Mina Sidhom v The Trustee For Aberstone Trust T/A Aberstone Community Services
[2024] FWC 796
•28 MARCH 2024
| [2024] FWC 796 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mina Sidhom
v
The Trustee For Aberstone Trust T/A Aberstone Community Services
(C2024/247)
| COMMISSIONER LIM | PERTH, 28 MARCH 2024 |
Application to deal with contraventions involving dismissal
Introduction
Mr Mina Sidhom has applied pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act), alleging that the Trustee For Aberstone Trust T/A Aberstone Community Services (Respondent) contravened Part 3-1 of the Act by dismissing him from his employment.
Mr Sidhom was engaged as a NDIS Administrator on 5 December 2023. His employment came to an end on 22 December 2023. The Respondent objects to Mr Sidhom’s application on the basis that he was not dismissed.
It is uncontroversial that for the matter to proceed, Mr Sidhom needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford[1], the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the Commission must determine that issue before exercising its powers under s 368 of the Act.[2]
Accordingly, the matter was allocated to my Chambers. Directions were issued to the parties for the filing of material in relation to the jurisdictional objection.
Prior to the hearing of the matter my Chambers constructed a paginated court book consisting of submissions and evidence of the parties. The entirety of the court book was tendered into evidence with the consent of both parties. References to evidence are by way of the relevant page number in the court book.
I conducted a determinative conference on 27 March 2024. Mr Sidhom represented himself and gave evidence in support of his case. Ms Karen Sheilds, Human Resources Manager for the Respondent, represented the Respondent and gave evidence.
Having considered the evidence and submissions of the parties, I have found that Mr Sidhom resigned his employment and was not dismissed.
My detailed reasons for my decision follow.
Evidence
The facts in this matter are short and largely not controversial.
On 22 December 2023 at 4:03pm, Mr Sidhom sent the following resignation email to Ms Sheilds:
“Hi Karen,
Firstly I would like to thank you for giving me this opportunity to work with you in such [a] lovely environment.
For personal reasons and family issues, please accept my resignation from my position in Aberstone. For my one week notice period please consider Friday 29th of December 2023 [as] my last working day.
Please do not hesitate to contact me if you have any questions.
Kind regards,
Mina”[3]
At 4:22pm that same day, Ms Sheilds sent to Mr Sidhom the below text message:
“Hi Mina,
I’ve just read your email. Sorry to see you’re going but we understand.
We will accept your notice finishing today as you’ve only been with us 2 weeks, there’s no need to provide an extra week of notice. Please don’t hesitate to contact us if your circumstances change.
We wish you all the very best for the future.
Karen.”[4]
Mr Sidhom and Ms Sheilds differ slightly on the timing of a phone call that occurred. Mr Sidhom provided a copy of his call history with Ms Sheilds, which shows a phone call at 4:54pm which went for 3 minutes and 6 seconds. Ms Sheilds says the phone call occurred around the time of her text message. I accept Mr Sidhom’s evidence that he called Ms Sheilds after receiving her text message.
Mr Sidhom’s evidence at the determinative conference is that during this phone call, he specifically asked Ms Sheilds if he would be paid out his notice and that Ms Sheilds said to him, “unfortunately not”. Ms Sheilds’ evidence of the phone call is that Mr Sidhom sounded distressed and explained that he needed to travel due to a family emergency. Ms Sheilds says that she told Mr Sidhom there was no need for him to come into work and she offered to keep the position open to him for when he returned to Australia. Ms Sheilds also says that Mr Sidhom did not ask whether he would be paid out his notice period or say anything about wanting to work out his notice period. If he had, Ms Sheilds would have found him some work to do for the week.
I accept Ms Sheilds’ version of events regarding what was said during the phone call. Ms Sheilds’ testimony at the determinative conference was credible. Mr Sidhom’s oral testimony contradicted his written evidence, where he asserts that, “at no stage was any statement made to the effect that they were not intending to pay the notice”.[5] This affected his credibility.
After 22 December 2023, there were no further communications between the parties and Mr Sidhom was paid up until 22 December 2023.
In or around January 2024, Mr Sidhom lodged a request for assistance regarding the payment of his one week’s notice with the Fair Work Ombudsman (FWO). On 2 February 2024, the FWO informed the parties that it was exercising its discretion not to investigate Mr Sidhom’s request.[6] I do not place any weight on this beyond noting that this occurred.
Submissions
Mr Sidhom submits that:
(a)Under clause 11(e) of the Social, Community, Home Care and Disability Services Award 2010 (SCHCADS Award), an employer and employee may agree to a shorter termination notice period, but he did not agree to a shorter notice period.
(b)He had a workplace right pursuant to ss 340 and 341 of the Act in that he was entitled to one week’s notice pursuant to the requirements of the SCHCADS Award and s 117(3)[7] of the Act.
(c)The Respondent terminated his contract by denying his request to work out his notice period. They did this to avoid their obligation to pay him notice.
The Respondent submits that there was a mutual agreement to waive the notice period. Notwithstanding this, even a unilateral decision to shorten a notice period would still not constitute a dismissal. The Respondent further submits that the actual issue in contention between the parties is the payment of the notice period, which the Respondent maintains it is not obligated to pay.
Consideration
Mr Sidhom’s application was made pursuant to s 365 of the Act, which provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“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.
Mr Sidhom spent much of his submissions on what he says is his right to work his notice period. However, the relevant question I must determine in this matter is whether Mr Sidhom was dismissed.
I find that Mr Sidhom was not dismissed. Mr Sidhom sent an explicit written resignation email on 22 December 2023. There is nothing that points to the resignation being forced or originating from the Respondent’s conduct. Whether there was a mutual agreement to waive Mr Sidhom’s notice period or whether the Respondent waived the notice period unilaterally does not change the fact that Mr Sidhom clearly resigned his employment.
I find that the Respondent did not negate or supplant Mr Sidhom’s resignation. Mr Sidhom’s grievance is effectively about whether he is owed the payment of a notice period. That is a matter that is outside the jurisdiction of this application.
Mr Sidhom’s application is dismissed for want of jurisdiction. An order to this effect will issue separately.[8]
COMMISSIONER
Appearances:
M Sidhom, Applicant
K Shields for the Respondent
Hearing details:
2024.
Perth:
March 27
[1] [2022] FCAFC 152.
[2] Ibid at [51].
[3] Digital Court Book (DCB), page 28.
[4] DCB, page 29.
[5] DCB, page 27, [7].
[6] DCB, page 45.
[7] Mr Sidhom’s written submissions refer to “s 177(3)”. I have assumed he meant s 117(3) as there is no s 177(3) in the Act.
[8] PR772819
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