Sumeet Thakur v Assetlink Services (11) Pty Limited
[2023] FWC 2550
•10 OCTOBER 2023
| [2023] FWC 2550 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sumeet Thakur
v
Assetlink Services (11) Pty Limited
(U2023/5642)
| COMMISSIONER BISSETT | MELBOURNE, 10 OCTOBER 2023 |
Application for an unfair dismissal remedy
Mr Sumeet Thakur (Applicant) has made an application to the Commission in which he seeks a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Thakur was employed by Assetlink Services (11) Pty Ltd (Respondent). The Applicant commenced his employment with a different company in 2013 – that company having eventually been taken over by the Respondent. The Applicant says that he was dismissed from his employment on 7 June 2023. The Respondent says that the Applicant resigned his employment on 2 June 2023 and that he was not dismissed.
The matter to be determined by the Commission is therefore if the Applicant was dismissed or resigned his employment.
The Applicant and Respondent both filed submissions in support of their respective positions as to the termination of employment. The hearing dealt only with the question of whether the Applicant had been dismissed and did not traverse issues going to the merits of the claim for unfair dismissal.
Prior to the hearing I granted the Respondent permission to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act, being satisfied that the matter would be dealt with more efficiently if permission was granted.
Having heard from the parties I determined that the matter would proceed by way of hearing. In doing so I informed the parties that I intended to run the proceedings in a manner taking into account that the Applicant was not represented.
LEGISLATIVE PROVISIONS
To be able to prosecute a claim for a remedy for unfair dismissal a person must have been dismissed from their employment.
The meaning of dismissal is set out in s.386(1) of the FW Act:
386 Meaning of dismissed
(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.
In maintaining that he had been dismissed the Applicant was not clear on which paragraph of s.386(1) he relied – that is whether he was dismissed on the employer’s initiative or if he had, in fact resigned, but was forced to do so. For the reasons given below I have considered each of these matters.
BACKGROUND
The factual background to this matter is not in dispute.
In May 2023 the Applicant made an application to the Commission for orders to stop bullying. That matter was dealt with by Commissioner Wilson with a recommendation to resolve the matter ultimately agreed to by both parties.
On 11 May 2023 the Applicant emailed Commissioner Wilson and advised him that (a) the terms of the recommendation were satisfactory and (b) that he had applied for a transfer with the Respondent to Westfield Shopping Centre (Westfield or Airport West) and was going to ‘start there from next week and onwards’.
A contract of employment for permanent full time work at Westfield was provided to the Applicant by the Respondent on 16 May 2023[1] indicating a start date of 26 May 2023. The Applicant says he never signed the contract.
The contract set a roster for the Applicant to work Tuesday, Wednesday, Thursday and Friday (nights) from 8.00 pm – 8.00 am.
In the last week of May the Applicant appears to have undertaken some induction training at Westfield.
On Monday 2 June 2023 the Applicant sent a text message to his Westfield supervisor (Sam) at 3.25 pm in which he said:
Hi sam,
Just wondering if u can please cover today’s night shift, if possible?
Please update.
ThanksSumeet[2] (sic)
Sam replied by text that he couldn’t cover the shift, and that the Applicant had to start his roster that night as Sam was caught up in a ‘first aid situation’.
The Applicant replied:
Please try to cover, if possible as i m badly stuck for tonight. (sic)
Sam replied that he could not cover the shift and had no one to cover it.
The Applicant replied:
Ok no worries, thanks
Sam then reminded the Applicant at 3.50 pm that he needed to turn up 10 minutes prior to the commencement time for a handover[3] with the Applicant replying straight away:
No worries, thanks.
At 4.54 pm on 2 June 2023 the Applicant sent a further text message to Sam that said:
Hi sam,
I really apologise but I am badly stuck now and not willing to come tonight.
I will provide my resignation as soon as possible from fulltime role.
Thanks for your help.
Regards,
Sumeet[4] (sic)
Sam again replied:
Hi Sumit, as I mentioned this a very short notice I can’t cover your shift tonight, your resignation is another thing we can discuss but for now you need to attend you shift. (sic)
Sam also called the Applicant around the time of the last text he sent to the Applicant. The Applicant did not answer the call[5] or call Sam back that day or on any of the following days.
The Applicant did not attend work on 2 June 2023 or the following Tuesday and Wednesday nights. On 8 June 2023 – the following Thursday – Sam sent a text message to the Applicant at 10.34 am as follows:
Hi Sumeet, your resignation accepted as you didn’t turn up to your shifts last week and this week,
Please send me an email resignation latter.
Thank you
Sam[6] (sic)
The Applicant replied:
Hi sam, I will update you asap, thanks
On Friday 9 June 2023 the Applicant sent a text message to Sam at 9.58 am:
Hi sam,
Just wondering about few missing shifts in kronos as I have done following shifts in last week.
31/5/23- 0830-10am-fire training[7] (sic)
On 10 June 2023 at 12.42 pm the Applicant sent an email to Ms Emma Thiessen of the Respondent and said:
Hi Emma,
Just wondering if any job opportunities available on any other Assetlink work site as I have done training at Westfield Airport West shopping centre but it doesn’t suits me.
I am looking forward to hear from you.
Kind Regards
Sumeet Thakur (sic)
The Applicant said that ‘after that day’ (in his application form he said it was 15 June 2023) he telephoned Ms Thiessen.
On 14 June 2023 the Applicant sent an email to Commissioner Wilson’s chambers (copied to the Respondent) in which he provided a brief summary of the events of 2 June 2023. He then said:
I am looking forward to hear in regards to this matter as Assetlink informed me that they accepted my resign but I didn’t officially resigned from my role till today (sic)
On 6 July 2023 the Applicant discontinued his application for orders to stop bullying.
SUBMISSIONS
The Applicant
The Applicant says that he completed his induction training on 1 June 2023 and was ‘supposed to work on 2 June 2023 from 2000-0800 but unfortunately, [he] had to cancel the work because of emergency in [his] family.’ He says he made an early request to cancel his shift on 2 June 2023 but his manager tried to force him to attend work ‘at any cost.’
The Applicant says that he only had a ‘very small conversation’ by text message on 2 June 2023 where he ‘only mentioned to [Sam] that I will resign if I have to be pushed to work in my family emergency’ but he did not say in the message that he was resigning.
The Applicant submits that he did not resign on 2 June 2023 but was told by Ms Thiessen on 15 June 2023 that the Respondent had accepted his resignation.
The Applicant submits that Sam, acting out of vengeance, forced the Applicant to attend work on 2 June 2023 ‘at any cost’ and ignored his family emergency. The Applicant also says that he had no roster and none had never been provided to him.
The Applicant submits that his text message of 2 June 2023 could not be taken as a resignation and that Sam has twisted his words (‘moulded the language’[8]) to reflect a resignation. Further, the Applicant submits that if he had resigned on 2 June 2023 the request by Sam on 8 June 2023 that he submit a resignation letter makes no sense. The Applicant further submits that Sam was well aware that he was stuck in a family emergency on 2 June 2023.[9]
The Applicant relies on the definition of ‘resignation’ in the Merriam-Webster dictionary of ‘a formal notification of resigning’ to support his submissions that he did not resign as he has not provided a ‘formal notification’ of such. Further, he submits that his words ‘I will provide…’ suggest some future act.
The Applicant also submits that a resignation must be a voluntary act and, where the Applicant has no choice but to resign then the resignation is forced and, therefore, a ‘constructive dismissal’. The Applicant refers the Commission to the decisions in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mormon v Sharon Tavassoli[10] (Bupa), Tao Yang v SAL HR Services Pty Ltd[11] (Yang) and Bethan St John Rutter v Anglogold Ashanti Australia Limited[12] (Anglogold) in support of his case. A fourth case referred to by the Applicant was not relevant. The Applicant submits that these cases support his submissions that he was being forced to work in circumstances of a family emergency and hence had no choice but to resign.
The Applicant submits that the Respondent was too quick in its actions of dismissal and did not try and contact the Applicant and clarify what it was he intended.
The Applicant suggested that, on 2 June 2023 and the period leading up to that, he was only working casually at Westfield and that he worked only when Sam contacted him to ask him to work a shift. He said he did not attend work after the 2 June 2023 exchange as he was waiting on a call from Sam. The Applicant could not, when questioned, explain his failure to return Sam’s call of 2 June 2023 or to contact Sam thereafter to ask when his next shift might be.
The Respondent
The Respondent submits that, with his express agreement, the Applicant was offered and accepted a permanent ongoing role at Westfield Airport West. That appointment was confirmed by the provision of the contract of employment.
In the circumstances the Respondent submits that it was reasonable for the Respondent to conclude that the Applicant had resigned his employment based on:
· the text message string of 2 June 2023
· the failure of the Applicant to perform any shifts between 2 and 8 June 2023
· The silence of the Applicant between 2 and 8 June 2023
· The text exchange of 8 June 2023
The Respondent submits that it was only when it received a copy of the email sent by the Applicant on 14 June 2023 to the chambers of Commissioner Wilson that it appeared the Applicant was contesting his resignation. The Respondent says that, prior to this email, there was nothing in the exchanges with the Applicant that suggested he contested the acceptance of his resignation.
The Respondent submits that the Applicant had multiple opportunities – if he did contest his resignation – to indicate that he had not resigned and to clarify with the Respondent that his text message of 2 June 2023 was not intended to be a resignation. The Respondent says the Applicant could have done this by attending for his next scheduled shift on 6 June 2023, calling Sam, responding to the text of 8 June 2023 from Sam to say he had not resigned or emailing Ms Thiessen after the conversation he had with her to say he had not resigned.
The Respondent says that the Applicant’s submission that he sent a text to Sam stating ‘…that I will resign if I have to be pushed to work in my family emergency’[13] but that he ‘didn’t mention in the SMS that I am resigning’[14] must be rejected. None of the text messages of 2 June 2023 (or of any other date) support that the Applicant conveyed to Sam that he had a ‘family emergency’. In this respect the Respondent submits that I should take into account the failure of the Applicant to be open and frank on this point and I should also conclude that the Applicant has not been open and frank about why he did not work between 2 and 8 June 2023.
The Respondent relies on the decision in Bupa and says that, given the failure of the Applicant to clearly articulate how he was dismissed (in terms of s.386(1)(a) and (b) of the FW Act) both limbs of s.386(1) should be considered.
CONSIDERATION
I am satisfied that the relevant law in relation to whether an employee has been dismissed within the meaning of the FW Act is canvassed in the decision in Bupa and I have applied the principles set out in that decision in determining the matter before me.
The Applicant did not (and could not) clearly articulate the basis on which he said he had been dismissed from his employment. For this reason, out of abundance of caution, I have considered his actions and those of the Respondent under both limbs of s.386(1) of the FW Act.
There are findings of fact relevant to the totality of my considerations below.
First, I accept, and it is not disputed, that the Applicant did not return the telephone call he received from Sam on 2 June 2023 either on that day or on a later date.
Second, I find that the Applicant did not advise his supervisor, or anyone else of the Respondent, that he had a family emergency on 2 June 2023 and this was the reason he could not come to work. The only reason he gave for not being able to attend his shift that night was that he was ‘badly stuck’.
Third, the evidence before the Commission does not support a finding that the Applicant’s supervisor acted out of vengeance on 2 June 2023.
Fourth, I do not accept, and it is not supported by the evidence before me, that the Applicant told his supervisor that he would resign if pushed to come to work during a family emergency. Again, the Applicant did not advise his supervisor, based on the evidence before me, that he could not come to work due to a family emergency.
Was the Applicant’s employment terminated on the Respondent’s initiative (s.386(1)(a))?
In broad terms, a resignation which is not regarded as being truly voluntary may not be an effective resignation capable of acceptance by an employer. In such a case acceptance of the resignation will constitute a termination at the initiative of the employer. However, where an employee uses unambiguous words an employer is entitled to treat such a resignation as effective and which operates to terminate the employment.
A resignation that is given in the heat of the moment or under extreme pressure may constitute special circumstances such that a reasonable period of time should be allowed to elapse and/or further enquiries made as to whether the resignation was not intended. If a resignation is not withdrawn within a reasonable time, this may suggest the resignation was intended.
Special circumstances may also exist where an employee is ‘jostled’ by the actions of the employer to resign such that the resignation in such circumstances is not effective.
In all cases an objective view of the actions of the employer and employee is required.
In this case, based on the evidence before me, the Applicant advised of his intention to resign his employment at 4.54 pm on 2 June 2023, just over one hour after he said he would attend for work and one and a half hours after he asked if his shift could be covered because he was ‘badly stuck’. It is notable that at no stage did the Applicant tell his supervisor why he could not attend work.
The Applicant did not speak to his supervisor by phone either on 2 June 2023 or in the days thereafter and seek to explain the situation he was in (or inquire as to his next shift).
I am satisfied that the Applicant, both by the words of his text message of 2 June 2023 (when he said ‘I will provide my resignation as soon as possible from fulltime role’) and by his failure to attend to work on the following Tuesday and Wednesday nights or otherwise contact the Respondent, intended to resign his employment. I am satisfied that the Respondent could reasonably conclude that the Applicant had resigned his employment. The Applicant, therefore, brought the employment relationship to an end.
Further, at no time did the Applicant advise the Respondent that he did not resign his employment.
My conclusion that the Respondent did not terminate the Applicant’s employment on its initiative is further supported by the text message the Applicant sent to his supervisor on 9 June 2023, after his supervisor advised that his resignation had been accepted, inquiring as to missing pay and the email he sent to Ms Thiessen on 10 June 2023 enquiring about other opportunities because Airport West ‘doesn’t suit [him]’. These communications both occurred after the Applicant was advised that his resignation had been accepted and yet the Applicant did not quibble with this advice from his supervisor or respond directly to it.
Further, the Applicant’s evidence that he was waiting for his supervisor to contact him with details of his next shift is not credible. The Applicant had sought a move to Airport West,[15] he advised Commissioner Wilson that he was moving to Airport West, he was provided with a contract for the role but says he did not sign it (and offers no explanation for this) but did undertake the training necessary to work at that location. In his text message of 2 June 2023 he indicated that he would provide his resignation ‘from fulltime role’ from which I infer he was aware he was employed on a full time basis. By these actions I am satisfied that the Applicant accepted the contract for Airport West. No other explanation is credible. If he had not commenced at Airport West it is unclear why he would attend for training. Further, the contract provided for employment on a full time, permanent basis and made clear that he commenced in that role on 24 May 2023.
In circumstances where the contract clearly set out the Applicant’s roster, there is no basis for the Applicant to be ‘waiting’ for the supervisor to advise him of his next shift. But even if this was so he still did not, at any time after 2 June 2023, protest that he had not resigned his employment.
The Respondent, in this respect, took no action other than to process the Applicant’s resignation. Even when he was advised by Ms Thiessen on 15 June 2023 that the Respondent had accepted his resignation the Applicant did not protest that he had not resigned.
I am therefore satisfied that the Respondent provided the Applicant with a very reasonable period within which he could have advised that his employment had not been terminated but he did not do so. Rather, after having said he would resign and having not attended for any further shifts and being told his resignation was accepted the Applicant took no action to correct the Respondent’s view.
For these reasons I am not satisfied that the resignation of the Applicant amounts to a termination of employment at the initiative of the Respondent. Section 386(1)(a) of the FW Act does not apply to his resignation.
Was the Applicant forced to resign by conduct or a course of conduct of the Respondent (s.386(1)(b))?
Again, the decision Bupa provides guidance as to the approach to this question.
Section 386(1)(b) requires a focus on the conduct of the employer. In determining if a resignation was forced by the conduct or course of conduct of the employer it is necessary to determine what the critical action was that caused the resignation. For the conduct of the employer to cause the resignation it must be that some act of the employer results directly or consequently in the termination of the employment. Further, it must be that the employer intended its actions to bring the employment to an end. When the employee has no effective or real choice but to resign the termination will be at the initiative of the employer.
In this case I am not satisfied that the Respondent’s actions, viewed objectively, left the Applicant with no real choice but to resign.
The Applicant, in circumstances where the only information he provided to his supervisor was that he was ‘badly stuck’ and could not attend to his shift on 2 June 2023 and was told his shift could not be covered, had a range of options available to him besides resignation. The Applicant could have explained why he could not attend work that night and asked for personal or annual leave to cover that night. As it was he made no request. Further, the Applicant could have spoken to his supervisor or turned up for his next shift. He did none of these.
The Respondent did not threaten the Applicant’s employment because of his non-attendance on 2 June 2023 and, in fact, anticipated that the Applicant would attend to work for his next shift on the following Tuesday night.
Objectively viewed there is no conduct on the part of the Respondent that caused the Applicant to resign his employment.
I am therefore not satisfied that s.386(1)(b) applies to the Applicant’s resignation.
CONCLUSION
For the reasons given I am not satisfied the Applicant was dismissed from his employment.
Section 385 of the FW Act sets out when a dismissal may be unfair. It requires, as one of the matters that must be met, that the person has been dismissed.
Having found the Applicant was not dismissed within the meaning of the FW Act I cannot find the Applicant was unfairly dismissed.
The application must therefore be dismissed.
COMMISSIONER
Appearances:
S Thakur, for himself
A Denton of counsel, for the Respondent
Hearing details:
2023.
Melbourne:
September 19.
[1] Court Book (CB) page 31
[2] Submissions of the Applicant, CB page 13
[3] Witness statement of Lucy Lenehan, attachment E, CB page 37
[4] CB page 15
[5] While no message was left the Applicant does not dispute that the number that called him was ‘Sam’
[6] Submissions of the Applicant, CB page 16
[7] Witness statement of Lucy Lenehan, attachment H, CB page 43
[8] Reply submissions of the Applicant, paragraph 7, CB page 8
[9] Reply submissions of the Applicant, paragraph 5, CB page 9
[10] [2017] FWCFB 3941
[11] [2023] FWC 1325
[12] [2023] FWC 1891
[13] Applicant’s submissions of 23 August 2023, CB page 4 and in the Applicant’s Form F2
[14] Ibid
[15] Witness statement of Lucy Lenehan, attachment B, CB page 27
Printed by authority of the Commonwealth Government Printer
<PR766814>
2
3
0