Syed Maqsood Hussain v Multi Trade Building Solutions NSW Pty Limited
[2023] FWC 1620
•4 JULY 2023
| [2023] FWC 1620 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Syed Maqsood Hussain
v
Multi Trade Building Solutions NSW Pty Limited
(U2023/1054)
| COMMISSIONER MCKINNON | SYDNEY, 4 JULY 2023 |
Application for an unfair dismissal remedy – whether applicant dismissed
Mr Syed Maqsood Hussain was employed as a QA Inspector by Multi Trade Building Solutions NSW Pty Limited trading as MNI Electrospark (MNI Electrospark) from early January 2017 until 30 January 2023.
On 10 February 2023, Mr Hussain applied in time for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). MNI Electrospark objects to the application on the basis that Mr Hussain was not dismissed.
A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[1] Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.
Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.
The question is whether Mr Hussain was dismissed for the purposes of section 386(1) of the Act. I find that Mr Hussain was dismissed from his employment with MNI Electrospark. These are my reasons.
Was Mr Hussain dismissed?
In 2018, Mr Hussain asked for a change to his duties to avoid heavy lifting after experiencing pain in his arm and his back. His supervisor arranged for a change of roles and Mr Hussain moved into the role of QA Inspector.
On 30 August 2022, Mr Hussain sent a message to Mr Osman Khaznadar, Managing Director of MNI Electrospark, to say that his leg pain was “hurting too much” and that he was going to see the doctor. He attended his doctor for back and left leg pain. The doctor issued a worker’s compensation medical certificate, citing the 2018 back pain due to heavy lifting, and recording the date of injury/accident as 30 August 2022.
On 5 September 2022, Mr Hussain provided a medical certificate to MNI Electrospark, which certified him as unfit for work from 5 to 9 September 2022. He subsequently remained off work on personal leave until 23 October 2022, and then on annual leave from 24 October 2022 to 27 January 2023.
On 24 January 2023, Mr Hussain sent a certificate of his fitness for work to MNI Electrospark. According to the certificate, Mr Hussain had “no medical condition and will be fit for work from today but to avoid heavy lifting”.
In response, on 30 January 2023, Mr Khaznadar wrote to Mr Hussain:
“Salam Syed
Hope all is well. Things have slowed down. We have been trying to find a suitable position but unfortunately have had no luck at this stage.”
Mr Hussain tried to call Mr Khaznadar to discuss his email but was unable to get through. Mr Khaznadar says this is because he had delegated the matter to Mr Mustafa Saeed with a request that he set up a meeting “one to one”. In the meantime, Mr Khaznadar says he was discussing options for suitable positions with his Operations Managers. I do not accept the evidence of Mr Khaznadar on these matters. It is inconsistent with the evidence of Mr Hussain, which was clear and consistent, and which I accept, about how Mr Saeed responded when asked what was happening with his employment in the period prior to the filing of his application. It is also clear from the accounts of both parties that the decision to arrange a meeting with Mr Hussain was only made after he filed this application on 10 February 2023.
On 31 January 2023, Mr Hussain wrote to Mr Khaznadar:
“Salam
This is harsh, it will be very challenging to find another job when I am recovering from five months long illness and with heavy lifting restrictions. I didn’t made [sic] any dispute with MNI when My [sic] workers compensation was refused thinking that at least I will have job in hand in my difficult time and consumed my own five months leave and now my job is terminated and replaced by another worker. if [sic] I was on workers compensation during work injury; this five months leave would have supported me while being off work to find another job.
Is there any support or counselling arrangements from MNI for me at this hard time ..?”
Mr Khaznadar did not respond to Mr Hussain. Mr Hussain called Mr Saeed about 10 times and got through two or three times. On each occasion, Mr Hussain asked what was happening, and if he had been terminated. Mr Saeed replied to the effect that he didn’t know; would ask Mr Khaznadar; and hadn’t been able to find him to ask.
Mr Hussain began to have doubts about the response he was receiving from Mr Saeed. He knew that Mr Saeed and Mr Khaznadar worked in the same office, and that they regularly met with each other. He thought that something was wrong and began to research his options on the internet. He found the Fair Work Commission’s website and realised that he only had 21 days to make an unfair dismissal claim.
On 10 February 2023, Mr Hussain made this application.
Shortly after the application was made, Mr Saeed called Mr Hussain and asked if he had missed his call. Mr Hussain said, “No. Did you talk to Osman yet?” Mr Saeed replied, in words to the effect “No, not really.” He said he would fix a meeting with himself, Mr Hussain, and Mr Khaznadar. Mr Hussain agreed to meet, but subsequently changed his mind because he was worried about how it would affect his application to the Commission.
MNI Electrospark largely chose not to engage with the Commission in relation to the application. Twice, it failed to attend a scheduled conciliation, and the Form F3 – Employer response was only filed on 7 June 2023. It did not file any submissions or witness evidence in the proceeding.
On 1 May 2023, Mr Khaznadar wrote to Mr Hussain. His email included the following statement:
“Please be advised there are fundings that we are holding but have not released due to the tribunal matter. I am happy to send funds to you before the meeting if you need funds.”
On 25 May 2023, Mr Khaznadar wrote to Mr Hussain and said this:
“I honestly believe this was purely a miscommunication between me and Muss and me, possibly not giving the situation time to look into your circumstances. I was busy at the time and could not come up with a solution; hence, I thought it would be best to tell you the truth and not beat around the bush with you.
I instructed Muss to call you to meet with me. Allah is my witness. My approach to you was not because i fear of the governing bodies but of humbleness as I believed I owed you a sit-down and explanation from both sides, but you did not show up, and I understood the situation that you wished to run the course with fair work which I respected.”
Consideration
The questions in dispute are whether the employment relationship has come to an end, and if so, when. Mr Hussain says the employment relationship ended on 30 January 2023 when he was advised by Mr Khaznadar that there was no “suitable position” for him. MNI Electrospark says it does not know if the employment relationship has ended, although it appears to concede that Mr Hussain is no longer on the payroll. Mr Hussain commenced a new job on 29 March 2023. MNI Electrospark denies that the email of 30 January 2023 brought the employment relationship to an end.
I am satisfied that the employment relationship has ended. After a period of service of more than 6 years, Mr Hussain took a five‑month period of absence for medical reasons. During this time, he was replaced in his role. On 24 January 2023, when Mr Hussain advised of his clearance to return to work, MNI Electrospark made no arrangements to facilitate his return. It did not provide him with any work to perform or ask him to attend the workplace for any other reason.
MNI Electrospark knew, on 31 January 2023, that Mr Hussain understood the email of the previous day as its advice that he no longer had a job. It knew this because of the repeated references in Mr Hussain’s pleading email about the harshness of the situation and having to find another job.
If Mr Khaznadar genuinely thought that Mr Hussain had not been dismissed, or that there had been a misunderstanding, he would have sought to clarify the position. There is no reason why he could not have done so immediately, by return email. He could have told Mr Hussain (or arranged for someone else to tell him) that he was still employed and did not have to find another job. Instead, he took no steps to clarify or confirm the position with Mr Hussain, whose regular attempts to clarify the position went unanswered. It was only after this application was filed, more than 10 days later, that MNI Electrospark offered to set up a meeting to discuss.
I am satisfied that Mr Hussain was dismissed on 30 January 2023. The email of 30 January 2023, and the lack of any subsequent steps by MNI Electrospark to clarify the position or make work available for Mr Hussain to perform, were together the principal contributing factors that brought the employment relationship to an end. Mr Hussain was terminated at the initiative of the employer for the purposes of section 386(1)(a).
The jurisdictional objection is dismissed.
COMMISSIONER
S Hussain on his own behalf.
O Khaznadar for the respondent.
Hearing details:
2023.
Sydney (by video):
July 3.
<PR763895>
[1] Fair Work Act 2009 (Cth), s 385(a).
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