Mr Pukar Shah v Mohammad Alipor & Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197)

[2024] FWC 890

[2024] FWC 890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Pukar Shah
v

Mohammad Alipor & Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197)

(C2024/199)

COMMISSIONER PLATT ADELAIDE, 8 APRIL 2024

Application to deal with contraventions involving dismissal – jurisdictional objection dismissed

1. On 11 January 2024, Mr Pukar Shah (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with Mr Mohammad Alipor ABN 15 646 129 197 (the Respondent) which the Applicant suggested occurred on 8 January 2024.

1. On 22 February 2024, Mr Mohamad Akkouche (trading as Revolver Bar and Grill Pty Ltd ABN 15 646 129 197) filed a Form F8A Employer Response which raised a jurisdictional objection in that the Applicant was not dismissed and that he resigned.

1. On 6 March 2024, Directions were issued for the filing of material and a notice of listing for the determination of the matter on 8 April 2024.  Both Parties filed material.

1. The material received was compiled into a Digital Court Book and emailed to the parties on 5 April 2024.

1. The Hearing was conducted on 8 April 2024 in Adelaide. Mr Shah represented himself, the Respondent did not attend. My Associate sent an email and left a voice message to the Respondent’s representative Mr Mohamed Akkouche advising that the Hearing would commence at 10.15am. No response was received and the Hearing commenced in the Respondent’s absence.

1. The Digital Court Book (with the exception of Page 4 which contained a statement from a witness that did not attend to give evidence) was received into evidence with due weight being accorded to the material based in its admissibility (hearsay, relevance etc).  Mr Shah gave sworn evidence.

1. The relevant evidence is summarised as follows:

·  On or about 21 April 2023, Mr Shah was employed by Revolver Bar and Grill Pty Ltd as head chef.

·  Mr Shah reported to and was subject direction from Mr Mohammad Alipor.

·  The payslips[1] submitted by Mr Shah indicate that the employer was Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197).

·  Mr Shah submitted an ASIC extract which indicates that from 20 January 2024, Mr Akkouche was the Director and Secretary of Revolver Bar and Grill. I note that Mr Alipor was a Director prior to the appointment of Mr Akkouche.[2]

·  I was provided with a large number of text messages between Mr Shah and Mr Alipor.  I observe that there were a number of disputes between Mr Alipor and the Mr Shah concerning maintenance of the kitchen, timely ordering of food ingredients, and the payment of Mr Shah’s wages and Superanuuation.  It appears that the Revolver Bar and Grill Pty Ltd had cashflow issues which resulted in delayed payment to suppliers and employee entitlements. The tone of the text messages was terse.

·  The Form F8 submitted by Mr Akkouche (who was the sole Director of the Revolver Bar and Grill Pty Ltd at the time the application was lodged) contends that the Applicant verbally resigned to Mr Alipor during a meal service at 1:55pm on 15 December 2023. A review of the messages exchanged on that day indicates that the Applicant was extremely upset by a range of issues and makes two statements which could be construed as a resignation. Mr Shah does not dispute making the statements contained in the text message but advised that he was persuaded to continue to perform work and did so.

·  I note that the payslips contained in the Digital Court Book confirm Mr Shah’s evidence that he continued to perform work post 15 December 2023. This is inconsistent with Mr Shah having resigned.

·  The Form F8 also suggested that Mr Shah resigned on 24 December 2023. Mr Shah’s evidence on this point was similar to that concerning the 15 December 2023 resignation.  Mr Shah advised he had a conversation with Mr Alipor on 24 December 2023 and was persuaded to continue working. Mr Shah gave evidence that he continued to perform work until 7 January 2024.  Again, there is no evidence that the resignation was accepted by Revolver Bar and Grill Pty Ltd.

·  At 5:11pm on 8 January 2024, Mr Alipor sent text messages to the Applicant which stated “Do not step into the restaurant” “You are no longer employed”.

·  Mr Shah contended he was dismissed on 8 January 2024.

Consideration

1. There are two issues that I need to determine. The first is the correct identity of the Respondent.  The second is whether the Applicant resigned or was dismissed.

1. The evidence establishes that the employer at the time the employment ceased was Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197). It appears that Mr Alipor was a Director of the employer at the time the employment ceased. Mr Shad has asked that I amend the name of the Respondent to add Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197) and I exercise my powers under s.587 to do so.

1. I accept that the Applicant advised Mr Alipor (and thus Revolver Bar and Grill) that if certain issues were not addressed, he intended to resign. These conversations appear to have occurred on 15 and 24 December 2023. Mr Shah does not appear to have made good on his threats having been persuaded by Mr Alipor to continue to perform work.

2. The Applicant contends he was dismissed within the meaning of s.386(1)(b) of the Act as the text message sent on 8 January 2024.

1. I find that that text message clearly terminated the Applicant’s employment.

Conclusion

1. I find that Mr Shah was employed by Revolver Bar and Grill Pty Ltd (ABN 15 646 129 197).

1. I find that the Applicant was dismissed by Revolver Bar and Grill Pty Ltd as a result of the text message sent by Mr Alipor on 8 January 2024 and the jurisdictional objection has not been made out.

1. A conciliation was unable to be conducted due to the failure of the Respondent to attend and as a result I have determined to issue a Certificate in accordance with s.368(3)(a) of the Act.

COMMISSIONER

Appearances:

Mr P Shah as the Applicant.

Hearing details:

2024
Adelaide
8 April

[1] DCB Pages 11-44.

[2] DCB Pages 7-10 ASIC Extract.

Printed by authority of the Commonwealth Government Printer

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