Kawsar Ahmod v State of Victoria (Department of Justice and Community Safety)

[2020] FWC 6374

[2020] FWC 6374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kawsar Ahmod
v
State of Victoria (Department of Justice and Community Safety)
(C2020/5029)

DEPUTY PRESIDENT YOUNG MELBOURNE, 1 DECEMBER 2020

Application to deal with contraventions involving dismissal – no dismissal – application dismissed.

[1] This decision concerns an application by Mr Kawsar Ahmod under section 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed in contravention of the general protections contained in Part 3-1 of the Act.

[2] The Respondent objects to the application on the basis that:

(a) Mr Ahmod was not dismissed; and

(b) the application was not filed within 21 days after the dismissal took effect as is required by section 366(1) of the Act.

[3] On 10 August 2020 and 16 October 2020, I issued directions for the parties to file materials. Materials were filed by the parties in accordance with those directions.

[4] On 20 November 2020 I conducted the proceeding by way of hearing by telephone. At the hearing Mr Ahmod appeared on his own behalf. Ms Lucy Boyd of Herbert Smith Freehills appeared on behalf of the Respondent pursuant to section 596 of the Act.

Section 365 and section 386 of the Act

[5] Section 365 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (Commission) for the Commission to deal with the dispute.

[6] Section 386 of the Act provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative 1 or 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

[7] The Respondent contends that Mr Ahmod’s employment was not terminated at its initiative, rather his employment ended in accordance with the terms of his “time-limited contract” on 27 May 2020. The Respondent submits that Mr Ahmod was therefore not dismissed within the meaning of section 368 of the Act 3 and as such, the Commission does not have jurisdiction to deal with the dispute.4

[8] Mr Ahmod submits that his employment ended on 19 May 2020 5 at the Respondent’s initiative.6

Background and Factual Findings

Mr Ahmod’s employment

[9] Mr Ahmod was employed by the Respondent in the role of trainee prison officer at the Melbourne Assessment Prison and Courts (MAP), pursuant to a contract of employment dated 17 March 2020 (Contract). 7 The Contract is headed “Offer of fixed term employment with the Department of Justice and Community Safety” and provided for employment in the Prison Officer Pre-Service Training Program (Training Program). The period of employment specified in the Contract was from 30 March 2020 until 27 May 2020, which is defined in the Contract as the “Expiry Date”.8

[10] In addition to the provisions set out above, the Contract also contains the following provisions:

“Completion of training

Subject to successful completion of the 41 working day Prison Officer Pre-Service Training Program and determination of satisfactory competency, it is anticipated that you will be offered employment as an ongoing COG 2a Prison Officer at Melbourne Assessment Prison and Courts with Corrections Victoria, DJCS.

…

Termination of your employment

Your employment terminates due to the passing of time at close of business on the Expiry Date, unless terminated earlier. Nothing in this offer should be construed as a guarantee or a representation that you will be employed for the entire term.

…” 9

[11] The Statement of Employment provided at Schedule 1 to the Contract provides that Mr Ahmod’s title is “Trainee Prison Officer”, the “Date of commencement” is 30 March 2020 and the “Date of cessation” is 27 May 2020. 10

[12] Mr Blair’s evidence was that all trainee prison officers are engaged under a “time- limited contract” for the duration of the Training Program. 11 Mr Blair’s further evidence was that the purpose of providing the Training Program is to provide training to the participants and determine whether the participants are suitable for permanent roles as a prison officer at MAP.12 Mr Blair says that in the final week of the Training Program successful trainees are offered a new employment contract for permanent employment as a prison officer and provided with a six week roster. Permanent employment usually commences on the working day following the expiry of the maximum term training contract.13

[13] I consider that the terms of the Contract are clear. I find that Mr Ahmod was employed under a maximum term contract for the period 30 March 2020 until 27 May 2020 and that, absent earlier termination, his employment under the Contract would cease by the effluxion of time on 27 May 2020. I consider it clear that any employment in the role of prison officer subsequent to 27 May 2020 would be consequent upon a new offer of permanent employment having been made by the Respondent to Mr Ahmod. It is uncontested that Mr Ahmod did not complete the Training Program and was not offered permanent employment as a prison officer at MAP.

Events of 14 May 2020

[14] It is uncontested that on 14 May 2020 the Respondent provided a letter to Mr Ahmod (14 May Letter) 14 following a meeting which was held with Mr Ahmod and others on 11 May 2020. The 14 May Letter raised a number of concerns regarding Mr Ahmod’s performance and conduct in the Training Program.15 Mr Blair’s evidence is that the 14 May Letter advised Mr Ahmod that he had formed the preliminary view that Mr Ahmod would not be suitable to graduate and undertake employment as a permanent prison officer.16

[15] The 14 May Letter is headed “Pre-service training and end of fixed-term employment” and provides that concerns have arisen in relation to Mr Ahmod’s “integrity; [his] failure to undertake orders; [his] suitability to undertake the duties required of the position; and [his] inability to grasp the foundation of learnings in order to undertake the role of Prison Officer.” The 14 May Letter then sets out meetings which occurred with Mr Ahmod on 4 May 2020, 5 May 2020 and 11 May 2020 and then provides as follows:

“Taking all of the above into consideration I have formed the view that you are not suitable to undertake the role of a prison officer at the department. As advised during the meeting on 11 May 2020 the department now intends to make a decision as to whether to deem you unable to successfully complete the prison officer pre-training program and therefore not graduate and/or be offered any further employment as a prison officer.

However, prior to making a final decision, I am affording you the opportunity to respond to the above and provide any mitigating circumstances that you would like to the Department to take into consideration…

…

Please be advised that until a decision is made regarding your offer of employment with the department, you will not be required to continue to attend the prison officer pre-service training program.”

[16] It does not appear contested that Mr Ahmod responded to the 14 May Letter by way of email on 14 May 2020 17 and 18 May 2020.18

[17] It is uncontested that from 14 May 2020 Mr Ahmod did not attend the workplace or participate further in the Training Program. Mr Ahmod’s evidence at hearing was that on 14 May 2020 he also handed in his white pass.

[18] In his materials Mr Ahmod submits that he was notified of his dismissal on 14 May 2020. 19 He says that on 14 May 2020 he was “taken to the general manager’s office where they gave me the letter about the dismissal, took my pass away so I [was] no longer able to join the training. Also on my way out the squad manger told me not to come any more.”20 In his materials Mr Ahmod also appears to submit that because his participation in the Training Program ceased on 14 May 2020, his employment also ended at that time.21 I reject those submissions. I accept that in addition to referring to “pre-service training” the heading of the 14 May Letter also refers to the “end of fixed term employment”. I also accept that it makes reference to Mr Blair having formed a view that Mr Ahmod was not suitable to undertake the role of prison officer. This is not expressed, as is Mr Blair’s evidence, as a preliminary view. However, the 14 May Letter makes no reference to termination, dismissal or notice. I consider it clear from the express language of the letter, including the reference to the department “now intending to make a decision” and the statement that “prior to making a final decision”, that no final decision regarding Mr Ahmod’s employment (or any other matter) had yet been made and that he was not being given notice of termination. Such a contention is also inconsistent with Mr Ahmod being provided a subsequent opportunity to respond and him doing so on two later occasions. Further, notwithstanding the heading of the 14 May Letter, I consider that when read as a whole the “decision” that was being considered was whether Mr Ahmod would complete the Training Program and graduate as a prison officer and/or be offered permanent employment as a prison officer after 27 May 2020, not whether Mr Ahmod’s employment would end at that point in time. As to Mr Ahmod not being required to attend the workplace (and therefore not participating further in the Training Program) and handing in his pass, neither of these matters, in and of themselves, evidences that Mr Ahmod was given notice of termination. The 14 May Letter makes it clear that Mr Ahmod is not to attend the workplace until a decision is made regarding his “offer of employment”, being an offer of permanent employment to commence following the Expiry Date. The cessation of participation in the Training Program is not synonymous with the cessation of the employment relationship. Other than in respect of certain categories of employee that are not presently relevant, and subject to the employer continuing to pay the employee, it is open to an employer to direct that an employee not perform duties. Such a direction does not, in the ordinary course, bring about an end to the employment relationship. Further, given that Mr Ahmod was directed not to attend the workplace and taking into consideration the nature of workplace presently relevant, I do not consider anything of particular relevance arises from Mr Ahmod being required to hand in his white pass. I address the issue of payment while not attending the Training Program later in this decision.

Letter of 19 May 2020

[19] It is uncontested that on 19 May 2020 Mr Blair sent an email to Mr Ahmod regarding his employment with the Respondent (19 May Email). 22 The 19 May Email, relevantly, provides as follows:

“Dear Kaswar

Thank you for your email in response to my letter proposing to end your prison officer pre-service training program.

…

I remain of the view that there are performance issues which have arisen during your training program which I believe would not see you able to successfully perform the role of a prison officer. For this reason, I am confirming that your fixed term employment with the department will cease and that you will not graduate as a prison officer or be offered further employment with the department.

…

I am sorry that you believe that the reasons for the ending of your training period were related to “injustice and discrimination”. However, I remain of the view that this decision was made in consideration of facts and specific examples put to me and, because of this, my decision stands.”

[20] Mr Blair’s evidence is the on 19 May 2020 he sent a letter by post to Mr Ahmod “confirming that he would not be offered a prison officer employment contract with the Department” 23(19 May Letter). Mr Blair’s evidence is that in the 19 May Letter he advised Mr Ahmod that “he was no longer be (sic) required to attend pre-service training, but would continue to be paid, and accrue employment entitlements, up to and including 27 May 2020, being the end of his employment contract.”24

[21] The 19 May Letter is also headed “Pre-service training and end of fixed term employment”. The 19 May Letter, relevantly, provides as follows:

“Dear Mr Ahmod

…

As you aware I advised that I remain of the view that there are performance issues which arisen during your training program which I believe would not see you able to successfully perform the role of a prison officer with the department.

On that basis, I have determined that you are not suitable to undertake the role of a prison officer with the department. Accordingly, effective immediately, you are no longer to attend pre-service training. Therefore, you will not complete your pre-service training and you will not graduate as a prison officer or be offered any further employment as a prison officer.

…

Further, I wish to advise that you will be paid equivalent to the amount you would have received had you completed your pre-service training program up to and including 27 May 2020 and any accrued entitlements owing to you (if applicable).

Please return your full uniform and Corrections Victoria white pass to the prison as soon as possible, but no later than 29 May 2020.” 25

[22] The full text of the 19 May Letter is set out in Annexure A to this decision.

[23] Mr Blair’s evidence at the hearing was that the 19 May Letter was posted. He believes it was sent by registered post. There is no evidence before the Commission as to when Mr Ahmod received the 19 May Letter although it did not appear contested that Mr Ahmod did in fact receive the 19 May Letter. However, Mr Ahmod’s evidence at the hearing was that he received the 19 May Email on that day and that he read it at that time.

Termination at the initiative of the employer

[24] The expression ‘termination at the initiative of the employer’is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. 26 The analysis of whether there has been a termination at the initiative of the employer for the purpose of section 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.27 Termination of employment may be ‘at the initiative of’ the employer even though it occurs in circumstances where the parties have agreed to a time-limited contract expiring on a specified date. The facts of a particular case may establish some decision or act on the part of the employer that brought about the end of the employment relationship (as distinct from the employment ending by effluxion of time).28

[25] A termination is at the employer's initiative when:

•  the employer's action 'directly and consequentially' results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed. 29

[26] There must be action by the employer that either intends to bring the relationship to an end or has that probable result. 30 The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration.31 It is important to examine all of the circumstances including the conduct of the employer and the employee.32

Was the termination of Mr Ahmod’s employment at the initiative of the employer?

[27] Mr Ahmod submits that “it is clear” that he was dismissed on 19 May 2020 before the Contract had expired. 33 Mr Ahmod also submits that “according to the training agreement given by the Department I have [a] right to complete my fixed term training”.34 Mr Ahmod also submits that the 19 May Letter asked him to return his uniform because he had been dismissed.35

[28] The Respondent contends that Mr Ahmod remained an employee until 27 May 2020 despite the fact that Mr Ahmod was not required to attend the Training Program after 14 May 2020 and was informed on 19 May 2020 that he would not graduate as a prison officer. 36 It says that neither of these actions brought Mr Ahmod’s employment to an end and his employment and the Contract remained on foot until 27 May 2020.37 The Respondent submits that Mr Ahmod’s employment with the Department expired in accordance with the terms of the Contract on 27 May 2020 and as such, his employment was not terminated at the initiative of the employer.38 It says that there was no intention to end Mr Ahmod’s employment prior to 27 May 2020 and, further, there was no action on behalf of the employer that had that probable result. Finally, it says that Mr Ahmod was paid and received accrued entitlements owing to him up until 27 May 2020.39

[29] Mr Blair’s evidence is that he determined that Mr Ahmod would not be offered permanent employment as a prison officer and as such, he also determined that it was not necessary for him to attend the final six days of the Training Program. 40 His further evidence was that he intended that Mr Ahmod would remain an employee of the Department until the expiration of the Contract on 27 May 2020.41 Mr Blair’s evidence was that this is reflected in Mr Ahmod’s pay records and final payslip, which reflect the fact that his employment ended on 27 May 2020.42 I accept that evidence.

[30] The 19 May Email provides that Mr Blair is “confirming that your fixed term employment with the department will cease and that you will not graduate as a prison officer or be offered further employment with the department.” (Commission’s emphasis). Further, the 19 May Letter is headed “end of fixed term employment” and provides that Mr Ahmod “will be paid equivalent to the amount you would have received had you completed your pre-service training program up to and including 27 May 2020 and any accrued entitlements owing to you (if applicable)” (Commission’s emphasis). I do not consider these statements to be entirely consistent with Mr Ahmod’s employment remaining on foot until 27 May 2020, although I note the use of the future tense in the phrase “will cease”. Further, the ‘mixing’ of the Training Program, not graduating as a prison officer, cessation of fixed term employment and the offer of further employment in the correspondence is also unhelpful. However, the correspondence of 19 May 2020 must be read in their entirety and in the context of all the surrounding circumstances. I find that Mr Ahmod’s employment relationship with the Respondent remained on foot between 19 May 2020 and 27 May 2020 and that his employment ended on 27 May 2020 by the effluxion of time in accordance with the terms of the Contract. Accordingly, I find that the Mr Ahmod’s termination was not at the initiative of the employer. My reasons are as follows. Firstly, that Mr Ahmod did not attend the workplace and participate in the Training Program after 14 May 2020 is not, without more, evidence that the employment relationship had come to an end. Such a direction may be given to an employee without bringing about an end to the employment relationship. Secondly, although the language of the 19 May Email is somewhat inconsistent, I consider that for the most part it speaks of ending Mr Ahmod’s prison officer pre-service training (with the consequence being that he will not graduate as a prison officer or be offered permanent employment), and not to the ending of Mr Ahmod’s employment with the Respondent. Accordingly, notwithstanding the 19 May Email referring to the cessation of Mr Ahmod’s fixed term employment, I consider overall it is consistent with Mr Ahmod’s employment remaining on foot. Thirdly, I consider the 19 May Letter on the whole to be consistent with Mr Blair’s evidence that in the 19 May Letter he advised Mr Ahmod that “he was no longer be (sic) required to attend pre service training, but would continue to be paid and accrue employment entitlements, up to and including 27 May 2020, being the end of his employment contract.” 43 The 19 May Letter predominantly speaks of Mr Ahmod not attending and completing his pre-service training and not being offered further employment as a prison officer. That further employment must, in the context of the correspondence, refer to employment following completion of the Training Program. The 19 May Letter does not expressly provide that Mr Ahmod’s employment is terminated, provide notice of termination or provide for any payment in lieu of notice. Fourthly, Mr Ahmod’s pay records demonstrate that he was paid fortnightly on 16 April 2020, 30 April 2020, 14 May 2020 and 28 May 2020.44 Those records also demonstrate that he was paid for 24 hours on 11 June 2020. The final payslip indicates that the payment made on 11 June 2020 was for the pay period 24 May 2020 to 6 June 2020. It was in this payment that Mr Ahmod also received payment for his accrued but unused annual leave as is required upon termination of employment. Mr Ahmod agreed at the hearing that he was paid in accordance with the usual pay cycles until 27 May 2020. Accordingly, Mr Ahmod was not paid an amount “equivalent to” the amount he would have been paid up until 27 May 2020 as is set out in the 19 May Letter. He was, in fact, paid the amounts required under the Contract in accordance with his usual pay cycles. This is also consistent with Mr Ahmod remaining employed until 27 May 2020. Finally, I do not consider, in all the circumstances, that the requirement that Mr Ahmod return his uniform evidences that he had been dismissed. I consider such a requirement to be entirely consistent with a decision having been made that Mr Ahmod would not complete the Training Program and would therefore not undertake any further duties under the Contract prior to 27 May 2020. Accordingly, in these circumstances Mr Ahmod would have no further requirement to retain his uniform after 19 May 2020.

[31] I therefore do not consider that there was any action by the Respondent that intended to bring about the termination of Mr Ahmod’s employment on 19 May 2020 nor any action which had that probable result. There was no action of the Respondent which resulted directly or consequentially in the termination of Mr Ahmod’s employment either on 19 May 2020 or subsequently. The termination of Mr Ahmod’s employment relationship with the Respondent was as a consequence of the expiry of the Contract on 27 May 2020. The termination of Mr Ahmod’s employment was therefore not at the initiative of the employer.

[32] Finally, as to Mr Ahmod’s contention that the Contract provided him with a right to complete the Training Program, I reject that contention. Firstly, Mr Ahmod did not identify which provision of the Contract he says provides such a right nor did he provide any submissions in support of this contention. Secondly, such a contention is inconsistent with the express terms of the Contract. The Contract provides that Mr Ahmod’s employment under the Contract will end on the Expiry Date “unless terminated earlier.” The Contract further provides that “Nothing in this offer of employment should be construed as a guarantee or representation that we will employ you for the entire term”. 45 Accordingly, the Contract does not contain any “right” for Mr Ahmod to complete the Training Program. Thirdly, as already set out, subject to certain qualifications, it is open to an employer to direct that an employee not attend the workplace or perform duties.

Conclusion

[33] Accordingly, I find that Mr Ahmod was not dismissed within the meaning of 386 of the Act. I find that he is therefore not a person who has been dismissed for the purposes of section 365 of the Act. Consequently, the Commission does not have jurisdiction to deal with the application and it must be dismissed. 46

[34] Given the above, it is not necessary that I consider whether there are exceptional circumstances such that Mr Ahmod ought be granted an extension of time pursuant to section 366(2) of the Act for the lodgement of the application.

[35] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

K Ahmod on his own behalf
L Boyd on behalf of the Respondent

Hearing details:

2020.
Melbourne (by telephone):
20 November.

Printed by authority of the Commonwealth Government Printer

<PR724926>

Annexure A

Dear Mr Ahmod,

Pre-service training and end of fixed term employment

I write further to my email dated 19 May 2020 (Attachment 1), in relation to your role as a fixed term trainee prison officer at the Melbourne Assessment Prison & Courts with the Department of Justice and Community Safety (department).

As outlined in my correspondence, I advised that I considered your response you provided by way of email on 14 May 2020 prior to making a final decision regarding the completion of your prison officer pre-service training program, and therefore your ability to graduate as a prison officer.

As you are aware I advised that I remain of the view that there are performance issues which have arisen during your training program which I believe would not see you able to successfully perform the role of a prison officer.

On that basis, I have determined that you are not suitable to undertake the role of a prison officer with the department. Accordingly, effective immediately, you are no longer required to attend pre-service training. Therefore, you will not complete your pre-service training and you will not graduate as a prison officer or be offered any further employment as a prison officer.

While I appreciate that you are disappointed by this outcome, it is not uncommon for trainees to disagree with their supervisors' assessment of performance. Our squad leaders have been selected because of extensive experience, leadership and expertise gained working within the prison environment. They fully understand what is required of an operational prison officer and the challenges and stressors commonly faced. Knowing this gives them the ability to identify trainees who may struggle once working operationally, or who may pose a risk to the safety and good order of the prison.

I have received several briefings in relation to your performance and conduct as issues were identified. I am confident that your trainers' assessments have, given their experience in the job, been fair.

I am regretful that you believe the reasons for the ending of your training period were related to 'injustice and discrimination.' However, I remain of the view that this decision was made inconsideration of facts and specific examples put to me and because of this, my decision stands.

Please be aware that this decision does not prevent you from applying for any correctional role within the organisation in the future if you wish to do so.

Further, I wish to advise that you will paid equivalent to the amount you would have received had you completed your pre-service training program up to and including 27 May 2020 and any accrued entitlements owing to you (if applicable).

Please return your full uniform and Corrections Victoria white pass to the prison as soon as possible, but no later than 29 May 2020.

Yours sincerely

Gavin Blair
General Manager
Melbourne Assessment Prison & Courts
Date: 19/5/2020

 1   Section 386(1)(a)

 2   Section 386(1)(b)

 3   Exhibit R3 at [6] and [21]

 4   Exhibit R3 at [22]; see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152

 5   Exhibit A3, p. 2

 6   Ibid

 7   Exhibit R4, Annexure GRB-1

 8   Ibid

 9   Ibid

 10   Exhibit R4, Annexure GRB-1 at pp. 1-2

 11   Exhibit R4 at [5]

 12   Ibid at [4]

 13   Exhibit R4 at [12]

 14   Exhibit R4, Annexure GRB-3

 15   Ibid

 16   Exhibit R4 at [16]

 17   Exhibit A2, Attachments 4 and 5; Exhibit R2, Attachments 4a and 4b

 18   Exhibit A2, Attachment 6; Exhibit A2, Attachment 5

 19   Exhibit A3, p. 2

 20   Ibid

 21   Exhibit A3, pp. 2- 3

 22  Exhibit A1, Attachment 5; Exhibit R4, Annexure GRB-4

 23   Exhibit R4 at [19]

 24   Ibid at [20]

 25   Exhibit R4, Annexure GRB-5

 26  Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645

 27  Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75]

 28   Ibid; see also Mahoney v White [2016] FCAFC 160 at [20-23]

 29   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

 30   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 at [24]; citing O'Meara v Stanley Works Pty Ltd, PR973462 at [23]

 31   Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904

 32   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23];citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

 33   Exhibit A3, p. 3

 34   Ibid

 35   Ibid

 36   Exhibit R3 at [13]

 37   Ibid at [14]

 38   Ibid at [16-17]

 39   Ibid at [12(d)]

 40   Exhibit R4 at [21-23]

 41   Ibid at [24]

 42   Ibid at [25]

 43   Ibid at [20]

 44   Exhibit R4, Annexure GRB-6

 45   Exhibit R4, Annexure GRB-1, p. 2

 46   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152