Mr Moein Abbasi v Deluxe Interiors Oz Pty Ltd, Hoang (Danny) Lam
[2023] FWC 2283
•11 SEPTEMBER 2023
| [2023] FWC 2283 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Moein Abbasi
v
Deluxe Interiors Oz Pty Ltd, Hoang (Danny) Lam
(C2023/681)
| COMMISSIONER LEE | MELBOURNE, 11 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not dismissed – determination that employment terminated on employer’s initiative – jurisdictional objection dismissed.
Introduction
This decision concerns an application made by Mr Moein Abbasi (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). The Applicant contends that Deluxe Interiors Oz Pty Ltd (Deluxe) contravened various provisions of Part 3-1 of the Act by dismissing him from his employment as a joinery drafter. Mr Hoang (Danny) Lam is named as a second Respondent to the dispute. The Respondents dispute that the Applicant was dismissed and pressed a jurisdictional objection on that basis.
The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the Parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondents deny that they dismissed the Applicant and objects to the application on this basis, the Commission is required to determine whether the Applicant was dismissed.[1]
Background
There are a number of factual contests in this matter. However, the key factual matter in dispute and which I need to determine is whether or not the Applicant was terminated at the initiative of the employer. The Respondents written submissions asserted that the Applicant renounced his contract of employment on the 18 January 2023[2] and abandoned his duties without leave the following day.[3] However, at the hearing the position somewhat changed to:
“So the respondent’s position is, of course, that the applicant has unambiguously renounced the employment relationship through his statements and actions. He’s unambiguously resigned, and he’s done so in a manner which would have merited summary dismissal, which is that he’s behaved quite aggressively, to the extent that the owner of the business has seen fit to warn him that if he returns, he’ll call the police.”[4]
The Respondents final submissions adopted the position that the Applicant objectively resigned and that no special circumstances reverse the effect of his resignation conduct.[5] It is not clear from the Respondents final submissions if the Respondent maintains its position that the Applicant abandoned his employment. In any event, I have considered all the possible variations on the submissions made by the Respondent.
The Applicant denies he abandoned his employment and submits that in accordance with s.386 (1)(a) of the Act, he was dismissed from his employment at the initiative of his employer and that the dismissal took effect on 19 January 2023.[6] Mr Lam sent the Applicant an email on 19 January 2023 where he states “you did not follow my instruction, you are not allow to come back here again, if you do I’ll call the police” .[7]
Mr Lam and Mr Smith (General Manager) provided evidence on behalf of the Respondents. The Respondents sought to include a number of other witnesses however I ruled that their evidence was not relevant to the proceedings.[8] The Applicant provided evidence on his own behalf.
The matter was listed for hearing by Video using Microsoft Teams on 3 July 2023. Permission for both parties to be represented by a lawyer was granted.
The Evidence
The events that are relevant to the determination of how the employment relationship ended occurred on 18 January 2023 and most particularly on 19 January 2023. On 18 January 2023 the Applicant’s evidence is that he left the workplace as he was unwell and notified Mr Lam of that fact.[9]
In the attachment to Mr Lam’s Form F8A response dated 25 February 2023, Mr Lam states that during a conversation in the car park with the Applicant on 18 January 2023, the Applicant was aggressive and called Mr Lam a liar and untrustworthy and demanded backpay for his overtime hours. Mr Lam also claims that the Applicant told him that he is suffering from a mental illness. Mr Lam states in that statement that the Applicant then said, “I don’t feel well and I’m going home”.[10]
In his witness statement, Mr Lam’s version of what occurred during the car park conversation on 18 January 2023 differs somewhat from his account in the Form F8A attachment. Mr Lam’s witness statement includes the following:
“[22] I remember his final words to me in that interaction because I found them shocking. He shouted words at me to the effect of: “you are a fucking liar. You aren’t trustworthy. I don’t fucking trust you. Fuck off. I’m done with you.”
[23] I was shocked and didn’t say anything in reply after that. I felt scared.
[24] Mr Abassi got into his car and drove away. He didn’t return to the Factory that day.”[11]
In contrast the evidence of the Applicant as to what occurred is as follows:
“[8] Once in the carpark, the conversation with Mr Lam continued and I said to him that I:
a. did not understand why my payslips said that I had done overtime, but I hadn’t been paid overtime;
b. was not happy driving the truck or doing deliveries and manual lifting work without adequate safety precautions and that he was being dishonest as these tasks did not align with what I was hired to do; and
c. I was feeling unfit for work and would be taking a sick day and would return to work tomorrow.[9] Mr Lam said to me that he would back-pay me but that it is the way it is, and he couldn’t do much about my job role, in response to my statements about me being unhappy about driving the truck and doing deliveries and manual labour.
[10] At no time during the conversation with Mr Lam in the carpark:
a. did I yell or swear at Mr Lam; or
b. did Mr Lam say anything to me about my joinery drafting skills or that they were not to a standard I had represented when interviewing for the job; or
c. was Mr Smith anywhere near Mr Lam and me in the carpark.[11] After the conversation with Mr Lam, I left work as I had already told Mr Lam that I was feeling unfit for work and would be taking a sick day.”[12]
It is not disputed the Applicant was paid personal leave for the days in question, being 18 and 19 January 2023. This is consistent with the Applicants evidence that he departed stating he was unwell, rather than saying “Fuck off I am done with you”. [13]
The Respondent’s submit the alleged statement of the Applicant to Mr Lam which allegedly concluded with “Fuck off I’m done with you” purports to be a renunciation of his employment contract. For reasons I set out later, I don’t accept the Applicant made that statement. It is inconsistent with what subsequently transpired (there is clear evidence the employment relationship continued with the Applicant presenting for work the next day) and in any event I prefer, with some exceptions, the evidence of the Applicant on matters in dispute, for reasons set out later in this decision.
On 18 January 2023 at 3.20 pm, (after the Applicant had left for the day) Mr Lam attempted to send an email to the Applicant. However, he sent it to an incorrect email address.[14] The email was successfully sent to other employees of the Company. Why Mr Lam copied other staff into an email referring to matters that were personal to the Applicant is not apparent. Mr Lam states he sent the email as he needed the Applicant back at work as it was busy.[15]
Despite the Applicant not receiving the email, he nevertheless attended work the next day. This is consistent with his evidence that he did not say “Fuck off. I’m done with you”, or words to that effect to Mr Lam. Mr Lam claims that he wanted to discuss issues with the Applicant’s drawings. He claims Mr Abbasi became agitated during this conversation and raised his voice.[16] Mr Abbasi agrees that Mr Lam approached him at 11.00 am and wanted to speak to him about the email. The Applicant advised Mr Lam that he had not received the email.[17]
It is common ground Mr Lam left the office and the Applicant followed him. The Applicant states he said to Mr Lam that he thought that Mr Lam wanted to speak to him. Mr Lam claims the Applicant was aggressive. The Applicant denies he was aggressive. Mr Lam states he told the Applicant to go and read the email.[18] The Applicant returned to the office and as he could not locate the email he asked Mr Smith for a copy of the email. Mr Smith printed a copy of the email and gave it to the Applicant and forwarded the email to the Applicant. The Applicant took the printed copy of the email to his car in order to read it.[19]
The text of the email read as follows:
“Dear Moein
I’d like to thank you for your extra effort to impressed me, but probably it’s not a good idea. This should be a nature of a good worker and I always reward them in return (example on your holiday)
At the job interview you didn’t tell us nor the Recruitment agent Macro that you have Mental Illness and I believe you needed of stress free job. Few points I’d like to bring to your attention:
You have signed the Employment Agreement with Deluxe Interiors Oz P/L, but you are keep stressing over my decision which I’m acting lawfully on behalf of Deluxe Interiors Oz P/L, if anything that in the Employment Agreement that not right for you, you shouldn’t signed them until the Employment Agreement amended to suit your needs
.
At Deluxe Interiors Oz P/L everyone is a all rounder employee included myself, I’m acting on behalf of the company to make sure production are moving at best at it’s can be and this will involve in assigning workers around where ever needed to be1 jobs don’t get complete company don’t get pay, company don’t get pay where is the money to pay employees agreed wages.
For your Role as a Joinery Drafting it’s just a name we created to identified the role, you are not a qualified Cabinet Maker or Joinery Drafter, we are paying you way above the award wages and as per the Employment Agreement (under Clause 7.C & 7.D this was mention to you when you first started here) we are not paying you overtime penalty rate. Everyone in here do have Key responsibility until I direct them to do different job/role and this is in the Employment Agreement and has been like this from day one (Clause 5 Page 7).
If you can’t follow my direction which override your daily job description and causes you to loose concentration at work then I suggest you to find a different job, I’m very reasonable leader and I only assign workers to do job that suitable for them and gain beneficial to company. End of the day my Direction is everyone main Job Description and must be adhere by.
In the Clause 37. Medical Incapacity I will look into this and would like you to co operate with the company direction, I’ll advise you when.
Please keep in mind the mistakes you have made are cost the company a lot a lot of money, I did not get upset or angry because I respect you and hope that you will get better, your skill and experience in joinery drafting still long way to go as per what described by Macro Recruitment but I have accepted with the hope you will be better quickly, but until now you are still needed a lot more training, you don’t fully understand how important the Joinery Shop drawing details are.
Please do not hesitate to contact me direct should you have any queries. Kind Regards
Danny lam”.[20]
The Applicant’s evidence is that he was extremely distressed by the content of the email particularly the statement “you have a mental illness”. The Applicant says he then returned to the office. His evidence as to what occurred at that point was as follows:
“ [20] When I read the email from Mr Lam I became very distressed and started to shake as it made reference to a mental illness that Mr Lam thought I had, that Mr Lam believed that I needed a stress-free job and that if I could not follow Mr Lam’s direction then I should find another job
[21] I cannot recall whether or not I smoked a cigarette whilst at my car, but I do
smoke, although I am trying to quit.
[22] Distressed about what Mr Lam had written about me, I returned to the office and told Mr Smith that I was unwell, that Mr Lam’s email had caused me a great deal of stress and that I would take the rest of the day off. I then made my way to the other side of the factory to clock off and I left.
[23] At no time did I act aggressively towards Mr Smith.
[24] I did not slam any doors and I could not have because there are 2 doors into the office, an automatic sliding door and a wooden door with soft close hinges which stops it from slamming.
[25] I did not collect any personal belongings from my desk because my mobile phone, wallet and keys remain in my pockets whilst I am at work. All of my other personal belongings are still at the workplace. On 22 February 2023, I received a text message from Mr Lam asking me to pick up my personal belongings. Annexed and marked AB-3 is a copy of the text message received from Mr Lam.”[21]
The evidence of Mr Smith was that Mr Abbasi yelled at him about his contract but that he cannot recall what he was “yelling as he was yelling so fast” and was not “making much sense because he was ranting so fast”.[22] Mr Smith claims that he was fearful for his safety because Mr Abbasi is “very muscular and strong build” and is about ten years younger than him.[23] Importantly Mr Smith then claims the Applicant then said words to the effect of “I can’t do this. I am done”.[24] Mr Smith claims the Applicant then grabbed some personal effects from his desk and stormed out to his car and sped off.[25] Mr Smith’s evidence changed somewhat in his reply statement to say the Applicant did collect something from his desk and assumed it was his phone.[26] Mr Smith then sent Mr Lam an SMS immediately after this event stating “he left” with Mr Lam replying “good”. Mr Smith then replied “He really does have an aggressive nature & to be honest I don’t think that’s acceptable. Regardless of if He’s paid right or other matters, there is no need to yell & lose your temper”.[27]Around the same time Mr Smith also messaged his wife saying “He’s just fucked off. He has a bad temper”.[28]
The Applicant disagrees that he said words to the effect of “I can’t do this. I am done”. The Applicant’s evidence is that he told Mr Smith the email caused him a great deal of stress and he was taking the rest of the day off.[29] The Applicant claims he clocked off and left the workplace and did not collect any personal belongings on the way out because his mobile phone, wallet and keys remained in his pockets[30] and he was paid personal leave for this absence.[31] The Applicant denies that he was yelling at Mr Smith stating, “At no time did I act aggressively towards Mr Smith”[32]and “did not slam any doors”.[33]
The Applicant submitted a chronological order of events that followed Mr Abbasi leaving the office on 19 January 2023 after the discussion with Mr Smith. The chronology is for the most part uncontested:
“[17] At no time during the afternoon of 19 January 2023 did the Second Respondent contact the Applicant to ascertain the reasons for his absence from the workplace.[34]
[18] At 4.26pm the Applicant sent the Second Respondent an email in which he confirmed he would be returning to work the following day.[35]
[19] At 10.23pm the Second Respondent sent the Applicant responding to the Applicant’s email of 4.26pm. In that email the Second Respondent directed that the Applicant was not to return to work and stated as follows: “You are not allow to come back here a(sic?) If you do I’ll call the police..” [36]
[20] By the Second Respondent’s statement, the Applicant understood that the Second Respondent had just dismissed him.[37]
[21] On Friday 20 January 2023, at 9.13am the Second Respondent sent an email to the Applicant in which he asked the Applicant to come to the office on Tuesday for a talk. The email did not state what was the purpose of the talk.[38]
[22] The Applicant was confused as to why the Second Respondent wanted to talk to him as he believed that he had been dismissed.[39]
[23] The Second Respondent’s purpose of the Tuesday meeting was to confirm the dismissal the Applicant.[40] (However Mr Lam during cross examination claimed that this was not the purpose of the meeting)
[24] On Monday 23 January 2023, the Applicant sent an email to the Second Respondent in response to the 20 January 2023 email. In that email, the Applicant told the Second Respondent that:
a.he required all communication in writing unless a mediator of legal representative was present;
b.he would not attend an informal meeting but was willing to attend a formal meeting and would need a minimum of a weeks’ notice;
c.requested to be advised the subject/purpose of the meeting; and
d.asked the Second Respondent to clarify in writing if he was still employed by the First Respondent. [41]
[25] On Tuesday 24 January 2023, in response to the Applicant’s email of 23 January 2023, the Second Respondent alleged that on 19 January 2022, the Applicant had “abandoned your workplace without notice and we have deemed this to be a voluntary termination of our agreement.” And further:
a. the Applicant’s position was redundant effective immediately: and
b. the First Respondent would immediately pay the Applicant his entitlements in accordance with the contract.[42]
[26] On Wednesday 25 January 2023, the Second Respondent sent the Applicant an email attached to which was a separation certificate completed by him. The reason for separation was listed as “Unsuitability for this type of work.”[43]
[27] On 22 February 2023, the Applicant received a text message from the Second Respondent asking that he collect his personal belongings form the workplace.” [44]
The law to be applied.
Section 12 of the Act provides “dismissed: see section 386”
A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3-2 of the Act.
Section 386 of the Act 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.
(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.”
What it means to be terminated at the employer’s initiative has been considered in a number of decisions of the Commission and other jurisdictions:
“The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.” [45]
A Full Bench of the Commission has considered the meaning of the expression “Abandonment of Employment”:
“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.” [46]
In Thompson v Zadlea Pty Ltd t/a Atlas steel [2019] FWC 1687 Commission Gregory stated that if an employer wishes to rely on abandonment of employment, it is incumbent upon the employer to attempt to ascertain why an employee is not at work.
“It would be expected that Atlas Steel would have attempted to make contact with Mr Thompson to ascertain why he was not at work. This would be a minimum expectation of any reasonable employer in the circumstances.”“[47]
The primary principles required to establish the “termination by the initiative of the employer” is unanimously agreed by the Full Bench in Mohazab v Dick Smith Electronics (No.2)[48] and adopted by the Full Bench of the Commission:
“[F] or a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.” [49]
Further, the particular facts and circumstances of the case are important:
“a decision whether there has been termination at the initiative of the employer must depend upon the facts and circumstances of the particular case. Because each case depends on the facts established….”[50]
In Ms Susann Sharpe v MCG Group Pty Ltd it was stated the interpretation of ‘initiative’ requires broad analysis:
“The term “initiate” should not be given a narrow meaning. Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, or the critical action or actions.”[51]
I agree with and adopt the various principles cited above and will apply them as relevant in determining this matter.
Consideration
Findings as to witness credibility is a necessary element of the determination of this matter. The Applicant was generally a responsive and credible witness. However, his denial that he displayed any anger at all on 19 January 2023 during his conversation with Mr Smith lacked credibility given the contemporaneous text messages between Mr Smith and Mr Lam and Mr Smith’s wife. However overall, I found Mr Abbasi’s evidence to be credible.
Mr Lam was inconsistent with his evidence; he tended to embellish and alter his evidence to suit his preferred narrative as to what occurred on 18 and 19 January 2023. This is reflected in the changes in his evidence highlighted earlier from his Form F8A through to his oral evidence. For example, in his oral evidence, Mr Lam claimed the Applicant was “violent to two of my staff”[52] and “Fell like he wants to kill someone”.[53] There is no evidence the Applicant engaged in violence or threatened to engage in violence. This evidence of Mr Lam was self-serving, and he was inconsistent and evasive in his evidence. For example, Mr Lam’s evidence in his witness included “Had he [the Applicant] returned to work he would have been summarily dismissed for gross misconduct”.[54] However, he would not concede that the purpose of the meeting convened for 24 January 2023 was to tell the Applicant in person that his employment was terminated. Rather that it was to go through his employment contract that he had signed.[55] The two positions are entirely inconsistent.
Mr Smith was, for the most part, not a particularly credible witness. His evidence regarding the conversation with Mr Abbasi on 19 January 2023 to the effect that he could not understand anything he was saying other than the words “I can’t do this. I am done” was not at all credible. Even if Mr Abbasi was “yelling so fast” as asserted by Mr Smith, it is unlikely Mr Smith could not understand at least some of what Mr Abbasi was saying. Indeed, on re-examination Mr Smith said he understood the Applicants concern was “That he was doing more work than he was comfortable with”[56] This is at odds with his claim he could not understand what the Applicant was saying.
The claim of Mr Smith that he was fearful for his safety also lacked credibility. The SMS messages from Mr Smith to Mr Lam or his wife, do not suggest Mr Smith was fearful for his safety and there is no suggestion the Applicant showed any intent to be violent towards Mr Smith. Mr Smith’s claims that he was fearful for his safety were self-serving. Where there is conflicting evidence, I prefer the evidence of Mr Abbasi to that of Mr Lam and Mr Smith. The one exception to this is that I am satisfied the Applicant displayed a level of anger on 19 January 2023, consistent with him being distressed and angry about the revelation that Mr Lam had sent an email to several staff claiming the Applicant had a mental illness. However, I am not satisfied this level of anger displayed to be any more than the Applicant raising his voice. The evidence of Mr Smith being concerned about the Applicant acting violently is not credible.
Did the Applicant abandon his employment?
Abandonment of employment falls within the doctrine of repudiation but it is discrete type of repudiation. Consistent with the authorities cited above, for abandonment of employment to be found to have occurred there are a number of elements which have to be present.
Firstly, there must be an unexplained or unauthorised absence from the workplace. It is clear from the evidence that there was no such unexplained absence on either 18 January 2023 or 19 January 2023.
On this point, the Applicant made the following submissions with which I agree:
a.the term personal leave covers sick leave.[57]
b.the terms personal leave and sick leave are interchangeable;
c.Clause 18(c) of the Applicant’s contract provides that only if required by the employer must the employee produce a medical certificate; [58]and
d.the Applicant was not requested by the employer to provide a medical certificate on 18 January 2023[59] and there is no allegation made by the Respondents that the Applicant was requested to provide a medical certificate for 19 January 2023.
This was confirmed in oral evidence by the Respondents witnesses:
· Mr Smith, agreed that an employee who was not fit for work should not be at work and that the Applicant was not capable of working and not fit for work around lunchtime on 19 January 2023;[60]
· Mr Smith agreed that the Applicant left the workplace around lunchtime on 19 January 2023[61] and that the Applicant told him that he was leaving;[62]
· Mr Lam agreed that the Applicant, as a permanent employee, was entitled to take personal leave when unfit for work and that the Applicant was paid personal leave for his absences from work on 18 and 19 January 2023;[63]
· Mr Lam agreed that he had been notified by Mr Smith that the Applicant had left the workplace on 19 January 2023 and his response by text was “Good”; [64]and
· Mr Lam further agreed that he knew that the Applicant was not at work the afternoon of the 19 January 2023.[65]
I am not satisfied the Applicant told Mr Lam “You are a fucking liar. You aren’t trustworthy. I don’t fucking trust you. Fuck off. I’m done with you”.[66] I prefer the evidence of the Applicant that he did not say these things and the conversation ended with the Applicant telling Mr Lam words to the effect that he did not feel well and was going home. Not only is this more consistent with Mr Lams first version what was said on that day but also consistent with Mr Lam attempting to send an email to the Applicant later that day by saying “I’d like to thank you for your extra effort to impressed me, but probably it’s not a good idea. This should be a nature of a good worker and I always reward them in return”.[67] The bulk of the email is directed at dealing with the dispute they were clearly having about the role the Applicant was to perform in the workplace. In any event the Applicant was at work on 19 January 2023 and by virtue of this fact, he clearly had not abandoned his employment on 18 January 2023. There is nothing in the email sent by Mr Lam to suggest the Applicant told Mr Lam the things alleged.
As to what occurred on 19 January 2023, the evidence demonstrates the Applicant left his workplace due to being unfit for work. Deluxe paid the Applicant personal leave for this absence. Mr Smith did not know if the Applicant clocked off or not. I agree with the Applicant’s submissions that for ordinary hours and personal leave to be paid on a day when an employee was at work then leaves the workplace, it logically follows that a clock off occurred and the Applicant’s evidence[68] regarding the clock off was not disturbed. The Applicant’s absence from the workplace on the afternoon of 19 January 2023 was clearly authorised as personal leave and an explained absence.
There must be a reasonable period of time where the employee has been absent without explanation or authorisation. In any event, if the absence was not explained, the Applicant was absent for an afternoon of approximately 4.5 hours (the time period). The Applicant submits and I agree, that it is inconceivable that approximately 4.5 hours could constitute a reasonable period in which an employer could allege an abandonment of employment.
Furthermore, for abandonment of employment to have been found to have occurred on the facts, there must not be any communication from the employee during the absence or the communication from the employee clearly displays an intention of not returning to work. In this case, the Applicant clearly communicated with his employer by way of email on 19 January 2023 at 4.26 pm[69] sent to Mr Lam indicating he would be at work the following day. The email is written in respectful terms and is clear that while Mr Abbasi continues to dispute Mr Lams view about his workplace rights as set out in the earlier email of Mr Lam, he will nevertheless be returning to the workplace the next day.
Mr Lam agreed that he received the email from the Applicant at 4.26pm on 19 January 2023;[70] and that in the email the Applicant communicated that he would be returning to work the following day being 20 January 2023.[71]
It is clear that there was communication from the Applicant to the employer within the time period that evidences the Applicant’s intention to return to work the following day, being 20 January 2023.
As to whether there was any enquiry by the employer in the time period where the employee is absent: In oral evidence in relation to 19 January 2023 Mr Smith agreed he made no enquiries of the Applicant at the time he left the workplace.[72] Mr Lam agreed that he received notification from Mr Smith that the Applicant had left the workplace;[73]and agreed that he did not contact the Applicant to enquire as to why the Applicant was not at work on the afternoon of 19 January 2023, and had no interest in making any such enquiry[74]
The evidence clearly shows there was no enquiry made by the employer of the Applicant in the time period the Applicant was absent from work.
The Applicant submits and I agree that none of the elements of abandonment of employment can or have been demonstrated by the Respondents. I am not satisfied the Applicant abandoned his employment.
Did the applicant resign on the 19 January 2023?
In the Applicants witness statement, with reference to the statement of evidence of Mr Smith, the Applicant states “I disagree with paragraphs 13 to 18 as they are untrue”. Paragraph 18 of Mr Smith’s statements states the Applicant said words to the effect of "I can't do this. I am done"[75]. The Applicant disputes he said this. I prefer this evidence on this point to that of Mr Smith for the reasons set out earlier. However, even if the Applicant did say this, it is far from a clear indication of an intent to resign. It is also inconsistent with the contemporaneous SMS messages of Mr Smith which simply stated the Applicant “left” and “fucked off”. There is no suggestion in these messages that Mr Smith understood the Applicant had resigned from his employment. If there was any doubt, the Applicant makes it clear he is returning to work the following day via return email that afternoon stating “I will be returning to work tomorrow”[76] This was consistent with Mr Abbasi taking the remainder of the day as personal leave.
Dismissal at the initiative of the employer s386(1)(a)
In oral evidence Mr Smith agreed that Mr Lam primarily did the hiring and firing of employees.[77] Mr Lam agreed he received the Applicant’s email of 4.26pm on 19 January 2023, in which the Applicant notified Mr Lam he would be at work the following day (20 January 2023).[78]
In response to the Applicant’s email of 4.26pm, Mr Lam sent an email on 19 January 2023 at 10.23pm to the Applicant (the dismissal email).[79]
The dismissal email unequivocally states the Applicant was ‘not allow to come back here again, if you do, I’ll call the police…” and “Wishing you all the best”. [80] This is a clear and unambiguous communication to the Applicant that he was dismissed from his employment. Mr Lam’s written evidence in the dismissal email also told the Applicant that “he was not permitted to return to work...”[81]
In Mr Lam’s oral evidence regarding the meaning of the dismissal email and the subsequent events, Mr Lam was somewhat reluctant to make appropriate concessions and obfuscated in his responses.[82] He sought to caveat his actions by the words “at that moment.”
Ultimately, Mr Lam in his oral evidence reluctantly agreed that the dismissal email prevented the Applicant from returning to work[83]and the email of 20 January 2023 did not ask the Applicant to return to work.[84]
There was no “at that moment” as there was no communication post the dismissal email from Mr Lam requesting or requiring the Applicant to come back to the workplace to perform work.
The contents of the dismissal email are clear as is Mr Lam’s intentions of sending the dismissal email. I am satisfied the dismissal email terminated the Applicant’s employment. Because the evidence shows if Mr Lam had not sent the dismissal email to the Applicant, the Applicant would likely have returned to work on 20 January 2023 and continued with his employment.
Post dismissal
As set out earlier in the evidence, Mr Lam sought to arrange a meeting with the Applicant for Tuesday 24 January, (The Tuesday meeting) This was after the time I am satisfied the Applicants employment had already been terminated.
In cross examination the proposition put to Mr Lam was that “the only purpose of the proposed Tuesday meeting was to tell Mr Abbasi in person, that his employment was terminated.[85] Mr Lam said “No”. However, the relevant written evidence of Mr Lam provides that “The Applicant’s last day of work was 19 January 2023.[86] Further, in relation to the email of 20 January 2023 from Mr Lam to the Applicant regarding the proposed Tuesday meeting, Mr Lam stated that the meeting was conditional on Mr Abbasi controlling his temper as he wanted to meet with him to tell him that he “didn’t want him in the workplace anymore…”[87]
I agree with the Applicants submissions regarding Mr Lam’s written evidence. The only conclusion to be drawn by the Commission is that the only purpose of the proposed meeting of Tuesday 24 January 2023 was for the Respondents to orally reconfirm the termination of the Applicant’s employment, which was unnecessary as the termination had already been communicated in writing to the Applicant by way of the dismissal email.
The evidence of the events post dismissal does not change my findings but rather confirm my findings that the Applicant was terminated at the initiative of the employer by way of the dismissal email sent by Mr Lam on the evening of 19 January 2023.
As set out earlier, the definition of “dismissed” under s.386 of the Act applies to applications pursuant to s.365 of the Act. I am satisfied the Applicants employment relationship with Deluxe was terminated at the employer’s initiative.[88] Mr Abbasi’s employment ceased on 19 January 2023 when he received the email warning him to never return to the workplace. This was clear communication by Mr Lam to Mr Abbasi in terminating the employee-employer relationship.
The jurisdictional objection is dismissed, and the application will be referred for conference pursuant to s.368 of the Act.
An order[89] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Ms L Tacey with permission with Mr M Abbasi on his own behalf.
Mr J Catlin with permission on behalf of Deluxe Interiors Oz Pty Ltd with Mr D Lam and Mr L Smith on behalf of Deluxe Interiors Oz Pty Ltd.
Hearing details:
2023
Video using Microsoft Teams.
3 July.
[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365).
[2] Digital Court Book at page 122 [10].
[3] Digital Court Book at page 123 [13].
[4] Hearing Transcript 3 July 2023, PN21.
[5] Respondents Final Submission dated 17 July 2023, page 7 [18].
[6] Application Form F8 dated 9 February 2023.
[7] Digital Court Book at page 62, Email dated 19 January 2023.
[8] Hearing Transcript 3 July 2023, PN32, PN44.
[9] Digital Court Book at page 30 [11].
[10] Digital Court Book at page 99.
[11] Digital Court Book at page 126 [22]-[24] Exhibit R3.
[12] Digital Court Book at pages 29-30 [8]-[11] Applicants Statement Exhibit A1
[13] Digital Court Book at page 78, Payslip dated 24 January 2023; Hearing Transcript 3 July 2023 PN313.
[14] Digital Court Book at page 132, Email dated 18 January 2023 3.20 pm.
[15] Digital Court Book at page 126. Exhibit R3 [26].
[16] Ibid [29].
[17] Digital Court Book at page 30 [14].
[18] Digital Court Book at page 127. Exhibit R3 [33].
[19] Digital Court Book at page 31 [18] Applicants Statement Exhibit A1.
[20] Digital Court Book at page 135, Email dated 28 January 3.20 pm.
[21] Digital Cort Book at page 31 Applicants Statement [20]-[25] Exhibit A1.
[22] Digital Court Book at page 130 [16] Exhibit R1.
[23] Ibid [17].
[24] Digital Court Book at page 131[18] Exhibit R1.
[25] Ibid.
[26] Digital Court Book at page 202 [18] Exhibit R2.
[27] Digital Court Book at page 204. Text Message.
[28] Digital Court Book at page 206. Text Message.
[29] Digital Court Book at page 31 [22] Applicants Statement Exhibit A1.
[30] Digital Court Book at page 31 [22], [25] Applicants Statement Exhibit A1.
[31] Digital Court Book at page 32 [36] Applicants Statement Exhibit A1; Digital Court Book at page 78, Payslip dated 24 January 202.
[32] Digital Court Book at page 31 [23] Applicants Statement Exhibit A1.
[33] Ibid [24].
[34] Witness Statement of Mr Lam Exhibit R3.
[35] Applicant Statement [27] Annexure AB-4; Witness Statement of Mr Lam [39] Annexure page 29 Email 19 January 2023 04.26 pm.
[36] Applicant Statement [28] Annexure AB-4; Witness Statement of Mr Lam [40] Annexure page 28 Email 19 January 10.23 pm.
[37] Applicant Statement [28] Exhibit A1.
[38] Applicant Statement [28] Annexure AB-5; Witness Statement of Mr Lam [41] Annexure page 33 Email 20 January 09.13 am.
[39] Applicant Statement [31].
[40] Witness Statement of Mr Lam [41].
[41] Applicant Statement [32] Annexure AB-6; Witness Statement Mr Lam [42] Annexure page 35 Email 23 January 2023 11.23 am.
[42] Applicant Statement [33] Annexure AB-7; Witness Statement of Mr Lam [43] Annexure page 35 Email 25 January 2023 11.23 am.
[43] Applicant Statement [34] Annexure AB-8; Witness Statement of Mr Lam [44] Annexure page 37 Email 25 January 09.08 am.
[44] Applicant Statement [25].
[45] Richards v Woolworths Group Limited [2023 FWC 1082 at 18; Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[46] Abandonment of Employment [2018] FWCFB 139 at [22].
[47] Digital Court Book at page 25-26 [35] Applicants Submissions.
[48] (1995) 62 IR 200.
[49] ABB Engineering Construction Pty Ltd v Doumit [Print N6999].
[50] ABB Engineering Construction Pty Ltd v Doumit [Print N6999].
[51] [2010] FWA 2357 at [25].
[52] Hearing Transcript 3 July 2023, PN322.
[53] Ibid PN374.
[54] Digital Court Book at page 125 [13] Statement of Mr Lam Exhibit R3.
[55] Hearing Transcript 3 July 2023, PN357-365.
[56] Ibid PN253.
[57] Fair Work Act 2009 (Cth) s96 and 97
[58] Digital Court Book at page 45 Applicant Statement Exhibit A1.
[59] Hearing Transcript 3 July 2023 PN466.
[60] Ibid PN182 to PN184; PN187 to PN197.
[61] Ibid PN198.
[62] Ibid PN208 to PN211.
[63] Ibid PN310 to PN313.
[64] Ibid PN315; PN316.
[65] Ibid PN317 to PN320.
[66] Digital Court Book at page 126. Statement of Mr Lam [22] Exhibit R3.
[67] Digital Court Book at page 132 Email 18 January 3.20 pm.
[68] Digital Court Book at page 31[22] Applicant Statement Exhibit A1.
[69] Digital Court Book at page 32 [27] Applicant Statement Exhibit A1.
[70] Hearing Transcript 3 July 2023 PN334; 355.
[71] Ibid PN336; 337.
[72] Ibid PN199; PN221 to PN223.
[73] Ibid PN315.
[74] Ibid PN321 to PN322; PN332.
[75] Witness statement of Lawrence Smith at [18].
[76] Digital Court Book at page 63. Email dated 19 January 4.26pm.
[77] Hearing Transcript 3 July 2023, PN224; 225.
[78] Ibid PN334 to PN337; Digital Court Book at page 63 Applicant Statement Exhibit A1.
[79] Digital Court Book at page 62 Applicant Statement Exhibit A1.
[80] Ibid.
[81] Digital Court Book at page 127 [40] Witness Statement of Mr Smith Exhibit R1.
[82] Hearing Transcript 3 July 2023 PN341 to PN347.
[83] Ibid PN354.
[84] Ibid PN355; 366.
[85] Hearing Transcript 3 July 2023 PN357.
[86] Digital Court Book at page 125 [12] Witness Statement of Mr Lam Exhibit R3.
[87] Ibid at page 128 [41].
[88] See Saeid Khayam v Navitas English Pty Ltd T/A Navitas English[2017] FWCFB 5162.
[89] PR766097.
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