Jarick Robati v Stealth Joinery Pty Ltd

[2024] FWC 2085

[2024] FWC 2085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jarick Robati
v

Stealth Joinery Pty Ltd; Peter Kaptein

(C2024/3376)

COMMISSIONER MCKINNON SYDNEY, 6 AUGUST 2024

Application to deal with a general protections dispute involving dismissal – whether dismissed

1. Mr Jarick Robati was employed by Stealth Joinery Pty Ltd (Stealth Joinery) from 4 November 2016 until 2 May 2024.

1. On 23 May 2024, Mr Robati applied in time for the Commission to deal with a general protections dispute involving dismissal under s.365 of the Fair Work Act 2009 (the Act). Mr Robati alleges that he was dismissed by Stealth Joinery in contravention of the general protections when it took adverse action against him for exercising workplace rights in relation to his employment entitlements, and in relation to his family and carer responsibilities, and while he was absent temporarily due to illness or injury.

1. An application under s.365 of the Act can only be made by, or on behalf of, a person who has been “dismissed”. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.[1]

1. The question is whether Mr Robati resigned or was ‘dismissed’ for the purposes of s.386(1)(b) of the Act.

1. I find that Mr Robati was dismissed by Stealth Joinery on 2 May 2024. These are my reasons for decision.

Was Mr Robati dismissed?

1. On 2 May 2024, Mr Robati came in early to perform work that needed completing before 6.00am. About an hour later, he left to go home. Mr Robati says he was unwell and did not want to make others sick. At 7.45am that morning, he received a text message from Mr Paul Camarri, Director, saying “Your Friday arrangements have now been canceled [sic]. I expect to see you in tomorrow”.

1. Mr Robati responded to the message:

“I went home sick. I came in this morning to help what was needed to be done for the truck to go out at 6am and also dropped off the door from Oporto that needs repairing. There is no one to look after Zahra. Emily has already been home all week caring for her as I couldn't because we are too busy. I won't be in tmrw”.

1. Paul then replied: “Ok, we will now accept your resignation”.

1. Mr Robati did not respond to the message. Later on 2 May 2024, Mr Robati received an email from Stealth Joinery. The email said:

“Hi Jarrick,

This is to notify you about the termination of employment with Stealth Joinery Pty Ltd. This is effective today May 2, 2024 as per the advice of our Directors. We will process your last pay, annual leave and sick leave credits.

If you have questions, please do not hesitate to reach out.

Thank you.

Kind regards

Lyn O'Brien
Accounts / Admin Manager”.

1. Stealth Joinery relies on Mr Robati’s earlier resignation of 20 February 2024 as the action which brought the employment to an end. It submits that this was what it “accepted” on 2 May 2024 in response to Mr Robati going home early and saying he would not be in the following day (which was a pre-approved leave day).

1. Although it is not in dispute that Mr Robati resigned on 20 February 2024, the submission cannot be accepted. Mr Robati’s resignation had been stated to take effect on 19 March 2024 but never did. This is because in conversation in the days after his resignation, Stealth Joinery and Mr Robati reached agreement about him continuing to work for the business. The agreement involved a flexible working arrangement for Mr Robati, allowing him to take alternative Fridays off to care for his child. In the same conversation, Stealth Joinery reminded Mr Robati of its expectation that he would attend for work on time and not take any more days off, and Mr Robati advised Stealth Joinery of his intention to leave at the end of the year because his family was moving to Newcastle.

1. The contents of this discussion were largely put into effect. Mr Robati continued to work for the business after 19 March 2024 and the flexible working arrangement commenced from 19 April 2024. Although Mr Robati was absent from work on sick leave on Tuesday 26 March 2024 and Wednesday 17 April 2024, and on annual leave on Tuesday 2 and Wednesday 3 April 2024, there is no evidence that he was not entitled to be absent on these days. Although not comprehensive evidence of the position, a leave summary provided by Stealth Joinery tends to indicate that leave taken on each of these days was leave Mr Robati had accrued and was entitled to take.

1. Stealth Joinery submits that in the conversation after Mr Robati resigned, they also agreed that he would stay on until they found someone to replace him. I do not accept the submission or the evidence of Mr Camarri in this respect. It is inconsistent with the parties’ agreed position that Mr Robati was leaving at the end of the year for personal reasons. That understanding is also reflected in a text message sent by Mr Camarri to another staff member on or about 17 April 2024.

1. The letter of termination of 2 May 2024 makes no mention of Mr Robati’s resignation. Mr Camarri’s evidence is that he gave instructions to Ms O’Brien, who wrote the letter on his behalf, to tell him that the business was accepting Mr Robati’s resignation. Again, I do not accept the evidence. Had he given clear instructions to this effect to Ms O’Brien, one would expect to see some evidence of it in the text of the letter sent to Mr Robati, or in its absence, some further step taken by Stealth Joinery to correct the letter once it became aware of its contents.

1. The clear words of the letter of termination of 2 May 2024 (extracted above) put the question beyond doubt. It is not undone by the resignation of 20 February 2024, which was replaced by an agreement subsequently reached between the parties about Mr Robati remaining in employment. The resignation was no longer operative and it was not open to Stealth Joinery to revive Mr Robati’s resignation unilaterally on 2 May 2024.

1. I find that Mr Robati’s employment was terminated at the initiative of Stealth Joinery on 2 May 2024.

Disposition

1. The jurisdictional objection is dismissed.

COMMISSIONER

Appearances:

J Robati on his own behalf.
P Camarri for the respondent.
P Kaptein on his own behalf.

Hearing details:

2024.
Sydney (by video):
July 17.

<PR777904>

[1] Fair Work Act 2009 (Cth), ss 12 and 386.

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