DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Sunil Chand
v
MTP Marble Granite Sandstone T/A MTP Marble Granite Sandstone
(U2016/13450)

s.394 - Unfair dismissal – jurisdictional objection – whether the Applicant was terminated –jurisdictional objection upheld – application for an unfair dismissal remedy dismissed.

Introduction

[1] On 9 November 2016, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Sunil Chand (the Applicant). The Respondent objected to the application on jurisdictional grounds and the matter was relisted for a jurisdictional hearing.

[2] The matter was the subject of conciliation on 6 December 2016, the matter was not resolved and was consequently listed for hearing. At the hearing conducted on 15 March 2017, the Applicant represented himself, and MTP Marble Granite Sandstone (the Respondent) was represented by Mr Michael Di Giannantonio, Managing Director.

[3] The Applicant filed written submissions in the Fair Work Commission (the Commission) on 3 March 2017. The Respondent filed written submission in the Commission on 17 February 2017.

[4] The Applicant gave evidence on his own behalf and did not call any other witnesses.

[5] The following witnesses gave evidence on behalf of the Respondent:

● Mr Michael Di Giannantonio (Managing Director)
● Mr Mark Fabian (Consultant to MTP Marble Granite Sandstone)

Background

[6] The Applicant was employed by MTP Marble Granite Solutions and commenced employment on 4 July 2011.

[7] On 19 October 2016 events transpired between the Applicant and Mr Fabian, which led to the Applicant leaving the premises. It is also agreed that as he left the premises, the Applicant stated that he was going to report the matter to the Fair Work Commission

[8] The Applicant did not return to employment after these events on 19 October 2016.

[9] The Applicant submits that he was unfairly dismissed and is seeking an Order for compensation.

Was the Applicant dismissed?

[10] The central question in this matter is whether the Applicant was dismissed within the meaning of the Act. The relevant statutory provisions are as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“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.”

[11] The Respondent submits that the Applicant was not dismissed, but by his actions either resigned or abandoned his employment on 19 October 2016 because:

● The Applicant left after the events on 19 October 2016 and did not return to his employment.

● The Applicant did not make contact with the Respondent after the events on 19 October 2016.

[12] The Applicant submits he did not resign or abandon his employment because:

● The Respondent’s failure in not calling, texting or returning calls after the events of 19 October 2016 indicated to the Applicant that he was terminated, based on Applicant’s understanding of the Respondent’s previous conduct with other employees.

[13] I will now make findings of fact in relation to each relevant disputed matter.

[14] In relation to the events of 19 October 2016, the evidence put forward by both the Respondent and Applicant describing the conversation between the Applicant and Mr Fabian was materially consistent with each other. That is that Mr Fabian made statements along the lines of:

“Sunil this is not good enough, I’ve had it up to here, I set everything up before I left for overseas so that sales revenue would start building with our new bankers…”

[15] Mr Fabian was not directly or indirectly terminating the Applicant. In fact, Mr Fabian did not have the power to dismiss the Applicant as he was hired as a consultant, and was not a manager of the business. This was confirmed by Mr Di Giannantonio.

[16] Upon leaving the premises the Applicant stated that he would take the matter to the Fair Work Commission. The Applicant did not specify what exactly he would be doing with the Fair Work Commission, for example he could have made an anti-bullying application or an adverse action claim.

[17] The Applicant claims that when he left the premises on that day, he called Mr Di Giannantonio and spoke to him about Mr Fabian’s conduct, to which Mr Di Giannantonio replied that he would look into the matter and speak to Mr Fabian about the events. During cross-examination, Mr Di Giannantonio stated that could not re-call this conversation with the Applicant.

[18] The Applicant did not further contact the Respondent after the events on 19 October 2016, by correspondence, SMS message or any other written method, until the application for unfair dismissal was made, and this is not disputed.

[19] Mr Di Giannantonio confirmed that the next time the Respondent and Applicant were in contact after the 19 October 2016 events, was in relation to this unfair dismissal application.

[20] I find that the Applicant left the premises after the discussion with Mr Fabian on 19 October 2016, he did not return to the premises and did not make any communication with the Respondent until after the Unfair Dismissal matter was lodged with the Commission. Apart from the telephone call on 19 October 2016 which Mr Di Giannantonio does not recall.

[21] The Applicant had no reason to believe that he was terminated by Mr Fabian, since the discussion did not turn to the topic of dismissal, and Mr Fabian as a consultant and not a manager of the business, did not have the power to terminate the Applicant in any event.

[22] Whilst I empathise with the way that the Applicant may have felt during this conversation, the evidence does not indicate to me that the Applicant had no real choice but to resign after this interaction. 1 It is clear that the Applicant did not like what was being said, and chose to leave the premises. Mr Fabian during examination in chief and cross examination, displayed a clear recollection of events and presented the evidence in a calm and collected manner. Mr Fabian’s version of events in content is largely consistent with the version put forward by the Applicant.

[23] Accordingly, I find that the Respondent did not dismiss the Applicant.

Conclusion

[24] I am satisfied that the Respondent’s jurisdictional objection has been made out. The Applicant was not terminated, but in fact, left on his own accord.

[25] Having made these findings, it follows that the application for unfair dismissal in this matter is without jurisdiction and must be dismissed.

[26] The application for unfair dismissal remedy is dismissed.

VICE PRESIDENT

Appearances:

S. Chand for himself.

M. Di Giannantonio for the Respondent.

Hearing details:

2017.

Sydney:

15 March.

 1   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.

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