Mr Stanley Cain v Aiyub Khan
[2025] FWC 209
•22 JANUARY 2025
| [2025] FWC 209 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Stanley Cain
v
Aiyub Khan
(C2024/6270)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 22 JANUARY 2025 |
Application to deal with contraventions involving dismissal
Mr Stanley Cain has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) seeking the Fair Work Commission (the Commission) deal with a dispute over a dismissal alleging a contravention of Part 3-1. The application is brought against Mr Aiyub Khan who is the principal of a cleaning business trading as Perfect Clean Services. Mr Aiyub contends that the Commission has no jurisdiction to deal with the dispute because Mr Cain was not dismissed.
In Coles Supply Chain v Milford Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [64] – [65] the Full Court of the Federal Court of Australia made it clear that the Commission only has power to deal with a dispute under s. 365 if it is validly made. An application to deal with a dispute over a dismissal will not be validly made if there was no dismissal. The Court also made clear at [67] that where a question arises as to whether there has been a dismissal the Commission must resolve that question before proceeding to deal with the dispute.
Whether someone has been dismissed under the Act is to be determined by reference to ss. 12 and 386. Section 12, the Dictionary, defines the expression dismissed by referring to s. 386. Section 386(1) reads:
(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.
There are exceptions under s. 386(2) to subsection (1) but they are not relevant to this case.
Background
Mr Cain was employed to work in Mr Khan’s cleaning business as a casual cleaner. The business operated in the Chinchilla area in the Western Downs region of Queensland. Mr Cain’s first shift was on 14 July 2024. He worked a number of shifts up until 28 August 2024. On that day Mr Cain contends that there was an incident involving another employee in which the other employee sexually harassed him. Mr Cain said that there were a number of occasions during his employment when he was sexually harassed by the same co-worker. He states that the incident on 28 August 2024 led Mr Cain to leave work. After leaving work he went to see a doctor who completed a work capacity certificate for workers’ compensation purposes. The certificate stated that Mr Cain was suffering from a depressive episode with anxiety arising from sexual harassment by a co-worker. It also stated that Mr Cain required treatment from 28 August 2024 to 23 September 2024 and that he would be reviewed on 2 September 2024. The certificate indicated that Mr Cain had no functional capacity for work until 2 September 2024 as Mr Cain required a safe workplace. Mr Cain did not return to the doctor for a review on 2 September 2024 and no further certificate was issued.
Mr Cain also attended the Chinchilla police station on 28 August 2024 to report the sexual harassment. While there he completed a sworn witness statement. The statement recounts incidents of sexual harassment dating from his first day of work in July 2024. The statement outlined his account of the conduct of his co-worker. The statement included the following concerning the events that day:
I decided to quit my job and walked off. I started walking along the highway from Mile airport back towards Miles…
Later that day Mr Cain also sent Mr Kahn a text message stating that he had walked of the job due to the ongoing sexual harassment and that he had been left with no choice but to seek legal advice. Mr Kahn responded that he was sorry to hear this, that he would look into it further, and that Mr Cain would not have to work with the person the subject of his complaint anymore.
On 29 August 2024 Mr Cain provided Mr Kahn with a copy of the work capacity certificate. The certificate was attached to a text message. The message also told Mr Kahn about the anxiety he was suffering at work due to the ongoing sexual harassment, that he had make a complaint to the police, and that he felt his capacity to fulfil his work obligations had come into question.
On 3 September 2024 Mr Cain was notified by WorkCover Qld that his workers compensation claim was not accepted. Mr Cain sought a review of that decision on 4 September 2024 He also sent Mr Kahn a text message asking when he would be returning to work. He received no reply. Mr Khan did not respond to that message.
Late on 4 September 2024 Mr Cain lodged the current application contending that he had been dismissed and alleging that the dismissal was in contravention of Part 3-1 of the Act.
On 6 October 2024 Mr Khan lodged a response to the application in which he stated that Mr Cain had not been dismissed. In that document Mr Khan stated:
… We have not dismissed him from the job. He applied for worker’s compensation on 27th August and he stopped communication with myself (Aiyub Khan, Director of Perfect Clean Services). Stanley messaged me on 28th August the following “Thanks for acknowledgement of this matter. To distort to discuss anything at this moment.” On 29th August he sent through his work capacity certificate and advised he was going to make a worker’s compensation claim. The claim was dated from 26/08/2024 to 23/09/2024.
Two dates in Mr Kahn’s response are incorrect. The workers’ compensation application was not made on 27 August 2024, and the claim was not for the 26 August 2024 to 23 September 2024.
When this matter was listed for Directions on 10 December 2024 Mr Kahn confirmed that he had not dismissed Mr Cain and that he was willing to offer him further casual cleaning shifts. He repeated that Mr Cain would not have to work with the co-worker who had been the subject of his sexual harassment complaints. Mr Cain stated that he did not want to work for Mr Kahn, and he would not accept any further shifts.
On 29 November 2024 Mr Cain received a decision from WorkCover upholding his review, overturning the initial decision, and requiring that the application be reconsidered.
In the proceedings on 16 January 2025 Mr Kahn again said that he had not dismissed Mr Cain and was still willing to offer him shifts. Mr Cain said he would not accept any further work.
Consideration
Based on the evidence before me I am unable to conclude that the Applicant was dismissed under either limb of s.386.
There is nothing to suggest that the Applicant’s employment was terminated on the employer’s initiative. There was no action by Mr Kahn that either intended to bring the employment relationship to an end. nor had that probable result, or which resulted directly or consequentially in the termination of the employment relationship.
The evidence was to the contrary. Mr Khan at no stage told Mr Cain he was dismissed. His failure to respond to the text message on 4 September 2024 did not suggest that he had dismissed Mr Cain. There was no basis upon which Mr Cain could suggest that he was dismissed when he filed his application late in day on 4 September 2024. Mr Kahn indicated in his response to the application completed on 6 October 2024 that Mr Cain was not dismissed. He stated in the Directions hearing on 10 December 2024 that he had work for Mr Cain. He reiterated his willingness to provide work at the hearing on 16 January 2025. These are steps which are consistent with Mr Kahn attempting to keep the casual employment relationship alive.
Mr Cain relies on the failure of Mr Kahn to respond to the text message of 4 September 2024. Mr Kahn explains he thought Mr Cain was unavailable to work until 29 September 2024 as that was what was stated on the work capacity certificate. Mr Kahn had not read the certificate closely. The reference to the 29 September 2024 was to the treatment period not the incapacity to work. Be that as it may, Mr Kahn’s explanation rings true and suggest that he was dealing with Mr Cain as an employee who had made a workers’ compensation claim.
There was nothing in the evidence that suggests Mr Kahn had at any stage dismissed Mr Cain. Consequently, there is no basis to conclude that Mr Cain was dismissed.
As I am not satisfied that the Applicant was dismissed within the meaning of s. 386(1) the jurisdictional prerequisite in s. 365(a) has not been met and the present application can proceed no further.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Cain for the applicant.
Mr Kahn for the respondent
Hearing details:
2025.
Sydney:
16 January.
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