Muhammad Sohail Akram v Per ADE F.C. Trading Pty Ltd T/A Money Exchange

[2020] FWC 3966

[2020] FWC 3966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muhammad Sohail Akram
v
PER ADE F.C. Trading Pty Ltd T/A Money Exchange
(U2020/3678)

DEPUTY PRESIDENT BINET PERTH, 28 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 26 March 2020, Mr Muhammad Sohail Akram (Mr Akram) made an application to the Fair Work Commission (FWC) under section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with PER ADE F.C. Trading Pty Ltd T/A Money Exchange (Money Exchange).

[2] On 17 April 2020, Money Exchange filed a Form F3 Employer Response to the Application objecting to the Application on the grounds that Mr Akram had not been dismissed.

[3] On 4 June 2020, the parties participated in conciliation. However, the matter remained unresolved.

[4] Given that there are contested facts involved, the FWC is obliged by section 397 of the FW Act to conduct a conference or hold a hearing.

[5] Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 30 July 2020 (Hearing).

[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 23 June 2020 (Directions).

Permission to be represented

[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.¹

[8] Having considered the submissions of the parties, I exercised my discretion to grant both parties leave to be represented by a lawyer, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] At the Hearing, Mr Akram was represented by Ms Claudia Levin, a solicitor of Croftbridge Lawyers. The following witnesses gave written and oral evidence on Mr Akram’s behalf:

a. Mr Akram

b. Mr Ali Raza (Mr Raza)

[10] Mr Raza is a former work colleague of Mr Akram, who resigned from his employment with Money Exchange shortly after Mr Akram’s separation from the business.

[11] At the Hearing, Money Exchange was represented by Mr Luis Batalha, a solicitor of Batallion Legal Pty Ltd. The following witnesses gave written and oral evidence on behalf of Money Exchange.

a. Mr Indravadan Chandulal Shah (Mr Shah)	Director of Money Exchange
b. Mr Rao Arif Yasin (Mr Rao Yasin)	Director of Money Exchange
c. Mr Zafar Yasin (Mr Zafar Yasin)	Employee

[12] Mr Shah and Mr Rao Yasin are directors of Money Exchange who actively participate in the day to day operations of the business. Mr Zafar Yasin is an employee of Money Exchange and the brother of Mr Rao Yasin.

[13] At dispute between the parties is whether on 10 March 2020, Mr Zafar Yasin dismissed Mr Akram. Mr Akram says that Mr Yasin had the authority to dismiss him and did so in clear and explicit language on that date. Money Exchange says Mr Yasin did not have the authority to dismiss Mr Akram. Money Exchange says that what occurred was, in response to a personal dispute which occurred out of business hours, Mr Yasin asked Mr Akram to leave the store until he completed his shift to avoid further conflict. Money Exchange says that if any confusion arose with respect to Mr Akram’s employment status, it was subsequently resolved the following day.

[14] The determination of the matter largely turns on the witnesses’ recollections of events, which occurred on that day and leading up to that date. In their wisdom, the representatives of the parties endeavoured to discredit the witness evidence of the opposing party by alleging various social security, immigration and taxation irregularities as well as wage underpayments, which in doing so, demonstrated complicity on the part of their client. This combined with inconsistent, and what appeared to be self-serving evidence, on the part of witnesses from both sides, led me to have concerns about the credibility of significant portions of the witness evidence and rely more heavily on contemporaneous documentary evidence.

Background

[15] Mr Akram was born in Pakistan and moved to Australia on a student visa on 14 July 2013 to study accounting. He commenced employment with the City Exchange Mart Pty Ltd (CEM), a currency exchange business, on 1 August 2013, in the role of cashier.

[16] CEM has three Perth stores, located at 159 Murray Street (Murray Street Store), 604 Hay Street (604 Hay Street Store), and 811 Hay Street (811 Hay Street Store) (collectively the Perth Stores). Mr Akram worked primarily at the Murray Street Store. 2

[17] Over time he took on managerial duties, including preparing the rosters and training new employees. In 2015, Mr Akram created a WhatsApp group for staff members called City Exchange Mart. 3

[18] In July 2017, the directors of CEM established and registered Money Exchange as a currency exchange business, and Mr Akram began working for Money Exchange as a cashier. 4 

[19] In May 2019, Mr Raza commenced employment with Money Exchange working mainly at the Hay Street Store.

[20] Since July 2019, Money Exchange has also employed Mr Zafar Yasin as a cashier/teller. Mr Zafar Yasin is Mr Rao Yasin’s brother. 5

[21] Mr Akram says, that while he was told that both he and Mr Zafar Yasin would jointly manage the Perth Stores shortly after Mr Zafar Yasin commenced employment, Mr Zafar Yasin took sole responsibility for managing the Perth Stores. According to Mr Akram, while he continued to prepare the staff rosters, he began sending them to Mr Rao Yasin and Mr Zafar Yasin for approval each week. Mr Zafar Yasin created a WhatsApp group for staff members called PerthFX (Fx Group Chat). 6

[22] Over time, the relationship between Mr Akram and Mr Zafar Yasin deteriorated. 7

[23] Since 2016, Mr Akram has supplemented his income by operating as an Uber driver or providing vehicles to be used as Ubers, earning as much as $25,000 per year. 8

[24] Mr Shah says that on 26 February 2020, Mr Akram informed him that he no longer wished to work for Money Exchange. Mr Shah says that he inquired why and that Mr Akram told him that he planned to buy a fleet of 7-8 vehicles in partnership with his brother and employ drivers to operate the vehicles as Ubers. Mr Shah says that he agreed with Mr Akram that Mr Akram’s last shift would be 12 March 2020. 9

[25] Mr Rao Yasin says that Mr Akram called him the same day and also advised him that he would be resigning in two weeks time to focus on his Uber business. 10 Telephone records for the relevant period confirm that Mr Akram rang Mr Rao Yasin on this date and spoke to him for more than 4 minutes. The call occurred at a different time than what Mr Rao Yasin recalled in his witness statement. Mr Akram asserts that the topic of the conversation was not his resignation; rather, it was operational matters.11

[26] Mr Zafar Yasin also says that Mr Akram told him around the same time that having secured his permanent residency he planned to resign from Money Exchange to run a ridesharing business.  12

[27] Mr Akram denies that any of these conversations occurred and claims that given his wife had recently become pregnant with their second child which was due in November that he had no intention of resigning from his employment with Money Exchange.

[28] Mr Akram gave extensive evidence with respect to alleged wage underpayment during his seven year employment with Money Exchange, asserting that his rate of pay was as little as $4 per hour. Mr Akram says he accepted rates of pay well below the national minimum wage because he was unaware of the labour laws in Australia and the prevailing market rates of pay. I note however his concession that while working on a student visa in his first few years in Australia, he worked for a number of large employers including Pizza Hut, which presumably would have given him some insight into wage levels in Australia. I also note that his course of study in Australia was Accounting, which again should have equipped him to understand his entitlements. I also note evidence which suggests that Mr Akram sought to minimise the documented income he received from Monday Exchange. The evidence before me is that Mr Akram assisted Mr Raza to secure his employment at Money Exchange. It seems surprising that Mr Akram would encourage his good friend Mr Raza to seek employment with Money Exchange if the employment conditions were so abysmal.

[29] The ‘bad blood’ between Mr Zafar Yasin and Mr Akram reached a peak on 7 March 2020, when a confrontation occurred between the two men and their respective families, at a wedding, at which both families were guests. Mr Zafar Yasin says that Mr Akram demanded that Mr Yasin’s family be expelled from the wedding reception. In his witness statement, Mr Akram denies seeing Mr Zafar Yasin between 5 March and 10 March. However, it was not put to Mr Zafar Yasin in cross examination that his evidence of his attendance at the wedding and the altercation which occurred was false.

[30] On 10 March 2020, Mr Zafar Yasmin was rostered on a morning shift in the Murray Street Shop which was scheduled to be completed at 2 pm. At around 2 pm, Mr Akram arrived at the shop to commence his shift.

[31] Mr Zafar Yasmin says that he and Mr Akram argued about the events at the wedding. Mr Zafar Yasmin says that he became so angry that to avoid further escalation he told Mr Akram to leave the shop and return after Mr Zafar Yasmin completed his shift. 13 Mr Zafar says that in response, Mr Akram said he did not want to work for Money Exchange anymore and left the shop. Mr Akram later returned to the shop and asked to come in and delete some personal files from his work computer. Mr Zafar Yasmin permitted him to do so.

[32] Mr Akram says that when he arrived at the Murray Street Store to commence his shift, Mr Zafar Yasmin told him that they had hired someone to replace him and requested that he return the business keys. Mr Akram says that he gave Mr Zafar Yasmin the keys and left the store. He says he immediately called Mr Rao Yasin and told him that Mr Zafar Yasmin had fired him and that since he had not been paid properly, he would challenge his dismissal. 14

[33] Mr Rao Yasin confirms that Mr Akram called him. Mr Akram says that Mr Arkam told him that he was going home early because Mr Zafar Yasmin had told him to leave the Murray Street Shop. Mr Rao Yasin says that he told Mr Akram that Mr Zafar Yasmin did not have the authority to dismiss him and that he should return to work. 15

[34] Mr Rao Yasin says that Mr Zafar Yasmin called him shortly thereafter, and explained that he had an argument with Mr Akram, and had asked him to leave the shop until he finished his shift. Mr Rao Yasmin says he told Mr Zafar Yasmin that he had no authority to send Mr Akram away from the shop, and told him that he must ask Mr Akram to return. 16

[35] Mr Rao Yasmin then called Mr Shah and told him that Mr Akram and Mr Zafar Yasmin had had an argument and that Mr Akram had left the workplace before completing his shift. Mr Shah says that he consequently called Mr Akram, but there was no reply, and so he left a message. 17

[36] Mr Shah says that Mr Akram called him back at around 8.30 pm and told him that Mr Zafar Yasmin had told him to leave work and that his employment was at an end. According to Mr Shah he told Mr Akram that Mr Zafar Yasmin had no authority to terminate his employment and that Mr Akram should return to work the next day. He also says that he told Mr Akram that he was flying to Perth and he would meet him at the workplace the next day. Mr Shah says that Mr Akram told him that he did not want to meet at the Murray Street shop when Mr Zafar Yasmin was present and preferred to meet Mr Shah at his hotel.  18

[37] Mr Akram says that later the same day he called Mr Raza and told him that Mr Zafar Yasmin had dismissed him because he had complained about his wages. He says that Mr Raza told him that Mr Zafar Yasmin had sent a message to the Fx Group Chat indicating that Mr Akram was no longer working for the business and should not be let into any of the Perth Shops. The message was not tendered as evidence at the Hearing. Mr Akram says that he was removed from the Group Chat the same day. 19 However, evidence that Mr Akram ‘left’ the Fx Group Chat was tendered.20

[38] On 11 March 2020, Mr Rao Yasmin told Mr Zafar Yasmin that he must call Mr Akram back to work and deal with their personal issues outside the workplace. Accordingly, at 8:24 am, Mr Zafar Yasmin after first unsuccessfully calling Mr Akram, sent a text message to Mr Akram apologising for what occurred as follows:  21

“Sohail... I believe all this FUSS between myself and Nadeem is wastage of energy and respect at both sides. I have realised that I should have not sent you back yesterday. Having given it a deliberate thought, I have decided to end this all. Please talk to Nadeem Bhai that he, myself, Zulfiquar and you get together as soon as possible and finish this for all, with no regrets at all. Let’s not involve our families in this. I believe this is the only option to get back to old terms. We will gradually convince our families as well. Now, just send me a message whether you and Nadeem Bhai agreed on this or not. I am adding you back to the group, so don’t quit again. I am doing all this in entire sincerity take it absolutely positive. Please discuss with Nadeem and I shall be waiting for your response, Best regards.”

[39] At 11:26 am, Mr Zafar Yasmin sent a message to the Fx Group Chat explaining that he and Mr Akram had a misunderstanding the previous day and that he wanted to resolve the matter and was adding Mr Akram back into the Fx Group Chat as follows: 22

“Sohail left yesterday due to some misunderstanding between myself and him. I also later hsared a message to stop his entry, which I now realise to be unwanted. Let me clear this now, he is asked to join back and work with us as a team member with high spirits. I Hereby add him again as a member of his group.”

[40] At 3:32 pm, he sent a further text message to Mr Akram again apologising and letting him know that he had been planning Mr Akram’s send off party and that he wanted him to return his call to resolve their problems and return to work: 23

“Sohail.... you seems [SIC] to have taken it so serious. I am sorry buddy, it's my fault. I was rather planning for your send off (party) from all colleagues collectively, but last day, I don't know why I did that. Ajao sham ko aur miltay hain and settle this issue. Nadeem bhai ko bhi batao, ghusa khatam karain and lets finish off all. Life is not meant to have stress and mental sickness, we need to live happily. So come and join back. I will call you again, so pick up and talk to me, what exactly your worries are. Regards .

[41] Later on 11 March 2020, Mr Shah met with Mr Zafar Yasmin at the Murray Street Shop. He says that Mr Zafar Yasmin explained to him that, he and Mr Akram had an argument the previous weekend about some family issues, and that when he saw Mr Akram, he had told him to go away and come back to the shop after Mr Zafar Yasmin had finished his shift. Mr Shah says that Mr Zafar Yasmin told him that he expected Mr Akram to go to the other shop and return once he had left. Mr Shah says that Mr Zafar Yasmin told him that Mr Akram had later returned and asked if he deleted his personal files from his work computer and that Mr Zafar Yasmin had agreed to this. Mr Shah also says that Mr Zafar Yasmin told him that when he had calmed down, he sent a message to Mr Akram telling him to forget the matter and return to work.  24

[42] At around 6.30 pm on 11 March 2020, Mr Akram met with Mr Shah in his hotel room. Mr Akram told Mr Shah that Mr Zafar Yasin had dismissed him. Mr Akaram says that Mr Shah told him that he would not interfere in the matter because Mr Zafar Yasin was his business partner’s brother. 25

[43] To the contrary, Mr Shah says that he confirmed that Mr Zafar did not have authority to dismiss Mr Akram and that Mr Akram should return to work the next day and withdraw the resignation he had foreshadowed in late February.  26 Mr Shah says that Mr Akram told him that he would not return to work unless Mr Shah dismissed Mr Zafar Yasmin from his employment. Mr Shah said that Mr Akram insisted that this was necessary as a matter of personal honour and respect because Mr Zafar Yasmin had insulted Mr Akram and his family. Mr Shah says that he told Mr Akram that he should keep his personal quarrels away from the workplace but that he would investigate Mr Zafar Yasmin’s outburst and take appropriate action. Mr Shah says that Mr Akram told him that if he did not dismiss Mr Zafar Yasmin, he would make an unfair dismissal claim and that Mr Zafar Yasmin’s family in Pakistan would be targeted.27

[44] On 26 March 2020, Mr Akram filed this Application with the FWC.

Consideration

[45] In order to be eligible for a remedy for unfair dismissal, the FWC must be satisfied that Mr Akram has been dismissed for the purposes of the FW Act.

[46] Section 386(1) of the FW Act provides that a person has been dismissed if the persons employment has been terminated on the employer’s initiative or 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.

[47] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[48] Mr Akram does not assert that he was forced to resign from his employment. He maintains he was dismissed by Mr Zafar.

[49] Money Exchange says that Mr Akram separated from the business in accordance with his expressed desire to resign from his employment to pursue his ride sharing business and that his employment was not earlier terminated at the employer’s initiative.

[50] Mr Akram denies that he expressed any intention to resign or that he agreed that his resignation would take effect on 12 March 2020. In support of this, he points to a text message he sent on 3 March 2020, providing his availability for 13 March 2020, and the roster for that week showing he was rostered to work on 13 March 2020.  28 He says that because his wife was pregnant with his second child, it is improbable that he would consider resigning from his employment with Money Exchange. He also says that the evidence of Money Exchange that he resigned on 10 March 2020 is inconsistent with the assertion that he had already tendered his resignation.

[51] Mr Shah says that Mr Akram’s last day of work was extended with his consent consistent with the business having no desire for his employment to end. This is consistent with the evidence of Mr Shah, both Mr Yasins and the documentary evidence in the form of text messages all detailing the efforts taken after the altercation on 10 March 2020 to have Mr Akram continue his employment with Money Exchange not withstanding Mr Akram indicating in February an intention to resign.

[52] Mr Akram has not identified a compelling reason why his employer might suddenly and unexpectedly decide to terminate his employment after seven years of employment. The business owners had during the course of his employment entrusted him with supervisory responsibilities and duties of higher complexity and trust than other employees. In turn Mr Akram referred to the business owners as ‘uncles’. There is no suggestion that there was any concern in relation to Mr Akram’s performance. Mr Akram’s only explanation was the assertion that a new unidentified employee had suddenly been hired without his knowledge. How or why such new employee might immediately replace such a long serving well respected employee is entirely unclear.

[53] In contrast on his own evidence there is a clear rationale for Mr Zafar to part ways with Money Exchange. He gave extensive evidence of alleged gross underpayment over a long period of time. It would be unsurprising that Mr Akram having completed his studies and gained residency decided to pursue alternative employment. This is consistent with the evidence of his own witness Mr Raza, who says he recalls Mr Akram telling him on more than one occasion that he intended to quit because of his disatisifcation with his pay and conditions. Mr Raza also says he recalls Mr Akram telling him that he could make more money operating a rideshare business. 29

[54] Furthermore on his own admission Mr Akram’s management responsibilities and status had declined since Mr Zafar Yasin joined the business. This further explains Mr Akram’s desire to leave the business.

[55] The reference in Mr Zafar’s text to Mr Akram on 11 March 2020 to ‘planning for your send off (party)’ is also consistent with an expectation that Mr Akram was imminently about to resign.

[56] Mr Akram says that texts of 11 March 2020, sent by Mr Zafar Yasin detailed a fabricated personal dispute to create the impression that Mr Akram had resigned as a defence to any unfair dismissal application by Mr Akram, which Mr Akram says he had foreshadowed in his meeting with Mr Shah on the evening of 11 March 2020. The texts are lengthy, detailed, and were issued the day after the dismissal. To create such a complicated fabrication seems unlikely within the timeframe the events occurred when a much more simple fabrication could have achieved a more effective outcome if, in fact, fabrication was necessary. The text messages are consistent with the evidence of the Money Exchange’s witnesses. It was not put in cross examination to any of Money Exchange’s witnesses that the text messages were fabricated. The text messages are consistent with the evidence of Mr Zafar Yasin about the events which occurred at the wedding. It was not put to Mr Zafar Yasin in cross examination that he did not attend the wedding.

[57] In relation to the events which occurred on 10 March 2020, I am satisfied that a verbal altercation occurred between Mr Akram and Mr Zafar Yasin in relation to the events which occurred at the wedding reception and the offence caused by those events. It is unclear whether Mr Zafar Yasin merely told Mr Akram to leave the store, and or whether he told him that he was dismissed.

[58] The evidence that Mr Akram left the group chat is consistent with Mr Zafar Yasin’s evidence that Mr Akram quit following their argument.

[59] Given that Mr Akram returned later to remove his personal information from the computer rather than doing it before he left the store leads me to suspect that Mr Akram was not told he was dismissed, but after leaving the store, decided that he did not wish to work out the balance of his notice period and returned to remove his personal information. This is consistent with the initial evidence of Mr Akram’s own witness, Mr Raza, who stated that both he and Mr Akram ‘quit’.

[60] The use of the language ‘sent you back’ in Mr Zafar Yasin’s text of 11 March 2020 is consistent with his evidence that he sent Mr Akram away rather than that he dismissed him. Similarly, the words ‘so don’t quit again.’ is consistent with his evidence that Mr Akram resigned rather than that he was dismissed.

[61] Regardless of what Mr Zafar Yasin did or didn’t say I am satisfied that Mr Akram ought to have known that Mr Zafar Yasin did not have the necessary authority to dismiss him or any other employee. This is consistent with the evidence of a tendered text exchange between Mr Akram and Mr Zafar Yasin stating as follows:

“I follow instructions of CEO’s not yours. Talk to Arif bhai & Uncle. Thanks.”

[62] There is no evidence before me that Mr Zafar Yasin had dismissed any other employee in the past.

[63] While I accept that Mr Zafar Yasin held a position more senior that Mr Akram in the business, the position was only marginally more senior and was in the nature of a team leader or supervisor charging with implementing the operational decisions of the business owners. For example, such as enforcing dress codes.

[64] The evidence is clear that Mr Rao Yasin, and Mr Shah to a lesser extent, were actively managing the business on a day to day basis. For example, the uncontested evidence is that the roster for each week was submitted to Mr Rao Yasin for his approval before Mr Zafar Yasin or Mr Akram were authorised to circulate it to employees. I am satisfied that Mr Akram knew or ought to have known that Mr Zafar Yasin did not have the authority to dismiss him.

If Mr Akram had any desire at all to continue his employment with Money Exchange that was clearly open to him given the series of texts sent on 11 March 2020, not only to him but to all other employees via the Fx Group Chat.

[65] Accordingly, based on all the evidence before me, I find that Mr Akram resigned from his employment.

[66] Consequently, I find that Mr Akram was not terminated on the employer’s initiative.

[67] The Application is therefore dismissed. An order to this effect will issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms. C Lewin appeared on behalf of the Applicant
Mr. L Batalha appeared on behalf of the Respondent

<PR721366>

Printed by authority of the Commonwealth Government Printer

1 Warrell v the Commission [2013] FCA 291.

 2   Digital Court Book at page 61.

 3   Ibid 65.

 4   Ibid 12-13, 65.

 5   Ibid 12-13, 65.

 6   Ibid 66.

 7   Ibid 12-13, 66.

 8   Ibid 69.

 9   Ibid 9-10.

 10   Ibid 11.

 11   Ibid 35.

 12   Ibid 12-13.

 13   Ibid 11.

 14   Ibid 72.

 15   Ibid 11.

 16   Ibid.

 17   Ibid 9-10.

 18   Ibid.

 19   Ibid 72.

 20   Ibid 123.

 21   Ibid 12-14.

 22   Ibid 105.

 23   Ibid 12-15.

 24   Ibid 9-10.

 25   Ibid 21-51.

 26   Ibid 9-10.

 27   Ibid 9-10.

 28   Ibid 21- 51.

 29   Ibid 108-110.