Mohamed Sabri Mohamed Saheed Cader v Vic Clean Pty Ltd

[2021] FWC 1359

[2021] FWC 1359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Sabri Mohamed Saheed Cader
v
Vic Clean Pty Ltd
(U2020/12300)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 MARCH 2021

Application for an unfair dismissal remedy – whether applicant dismissed within meaning of s.386 – termination on employee’s initiative – application dismissed.

[1] On 14 September 2021, Mr Mohamed Sabri Mohamed Saheed Cader (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Vic Clean Pty Ltd (the Respondent).

[2] The Applicant tendered a written resignation from his employment on 2 September 2020. The Applicant argues that he was forced to resign. 1 The Respondent denies this allegation, raising a jurisdictional objection to the application on the basis the Applicant resigned and was not dismissed within the meaning of s.386(1) of the Act.2

[3] The central issue for determination is whether the Applicant was dismissed within the meaning of s.386(1) of the Act.

[4] The matter was heard by me on 22 December 2020. The Applicant gave evidence in support of his application and his former supervisor, Mr Robert Taleski, gave evidence in support of the Respondent’s case.

[5] The Applicant commenced employment as a part time cleaner with the Respondent on 21 October 2019. 3

[6] On 2 September 2020, the Applicant sent an email to Mr Taleski stating the following: “I want to resign my job at Vic clean Affective (sic) 2nd of September”. 4 The Applicant sent this email during an on-site meeting between the Applicant and Mr Taleski. The circumstances of the meeting and many of the events leading up to it are in dispute.

[7] Mr Taleski gave the following evidence in relation to the events of 2 September 2020:

•  The Applicant was rostered to start work at 8.00am, however did not show up for this shift. 5

•  Mr Taleski attempted to contact the Applicant five times however the Applicant did not answer. 6

•  At approximately 10.00am, the Applicant returned Mr Taleski’s phone calls explaining that he had been sleeping. 7

•  Mr Taleski subsequently directed the Applicant to attend the site so that he could ‘seriously address his work ethic”. 8

•  The Applicant attended the site later that day “looking disinterested and in an inappropriate state of dress and appearance to exercise his cleaning duties”. 9

•  Mr Taleski attempted to address his performance concerns with the Applicant, however the Applicant just looked down, not appearing interested or to be listening to Mr Taleski, and begun typing on his phone.  10

•  Mr Taleski explained to the Applicant “about the seriousness of the nature of not following the company’s policies and procedures by not notifying [Mr Taleski] about his shift or not coming to work”. 11

•  Mr Taleski explained to the applicant that this was now the second time that the respondent has had issues about the Applicant not coming into work and that Mr Taleski will be taking the matter further with the HR department and getting them involved and that the Applicant will be “getting disciplinary action and put on a performance managed (sic) program”. 12

•  The Applicant finished typing and asked Mr Taleski to check his email. Mr Taleski then checked his phone and read the Applicant’s resignation email. The Applicant then dropped his keys on the desk and left. 13

•  Mr Taleski denies that he threatened the Applicant at any time during their discussion and specifically that he made threats that annual leave payments would be withheld unless the Applicant resigned. 14

•  Mr Taleski did not discuss or raise the issue of the Applicant resigning at all. 15

[8] Mr Taleski’s evidence also details two previous incidents which are said to have raised performance concerns:

•  The Applicant did not show up for an 8.00am shift on Thursday, 13 August 2020;  16 and

•  On 31 August 2020, Mr Taleski observed the Applicant sitting in the communication room on his phone when he was not entitled to be taking a break and several scheduled tasks had not been completed.  17

[9] The Respondent notes that no warning letters were issued in relation to these issues, however Mr Taleski gave evidence that he issued a verbal warning to the Applicant after he did not show up for his 8:00 am shift on 13 August 2020, stating that disciplinary action might be taken if it happens again. 18

[10] The Applicant contests the Respondent’s account of both prior incidents. The Applicant states that he was not rostered to work in the morning on 13 August 2020 due to his online class hours. 19 The Applicant provided a screenshot of a text message exchange with Mr Taleski, which he claims confirms his approval to work in the afternoon when he has class.20 In the text message exchange, Mr Taleski asked the Applicant when he finished school on Mondays and then asked the Applicant to work after his class finishing time at YET4 at 1:00 pm to 3:00 pm followed by Port Park at 3:00 pm to 5:00pm on Monday each week.21 This does not appear to be relevant as the shift in question was on a Thursday morning. The Applicant also denies that he was ever issued a verbal warning in relation to this incident.22

[11] The Applicant also rejects Mr Taleski’s account of him sitting in the communication room during work hours on 31 August 2020, stating that he never sat in the communication room during work hours and, in addition, that Mr Taleski was not at the site that day to have observed him doing so. 23 The Applicant provided screenshots of a text message exchange with Mr Taleski during the day on 31 August 2020 where he sent photos of various items left at the site to Mr Taleski seeking advice on what to do with them.24 The Applicant states that this exchange would have be unnecessary if Mr Taleski were at the site. 25 In oral evidence, Mr Taleski said that he was in the local area checking out other sites at the time the Applicant sent the messages, but that he subsequently visited the site in person where he noticed the Applicant sitting in the communication room.26

[12] For reasons that will become apparent, it is unnecessary for me to resolve the conflicting accounts described in [8]-[11] above.

[13] The Applicant accepts that he was late to his shift on 2 September 2020 but provides a different account of the subsequent exchange with Mr Taleski. In written evidence, the Applicant provides the following information about the events on 2 September:

•  The Applicant was late to work on 2 September 2020 due to sickness. 27

•  The Applicant missed Mr Taleski’s phone calls on 2 September 2020 as he was driving to work, he then pulled the car over to call Mr Taleski back. 28

•  At the meeting, Mr Taleski “was angry and rude” about the Applicant’s lateness and did not address “any work ethics (sic)”. 29

•  The Applicant tried to explain the reason he was late, but Mr Taleski did not listen. 30

•  The Applicant was very polite, apologetic and was crying.  31

•  Mr Taleski “threatened and forced” the Applicant to write the resignation email, not allowing the Applicant to leave until it was written and stating that if the Applicant failed to do so he would ruin his life. 32

[14] At the hearing, the Applicant gave additional oral evidence expanding on the nature of the alleged threats, stating that Mr Taleski threatened to not to pay him annual leave and that Mr Taleski would make sure the Applicant would not work for any other company unless he resigned. 33 The Applicant had not set out these specific allegations in any material previously filed in the Commission.

[15] The Applicant sought CCTV footage to help corroborate his evidence. 34 At the Directions hearing on 9 October 2020 I directed the company to provide CCTV footage. The Respondent gave evidence that by the time it tried to obtain relevant CCTV footage it had past the 30-day expiry period.35 I accept this explanation.

[16] As I have already noted Mr Taleski denies threatening to not pay the Applicant his annual leave unless he resigned, 36 stating that he did not discuss the prospect of the Applicant resigning with him at all.37 Mr Taleski said the discussion was about previous poor work performance, the poor work performance of 2 September 2020 and steps he would be taking to put the Applicant in a performance management program.38

[17] In the evening following the events on 2 September 2020, the Applicant sent Mr Taleski the following text messages asking for his job back:

“Hai rob. I need to tell something to you. I’m really sorry about today. Coz (sic) I made a big mistake today. I know that’s my bad. Again again (sic) I’m asking a sorry coz (sic) you did lots of things to me. But I broke your trusting (sic). If you gave a last chance to me. Definitely I will give my best for you. And You know about my situation. This is really hard situation to me. And really difficult to find a other job as well. Please forgive me rob.”

“I’m waiting for your reply Rob. Please”

[18] No mention is made of any threat or that the Applicant had be forced to resign earlier that day.

[19] On 4 September 2020, the Applicant sent two additional messages to Mr Taleski before sending the following email to the Respondent’s payroll department seeking to be reinstated:

“Dear Sir /Madam,

This is Mohamed Sabry Saheed. I would like to inform some additional information regarding my recent resignation at VIC Clean. I'm really sorry that I was fallen sleep 2nd of September and late to work. I have had stomach pain on that night and couldn't sleep properly, this is a reason for my lateness to work. Still I manage to make recover my self and turned back to work without calling sick. Because I do not want to despoilment (sic) my managers on my sickness. I have never been late to work before. Due this matter Robbert (sic) asked me to resigned (sic) my job with VIC Clean. But I do not wish to leave the company or resign my job. I was cornered and forced to resigned (sic) my job. I was really shocked and my mind is not stable on that time.

I sent an e-mail to Robbert (sic) for as I'm resigning my job from September 02 without mentioning any reason. But I have not written this mail with full of my wish and stable mind. I have written the mail only because Rob was forcing me to write an e-mail with immediate effect. I would like to withdraw my resignation letter and willing continue to work for VIC Clean. Please accept my apologize (sic) for my late coming and accept me to work for VIC clean again as usual.

As you all aware during this Covid-19 pandemic situation, my self and my family struggling a lot with financially and mentally. If I loose this job its (sic) going to be worse. Please be kind enough to re-join me into work. I assure that I will be loyal and hard working for company.

And also I was trying to contact him but he's not giving a response to me, that's why I'm contacting you

And also I have attached my conversation msg screen shots and my

resignation mail screen shot

I'm looking forward for your positive respond soon.

Mohamed Sabry Saheed.” 39

[20] Although the Applicant says in the above correspondence that he “was cornered and forced to” resign, he provides no detail about what it was that Mr Taleski said or did during the meeting which forced the Applicant to resign.

[21] Following the Applicant’s resignation email on 2 September 2020, Mr Taleski filled the vacant position by consulting the Respondent’s employee database. 40 The Respondent’s payroll manager, Ms Susan Giles, communicated this to the Applicant via email on 8 September 2020 in a response to the Applicant’s email seeking a withdrawal of his resignation.

[22] The Respondent argues that it never intended to terminate the Applicant’s employment but rather the resignation was tendered by the Applicant to avoid the prospect of disciplinary action. 41

[23] In assessing whether the ending of the employment relationship between the Applicant and Respondent was as a result of a forced resignation given by the Applicant because of the conduct or a course of conduct engaged in by Respondent, it is necessary to resolve the conflicting evidence given by the Applicant and Mr Taleski about the meeting between them on 2 September 2020.

[24] Ultimately, I prefer the evidence of Mr Taleski for the following reasons.

[25] First, it seems to me unlikely, if Mr Taleski engaged in the conduct described by the Applicant, that the Applicant would correspond with him so soon after the altercation in terms that do not at all mention the conduct alleged but focus on the performance issues and a promise to improve. These are the very matters Mr Taleski said were discussed at the meeting earlier that day.

[26] Secondly, the threats alleged, particularly as to withholding of leave entitlements, seem to me to be inherently unlikely. Mr Taleski as a supervisor was in no position to make good the threat. The payroll system and the payslips given to the Applicant 42 recorded annual leave accruals and these may be taken by the Applicant or paid out to the Applicant in accordance with the National Employment Standards. Mr Taleski was in no position to interfere with the Applicant’s leave entitlements.

[27] Thirdly, the Applicant’s contention that he was forced to resign because of a threat as to his leave entitlements are difficult to accept in circumstances where the Applicant said that he “was under the impression that [he] was working as a casual”. 43 A casual employee is not entitled to any annual leave. The Applicant maintained his belief that he was a casual employee notwithstanding the employment contract he signed in which he accepted that he “will be paid as a Part-Time Cleaner”44 and the provision in his payslips which identified annual leave accruals.45

[28] Fourthly, the Applicant did not specify the relevant conduct in which Mr Taleski is said to have engaged in the correspondence to the Respondent of 4 September 2020, in his application to the Commission, or the material he filed in response to the Respondent’s case filed in the proceeding. The first occasion that he raised the specific allegations of conduct was at the hearing.

[29] Fifthly, given the Applicant’s lateness which was the subject of the meeting of 2 September 2020, Mr Taleski’s evidence about the meeting is inherently more likely. He said and I accept that he told the Applicant that Mr Taleski would involve the Respondent’s HR department, that the Applicant would be disciplined and placed on a performance management plan. It is much less likely, and frankly implausible, that Mr Taleski would respond to the Applicant’s lateness with the kinds of threats that the Applicant alleges for the first time at the hearing.

[30] Taken together, Mr Taleski’s version of events given in evidence is inherently more likely and I accept it.

[31] An unfair dismissal is set out in s.385 of the Act as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[32] Dismissed is defined in s.386(1) of the Act as follows:

“(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.

[33] Section 386(1) operates subject to certain exceptions in s.386(2) which are not presently relevant.

[34] A Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli summarised the two limbs of s.386(1) as follows:

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” 46

[35] In circumstances where an employee claims that they were forced to resign it falls to the employee to persuade the Commission that they did not resign voluntarily and to establish that the employer forced the employee’s resignation, by identifying the action on the part of the employer which brought the relationship to an end or action that had that probable result. In summary, the Applicant bears the evidentiary onus of establishing that he has been forced to resign.

[36] In the instant case the Applicant’s contention is that there was a dismissal as his resignation was “forced” because of conduct or a course of conduct on the part of the Respondent (and specifically Mr Taleski) occurring on 2 September 2020. This would be a dismissal within the second limb of the definition in s.386(1)(b) of the Act. The Applicant does not contend dismissal under the first limb.

[37] On the facts as I have found them the conduct alleged by the Applicant as constituting the conduct which forced his resignation did not occur. It seems to me the conduct of Mr Taleski on the version of events that I have accepted as having occurred was reasonable conduct in the circumstances and could in no way be said to have forced the Applicant to have resigned.

[38] Consequently, I am satisfied that the Applicant resigned from his employment with effect on 2 September 2020 without being forced to do so. He was therefore not dismissed within the meaning of s.386(1) of the Act. The Respondent’s jurisdictional objection is upheld.

[39] It follows that the application must be dismissed.

Order

[40] The application in U2020/12300 is dismissed.

DEPUTY PRESIDENT

Appearances:

M Cader on his own behalf
F Boross for the Respondent

Hearing details:

2020
Melbourne (via-video link)
22 December

Written submissions:

Applicant, 6 November 2020
Respondent, 23 November 2020

Printed by authority of the Commonwealth Government Printer

<PR727733>

 1   Applicant’s Outline of Submissions at [3a]

 2   Respondent’s Outline of Submissions at [1] to [2]

 3   Respondent’s Outline of Submissions at [13] and Vic Clean Employment Contract

 4   Exhibit 3 at Annexure B

 5   Exhibit 3 at [9]

 6   Exhibit 3 at [10]

 7   Exhibit 3 at [11]; Transcript (22 December 2020) PN193

 8   Exhibit 3 at [11]

 9   Exhibit 3 at [12]; Transcript (22 December 2020) PN232

 10   Exhibit 3 at [13]

 11   Transcript (22 December 2020) PN230

 12   ibid

 13   Exhibit 3 at [14]-[15]; Transcript (22 December 2020) PN230

 14   Transcript (22 December 2020) PN233-PN235

 15   Transcript (22 December 2020) PN237

 16   Exhibit 3 at [6]

 17   Exhibit 3 at [8]

 18   Respondent’s outline of submissions at [6]; Exhibit 3 at [6]

 19   Exhibit 3 at [2]

 20   Exhibit 3 at [2]

 21   Exhibit 1 at [2]

 22   Exhibit 1 at [6]

 23   Exhibit 1 at [4]

 24   Exhibit 1 at [4]

 25   Exhibit 1 at [4]

 26   Transcript (22 December 2020) PN227-PN228

 27   Exhibit 1 at [7]

 28   Exhibit 1 at [8]

 29   Exhibit 1 at [9]

 30   Exhibit 1 at [9]

 31   Exhibit 1 at [7] and [10]

 32   Exhibit 1 at [7] and [15]

 33   Transcript (22 December 2020) PN53-PN71

 34   Transcript (22 December 2020) PN115-PN121

 35   Transcript (22 December 2020) PN247

 36   Transcript (22 December 2020) PN233

 37   Transcript (22 December 2020) PN237

 38   Transcript (22 December 2020) PN237

 39   Exhibit 3 at Attachment D

 40   Exhibit 3 at [17]

 41   Respondent’s Outline of Submissions dated 23 November 2020 at [28]

 42   Exhibit 2

 43   Transcript (22 December 2020) PN266

 44   Vic Clean Employment Contract of the Applicant (21 October 2019)

 45   Exhibit 2

 46   [2017] FWCFB 3941