Mahindra Bandara Herath Mudiyanselage v CDC Oakleigh Pty Ltd T/A CDC Victoria
[2023] FWC 1041
•9 MAY 2023
| [2023] FWC 1041 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mahindra Bandara Herath Mudiyanselage
v
CDC Oakleigh Pty Ltd T/A CDC Victoria
(U2023/1656)
| COMMISSIONER YILMAZ | MELBOURNE, 9 MAY 2023 |
Application for an unfair dismissal remedy – break in employment – Resignation – No Dismissal - unsigned contract – Minimum Employment period
Mr Mahindra Bandara Herath Mudiyanselage (the Applicant and Mr Bandara) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his termination of employment by CDC Oakleigh Pty Ltd (CDC). He claims to have been unfairly dismissed on 13 February 2023. At the time of his dismissal, he was employed as a full-time bus driver. CDC is a public transport operator.
CDC oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Mr Bandara was not dismissed and had not met the minimum employment period of six months. CDC submit that Mr Bandara was offered employment as a bus driver to commence on 30 January 2023, but had been previously employed from 20 June 2011 until 10 June 2021 (first period of employment).
Mr Bandara submits that his employment is continuous from 20 June 2011 because of his inability to return to Australia due to the COVID-19 pandemic following his approved leave to travel overseas from February 2020 for two months. Further he submits there was no termination of his employment.
CDC submits that Mr Bandara was granted leave in February 2020. At the onset of the COVID-19 pandemic lockdowns they initially agreed to hold open the position but after they no longer received a response to their correspondence, checking when Mr Bandara may return, they terminated Mr Bandara’s employment on 10 June 2021. Mr Bandara disputes that he was informed that his employment was terminated, rather he submits that the email containing the letter of termination was recalled and he was never dismissed.
Following the first period of employment, CDC submit that Mr Bandara applied for employment in December 2022. An offer of employment was made on 11 January 2023 to commence on 30 January 2023. After Mr Bandara worked three shifts over a two-week period, on 9 February 2023, CDC requested Mr Bandara provide a signed copy of the offer of employment. When Mr Bandara refused to sign the offer of employment, insisting that he was not subject to a new contract of employment, CDC formed the view that Mr Bandara withdrew his ability to perform work for his employer. Mr Bandara was informed on 13 February 2023 that CDC took his failure to sign as his withdrawal of his ability to perform the job.[1]
Both parties were self-represented. Witnesses for CDC were Mr Virgil Incata, Service Delivery Manager and Mr Khoder Abdulrahman, General Manager Assets.
The matter to be determined is whether the Commission has jurisdiction relating to the questions whether Mr Bandara had resigned and whether he met the minimum employment period.
Applicant’s submissions
Mr Bandara submits that he commenced employment with CDC on 20 June 2011 as a full-time bus driver and was dismissed on 13 February 2023 because he did not sign the new contract of employment.
Mr Bandara contends that his employment is continuous since 2011 because he went to Sri Lanka in early 2020 but could not return to work until sometime in December 2022 due to reasons beyond his control.[2] The reasons are described as the spread of COVID-19, political turmoil in Sri Lanka leading to the nation’s President fleeing, Melbourne having a long period of lockdown and services including electricity disconnected continuously in Sri Lanka. Mr Bandara gave evidence that he returned to Australia on 22 November 2022. On his return he sought out a place to reside and update his driving licence, working with children’s check and other necessary documentation (identity documents). He says that once he updated his identity documents, he approached CDC on 15 December 2022 enquiring about work.
Mr Bandara further gave evidence that he ceased communicating with CDC on 9 March 2021 because he no longer had access to the internet, had no further income and while his sister had a phone, he did not use it. In an exchange with myself during proceedings, Mr Bandara acknowledged receipt of earlier emails from CDC that stated that they could no longer keep his job open and that he understood the decision to terminate his employment. However, his main grievance was the decision of CDC to not recognise his personal leave entitlements accrued since 2011 and any further accruable entitlements in his new offer of employment. Mr Bandara continued to challenge the view that he was a new employee on the basis that he previously worked for CDC for a substantial period.
Mr Bandara says that when accessing his emails in November 2022, he noticed the CDC letter sent on 6 May 2021 advising of his termination of employment effective from 10 June 2021, but on the same day he noted a recall message[3] and presumed the termination did not take effect.
During proceedings Mr Bandara referred to his phone to confirm the details in the emails of 6 May 2021 and allowed me to sight them. I observed that Mr Bandara received the first email of 10:41am with the subject heading “ongoing employment letter” and the attachment was not his letter but a leave request form from another CDC employee. Mr Abdulrahman in his oral evidence confirmed this was incorrectly sent. It was this email that was the subject of the recall at 10:47am and a new email with the correct attachment was sent at 10:51am. Mr Bandara did submit that he did not receive the email with the wrong attachment, however, his email evidence on his phone confirmed otherwise. I suspect that Mr Bandara may have inadvertently formed this view because his emails were grouped or organised by thread.
Mr Bandara in his written submissions challenges the unfairness of the termination in 2021 because he could not report for work as there were no flights and Melbourne was in lockdown. He further states that it was unfair that CDC did not pay out his personal leave.[4]
He submits that he approached CDC in December 2022 after he updated his identity documents and committed to completing the relevant procedures to commence work. He submits that he was not interviewed for the job or informed he was a new employee.[5] He further submits that because he was permitted to work without signing the new contract of employment, CDC tacitly accepted and treated him as an old employee.[6]
Respondent’s submissions
CDC object to the application on two jurisdictional grounds. Firstly, that Mr Bandara was not dismissed[7] and secondly that he had not met the minimum employment period having at best completed two weeks of employment.
Mr Bandara was previously employed, and CDC provided the background. It submits that initially Mr Bandara commenced employment on 20 June 2011 and in October 2019 he applied to take two months leave from 10 February 2020.[8] This leave period was approved, and Mr Bandara did not return to work on 20 April 2020 due to travel restrictions arising from COVID-19. Mr Bandara’s request to extend his period because of travel restrictions of leave was granted by CDC.[9] In August 2020, Mr Bandara updated CDC of his predicament and requested use of his personal leave as he exhausted all annual leave. This request was denied by CDC.[10]
Contact was maintained between Mr Bandara and CDC from September 2020 until 12 January 2021 where it was agreed to hold open the position to allow a return to work. CDC tendered in evidence this correspondence.[11] CDC then contacted Mr Bandara on 20 January 2021 informing him that it could not hold open the position and requested that they be informed of his expected return by no later than 1 February 2021.[12] Further communication between the parties ensued between 8 February 2021 to 18 March 2021. It was on 9 March 2021 that Mr Bandara last communicated with CDC.[13] CDC sent further correspondence which went unanswered and on 6 May 2021, CDC gave notice of a termination of employment effective from 10 June 2021.[14]
CDC further submit that the correspondence of 6 May 2021 inadvertently contained another employee’s leave form[15] and minutes later this email was retracted[16] and resent with the correct document.[17] Final payment of entitlements was made on 10 June 2021.[18] Mr Bandara turned up on 15 December 2022 seeking employment,[19] raising no issue in relation to this email communication. It submits that in the application for employment Mr Bandara listed his prior employment period as 2010 to 2020, thereby confirming that he understood that his employment was terminated in 2020.[20]
CDC also gave evidence of Mr Bandara completing a pre-employment driver assessment, a pre-employment medical and police check, all of which were unnecessary had the employment not been terminated.[21] In addition CDC provided evidence of the offer of employment to commence on 30 January 2023,[22] the welcome pack,[23] application of the training rate[24] until assessed to drive solo, successful completion of induction[25] and ultimately payment of the full driver rate[26] following assessment.
CDC submit that it did not dismiss Mr Bandara but rather that the second period of employment came to an end due to resignation. CDC contend that on 9 January 2023 it was confirmed by Mr Bandara that he would not sign the contract of employment. CDC say that it informed Mr Bandara that failure to sign the contract would be considered as his withdrawal from employment. Mr Bandara was sent home to re-read his contract and to return a signed copy by 10 January 2023. On 10 January 2023 there was no contact from Mr Bandara and CDC’s phone calls to Mr Bandara went unanswered. CDC understood the objection to signing the contract was its decision to not acknowledge the earlier employment as a continuous period, following discussion between the parties between 3 and 9 February 2023.[27]
Mr Incata gave evidence that Mr Bandara completed the induction program from 30 January to 2 February and on tendering all completed paperwork on 2 February, Mr Incata reminded Mr Bandara to return the signed contract. On 3 February, Mr Bandara expressed to Mr Incata a desire for his first period of employment to be recognised and showed him the recall message asking if he in fact had been dismissed in 2021. Mr Incata gave evidence that he undertook to investigate the facts as the employment record had no reference to a recall message in relation to the letter of termination on 6 May 2021. Mr Incata further gave evidence that on 7 February 2023, he met with Mr Bandara and explained that his employment was terminated in 2021 but due to his previous period of employment, CDC were prepared to consider a total time of service to entitle him to a service grant. However, continuity could not occur due to Mr Bandara starting a new period of employment and receiving a new employee number. He says that he was not informed at that stage by Mr Bandara that the contract would not be signed. He further says that on 9 February he pulled Mr Bandara from his shift halfway through and was informed that Mr Bandara was unsure whether he would sign the offer of employment because he wanted his entitlements from his previous employment. Mr Incata stood Mr Bandara down to reconsider his position and informed him that should he decide not to sign the contract, CDC would withdraw the offer of employment. Mr Incata described failed attempts to reach Mr Bandara on the phone on 10 February 2023 and then sent the letter confirming termination of employment on 13 February 2023.
Mr Khoder Abdulrahman, General Manager Assets gave evidence relating to the circumstances of the absence from employment when the travel restrictions prevented Mr Bandara’s return to work and the dismissal. Mr Abdulrahman was the Service Delivery Manager in 2020 and 2021 and communicated with Mr Bandara while he was overseas.
The Legislation
The Commission can order a remedy for unfair dismissal if it is satisfied that an applicant was protected from unfair dismissal and is unfairly dismissed.[28] Sections 382 and 383 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum employment period of 12 months if a small business employer, or six months if not a small business employer. A small business employer is defined as a business with 15 or fewer employees. CDC submit they are not a small business employer, therefore the minimum employment period in this matter is six months. The relevant provisions of the Act are sections 382 and 383. The Act provides for excluded periods and periods that may affect the period of continuity.
The relevant sections of the Act are:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
i)a modern award covers the person;
ii)an enterprise agreement applies to the person in relation to the employment;
iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
The minimum employment period required to have been served to comply with s.382(a) is six months. Mr Bandara is protected from unfair dismissal “at a time if, at that time” he has “completed a period of employment of at least the minimum employment period” and is covered by a modern award or enterprise agreement. CDC submit that Mr Bandara was covered by the CDC Victoria Bus Driver Enterprise Agreement 2022-2025. Further, CDC submit that it is not a small business employer therefore under s.383 of the Act the minimum employment period of six months applies in accordance with either subsection 383 (a)(i) or (ii).
Section 383 provides:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or(b) if the employer is a small business employer—one year ending at that time.”
The six months is calendar months. CDC contend that Mr Bandara had completed 3 shifts over a two-week period before his termination of employment which ended by way of resignation. However, Mr Bandara contends that his employment from 20 June 2011 to 13 February 2023 was a continuous period of employment. He further contends that he was dismissed from his employment by CDC.
While Mr Bandara was an employee capable of being dismissed, there is contest whether he was dismissed within the meaning of the Act. Section 386(1) defines when a person is dismissed. The provision provides:
“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.”
Section 386(2) sets out circumstances where an employee is not dismissed and none of those circumstances apply in this matter.
There is no suggestion that Mr Bandara was forced to resign. Rather CDC contend that it was a condition of employment that the contract of employment be signed and the decision not to sign and accept the terms of employment means that Mr Bandara withdrew his availability to perform his job and therefore he resigned voluntarily.
Consideration
Resignation or Dismissal
The first issue I intend to deal with is the CDC contention that Mr Bandara resigned from his employment. On the evidence Mr Bandara was dismissed on 13 February 2023. The evidence shows that Mr Bandara was offered employment to commence on 30 January 2023,[29] he commenced paid employment and worked three shifts until he was stood down with pay by his manager,[30] and was sent a letter of termination of employment on 13 February 2023. It was on receipt of this letter that Mr Bandara understood that his employment was terminated. There is no evidence that Mr Bandara voluntarily indicated a resignation from his employment.
The evidence shows that there was disagreement between Messrs Bandara and Incata over whether the previous period of employment should be taken into account as a continuous period. After Mr Incata made inquiries as to whether the employment was in fact terminated, he offered a proposal, a new term in his employment to consider in response to Mr Bandara’s grievance that his prior long service was not taken into account as a term in the letter of offer. Neither party indicated that signing or not signing the offer was a condition of employment. The offer does not indicate this. Had this been the intention it may have been unlikely that Mr Bandara be permitted to commence work before returning the signed offer in addition to specifying the term of employment. On perusal of the letter of offer the only relevant reference is the section dealing with acceptance, that does not support the contention by CDC that signing the letter was a condition of employment. The relevant section of the letter provides:
“Congratulations on your employment – we look forward to your ongoing contribution to our business. Please sign the attached copy of this Contract to acknowledge that you accept CDC’s offer of employment on the terms and conditions set out in this Contract.”[31]
Of further relevance is the evidence of Mr Incata that the termination was at the initiative of the employer:
“9. On 7 February 2023 I again spoke with the Applicant in person and stated that the company may look into a total time of service with the company which may entitle him to his service grant but as he was terminated, they would not reinstate/backdate his entitlements as this was a new employment period.
10. The Applicant at no time advised that he would not sign the contract and had stated that he had a copy of the contract at home. I asked the Applicant if he would like me to print out another copy, which he advised no he had the copy at home. I requested that he sign and return on 9 February 2023.
11. On 9 February 2023 the employment contract had still not been signed by the Applicant, so I called the Applicant in for a meeting at approximately 16:00 (half way through rostered shift). I asked him to sign the contract at which time the Applicant stated that he was still not sure if he wanted to sign as he wanted to get his entitlements back from his previous employment period.
12. I then stood the Applicant down with pay and gave him until 17:00 on 10 February 2023 to return a signed contract to me. I also explained to the Applicant that if the contract is not signed, that we would have to withdraw our offer of employment.
13. On 10 February 2023, between approximately 16:50 and 17:05 I tried to call the Applicant twice as I had not heard from him and had not received his signed employment contract back. He did not answer either calls and I was unable to leave a voicemail message as this was not an option.
14. On Monday 13 February 2023 at 17:11 as I still had not heard from the Applicant and not received a signed employment contract. I sent the Applicant a withdrawal of employment letter (Attachment AD).”[32]
While the letter of termination states that Mr Bandara withdrew his employment and it waives a requirement for notice, it was a termination at the initiative of the employer. The assertion in Mr Incata’s evidence that CDC would withdraw the offer of employment is not possible. Mr Bandara commenced employment pursuant to his rostered hours and was then stood down, he had already accepted an offer of employment and CDC had allowed him to work in line with that offer. The action taken to bring the employment to an end was by CDC. Mr Incata informed Mr Bandara that should he not return the signed contract his offer of employment would be withdrawn and a letter sent confirming termination of employment effective from 13 February 2023. The evidence of a dismissal or termination of employment at the initiative of the employer is consistent with the principles of Mohazab v Dick Smith Electronics[33]:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation of an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
"... a termination of employment at the instance [of] the employer rather than of the employee".
and at 5:-
"I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that Constituted a termination of the employment."”
Was there one or two periods of employment?
Mr Bandara contends that his employment was not dismissed while he was overseas and unable to resume work due to travel restrictions. He relies on the recall email sent at 10:47am AEST on 6 May 2021, but did not consider the earlier email at 10:41am which contained the wrong attachment and the subsequent email that advises of his termination of employment sent at 10:51am. I am satisfied having observed the evidence of CDC and Mr Bandara’s email thread that he was informed of the termination of his employment on 6 May 2021.
Further Mr Bandara conceded that he knew that CDC were considering termination of employment as they could not keep the job open. This correspondence was received in January 2021 while Mr Bandara still accessed his emails.
I do not accept Mr Bandara’s evidence when he says that it was never discussed that the offer for employment to commence in January 2023 was as a new employee, when he clearly completed an application for employment, proceeded to go through the induction process and he offered the dates of his previous employment with CDC from 2010 till 2020.[34] There would be no need to go through the recruitment process if it was clear to CDC that Mr Bandara was a continuing employee, including the fresh start date on 30 January 2023 rather than the date he came in to inquire about work in December 2022. Interestingly Mr Bandara also gave evidence that on return to Australia he updated his licence which confirmed that he could not meet the inherent requirements of the job.
I am satisfied that Mr Bandara had two separate periods of employment. The first contract commenced on 20 June 2011 and ceased on 10 June 2021 following a series of communications between the parties where ultimately CDC confirmed it could no longer keep his job open. The second period of employment commenced on 30 January 2023 and concluded on 13 February 2023 after a period of two weeks. It is not reasonable on the evidence to conclude that a break of employment between these two periods by 19 months was one continuous period. On this basis I conclude that Mr Bandara did not meet the six-month minimum employment period to satisfy the necessary protection from unfair dismissal.
Conclusion
Mr Bandara’s circumstances are most unfortunate, his trip overseas was to see his family and the COVID-19 pandemic and the economic and political downturn in Sri Lanka, prevented his return to Australia until November 2022. Despite the efforts of CDC to accommodate the unfortunate circumstances, ultimately a decision was made to terminate the employment after holding the position open for an extensive period of time. Further, Mr Bandara’s grievance relating to his lost personal leave accrual and potential for continued accrued leave is understood however, the employment in 2023 was a new contract of employment and there was no continuity of employment.
For the above reasons, I am satisfied that CDC had dismissed Mr Bandara on 13 February 2023 after two weeks of employment. Mr Bandara had completed two separate periods of employment with CDC which cannot be considered one continuous period nor can the first employment period count towards the second. Mr Bandara did not meet the minimum employment period prescribed by s.383 of the Act. Consequently, the application cannot proceed pursuant to s.382 of the Act, and Mr Bandara’s application is dismissed.
Under s.587(1) of the Fair Work Act 2009, the Commission may on its own motion dismiss an application that is not made in accordance with the Act. Section 587(1)(a) is enlivened as the application made under s.390 of the Act has not met the requirements of s.382 (a) of the Act.
Accordingly, the application for an unfair dismissal remedy is dismissed. Orders will be issues to give effect to this decision.
An order[35] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr M.B.H. Mudiyanselage on his own behalf.
Ms N. Hansen for the Respondent.
Hearing details:
5 May 2023
Courtroom 4,
Level 6,
11 Exhibition Street,
Melbourne, 3000
[1] Respondent’s outline of argument, 2b.
[2] Applicant’s outline of argument, 4c and oral evidence.
[3] Recall Email of 6 May 2021 at 10:47am AEST from Kaz Abdulrahman attached to the Applicant’s outline of argument.
[4] Ibid 4d.
[5] Ibid 4f.
[6] Ibid 6d.
[7] Respondent’s outline of argument,5a.
[8] Attachment A, Respondent’s outline of argument.
[9] Attachment B, Respondent’s outline of argument.
[10] Attachment C, Respondent’s outline of argument.
[11] Attachments D, E and F, Respondent’s outline of argument.
[12] Attachment G, Respondent’s outline of argument.
[13] Attachments H - M, Respondent’s outline of argument.
[14] Attachments N – P. Respondent’s outline of argument.
[15]Attachment Q, Respondent’s outline of argument.
[16]Attachment R, Respondent’s outline of argument
[17]Attachment S, Respondent’s outline of argument.
[18] Attachment T, Respondent’s outline of argument.
[19] Witness statement of Virgil Incata.
[20] Attachment U, Respondent’s outline of argument.
[21] Attachments V, W and X, Respondent’s outline of argument.
[22] Attachment Y, Respondent’s outline of argument.
[23] Attachment Z, Respondent’s outline of argument.
[24] Attachment AA, Respondent’s outline of argument.
[25] Attachment AB, Respondent’s outline of argument.
[26] Attachment AC, Respondent’s outline of argument.
[27] Respondent’s outline of argument, 5b, 5c and 5d.
[28] Fair Work Act 2009 (Cth) s.390.
[29] Attachment Y, Respondent’s outline of argument.
[30] Witness statement of Virgil Incata, paras 5 – 12.
[31] Attachment Y, Respondent’s outline of argument.
[32] Witness statement of Virgil Incata.
[33] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.
[34] Attachment U, Respondent’s outline of argument.
[35] PR761734.
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