Sejal Lalwani v Gundam Investment Pty Ltd

[2023] FWC 3388

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009

s.365—General protections

Sejal Lalwani
v

Gundam Investment Pty Ltd

(C2023/6603)

COMMISSIONER CONNOLLY

MELBOURNE, 15 DECEMBER 2023

Application to deal with contraventions involving dismissal - jurisdictional objection – whether the applicant was dismissed – no dismissal - jurisdictional objection dismissed

On 25 October 2023, Ms Sejal Lalwani (the Applicant) lodged a general protections application against Gundam Investment Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 10 October 2023, she was dismissed in contravention of the general protections provisions of the Act.

On 13 November 2023, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection, asserting that Ms Lalwani had not been dismissed. The Respondent contended that Ms Lalwani had voluntarily “quit” her job on 10 October 2023 by means of a public posting on Tiktok.

As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection, whether the Applicant was dismissed, before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provision.

On 28 November 2023, Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 14 December 2023 to be convened on Microsoft Teams.

This decision was delivered ex-tempore at the conclusion of the hearing on 14 December 2023.

I have considered all of the material submission and evidence of the parties in this matter am satisfied that the meeting on the 10 October 2023 between the Applicant and Mr Mollet of the Respondent resulted in a termination of Ms Lalwani’s employment at the initiative of the employer.
In reaching this conclusion I have accepted Ms Lalwani’s written and sworn oral evidence that she was told at this meeting by Mr Mollet that the owners of the business had decided to bring her employment to an end.

To the contrary I have considered the evidence of the Respondent and found this evidence less favourably, particularly given the absence of any written or sworn evidence from Mr Mollet.

I have also considered the Respondents admission in submissions that Ms Lalwani could have reasonably left the meeting on the 10 October 2023 with an impression her employment had come to an end.

I am satisfied therefore that either by either direct terms, or making it clear she had no choice but to resign, Ms Lalwani’s employment ended at the initiative of her employer on 10 October 2023.

Regarding the evidence presented by the Respondent of TikTok recordings to the contrary, I have considered the submissions of Ms Lalwani that she was distressed and emotional about what had occurred when she made this recording. I am satisfied that the word’s used were not an accurate record of what occurred.

It is well established that being subjected to a termination of one’s employment can be an emotionally distressing time. Ms Lalwani has submitted this to be the case in these circumstances and that it was her first termination. I accept her evidence and am satisfied the TikTok recordings should be discounted on this basis.

Accordingly, Ms Lalwani’s s.365 application should be allowed to proceed and this jurisdictional objection is dismissed.

COMMISSIONER

Appearances:

S Lalwani, Applicant
P Buckley, for the Respondent

Hearing details:

2023.
Melbourne (via Microsoft Teams)
December 14.

[1] [2020] FCAFC 152.

Printed by authority of the Commonwealth Government Printer

Ms Sejal Lalwani filed an application against Gundam Investment Pty Ltd under section 365 of the Fair Work Act 2009, alleging that she was dismissed in contravention of the general protections provisions of the Act on 10 October 2023. The Respondent raised a jurisdictional objection, arguing that Ms Lalwani had not been dismissed but had instead voluntarily quit her job by means of a public posting on TikTok. The Commission was required to determine the jurisdictional objection, whether Ms Lalwani was dismissed, before proceeding with the dispute about whether the dismissal was in contravention of the general protections provisions.

The Commission found that the meeting on 10 October 2023 between Ms Lalwani and Mr Mollet of the Respondent resulted in a termination of Ms Lalwani’s employment at the initiative of the employer. The Commission accepted Ms Lalwani’s sworn oral evidence that she was told by Mr Mollet that the owners of the business had decided to end her employment. The Commission found the Respondent’s evidence less favourable, particularly given the absence of any written or sworn evidence from Mr Mollet. The Commission also considered the Respondent’s admission that Ms Lalwani could have reasonably left the meeting on 10 October 2023 with the impression that her employment had ended. The Commission was satisfied that Ms Lalwani’s employment ended at the initiative of her employer on 10 October 2023, either by direct terms or by making it clear she had no choice but to resign.

The Commission dismissed the jurisdictional objection and allowed Ms Lalwani’s application to proceed. The Commission found that Ms Lalwani’s TikTok recordings were not an accurate record of what occurred and should be discounted given the emotionally distressing circumstances of her first termination. The Commission concluded that Ms Lalwani’s employment was terminated by her employer, and the jurisdictional objection was dismissed.

No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established