him that he had spoken with the applicant on Monday, 21 January 2013 and the applicant had advised Mr Edwards that he was not returning to work with the respondent. Mr Edwards has confirmed this in a letter to the respondent dated 21 February 2013.

[36] In light of this information and the applicant’s absence Mr Taweel sent the letter advising that it was accepted that the applicant had abandoned his employment as of 25 January 2013.

The legislation

[37] Section 386 of the Act defines when a person has been dismissed as follows:

“386  Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[38] In this case the matter to be determined is whether Mr Sahyoun’s employment was terminated on the employer’s initiative or if he resigned; whether he was forced to do so because of conduct, or a course of conduct, engaged in by the respondent.

Consideration

[39] Considering the sequence of events in this matter, throughout 2012 the applicant had experienced considerable difficulty and conflict in his relationship with Mr Taweel as a consequence of the dispute between Mr Taweel and Mr Shehade.

[40] The applicant was on annual leave from December 2012 and was due to resume work on 21 January 2013. On Friday, 18 January 2013 he spoke to a number of persons on the telephone whom led him to understand that Mr Taweel believed he had been stealing stone from the business.

[41] Having heard this he decided that he could no longer continue his employment with the respondent.

[42] The applicant did not return to work on Monday, 21 January 2013.

[43] The next day the respondent’s Receptionist rang him and asked him what was happening and the applicant told her that he was very sick and was intending to go to the doctor and get a doctor’s certificate.

[44] Some time early in the week the applicant rang Mr Larry Watkins of Wave Surfaces and arranged to meet with him.

[45] The applicant did not attend for work or otherwise contact the respondent for the balance of that week.

[46] On 25 January 2013 the applicant went and saw Mr Watkins and told him that he needed a job.

[47] Mr Taweel sent the applicant the letter on 25 January 2013 explaining that the respondent viewed him as having abandoned his employment.

[48] The applicant did not reply to this emailed letter.

[49] The applicant commenced work on Monday, 29 January 2013 at Wave Surfaces.

[50] On his own evidence as of 21 January 2013 Mr Sahyoun had decided he would not be returning to continue his employment with the respondent. It was his decision that the employment would end.

[51] There is nothing in this sequence of events that supports the conclusion that the applicant’s employment was terminated on the respondent’s initiative.

[52] Whilst the applicant did not expressly make submissions on this point implicitly he has argued that he was forced to leave his employment because of conduct, or a course of conduct, engaged in by the respondent.

[53] There is evidence that for a period the applicant had been subjected to instances of inappropriate conduct by Mr Taweel. However I am not satisfied that these instances by themselves or considered together as a course of conduct had reached a point where the applicant had no choice but to resign or that the respondent had acted in such a way that the applicant’s resignation was the likely outcome of the respondent’s conduct. Indeed if Mr Sahyoun had not been told on Friday, 18 January 2013 that Mr Taweel had accused him of stealing it is likely he would have resumed work on 21 January 2013 as expected.

[54] Mr Sahyoun did not talk to Mr Taweel about what he had been told by others. It cannot be argued that Mr Taweel intended his investigation would lead to Mr Sahyoun’s leaving his employment. Mr Taweel did investigate whether the applicant had stolen anything from the respondent and concluded that he had not. Mr Taweel did not accuse the applicant of stealing.

[55] Having heard he was being accused of stealing the obvious step for Mr Sahyoun was to ring Mr Taweel and ask him about this and to provided Mr Taweel with the information necessary to demonstrate he had done nothing wrong. Rather than take this obvious action which was open to him, Mr Sahyoun had decided on the following Monday when he was due to resume work that he would instead leave his employment and by the end of that week he had gained another job.

[56] The applicant had obvious actions he could take, rather than to leave his employment, to deal with his concern that he had apparently been accused of stealing. The circumstances here are not such that Mr Sahyoun was forced to resign by the respondent’s conduct. Mr Sahyoun left his employment voluntarily.

[57] It is my decision that the applicant has not been dismissed by the respondent. Accordingly there is no basis for Mr Sahyoun to bring this application and his application will be now dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

J Sayhoun on his own behalf.

D Vivian, solicitor for the respondent.

Hearing details:

2013.

Perth

November 1.

 1   Transcript at PN415.

 2   Ibid., at PN400 to PN410.

 3   Exhibit A1, Attachment JS-6.

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