1
Fair Work Act 2009
s.394—Unfair dismissal
Efthimios Papadopoulos
v
Automate Car Care Pty Ltd
(U2022/8673)
COMMISSIONER MCKINNON SYDNEY, 28 OCTOBER 2022
Application for an unfair dismissal remedy – whether applicant dismissed
[1] Mr Efthimios Papadopoulos was employed as an apprentice by Automate Car Care Pty
Ltd from 10 June 2021 until 22 August 2022. The employment came to an end on 22 August
2022 in circumstances that are in dispute.
[2] Mr Papadopoulos has applied for a remedy for unfair dismissal under section 394 of the
Fair Work Act 2009 (the Act). Automate Car Care objects to the application on the basis that
Mr Papadopoulos was not dismissed.
[3] A person can only apply for an unfair dismissal remedy if they have been dismissed.1
Under section 386(1) of the Act, this means that the employment was terminated on the
employer’s initiative, or if the person resigned from employment, they were forced to do so
because of conduct engaged in by the employer.2 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, if the action of the employer is the principal contributing factor which leads
to the termination of the employment relationship.
[4] The question is whether Mr Papadopoulos was dismissed. I have decided that Mr
Papadopoulos was dismissed, and these are my reasons.
Relevant facts
[5] On the afternoon of 22 August 2022, Mr Papadopoulos approached Automate Car
Care’s Administration Manager, Mrs Irene Kritikos, about taking annual leave the following
week. He was asked by Mrs Kritikos to “check with the boys next door”, Mr Michael Kritikos
and Mr Andrew Weaver. Mr Kritikos is the Workshop Supervisor, husband of Mrs Kritikos and
father of Mr Jonathan Kritikos, who owns the business. Mr Weaver is the Senior
Mechanic/Workshop Manager.
1 Fair Work Act 2009 (Cth), s 394.
2 Fair Work Act 2009 (Cth), s 386.
[2022] FWC 2888
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 2888
2
[6] Mr Papadopoulos went next door to see Mr Michael Kritikos and Mr Weaver. Rather
than ask about taking leave the following week, he told Mr Kritikos and Mr Weaver that he was
taking leave. Mr Weaver replied in words to the effect “Mate, that’s a bit short notice.” Mr
Kritikos also reacted, saying (in words to the effect): “Hang on, we have work to do. You should
have went through me and Andy to confirm it.”
[7] When Mr Papadopoulos explained that he had asked Mrs Kritikos, Mr Kritikos reacted
angrily, in words to the effect:
“I couldn’t give a fuck what my wife does in the office. Me and Andy are running the
workshop and you should have confirmed it with me and Andy. You are not taking
holidays, how would you like to be in my shoes, how would you feel?”
[8] Mr Papadopoulos didn’t answer. Mr Kritikos continued talking at Mr Papadopoulos
about the amount of leave he had taken and the quality of his work.
[9] Mr Papadopoulos felt unable to speak until finally, he said “I see how it is”. He grabbed
his bag and walked out, closing doors on his way to go home. Then he came back in the office
with his finger pointing at Mr Kritikos. He said, in words to the effect: “I just want to say one
thing before I go. I don’t appreciate the way you’ve spoken to me.”
[10] Mr Kritikos replied by saying “I wasn’t rude”. Things escalated again, with Mr Kritikos
becoming upset and repeating things he had already said.
[11] Eventually, Mr Papadopoulos said to Mr Kritikos: “Don’t you ever fucking talk to me
like that again.” Mr Kritikos replied: “If you don’t like it, there’s the door.”
[12] Mr Papadopoulos walked out again, saying “fuck you” on his way. This prompted Mr
Kritikos to respond, in words to the effect:
“That’s it, I’ve had enough of you. Pack up all your tools and get the fuck out of here.”
[13] Mr Papadopoulos walked to his car. He rang his stepfather, Mr George Angelo, and
asked for help to load up his heavy toolbox into his ute. For ten minutes, he remained in his car,
speaking on the telephone and waiting for Mr Angelo to arrive. Mr Angelo came and helped to
pack and load up Mr Papadopoulos’ tools. Nothing more was said. Mr Papadopoulos then drove
away, as did Mr Angelo.
[14] This was the last contact between Mr Papadopoulos and Automate Car Care (except in
relation to the filing of this application). There was no telephone call or message or any other
attempt to clarify with the other about what had happened on the afternoon of 22 August 2022.
Consideration
[15] I find that Mr Papadopoulos was dismissed when in clear terms, Mr Kritikos told him
to pack up all of his tools and “get the fuck out of here” on the afternoon of 22 August 2022. I
do not accept that Mr Papadopoulos abandoned his employment when he packed up his tools
[2022] FWC 2888
3
and left, and then did not make any further contact with the business. Mr Papadopoulos did not
abandon his employment. He simply did what he had been told to do, which was to pack his
tools and leave.
[16] In making the findings of fact above, I have preferred the evidence of Mr Papadopoulos
over the evidence of Mr Michael Kritikos where conflicts emerged, and I have rejected the
evidence of Mr Papadopoulos that he did not tell Mr Kritikos to “fuck off” because I prefer the
evidence of Mr Weaver in this respect. Mrs Kritikos did not hear what was said to and by Mr
Papadopoulos on the afternoon of 22 August 2022. Her subsequent review of the CCTV footage
painted only an incomplete picture. As a result, her evidence on these matters is unreliable.
[17] Mr Weaver was a witness of truth. Critically, I accept his oral evidence that while he
did not hear everything Mr Kritikos said to Mr Papadopoulos on the afternoon of 22 August
2022, he did hear him say “get out of here”. This was a material omission from the statutory
declarations filed on behalf of Automate Car Care in its response to the application. It was also
a fact that Mr Kritikos initially denied, before conceding he may have said those words.
[18] The submission that Mr Papadopoulos abandoned his employment suggests that there
was some uncertainty in relation to the date of termination, arising from Mr Papadopoulos’s
failure to make further contact with the business. Despite the submission, all agree that the
employment came to an end on 22 August 2022. Secondly, if there had been any doubt about
the status of the employment relationship after Mr Papadopoulos left the workshop on 22
August 2022, steps should and would have been taken to clarify the position, either in the ten
minutes while Mr Papadopoulos waited in his car for Mr Angelo to arrive or later once things
had cooled down. If Mr Papadopoulos was assumed to have abandoned his employment,
Automate Car Care had a positive duty to seek to clarify the position before deciding that the
employment relationship was at an end. It did not do so.
[19] Finally, I do not accept that Mr Kritikos had no authority to dismiss Mr Papadopoulos.
At the very least, he had apparent authority in his dual roles of Workshop Supervisor and father
of the owner of the business. Just as Automate Car Care did not seek to clarify the status of his
employment with Mr Papadopoulos on or after 22 August 2022, it made no attempt to counter
the actions of Mr Kritikos when put on notice of the allegation that he had dismissed
Mr Papadopoulos. Automate Car Care never asserted that the actions of Mr Kritikos were
unauthorised or that Mr Papadopoulos remained employed. I accept that Mr Jonathan Kritikos
did not want to escalate things further. However, by this inaction, the actions of Mr Kritikos
senior were confirmed.
Disposition
[20] The jurisdictional objection is dismissed. Directions will issue separately in relation to
the further programming of the matter.
[2022] FWC 2888
4
COMMISSIONER
Appearances:
E Papadopoulos on his own behalf.
I Kritikos for the respondent.
Hearing details:
2022.
Sydney (by video):
October 27.
Printed by authority of the Commonwealth Government Printer
PR747314
F THE FAIR WORK OMMISSION AUSTRALIA THE SEA
