Siddharth Mahabal v Hadgelias Holdings Pty Ltd T/A Ray White Paddington
[2023] FWC 2684
•20 OCTOBER 2023
| [2023] FWC 2684 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Siddharth Mahabal
v
Hadgelias Holdings Pty Ltd T/A Ray White Paddington
(C2023/3360)
| DEPUTY PRESIDENT LAKE | BRISBANE, 20 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection raised – no dismissal – jurisdictional objection upheld – application dismissed.
Mr Siddharth Mahabal (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 9 June 2023. The Applicant claimed that adverse action was taken against him by Hadgelias Holdings Pty Ltd t/a Ray White Paddington (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.
Background
The Applicant commenced employment with the Respondent as a Real Estate Agent on 30 May 2023 on a full-time basis. The background covers the dismissal aspect only.
On 17 May 2023, Mr George Hadgelias (Director of Respondent) provided a specific listing to Ms Christine Fowler (Sales Consultant of Respondent) on 24 June 2023. The Applicant had undertaken an appraisal of the specific listing in 2022. This caused tension between Mr Mahabal and Ms Fowler.
On 1 June 2023 at 1.15pm during a lunchtime break, the Applicant had stated to Ms Fowler that he was not forced to have a conversation with her when Ms Fowler tried to engage in a conversation with the Applicant. The Applicant alleges Ms Fowler stated that she would report the matter to Human Resources. Upon this response, the Applicant states in his Form F8 that he ‘lost his cool and swore at her and told her to leave [him] alone.’ Mr Mahabal had acknowledged that he was in an ‘agitated mindset which led to a poor choice of words at the time’.[1]
After the incident on the same day, the Respondent submits that the Applicant was asked to return his office front door key, instructed the Applicant to return to his desk, collect his work documents and work from home while management conducts a review. The Applicant was asked to attend a meeting on 2 June 2023 to discuss the events on 1 June 2023. The Respondent stated that they did not ask for the Applicant’s vendor keys as the Applicant had an inspection viewing on 3 June 2023.[2]
On 2 June 2023, the Applicant wrote an email titled ‘Subject: Post termination housekeeping.’ The Applicant states on the email 'Hi George, In light of my unlawful termination yesterday please advise on the following points…’ The email acknowledges returning any keys of properties he currently holds, home signages, vendor enquires, and where to redirect work-related calls. [3]
On the same day, the Respondent replied that the Applicant was not terminated reiterating that the Applicant was asked to work remotely while the incident on 1 June 2023 was being investigated.[4]
On 5 June 2023, the Respondent provided the Applicant a show cause letter regarding his conduct on 1 June 2023. It stated that the Applicant had failed to attend a meeting on 2 June 2023, and failed to attend a scheduled inspection viewing on 3 June 2023. The Applicant was provided until 5 June 2023 to provide a response stating the failure to provide a response would indicate that the Applicant abandoned his employment. [5]
The Applicant responded on the same day:
‘As per my email while I was being escorted after my termination that I will be taking the matter with fair work.
The fact I was unfairly dismissed.
Then suspended retrospectively after you may have received some advice.I don’t have to show just cause and I have not abandoned my employment as I am no longer employed.’[6]
This was the last correspondence the Applicant sent to the Respondent before he lodged his application with the Commission on 9 June 2023.
The Applicant submits that there were ‘multiple documented incidences where he has requested clarification and had been threatened to be marched out the door’ and that he was dismissed on 1 June 2023.[7]
The Respondent submits that the Applicant was not dismissed and was asked to work from home while they investigated a workplace incident. When the Applicant refused to perform his duties, the Applicant abandoned his employment.
Consideration
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[8] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[9]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[10] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[11]
All the circumstances – including the conduct of both the employer and employee – must be examined.[12] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[13]
In Abandonment of Employment, the Full Bench of this Commission considered the meaning of “abandonment of employment”.
“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).” [14]
The difference between renunciation and repudiation was explained in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it... Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.” [15]
The Full Bench also referred to the requirement for the employer to attempt to contact the Applicant to establish a reason for the absence, as summarised and applied by Commissioner Gregory in Thompson v Zadlea Pty Ltd t/a Atlas Steel[16]:
“…the Full Bench has emphasised that it will normally be expected that the employer will have consulted, or attempted to consult, with the employee as part of the process of establishing the cause of the employee’s absence. While the Full Bench made these comments in the context of the Manufacturing Award I am also satisfied that such processes would normally be expected to be a part of what could reasonably be expected in the context of an employer coming to a conclusion that an employee has renounced their employment contract by abandoning their employment.[17]
(emphasis added)
In summary of the above authorities, abandonment occurs when the following is established:
· an unexplained or unauthorised absence from the workplace.
· a reasonable period of time where the employee has been absent without explanation or authorisation.
· whether there was any communication from the employee during the absence, or the communication from the employee clearly displays an intention of not returning to work.
· whether there was any enquiry by the employer in the time period where the employee is absent.[18]
It was clear in the Applicant’s submissions that the Applicant had a subjective belief that he was dismissed. However, in considering the definition of dismissed under s.386 of the Act, the Applicant did not demonstrate that there was a dismissal at the initiative of the employer. The Applicant’s insistence of his dismissal was from his own email correspondence to the Respondent. No email from the Respondent indicated that the Applicant was dismissed.
For instance, the following email was sent by Mr Hadgelias on 1 June 2023 at 2:29pm:
‘Dear Sid,
Thank you for your email.
I need you to note that I have not terminated your employment from Ray White Paddington, I have asked you to work from home pending an investigation into a gross misconduct complaint. I have received this afternoon involving yourself and another staff member.
It is my duty in these matters to ensure all parties including other work colleagues are safe when these matters arise. I will be investigating this matter this afternoon and would like to meet with you tomorrow in the office to provide you with the outcome of my investigation into this serious complaint.
I have asked you for your office key as I have asked you to work from home until I can resolve this matter.
Please confirm you will be in the office tomorrow at 3pm to discuss’[19]
This was reiterated on an email on 2 June 2023 at 2:39pm titled ‘Employment’ sent by Mr Hadgelias that the Applicant was not terminated, and that the Applicant was able to work remotely.[20] The Applicant was still able to undertake his duties on this date. The Respondent also provided an opportunity for the Applicant to respond to a show cause letter regarding his non-attendance of work on 5 June 2023.
The Applicant states that he was verbally dismissed. However, there are challenges in accepting this evidence as reliable with limited evidence to establish this. Even if there were a ‘threat of termination’, a dismissal takes effect when the employment relationship has ended by the employer, rather than the termination of the employment contract.[21] The employment relationship was not ended by the employer.
As a result, Mr Mahabal’s absence from work was unauthorised. The Applicant was asked to work from home between 2 June 2023. However, the Applicant indicated that he had no intention to return back to work. It was clear through his correspondence to the Respondent.
a)On 1 June 2023, the Applicant sent an email to the Respondent stating, ‘You have marched in this afternoon and terminated my employment with notice, and I would like to thank you for the opportunity and will pursue this matter further.’[22]
b)On 2 June 2023, the Applicant sent an email indicating his intention to end the employment relationship by returning items to the Respondent.[23] The Applicant further stated in an email at 12:40pm ‘To avoid ambiguity it was made clear to me in no uncertain terms by you that my employment is terminated, I consider that you terminated my employment yesterday and I accept your repudiation of my contract.’[24]
c)On 5 June 2023, the Applicant further insisted that he was unfairly dismissed.
The Respondent was clear in trying to communicate to the Applicant and made the relevant enquires with no success.
As a result, the Applicant was not dismissed by the Respondent under s.386 of the Act. The Applicant had repudiated the employment relationship through abandoning his employment. I Order that the Application be dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
S. Mahabal appearing for himself as the Applicant.
P. Forward on behalf of the Respondent from Real HR
Hearing details:
31 August 2023.
Hearing via Microsoft Teams
Brisbane
[1] Applicant’s Witness Statement [25].
[2] Witness Statement of Siddarth Mahabal 25.
[3] Witness Statement of George Hadgelias – Annexure D.
[4] Ibid – Annexure E.
[5] Ibid – Annexure G.
[6] Ibid – Annexure I.
[7] Applicant’s Submission 10.
[8] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[9] Ibid.
[10] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[11] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].
[12] Whirisky v DivaT Home Care[2021] FWC 650at [77].
[13] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].
[14] [2018] FWCFB 139 at [21]-[22].
[15] [2007] HCA 61 (Gleeson CJ, Gummow, Heydon and Crennan JJ).
[16] [2019] FWC 1687.
[17] [2019] FWC 1687 at [49].
[18] Thompson v Zadlea Pty Ltd t/a Atlas Steel[2019] FWC 1687 (Gregory C); Moein Abbasi v Deluxe Interiors Oz Pty Ltd, Hoang (Danny) Lam [2023] FWC 2283 (Lee C).
[19] Witness Statement of George Hadgelias – Annexure G
[20] Ibid.
[21] Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 at [33].
[22] Witness Statement of George Hadgelias – Annexure C.
[23] Ibid – Annexure D.
[24] Ibid – Annexure F.
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