Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists
[2022] FWC 2228
•23 AUGUST 2022
| [2022] FWC 2228 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Zahar Levin
v
Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists
(C2021/4221)
| COMMISSIONER YILMAZ | MELBOURNE, 23 AUGUST 2022 |
Application to deal with contraventions involving dismissal - whether applicant dismissed and whether application within the prescribed time.
On 20 July 2021, Mr Zahar Levin (Mr Levin) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Histopath Diagnostics Specialists (Histopath). Mr Levin commenced employment on 21 June 2021, as a pathology collector and he submits that his dismissal took effect on 29 June 2021. Histopath oppose the application and press the jurisdictional objection that the employment ended by way of resignation.
This matter was firstly determined by Deputy President Mansini on 26 November 2021.[1] The Deputy President determined that Mr Levin was not dismissed from employment and that the employment relationship came to an end on 29 June 2021 during a telephone conversation which occurred after he walked off the job the day before.
Mr Levin appealed the decision, and a Full Bench of this Commission granted the appeal. In granting the appeal, the Full Bench admitted fresh evidence that was not available before the Deputy President. This fresh evidence was a letter by the Respondent to Anti-Discrimination NSW containing communication about the termination of employment. The Full Bench found that the decision was published before the letter was available to the Deputy President, the evidence was highly probative and if it was considered in the first instance, it was likely a different outcome would have resulted and that the letter goes to credibility of the evidence.
The Bench found that the letter should be admitted on the basis that the “evidence concerns a jurisdictional fact, namely whether the Appellant is a person who has been dismissed for the purposes of s.365 of the Act, and as a result, may have been dismissed within the meaning of s.386”. [2] The Full Bench was also satisfied that the appeal enlivened the public interest.
The Full Bench quashed the decision, and the matter was remitted back to the Deputy President. Given the departure of the Deputy President, the matter was referred to my chambers for rehearing, in light of the new evidence.
I issued directions for the rehearing to take place on 7 June 2022. The parties were self-represented. The parties resubmitted earlier or additional materials and indicated their reliance on materials submitted before the Deputy President.
Mr Levin gave evidence on his own behalf and Mr Arnold Vongsuvanh, Clinic Manager and Ms Wendy Martin, Business Manager gave evidence for Histopath.
Applicant’s submissions
Mr Levin gave evidence that he was engaged as a pathology collector which involved taking samples from the public at the Cromer COVID-19 drive through testing clinic. He submits that he was offered the job to work an eight-hour day, six days a week. On commencement he was sent a roster requiring 10–11-hour shifts and he immediately sent notification to his manager of his disappointment. He submits that he was informed that it was a temporary measure for the week. The next roster he says included 14-hour days. He submits that he chose to work 9-10 hours per day because of the 1.5 hours travel time from home to the location and the began to feel pain in his hands.
Having worked six days, the last day Mr Levin worked was on Monday 28 June 2021. He was scheduled to work from 7.30am to 8.30pm.[3] While at work, he says that he was bullied and not relieved to take a lunch break. At around 2.00pm, and after attempts to contact his manager unsuccessfully, he says that he left the workplace. He states that when he arrived home, he saw a text from his manager asking if he was leaving his job.[4]
On 29 June 2021 Mr Levin took an authorised unpaid leave day[5] for a medical appointment. In addition, Mr Levin used the time off work to make inquiries with a job agency/Centrelink and WorkSafe about his grievances with his employer and he attended other medical appointments. At 11.43am on the same day he sent to his employer a medical certificate which stated that he has a capacity to work 8 hours per day six days per week provided he was distanced from the bully and a workers compensation claim.
Mr Levin submits that his employer did not respond to his email, and he was unsure whether to go back to work the next day so he discussed his workers compensation claim with WorkSafe in the afternoon and was informed that he could file directly with the insurer. He submits that he filed his claim directly with iCare. He further states that it was after he filed the claim with iCare that he received a call from his manager. During the conversation with his manager, Mr Levin says that he stated that he needed to be separated from the bully and that he did not accept that he should work more than an 8-hour day. He submits that the response was that his position could not be accommodated and that there was no other location he could be transferred to. Mr Levin submits that he was angry and stated, “I will see you in court” and hung up.[6]
Mr Levin submits that he did not resign nor was he dismissed on 28 June 2021 and maintains that he was dismissed on 29 June 2021 by the Clinic Manager on the telephone call. Given that his application was filed on 20 July 2021 Mr Levin submits that his application was therefore lodged within the 21-day time limit.
Mr Levin tendered in evidence a copy of his interview with a workers compensation investigator dated 26 September 2021. In this interview Mr Levin states that he was dismissed on 29 June 2021 during the telephone conversation with his manager. The statement reads:
“My employment was terminated on 29 June 2021. I received a call from Arnold when was off work sick. He told me that the Insured could not employ me anymore because there was nowhere to relocate me away from the person that bullied me at the Cromer testing clinic.”[7]
Mr Levin contends that Histopath contravened the general protections provisions in relation to:
· S.340 Protection of workplace rights
· S.346 Protection of industrial activities
· S.351 Discrimination, and
· S.352 temporary absence – illness or injury.
Mr Levin contends that he was bullied and Histopath did not take action against the alleged bully but dismissed his employment.
Respondent’s submissions
Histopath submitted to the Deputy President that Mr Levin was engaged as a casual employee with an entitlement to annual leave and sick leave. Histopath say it initially agreed to provide 6-8 hours of work per day, however immediately after Mr Levin commenced there was a surge in COVID-19 positive cases. To cope with the demand in testing, the site increased its hours of operation and rostered hours of work to meet more than 1000 tests per days. Communication with staff was via Tanda (an electronic employee portal to manage rosters, leave etc). Histopath state that casual staff were informed that they could clock out earlier than the rostered hours on Tanda and may leave the site, provided the supervisor was advised. Histopath state that Mr Levin was informed that he could elect to work less than the rostered hours as long as he informed his site supervisor. They also say Mr Levin expressed his concerns with the rostered hours. It also maintains that due to his breach of infection control measures, Mr Levin was spoken to regarding infection control procedures but did not take kindly to the feedback.[8]
Histopath tendered in evidence an incident report for Monday 28 June 2021. This unauthored and undated report describes the interaction between Mr Levin, patients, and his interaction with the supervisor after the concerns were raised relating to alleged breaches of infection control practices.[9] In brief, the report indicates that Mr Levin was spoken to by a co-worker about how he administered a test and this was reported to the site supervisor. The site supervisor spoke to Mr Levin and he denied breaching infection control procedures, stating that he was discriminated against and bullied by the co-worker. He further informed his supervisor that he was working long hours, had not received a break and was leaving and not coming back. Mr Levin gave evidence that even though he said he was leaving and not coming back, it did not mean that he resigned.
A second incident report dated 28 June 2021 was completed by the supervisor identifying that Mr Levin complained that he was a victim of bullying by a co-worker. This report does not identify a cause, nor identify any witnesses and states that the complaint was made after Mr Levin left the worksite. The Clinic Manager provided commentary that Mr Levin was contacted and while the handwritten note is difficult to decipher, it reads that the safety requirements were explained as being paramount, that there was no bullying and an effort was made to hear his perspective.[10]
Histopath submit that on 28 June 2021, Mr Levin breached infection control measures and having been told, he “attacked” the staff on the day, including the site supervisor.
Histopath were surprised to receive a workers compensation claim for carpal tunnel after six days of work and a claim of bullying. It states that NSW Safe Work investigated the bullying complaint and advised there would be no further action. It also states that Mr Levin sent offensive emails to the Clinic Manager and payroll about the staff. Copies of the emails were tendered in evidence. It denies any contraventions of general protections and states that Mr Levin bullied staff and his allegation of not being paid were unfounded.
Histopath considered that Mr Levin having left work, sent text messages of his intent to sue and by stating that he would not return during the telephone conversation it considered that he left his employ at his own initiative.
The texts sent by Mr Levin to his manager on 28 June 2021[11] were the following:
“I’m a registered nurse I don’t need some girl telling me what to do. I put cannulas in children and now they banned me doing children. What’s er qualification please. (1:56pm)
All this time I was bullied big time by her. I felt like contacting police for avo. (1:56pm)
Ok she's just racist she tells at anyone who is not Australian. Even she tells at every patient. Her infection control knowledge is totally absent if I go to more details. She wears her own hoodie on top of ppe and when you talk to her on how to take gown or what to touch has very primitive ideas. Racism is her main thing. So I now you will back her. And ignore me That’s why I make sure I will contact appropriate government instance to sue this place. (2:23pm)
Good bye (2:23pm)”.
In regard to the telephone call, Histopath’s Clinic Manager gave evidence that he wanted to alleviate Mr Levin’s anger for the purpose of returning, to and confirm whether he intended to resign. He formed the view that but due to the heated comments by Mr Levin formed the view during the call that he did understood that he would not intend to return. Histopath confirmed that discussion about work at other sites occurred but and Mr Levin was informed that there were no suitable positions at other sites closer to his home.
Ms Martin Business Manager gave evidence regarding the correspondence that she sent to Anti-Discrimination NSW, stating that at the time she inadvertently used the word “dismissed”, instead of “left” explaining that it was a time with lots going on due varied litigation by Mr Levin. She states that she tried her best to respond at the time.
Consideration
This matter requires two matters to be determined: was Mr Levin dismissed and if so, was the application made within the statutory 21-day time limit?
Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act provides:
“Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The term “dismissed” is defined in s.386 of the of the Act.[12] A dismissal must be at the initiative of the employer, and includes instances where a person was forced to resign but does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:
“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…”
Firstly, to make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368 of the Act, the Commission must be satisfied that the person was dismissed in fact.[13]
The Deputy President determined that Mr Levin was not dismissed. She accepted the evidence of Mr Vongsuvanh in relation to the tone and nature and of Mr Levin’s comments during the telephone call on 29 June 2021 that he would not return to work but instead sue Histopath. She found that the evidence did not establish that Mr Levin was told he was dismissed. I agree with the Deputy President's findings.
It is uncontested that Mr Levin last worked on 28 June 2021 when he left the worksite without authority.
On the evidence before the Commission in relation to the telephone call on 29 June 2021, both Mr Levin and the Clinic Manager concluded that the employment relationship came to an end. Mr Levin gave evidence that he was not sure whether he would be returning to work after submitting his workers compensation claim the day before, but after the conversation on 29 June 2021 he says that he understood that there was no position for him with Histopath. Mr Vongsuvanh, the Clinic Manager intended for Mr Levin to return when he contacted him on 29 June 2021 however, he understood from Mr Levin that he had no intention of returning but would sue Histopath.
I am satisfied that there was no termination of employment on 28 June 2021. At the time of the hearing the parties remained in dispute whether the termination was at the initiative of the employer or whether Mr Levin resigned.
Whether Mr Levin was dismissed is to be determined in fact, that means that the employer’s action directly and consequently resulted in the termination of employment, and had the employer not taken the action the employee would have remained in employment.[14]
In answer to a question from the Commission as to why he believes he was dismissed, Mr Levin stated that his manager said there were no other positions available at other sites, and he assumed the response was because he lodged a workers compensation claim. In closing, Mr Levin expressed his frustration that there were no options discussed to separate him from the co-worker he accused of bullying him, meaning that if he “was not happy with the conditions he did not need to come anymore”.
Having considered the evidence of Messrs Vongsuvanh and Levin it is reasonable to conclude that both understood that the employment relationship came to an end, but neither were clear who initiated the termination, assuming the other party did. I am satisfied that Mr Levin was not told that he was dismissed. I am also satisfied that Mr Levin had no intentions of returning unless his conditions were met.
Of further relevance is the evidence of rosters. Histopath confirmed that the rosters for the week in question were already issued and the shifts were not withdrawn, there is also an absence of any further rosters issued to Mr Levin. Mr Levin did not return to work having filed a workers compensation claim which provided that he could work an eight-hour day provided he was separated from the alleged bully. There is no evidence of any action taken by Histopath to accommodate the conditions of the medical certificate. I do accept that the claim was challenged, and the full details of the claim were unclear in terms of whether it affected Mr Levin’s possible return to work. I also observe that Safe Work NSW did not pursue any further action regarding allegations of bullying. Given the submissions of the parties in relation to the litigation path taken by Mr Levin, he was unlikely to return to Histopath in any event. Then there remains the additional evidence of the letter considered by the Full Bench.
The document that Mr Levin submitted following the Deputy President’s decision and which was considered during the appeal, was a letter from Histopath to Anti-Discrimination NSW which relevantly states:
“Mr Levin was employed as a Pathology Collector for from 21 June 2021 until he was dismissed from employment on 28 June 2021. Mr Levin was dismissed during his probationary period of employment for a serious breach of infection control procedures. Maintaining strict protocols are vital to prevent spread of COVID-19. The complainant was very aggressive towards the site supervisor on the day when she attempted to discuss the breach with him. Please find attached the two incident reports in relation to the reason for Histopath’s termination of Mr Levin during his probationary period.”[15]
The letter sent to Anti-Discrimination NSW was prepared by the Business Manager, Ms Wendy Martin on 6 September 2021. The letter was in response to notification of a complaint lodged by Mr Levin and provides details about his employment and attached five documents concerning the termination of employment. Importantly the letter states that Mr Levin was subject to a probation period, yet this was not in evidence before the Commission.
During the hearing Histopath’s Business Manager, Wendy Martin stated that the letter to Anti-Discrimination NSW was drafted in haste resulting in an incorrect use of the terminology “dismissed” whereas Ms Martin intended to use the word “left” in relation to the termination of Mr Levin’s employment. When asked whether Mr Levin’s employment ended on the 28th or 29th June 2021, Ms Martin stated that she could not recall the exact date nor some other details, adding that the events occurred a long time ago, and at the time she dealt with multiple bodies and Mr Levin caused upset among a lot of people by sending offensive and disparaging communication.
However, the letter was dated 6 September 2021 and the workers compensation claim, the general protections application, and the Safe Work complaint were all made in June/July 2021. On the evidence, communication with the Deputy President’s chambers in preparation for the hearing occurred over November 2021, and the offensive and disparaging communication by Mr Levin was sent in July 2021. Among Mr Levin’s materials, it is apparent that communication with the Fair Work Ombudsman was had with Histopath regarding entitlements in November at around the time the letter was prepared.
While Histopath submit that the letter was prepared in haste, its structure appears well considered and relies on related evidence concerning the events on the last day of work and communication by Mr Levin following his termination. I also consider that Ms Martin’s explanation that she inadvertently used the word “dismissed” does not align with the structure and evident intent of the letter. In my opinion the letter is clearly drafted to convey a dismissal at the initiative of the employer.
Both Mr Vongsuvanh and Ms Martin voiced the fact that Mr Levin worked six days, and there was a level of exasperation with the litigation. I do observe that this is an unusual case involving six days of employment and the fervour seized by Mr Levin including his offensive communications are bewildering. I need not consider the merit of the case, however I do observe that the evidence does not strongly support Mr Levin’s alleged contraventions. No doubt should Mr Levin choose to proceed further with his argument of alleged contravention of ss.340,346, 351 and 352 of the Act, that he will have a very difficult case.
Having considered the evidence, I do find on balance of probability that Mr Levin was terminated at the initiative of the employer on 29 June 2021. While the words were not said, the action of Histopath resulted in the termination of employment, albeit assisted by Mr Levin’s decision to send offensive communications and pursue vigorous and varied litigation.
As I have found that Mr Levin was dismissed on 29 June 2021, his application is not out of time. For the reasons that the application is not out of time, and the previous effort at conciliation, I intend to issue a certificate unless both parties agree to a further conciliation conference.
COMMISSIONER
Appearances:
Mr Z. Levin on his own behalf.
Mr A. Vongsuvanh for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
7 June
[1] Mr Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists [2021] FWC 6474.
[2] Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists[2022] FWCFB 39 at [33].
[3] Email with Tanda roster for 23 to 29 June 2021.
[4] Workers compensation statement with investigator dated 26 September 2021 at [103].
[5] Approved unpaid leave request via Tanda, email of 22 June 2021.
[6] Witness statement of Zahar Levin 22 November 2021.
[7] Workers compensation statement with investigator dated 26 September 2021 at [11].
[8] Respondent’s witness statement.
[9] Respondent’s attachment 2.
[10] Respondent’s attachment 3.
[11] Respondent’s attachment 8.
[12] See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009.
[13] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[14] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), (1995) 62 IR 200 at p.205.
[15] Letter dated 6 September 2021 from Histopath to Anti Discrimination NSW.
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