Mr Naveed Akhter v Student Biryani Pty Ltd

[2017] FWC 6632

[2017] FWC 6632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Naveed Akhter
v
Student Biryani Pty Ltd
(U2017/9495)

COMMISSIONER RIORDAN SYDNEY, 22 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] Mr Naveed Akhter (the Applicant) has made application for an unfair dismissal remedy in accordance with section 394 of the Fair Work Act, 2009 (the Act), against his former employer, Student Biryani Pty Ltd (the Respondent). The Respondent is a Pakistani Restaurant located in Auburn, owned by Mr Muhammed Javed.

[2] The Applicant commenced employment with the Respondent in June 2014. The Applicant was a Director and Marketing Manager of the Respondent. The date of the Applicant’s termination is contested. The Applicant claims that he was terminated by letter on 25 August 2017. The Respondent claims that the Applicant was terminated on 3 August 2017. The Applicant filed his unfair dismissal application on 31 August 2017. The Respondent has raised a jurisdictional objection that the Applicant’s application is out of time. The issue for determination is the actual date of dismissal.

[3] Section 394(2) of the Act states:

(2)  The application must be made:

   (a)  within 21 days after the dismissal took effect; or

   (b)  within such further period as the FWC allows under subsection (3).

[4] Leave was granted in accordance with section 592(2) of the Act to allow the Applicant to be represented by Mr B. Nazer from Byron & Associates Solicitors and Attorneys and for the Respondent to be represented by Mr I. Peerzada from Peerzada & Associates.

Evidence

[5] Mr Muhammed Javed attested that he dismissed the Applicant on 3 August 2017 for stealing. The Applicant was working the front of the restaurant on 3 August 2017. The Applicant’s duties included taking the payments from the customers. Mr Javed claims that, after he had accused the Applicant of stealing, the Applicant left the restaurant. Mr Javed followed the Applicant outside. Mr Javed claims that the Applicant resigned whilst they were arguing on the street but that he had refused to accept the Applicant’s resignation and summarily dismissed the Applicant instead.

[6] The Applicant testified that he did not offer his resignation on 3 August 2017, nor was he sacked. The Applicant claims that he vehemently denied stealing any money from the Respondent and actually offered to “make up” any shortfall if any money was missing from the lunchtime takings. Further, that at the conclusion of the verbal exchange outside the restaurant, the Applicant advised Mr Javed that he was leaving due to his sore back. The Applicant testified that if Mr Javed shouted to him that he was fired as he walked away then he did not hear it.

[7] It is uncontested that the Applicant provided the Respondent with medical certificates to cover his absences up until 25 August 2017.

[8] On 25 August 2017, the Applicant was asked to attend Auburn Police Station. The Police presented the Applicant with his termination letter from the Respondent which was dated 3 August 2017. Relevantly, the Respondent did not try to post, deliver or email the termination letter to the Applicant in the 22 days between 3 August – 25 August 2017.

[9] The evidence of Mr Nasir, an employee of the Respondent, is basically irrelevant in these proceedings on the basis that Mr Nasir did not hear the conversation between the Applicant and Mr Javed that occurred outside the restaurant.

[10] The Applicant claimed that he thought he was on sick leave up until he went to Auburn Police Station on the basis that the Respondent failed to reply to any of his doctor’s certificates to say that he was dismissed, nor did they send him his termination letter.

Consideration

[11] An employer has an obligation to advise an employee of their dismissal in a clear and articulate manner. Whilst a termination can be provided verbally, to avoid confusion and future debate, terminations should be notified in writing. If written correspondence cannot be provided on the day of termination, correspondence confirming the employee’s termination should be sent to the employee as soon as possible after the event.

[12] In Burns v Aboriginal Legal Service of WA 1, a Full Bench of the AIRC held:

“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant’s home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, ie. 19 April 2000.”

(my emphasis)

[13] It is highly unusual for a Respondent, if they were of the opinion that they had already terminated an employee, not to repeat this decision to the employee, particularly if the employee was acting as if they were still employed. In this case, the Applicant was sending in his doctor’s certificates to the Respondent to explain his absences from work. The Applicant was clearly of the opinion that his employment was ongoing.

Conclusion

[14] I find that the Applicant was not aware of his termination until he received his termination letter on 25 August 2017. Following the obiter of the Full Bench in Burns, I find that the Applicant was terminated on 25 August 2017.

[15] I find that the Applicant’s application has been lodged within the statutory timeframe in accordance with section 394(2)(a) of the Act.

[16] Directions for the substantive hearing will be issued in due course.

COMMISSIONER

 1   Print S8525

Printed by authority of the Commonwealth Government Printer

<Price code A, PR598603>