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Fair Work Act 2009                                                    






s.526 - Application to deal with a dispute involving stand down


Mr Avinesh Chand Maharaj


Amber Aero Engineering Pty Ltd





10.00 AM, THURSDAY, 20 OCTOBER 2022


Continued from 15/06/2022



THE COMMISSIONER:  Good morning, parties.  This is Commissioner Wilson, speaking.  I will just commence by understanding who I have in the conference.  First of all, I understand that I have the applicant, Mr Maharaj.  You are there?


MR MAHARAJ:  Yes, I am here.  Good morning.


THE COMMISSIONER:  Good morning, thank you.  I understand I have for Amber Aero, Mr Naidu.


MR NAIDU:  Yes, Commissioner Wilson, good morning.


THE COMMISSIONER:  Good morning.  Thank you very much for joining me.  Now, parties, what this short conference is about is an opportunity for you both to speak to the documents which you have filed along the way, and also you have provided some further documents in the past week in response to some questions that I had.  What I propose to do at the moment is to turn to Mr Maharaj and just ask him to say anything further that he wishes in the way of elaborating upon the documents, explaining what they mean, or to say anything further in respect of his case, then I will give Mr Naidu an opportunity to do the same.  Then I will give Mr Maharaj an opportunity to respond to anything that Mr Naidu says as well.  Now - sorry, Mr Maharaj, it sounds like you had a question, is that right?


MR MAHARAJ:  No, that's all good, thank you.


THE COMMISSIONER:  All right, well, just to remind you each, this application is an application under section 524 of the Fair Work Act, which is an alleged dispute in relation to a stand down dispute.  I just need to explain to you that the application is not an unfair dismissal application, and neither is it an underpayment of wages issue.  Such applications, if they were to be taken, would need to be taken under other parts of the Fair Work Act.  This dispute presently before me is in relation to what is complained about as being a dispute about a stand down.


All right, thank you, Mr Maharaj, for having provided the further documents over the past week.  I think I understand what they might be.  I notice that there were some timesheets and some payslips, and an annual leave form.  Now, did you want to say anything further about those documents, Mr Maharaj?


MR MAHARAJ:  No, what I think I could provide are just there, like payslips for 2022 - all the payslips, which I got.  Letter of foreman to 2022, I think one of the days, and I could not provide the submission support.  You know, that is - yes.  TOIL accrual is document number 8.  Nil letter for re-employment was no resignation.  Number 10 was Mr Naidu's email to Mr Maharaj - to myself.


THE COMMISSIONER:  Okay, can I just ask you a question, please, about one of the documents that was provided - - -




THE COMMISSIONER:  - - - which was the bundle provided yesterday.  There was an annual leave application form attached to it.  Now, you recall having put that in, Mr Maharaj?




THE COMMISSIONER:  The question I have got is whether that was a document filled out by you?


MR MAHARAJ:  That was a document filled out by me, yes.


THE COMMISSIONER:  All right, so what I draw from that document - it seems to be dated 30 November 2021 and it seems to be an application for the payment of TOIL and RDO payments with the rollover of 120 hours of unpaid outstanding TOIL and RDOs from 31 June 2021.  Have I got that correct?




THE COMMISSIONER:  All right, so that was your application to Amber Aero saying at that time, 'I want to draw upon my TOIL and RDO payments'?




THE COMMISSIONER:  All right, thank you.  Then the other question I had was in respect of the letter of 25 March.  Let me just find that document.  Actually, this was an email that you sent to Mr Naidu, and amongst other things you say, 'As of today, I am not Amber Aero Engineering chief engineer.'  You recall having sent that email?


MR MAHARAJ:  Yes, I did.


THE COMMISSIONER:  Okay, just tell me what you understood that email to be saying to Mr Naidu.


MR MAHARAJ:  Okay, basically I was not getting my leave or anything paid, and I was stood down, and the company was using my name as chief engineer to keep maintenance going.  I said, 'Sorry, can't use my name anymore because I am not getting any payment for my role.'  I just started to be an engineer, like normal.  Somebody else has to hold that position.  That is all I meant.  Even when I went back and Mr Naidu just kept saying I resigned, that he took it as resignation, I said, 'No, that is not my resignation.'


THE COMMISSIONER:  How did you do that?


MR MAHARAJ:  Via email - - -


THE COMMISSIONER:  Right, were any of those emails provided?


MR MAHARAJ:  - - - (indistinct) provided you with the copy.


THE COMMISSIONER:  When did you provide those?


MR MAHARAJ:  It was the previous time, I believe.  And there's another one.  There should be one that was sent to you yesterday.  Okay, okay.


THE COMMISSIONER:  The problem is I don't see any which contests you saying, 'I did not intend to resign.'


MR MAHARAJ:  Yes, I did say that in the email.


THE COMMISSIONER:  Can you tell me the date, please, of the email that you're referring to?


MR MAHARAJ:  I have to go into my email now.  It was the resignation.  I stand down.


THE COMMISSIONER:  Yes, but what I have said to you is I can't see in the documents anything which you say, 'I dispute being – resigning.'  You're saying that you disputed that you resigned.  What I need to know is when was that and which email was it that I should look at.


MR MAHARAJ:  Okay.  I just stand down.  I'm just going through my email and stand down, okay.  I have sent you the email.  I'm just going through my phone now trying to find the email.  But I have definitely sent the email before, provided a copy to you.


THE COMMISSIONER:  Mr Maharaj, this is your final opportunity to put your case.  I need to be quite clear.  If you have not sent it then I will be taking the view that there isn't such an email.  But if you say you have sent it, you'll need to tell me where that might be in the material.




THE COMMISSIONER:  Perhaps you can look for that when I turn to Mr Naidu and just ask him to put his position, all right?




THE COMMISSIONER:  So you will try and locate that email now?


MR MAHARAJ:  (Indistinct.)


THE COMMISSIONER:  If I can turn to you, Mr Naidu.  And this, as I said, is your opportunity to refer to the documents you provided which were, first of all, an email about the number of people who were stood down, but also then some information which includes payslips, and also an email of 25 March to a number of people including Mr Maharaj entitled 'Chief Engineer Resignation'.  Did you want to say anything about the documents you've provided, Mr Naidu?


MR NAIDU:  Nothing further to add to everything that we've provided, sir.


THE COMMISSIONER:  Okay, thank you.


MR NAIDU:  I think it pretty much summarises events as it occurred at that point in time.


THE COMMISSIONER:  I just had a couple of questions about the email that you sent on 17 October, first of all about the table of people who were stood down.  Of the people listed, all but one of them are referred to as having moved on to another job or left the business.  First of all, can I just understand what you mean by 'move to another job'?  Does that mean to another job outside of the group?


MR NAIDU:  Correct, yes.


THE COMMISSIONER:  So none of those people moved to a job within the Amber Aviation Group?


MR NAIDU:  No, sir, no.


THE COMMISSIONER:  Then the question I have about one of those people who is different, and it's referred to as Chang working in the group as the QA and SMS manager.  And that says that person went on voluntarily leave and thereafter leave without pay.  Is that person still an employee of the group?


MR NAIDU:  Yes, sir, she is.  She left on extended - so she voluntarily took annual leave, and at that point in time extended her leave understanding that the business was (indistinct).  And so she volunteered to spend some time away from the business on leave without pay.  And she later returned, I think, just a few weeks ago actually.  Last month she's come on board on active duties again.  However, she's working on reduced hours as required to maintain - the company approximately three years or two years ago had sponsored her on a 482 visa.  She initially joined the business – Commissioner, also if I'm going into too much details please let me know.


THE COMMISSIONER:  That's enough information.  I probably don't need anything further about circumstances, but that clarifies that question.  The other question I then had is about the chief engineers.  And item 6 of the email refers to this, and it gives a sequence of people being in the position of chief engineer.  And 6C says that Hamish Wallace performed the role from March 26 until May 2022.  And then the next listing is D; Joe Hazelwood, chief engineer from October 2022.  The question is what occurred between May and October?  Who fulfilled the job in that period?


MR NAIDU:  When going back into time in 2017 when Amber Aviation Group – Douglas and I, we acquired Grant (indistinct) engineering operation which was initially raised up in Caloundra.  As part of the acquisition agreement Grant would go into retirement and offered to remain and stand in as a backup chief engineer, which is a mandatory requirement under the Civil Aviation Regulation CAR 30 (indistinct) a chief engineer is mandatory for the operation.  And so Grant, being in the business for a number of years – many years – knew that.  And when he sold or merged with Amber Aviation Group he offered to remain whenever required or as required to stand in as the backup or temporary chief engineer.  And so every time that there's been a void or we have been seeking a replacement chief engineer – which hasn't been very many since 2017, of course – Grant simply steps in to cover us for the period until we've appointed a new engineer.  And so the occurrence after 25 March, Grant was reinstated as the chief engineer, and Hamish was nominated as the nominee subject to induction and training.  Hamish had been with the company for about a year and a half and he came from a – well, his father's family used to run an aircraft maintenance business in Yarrawonga.  So Hamish joined us, and so he stayed on until May as (indistinct) however, not the chief engineer.  And I was progressing all required documentation with CASA at that point in time.  Approximately late May due to family reasons Hamish had to move back to Yarrawonga and Grant continued on as the chief engineer.  And we then later nominated Joe Hazelwood, and Joe is now the current chief engineer on our certificate.


THE COMMISSIONER:  Okay, well that helps my knowledge, so thank you.  Now, the other question I then had was in respect of the stand down of Mr Maharaj which seems to have occurred on 14 December.  First of all, can I confirm that is the date that you say the stand down took place from?


MR NAIDU:  Yes, I believe from memory we originally had the meeting - discussion - regarding his stand down and utilisation of TOIL and all the leave entitlements.  Yes, the early part of December, sir.


THE COMMISSIONER:  Okay, thank you, and the question I have got is about that.  In looking at the payments that were made, it seems that there was no work to do from that period through until March.  Have I got that correct?


MR NAIDU:  No, the discussion we had with Avinesh was that he was - because of the accumulating liabilities for the business, we had to work out a plan to retract liabilities by - - -


THE COMMISSIONER:  Maybe I could just ask it in another way.  I am asking about Mr Maharaj.  You stood him down in December, so the question is how long did you go without the need for him to perform work?


MR NAIDU:  He was told he had to use up all of his annual leave entitlements and - - -


THE COMMISSIONER:  Yes, that is not what I am asking about.  You stood him down, meaning you did not want him to work, so how long did that requirement persist for?  How long did you not require work to be done?  It can be one day, it can be a year, but you need to tell me the period.


MR NAIDU:  It would have been equal to the amount of annual leave entitlements and the TOIL time he had accumulated, so that would have been approximately three months, Commissioner Wilson.


THE COMMISSIONER:  All right.  Okay, thank you.


MR NAIDU:  Approximately from memory - yes.


THE COMMISSIONER:  Okay, I just wanted to understand that contention on your part.  Now, is there anything further you wanted to say, Mr Naidu?


MR NAIDU:  No, sir.  I think we have talked about it.


THE COMMISSIONER:  Okay, well, thank you - - -


MR NAIDU:  Sorry, Commissioner Wilson.  Yes, thank you.


THE COMMISSIONER:  Okay, in that case I will turn back to you, Mr Maharaj.  Have you been able to locate that email that you were referring to?


MR MAHARAJ:  Yes, I have sent you the email.


THE COMMISSIONER:  You have just sent one, have you, now?




THE COMMISSIONER:  Okay, just a moment, I will just check my emails.


MR MAHARAJ:  It is the fourth paragraph down.


THE COMMISSIONER:  You say you were - this says:


Just for your reminder, I got terminated in December 2021.  I never resigned.  I was just Amber Aero Engineering's chief engineer in books, please check your emails.


That was an email you sent to Mr Naidu on 25 March 2022.  Right, so - - -


MR MAHARAJ:  Because I just - - -


THE COMMISSIONER:  No, please go on.


MR MAHARAJ:  Yes, because as soon as I said I am not Amber Aero Engineering's chief engineer as of today, Mahendra just took it as that I had resigned, you know, and that was basically a motivator to push me down.  Basically, there was talk about redundancies earlier on 14 December.  When I asked for redundancy payment, I was told that I had been stood down, and it kept on going until I said they can't use my name anymore as chief engineer because I wasn't getting any benefits for being on their books.  I basically advised him that I had not resigned.


THE COMMISSIONER:  All right, so what I read from that is that you say your employment ended in December, so far as you were concerned.




THE COMMISSIONER:  If that is the case, why did you keep being paid after that period?


MR MAHARAJ:  Because I was a - there was a redundancy that was supposed to be happening and I tried to claim that, and then Mahendra wanted to use me as chief engineer until March.  I agreed, and then I was (indistinct) through the venue and they said, 'This is a stand down, and it is an unlawful stand down.'


THE COMMISSIONER:  Okay, well, thank you.


MR MAHARAJ:  I could have been terminated or written down as redundant from the company.


THE COMMISSIONER:  Are you still employed by Amber Aero?




THE COMMISSIONER:  When did that end?


MR MAHARAJ:  I believe that ended on the day that Mahendra said I resigned, and it became like a constructive dismissal to me.


THE COMMISSIONER:  Okay, I understand.  Is there anything further you want to say, Mr Maharaj, about your application?


MR MAHARAJ:  The way I see it, it has been an unlawful stand down so - yes.  There has been ways - there have been a few things that have happened around to get rid of me, and I basically think it is like a constructive dismissal type of event that happened.  He used the names 'COVID' and 'stand down'.


THE COMMISSIONER:  Okay, well, thank you.  Is there anything else you want to say?


MR MAHARAJ:  When I was stood down, the other guys were still working there, you know, under my authority as the chief engineer.  It is what happened and work was continuing as normal at Amber.  That is all I have to say.


THE COMMISSIONER:  Thank you, Mr Maharaj.  Now, Mr Maharaj and Mr Naidu, what I propose to do now is to reserve my decision, which means that this conference will shortly end and after that I will consider all of the material that you have provided, and I will provide you with my decision in writing in due course.  Now, that won't be for a week or two, but it will be probably within the period of about two to four weeks' time.  Thank you very much for your time this morning, and each of you have a good day.  Thank you.

ADJOURNED INDEFINITELY                                                          [10.28 AM]