Mohammed Abdullah v M.A Services Group Pty Ltd
[2023] FWC 1820
•1 AUGUST 2023
| [2023] FWC 1820 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mohammed Abdullah
v
M.A Services Group Pty Ltd
(C2023/3378)
| COMMISSIONER YILMAZ | MELBOURNE, 1 AUGUST 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection - whether Applicant dismissed – Repudiation – Not dismissed.
On 12 June 2023, Mr Mohammed Abdullah lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against M.A. Services Group Pty Ltd (MA). In his application, Mr Abdullah cites a breach of s.344 - undue influence or pressure in relation to his workplace rights and s.351 - discrimination. Mr Abdullah does not provide detailed particulars concerning the allegation of discrimination.
MA object to the application stating that Mr Abdullah’s employment has not been dismissed and is ongoing.[1] Further, it denies that there has been any breach of the general protection provisions under the Act in respect to Mr Abdullah’s employment.
Mr Abdullah contends that he was employed as a part-time Security Guard in the classification of Loss Prevention Officer (LPO) on 20 December 2022. He states he was dismissed on 30 May 2023 during a performance review meeting. Mr Abdullah submits that he was engaged at various Coles stores (and occasionally Bunnings) in predominantly the Western suburbs of Melbourne. He states, he was informed that Coles did not want him on their sites which resulted in him being dismissed.
He submits that he performed his role vigilantly, but his manager had issues with certain races and that he was targeted.[2]
While MA contend that Mr Abdullah commenced employment on 30 January 2023, the evidence of the contract of employment states the commencement date of 20 December 2022, and the schedule of hours worked[3] confirms the commencement in December 2022 and not 30 January 2023.
Mr Abdullah gave witness evidence on his own behalf and Mr Arif Shah a work colleague and LPO also gave evidence for Mr Abdullah. For MA the following witnesses gave evidence:
Mr Greg Lind, General Manager Human Resources
Ms Janine Chambers, Client Delivery Manager Victoria
Mr Barinder Gill, Covert Manager Victoria/Tasmania
Both parties were self-represented.
Was the Applicant Dismissed?
Applicant’s submissions
Mr Abdullah submits that on 25 May 2023, his Manager Mr Barinder Gill instructed him to attend a performance review meeting at head office on 30 May 2023. Initially assuming the meeting was to discuss training and improvements to his performance, he says that his Manager and Ms Janine Chambers, also present, informed him that Coles did not want him at any of their sites and that there was no further work as an LPO. While he submits that he was not advised that he was dismissed, he submits that the purpose of the meeting was to pressure him to resign.
Following the direction to attend a performance review, Mr Abdullah was texted by his Manager that his shifts had been cancelled until the performance review meeting. Mr Abdullah questioned the reason for their cancellation but was not given one. The extract of the texts are as follows:
‘Mr Gill: Hi mate, the rest of your shifts have been cancelled until your performance review at the MA Head office on Tuesday. An email has been sent as well.
Mr Abdullah: Hey what happened bro is everything ok?
Sunday 28 May 2023 at 2:46pm
Mr Abdullah: brother can i come to the office tomorrow?
Tuesday 30 May 2023 at 12:09pm
Mr Gill: I’ll call you back.
Mr Abdullah: Bro Ma can give me another chance i’m still better than most of the guards who do nothing in company.
Mr Gill: Hey man, sorry it’s gone out of my hands’[4]
In frustration due to a failure to respond to his messages about his employment Mr Abdullah messaged his former manager but also received no reply.[5]
He says that the balance of shifts allocated in the week ending 28 May 2023 and the following week were cancelled and removed from the roster, and no further shifts were allocated to him. Mr Abdullah last worked a shift on 25 May 2023. Further he submits that he regularly worked on average 4 – 5 shifts per week as a regular flexible part-time employee. He submits that as a as a flexible part-time employee he is not paid overtime rates, but rather a flat rate for each hour worked.
However, Mr Abdullah concedes that one shift at the Coles Brighton store was allocated to him for 9 June 2023, allocated after he filed an unfair dismissal claim and immediately prior to this application. The records show that Mr Abdullah filed an unfair dismissal application on 6 June 2023 and withdrew the Application on 9 June 2023. The application was not served on MA. There is no evidence to support Mr Abdullah’s submission that he was allocated the shift because he filed an unfair dismissal application.
Mr Abdullah gave evidence that ordinarily, notification of readiness of the roster is through the guards’ WhatsApp group, but as he was removed from the group, he received notification directly from Mr Gill that he was allocated a shift on 9 June 2023.Text messages between Mr Abdullah and Mr Gill on 9 June 2023 show that Mr Abdullah advises that he was unable to attend as he was sick and requests sick leave. He also asks Mr Gill to send through the shift details as he can’t find them. In reply, Mr Gill confirms he has sent it through.[6]
The shift on 9 June 2023 was 15 days after his last shift on 25 May 2023. Payslips tendered by MA show that Mr Abdullah was paid for his hours worked for the pay period ending 4 June 2023 and one day of personal leave for the pay period ending 18 June 2023 after Mr Abdullah reported in sick for the shift on 9 June 2023. The evidence shows that MA stood down Mr Abdullah without pay and witness evidence confirms that shifts allocated for the weeks ending 28 May 2023 and 4 June 2023 were withdrawn.
During cross examination, Mr Abdullah stated that as he was not paid by MA, his shifts were cancelled, he was in need of income and after asking a co-worker what he should do, he applied for a day of sick leave for the shift allocated for 9 June 2023. MA challenged Mr Abdullah how it is possible that he applied for sick leave on 9 June if he was dismissed on 30 May 2023. Mr Abdullah did not address this point effectively but did reiterate that MA pressured him to resign on 30 May and by allocating the one shift in Brighton.
In the course of proceedings Mr Abdullah had some difficulty expressing his argument that he was dismissed; however, he was able to clearly detail the factual matters that led to his conclusion that he was dismissed and pressured to resign. He submits that the conduct of MA was undue influence or pressure and a breach of s.344 of the Act. He contends that his Manager targeted him on the basis of discrimination which is a contravention of s.351 of the Act.
Mr Abdullah describes the factual matters on which he relies as follows:
While at the meeting of 30 May 2023, Mr Abdullah submits that he was told that Coles did not want him at any of their sites but was not given any evidence of the alleged directive from Coles. He maintains that he asked for evidence and that he challenged the allegation that he was not working but sitting in the break or washroom.
His Manager Mr Gill informed him that as Coles did not want him, there was no further work in his role as LPO.
During proceedings he stated that Mr Gill mentioned that he might be placed in a different role, as a static guard, however this did not occur at any time. Mr Abdullah asserts that the role of static guard attracts a lower rate of pay.
He further submits that he was told by his Manager that MA does not dismiss staff, instead it makes it difficult for employees so that they resign.
His inquiries to his Manager about his employment, particularly his cancelled shifts went unanswered.
His access to the WhatsApp security guards’ group was withdrawn once his shifts were cancelled. He describes the App as the main communication platform for guards and supervisors and their manager regarding notification of shifts, confirmation of time and location of signing into a store, changes to procedures and other important operational notifications.
His access to the platform to record details concerning thefts was also withdrawn.
While access to TrackTik, the online employee portal remained, Mr Abdullah submits the other tools were essential for the performance of LPO duties. He further disputed the assertion that automatic removal to the tools occurs when security guards are not active, and he referred to his period of annual leave (which was unpaid) taken from 9 June 2023 to 21 July 2023 where he retained access.
He raised a concern that MA had not paid him his entitlements when he took a period of authorised leave, this being a further indication of pressure to resign.
Mr Abdullah consistently worked a number of shifts each week which regularly included weekend work. He worked at a number of Coles sites which were predominantly in the Western suburbs.
The one shift in Brighton is not consistent with his terms of employment. He contends that the one Friday shift in Brighton was obviously intended to be an inconvenience and a form of pressure to resign, but also its purpose is to create a ruse that his employment had not been terminated.
Mr Abdullah tendered in evidence various items including his contract of employment, extracts from text messages sent to his manager and a payslip.
Also tendered in evidence was an email message from a Coles Store Manager, dated December 2022, reporting on concerns with coverts and the security team in general at the Store. While the email does not relate to Mr Abdullah’s alleged conduct, he submits that the email is relevant as MA should have evidence from Coles containing his alleged conduct as indicative of the email tendered. He further submits that as MA did not provide any evidence of any complaint against him, that there was no alleged complaint, and the action taken by his Manager to coerce a resignation was discriminatory and adverse action.
Mr Arif Shah, witness for Mr Abdullah, gave evidence that he is an LPO at the Coles Brunswick site, and on 31 May 2023 he was visited by his supervisor Ms Janine Chambers. He states that during a work discussion he was informed by Ms Chambers that Mr Abdullah was dismissed and would not be returning to MA. He gave evidence that he called Mr Abdullah after the supervisor left the store where Mr Abdullah confirmed that he was dismissed the day before.[7]
Respondent’s submissions
MA submit that Mr Abdullah was not dismissed within the meaning of s.386 of the Act because he was not dismissed and continues to be assigned work.[8] It says that the employment relationship has not been terminated and relies on the shifts allocated each Friday from 9 June 2023 at the Brighton Coles store. Further, it makes clear that it has no evidence of Mr Abdullah’s resignation.
Mr Lind, General Manager Human Resources gave evidence for MA. Mr Lind submits that he does not know Mr Abdullah but confirmed that he was employed as a security guard and reported to Mr Barinder Gill, Covert Manager Vic/Tas. On receipt of the general protections application, he says that he investigated the allegations by interviewing his managers and obtained Affidavits from each which were tendered in evidence. Mr Lind further states that he interviewed the National Retail Manager and National Payroll Manager however, no witness statements were tendered in relation to these two managers. Mr Lind states that he personally checked current and past rosters including other employment records relating to Mr Abdullah.
Mr Lind gave evidence that Mr Abdullah was rostered to work on 9 June 2023 but called in sick, MA received the general protections application on 12 June 2023, and he instructed Mr Gill to continue to roster Mr Abdullah “in the normal manner unless advised otherwise”.[9] He further states that Mr Abdullah has not attended work for any of the shifts rostered each Friday, nor has he provided any reason for his absence or applied for leave.
A payslip was tendered in evidence for the period of 22 May 2023 to 4 June 2023 which records 22 hours worked, accrual of leave proportionate to the hours worked and the payslip does not show any evidence of a termination of employment. A second payslip was tendered in evidence which covers the period 5 to 18 June 2023 which records 7.5 hours of personal leave and proportionate accrual of annual leave based on the 7.5 hours of sick leave. The payslip also refers to LWOP for 16 June 2023 of 7.5 hours. Again, the payslip does not provide any evidence of a termination of employment.
Mr Lind relied on the Affidavits of Mr Gill and Ms Chambers, but had not intended that they be subject to cross examination. During his oral evidence, it became apparent that Mr Abdullah’s evidence was contrary to both Affidavits, therefore it was requested that both appear. Both appeared following the luncheon break and confirmed their Affidavits and gave oral evidence. In addition, Mr Lind was asked to produce evidence of Mr Abdullah’s shifts over the course of his employment. This extract from the payroll records was produced and tendered in evidence.
Ms Janine Chambers, Client Delivery Manager Vic, in confirming her Affidavit advised that there was an error in paragraph 5 which she corrected to say that Mr Abdullah was informed by Bobby (Mr Gill) that Coles did not want him to return to the Footscray store instead of “Bobby explained to Mohammed if this pattern continues to happen he will be removed to a different position with in the company as a static guard.”[10] Ms Chambers evidence was of concern as she was somewhat argumentative and inconsistent with her evidence. The alleged error in her Affidavit constitutes a substantial change rather than what ordinarily would require a correction to an error. Ms Chambers gave evidence that Mr Abdullah was shown evidence of the complaint against him by Mr Gill. She alleged that Mr Gill turned his laptop towards Mr Abdullah to show an email, yet this evidence was contested by both Mr Gill and Mr Abdullah.
Ms Chambers gave evidence that she was simply a witness for the meeting, but her own evidence and that of Messrs Gill and Abdullah contradicted this. Mr Gill described the meeting held with Mr Abdullah on 30 May 2023 as administered by himself and Ms Chambers jointly. Mr Gill’s evidence more closely corroborated with the evidence of Mr Abdullah on this point. Ms Chambers also contested the evidence of Mr Shah, stating that she did not discuss any matters pertaining to Mr Abdullah. On balance I prefer the evidence of Mr Shah who was consistent in his oral evidence and his written statement of evidence.
Ms Chambers’ evidence was inconsistent with her Affidavit admitting to further discussions on matters concerning Mr Abdullah’s employment which is contrary to her Affidavit, where she states, “This was the end of the meeting and nothing else was discussed.”[11] Of concern was her apparent failure to understand the gravity of her oral evidence and her sworn Affidavit. I found Ms Chambers to be an unreliable witness for MA.
Mr Barinder Gill confirmed his Affidavit sworn on 9 July 2023 and noted that it was true and correct and no corrections were required. The Affidavit is short and contradicts the evidence of Ms Chambers as he specifically says that should the alleged conduct continue, that Mr Abdullah would be moved to a different role such as static guard,[12] and he strongly asserted that he did not receive any directive from Coles in writing and did not turn his laptop to Mr Abdullah during the meeting. Mr Gill gave evidence that MA had the prerogative to move an LPO into another role such as static guard and further should it do so the rate was the same. This oral evidence is contrary to both Mr Abdullah’s contract of employment which he stated that he was aware of, but also in terms of the relevant enterprise agreement. Mr Gill was completely unaware of the existence or the contents of the enterprise agreement. Under the enterprise agreement a static guard and LPO are two different classifications and attract different rates of pay. The static guard is a lower level classification, therefore to reclassify an employee ought to enliven the Enterprise Agreement provisions regarding consultation. Mr Gill failed to provide any satisfactory response why Mr Abdullah was not rostered at any of the Coles sites where he was regularly rostered at. He did state that shifts were allocated to new employees but did not elaborate after Mr Lind gestured to the witness.
The contract of employment clearly identifies Mr Abdullah’s appointment to the role of LPO. The evidence of Mr Gill raised credibility concerns. His evidence was that Mr Abdullah was threatened with changes to his employment and he further failed to explain why the removal of shifts and removal from the tools occurred in the circumstances. Where the evidence differs concerning whether Mr Abdullah was informed that MA do not dismiss employees, but they are made to resign, I prefer the evidence of Mr Abdullah over Mr Gill.
My concerns regarding credibility of both Ms Chambers and Mr Gill were noted and shared by Mr Lind.
MA relies on the payslips, screenshot of texts between Mr Abdullah and Mr Gill and leave application form for 9 June 2023.
The relevant statutory provisions
Mr Abdullah lodged a general protections application involving dismissal dispute with the Commission pursuant to s.365 of the Act. Section 365 applications concern dismissal disputes. Relevantly, the provision provides:
‘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.’
Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be “dismissed”. The Act further defines dismissed. The relevant provision is s.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.
(2)However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.’
Section 365 requires that should an application be made, it must be by a person that is dismissed and the person alleges the dismissal is in contravention of the Act.
Consideration and conclusion
Mr Abdullah asserts that MA exerted undue influence or pressure in a number of ways including:
when he was targeted to personally apprehend offenders, otherwise he would not be offered more shifts.
when he raised safety concerns on the basis of potential assault as an LPO, which were followed by threats to his shifts which are to be characterised as a breach of his general protections.
that he contends that the cancellation of his shifts from 25 May 2023, the withdrawal of access to the tools necessary for an LPO and availability of one shift in Brighton, (knowing it was not agreeable) were all instances of adverse action.
when MA breached his workplace rights by not paying his annual leave during a period of authorised leave and only paying 7.5 hours of personal leave when his legal entitlement was 8 hours.
Mr Abdullah asserts that the conduct described was intended to make it so difficult that he would resign from his employment.
There is no evidence of Mr Abdullah’s resignation. However, the evidence shows that Mr Abdullah did not accept the variation to his contract of employment, the one shift offered in Brighton instead of his regular shift pattern, which is why he failed to attend for duties.
Mr Abdullah’s contract of employment refers to the position as “CYCLE 6 LEVEL 5 under the Industrial Instrument.” The industrial instrument is the M.A. Security Guards Enterprise Agreement 2016 (the Enterprise Agreement). Any change to the roster cycle according to the contract of employment is by agreement and the agreement is to be in witing. There is no evidence of any agreed change to the roster cycle. Further there is no evidence of any process to change Mr Abdullah’s regular roster pattern of hours of work, other than the unilateral decision of MA.
Further the contract of employment refers to the ordinary hours as 60 hours within an eight week roster cycle, this is an average of 7.5 hours per week. The Enterprise Agreement was varied with an undertaking to address better off overall test concerns with roster cycles.[13] Specifically, the Enterprise Agreement provides an undertaking that clause 11.2(b)(ii)- flexible part-time employment does not apply, but rather the regular part-time provision in clause 11.2(b)(i) and the Modern Award to apply in its stead. It appears that despite the undertaking, Mr Abdullah’s contract of employment is based on clause 11.2(b)(ii) of the enterprise agreement and it is on this basis that MA assert that it only need provide one shift of 7.5 hours per week, irrespective that he performed a more regular roster pattern of hours of work.
The matter to be determined is whether Mr Abdullah was dismissed to enliven the s.365 general protection dismissal dispute. Section 386 defines dismissed as the person’s employment has been terminated on the employer’s initiative, or the person resigned but was forced to do so because of the employer’s conduct.
The evidence in this matter points to a repudiation of the contract of employment by the employer and that repudiation is not accepted by Mr Abdullah. The evidence to support this conclusion includes:
The conduct that initiated the change to Mr Abdullah’s roster and regular pattern of work was a requirement to attend a meeting where he was informed that there was a complaint against him. I find on the basis of Mr Abdullah’s evidence which was corroborated by his witness that a decision was made that he would not be returning.
There was an absence of credible evidence that there was a legitimate complaint and no justification to cancel the rostered shifts. Further the one shift per week allocated 15 days after his last shift and allocated in a distant location contrary to the shift patterns ordinarily worked was a deliberate and substantial change to Mr Abdullah’s contractual arrangements.
The schedule of hours worked by Mr Abdullah since commencement of employment demonstrates that his hours of work reflect a flexible part-time employee arrangement. He regularly worked up to five shifts per week, most often including weekends and predominantly based in the Western suburbs of Melbourne. The roster of one shift each Friday in Brighton appears to be a substantial change, one which included a significant inconvenience given the distance from Mr Abdullah’s residence in the Western suburbs.
In addition, Mr Abdullah was stood down without pay contrary to his entitlements under the enterprise agreement.
MA also removed important tools used by security guards without justification. There was no evidence to support the contention that it was normal practice to remove the tools when a guard is inactive.
The above conduct I find demonstrates that MA does not intend to be bound by the contract of employment and Mr Abdullah has refused to accept the repudiation,[14] the parties are at an impasse. At this stage neither the employer nor employee has formally brought the employment to an end. However, I will expect either the employer or employee will imminently bring the employment relationship to an end. Should the employment relationship end as a consequence of this conduct by MA, there can be no other objective conclusion other than a dismissal, even if Mr Abdullah is forced to resign.
A s.365 general protections application unlike a general protections application under s.372 requires that the applicant has been dismissed. In this matter at the time the application was made and at the time of the hearing Mr Abdullah was not dismissed either by his employer or through a forced resignation.
Mr Abdullah was not dismissed on 30 May 2023, there is no evidence that MA terminated the employment relationship. Mr Abdullah remained an employee and this was demonstrated by granting the one day of personal leave. The conduct of MA however, amounts to a repudiation of the contract of employment and Mr Abdullah has not accepted the repudiation.
Mr Abdullah has prematurely lodged his s.365 application as the employment relationship had not been dismissed at the time that he made his application.
From this evidence, I can only conclude that despite the repudiation by MA I am satisfied that Mr Abdullah’s employment was not dismissed within the meaning of s.368 of the Act and his application does not properly fall within the jurisdiction of s.365 of the Act.
Conclusion
In this matter having considered the evidence I do not find that Mr Abdullah’s employment has been dismissed as defined by s.386 of the Act to enliven the general protections dismissal provisions in s.365 of the Act.
Accordingly, the matter is dismissed pursuant to s.587 (1)(a).
An order[15] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr M Abdullah on his own behalf.
Mr G Lind for the Respondent.
Hearing details:
24 July 2023
Melbourne (By Video using Microsoft Teams)
[1] Form F8A, Question 2.2.
[2] Applicant’s Outline of Argument, Question 1h.
[3] Respondent’s employment record of scheduled hours worked over the duration of Mr Abdullah’s employment- 21 December 2022 to 28 July 2023.
[4] Text messages between Mr Gill and Mr Abdullah 28 May 2023 – 30 May 2023.
[5] WhatsApp messages to Shahib “Manager” 30-31 May 2023.
[6] Text messages between Mr Gill and Mr Abdullah, 9 June 2023.
[7] Witness statement and oral evidence.
[8] Form F8A, Question 2.2.and Respondent’s Outline of Argument.
[9] Statement of evidence of Mr Gregory Lind, para 21.
[10] Affidavit of Ms Chambers affirmed on 10 July 2023, para 5.
[11] Ibid, para 7.
[12] Affidavit of Mr Gill affirmed on 9 July 2023, para 5.
[13] Application by M.A. Services Group Pty Ltd T/A M.A. Security Guards [2017] FWCA 1078.
[14] See Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 (Harrison SDP, Richards SDP, Williams C, 30 June 2007) at para. 13 and Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) at para. 81, [(2009) 239 CLR 361].
[15] PR764540.
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