1
Fair Work Act 2009
s.394—Unfair dismissal
Ali Lebdeh
v
Soho Living Pty Ltd
(U2023/964)
COMMISSIONER YILMAZ MELBOURNE, 17 MARCH 2023
Application for an unfair dismissal remedy – whether dismissed – whether out of time - no
jurisdiction.
[1] This decision concerns an application by Mr Ali Lebdeh (Applicant) for an unfair
dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) in relation to his
employment with Soho Living Pty Ltd (the Respondent).
[2] The Respondent raises two jurisdictional objections to the application: that the
Applicant was not dismissed and if he had been dismissed, the application is outside the 21-day
statutory time limit.
[3] The Respondent is a residential home builder and property developer and the Applicant
was employed as site supervisor. His role involved managing the construction of new homes.
The Applicant commenced employment on 27 June 2022, on a full-time basis and was subject
to a six-month probationary period of employment. In the Applicant’s letter of offer of
employment1 the Respondent is allowed to extend the probation period by three months
provided that the Applicant is given notice prior to the end of his initial probationary period.
The initial location of work was in Port Melbourne, with scope to work at any other location as
directed by the Respondent. While the parties negotiated a remuneration package at
commencement, it was agreed that the Applicant would receive an $11,000 gross increase to
the package on successful completion of the probation period.
[4] On 21 December 2022, the final day before the Respondent’s closedown over Christmas
and prior to the completion of the probation period, the Applicant was informed by the
Respondent that it intended to extend the probation period by three months. The Respondent
contends that the Applicant was informed of the reasons for its decision to extend the probation
period and that the Applicant agreed to the extension. The Applicant contends that he
reluctantly agreed to the extension on the basis that he had no option, and he disputes the reasons
given, by the Respondent, for the extension. The Respondent sent to the Applicant written
confirmation of the extension of the probation period on 21 December 2022. This
correspondence and letter of offer of employment was tendered in evidence.
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DECISION
AUSTRALIA FairWork Commission
[2023] FWC 651
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[5] On the evening of 22 December 2022, the Applicant forwarded an email stating that he
did not wish to be subject to a probation period any longer than the initial six-month period,
and states that he will be finishing up with the Respondent in the new year giving two weeks’
notice starting on 9 January 2023.
[6] The Applicant contends that his employment was terminated on 12 January 2023, while
the Respondent contends that the parties agreed to waive the notice period provided by the
Applicant.
Was the Applicant dismissed?
[7] The Applicant contends that his employment was dismissed on 12 January 2023, when
he was asked to drop off the keys to the homes while he was absent from work on sick leave.
[8] Part 3-2 of the Act concerns when a person is protected from unfair dismissal. A person
must comply with both limbs of s.382 of the Act. The first limb concerns the completion of the
minimum employment period by an employee and that the Applicant is covered by an Award
or enterprise agreement or alternatively meets the high-income threshold. The Respondent is
not a small business employer. In this matter there is no dispute concerning the application of
s.382. The Applicant has met the minimum employment period of six months, the Small
Business Dismissal Code is not relevant and the Applicant was an award free employee where
his earnings were less than the high-income threshold.
[9] Following satisfaction of s.382 of the Act, s.385 defines what is an unfair dismissal.
Relevantly, s.385 provides:
‘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’
The legislation
[10] The parties are in dispute whether the termination of employment is a resignation or
dismissal. A threshold issue is whether the Applicant was dismissed from their employment.
Section 386(1) defines when a person is dismissed. The provision 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; 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.’
http://www5.austlii.edu.au/au/legis/cth/num_act/fwa2009114/s12.html#unfairly_dismissed
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[11] Section 386(2) sets out circumstances where an employee is not dismissed and none of
those circumstances apply in this matter.
The submissions and evidence
[12] The Applicant has not contended that he was forced to resign, but rather he contends
that on 12 January 2023, when he was asked to return house keys that he was invited on site for
false reasons. He submits that the real reason was to terminate his employment. The Applicant
further contends that the correspondence of the Respondent on 27 December 2022 did not
accept his resignation and the termination was at the employer’s initiative because he was on
sick leave. The Respondent contends that the Applicant’s resignation was accepted, including
the notice period, however, on 12 January 2023, when the Applicant came on site to return
house keys, it submits that there was a discussion that the notice period was not working and
that it was willing to release the Applicant from the notice period. This evidence was contested
between the Applicant and the Building Manager.
[13] The relevant evidence concerning this disputed question is the letter of resignation by
the Applicant dated 22 December 2022. The letter of resignation was forwarded to the
Respondent the day after formal notification in writing of the extension of the probation period
and on the first day of the business shutdown period.2 The Applicant wrote:
“I appreciate the discussion we had yesterday thou after some reflection I don’t wish to
be on probation any longer than what I originally signed which was 6 months. When my
6 months was completed I was supposed to get a pay rise which did not happen. I have
already given you 6 months at soho which I think is sufficient time to make a decision
whether you would like to keep me on full time or not. I’ve managed to get thru the year
with some great reviews and finished those builds without a construction manager above
all I felt like I’ve done a good job. I feel let down that you wish to extend my probation
period with no validation. I’ll be finishing up with soho in the new year. Putting in my
2 weeks notice from today which will start on 9th January unless you’d like to finish me
earlier. Let me know thanks”3
[14] The email from the Applicant is unambiguous and states that he does not wish to
continue to work on an extended period of probation and that he will finish up on completion
of the two-week notice period commencing on 9 January 2023. The resignation further provides
the condition that the notice period may finish earlier if the Respondent prefers. This email was
sent during the Christmas close down period and the business would resume on 9 January 2023.
I observe from the letter of offer that the contract requires one week of notice during the period
of probation. On 22 December when the Applicant sent through his resignation, the initial
probation period was on foot until 26 December 2022.
[15] The Applicant submits that the email from the Building Manager dated 27 December
2022 is evidence of negotiations between the parties. He contends that the Respondent did not
accept the resignation because the email states that further discussions regarding improvements
to performance will occur on 9 January on return to work. The email from the Building Manager
follows:
“Thank you for your email and noted.
Agree you have had some good reviews and there has been some bad.
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We appreciate the work you have done although it’s taken some time to complete the
tail end of these builds.
Understanding that there has been no Cm, although it’s taken a BM and Senior BM to
be heavily involved to help assist in completion of these homes. So there has actually
been more support and assistance at a higher level than what a CM would provide.
The reason round the extension and discussion of your probation period is due to the
fact of some further support and training we felt that was required within your
performance.
Some examples are:-
- You have had two verbal discussions around your OHS audits.
Again from the 24/11 to the 21/12 you still did not submit an OHS audit. The business
KPI is two per week. You have failed to even do one in the last month.
- I personally have walked through each home during the QA preparation and had to
make lists with you on a number of occasions. These are basic that a site manager needs
to be doing themselves and being across these.
These are a couple of examples and areas that need to be worked on.
I’m more than happy to have further discussions with you on the 9th of January as I will
meet you at the project first up upon our return.
Thank you”4
[16] The first observation to make regarding the email is that the Respondent does not reject
the resignation, it thanks the Applicant for his email and notes it. This on any objective basis is
not a refusal to accept the resignation nor a negotiation over a termination of employment or
the extension of the probation period. In any event the Respondent cannot refuse a resignation.
Secondly, there is no evidence of a forced resignation nor does the Applicant contend a
constructive dismissal.
[17] Thirdly the Respondent’s email does address the Applicant’s dissatisfaction with the
decision to extend the probation period, providing further particulars validating their decision.
The final paragraph advising that further discussions will take place on 9 January, is not
surprising as the Applicant provided two weeks’ notice commencing on 9 January 2023. It
follows that the Applicant would resume duties on 9 January when the business reopens after
the Christmas shutdown and the employee’s period of notice. This correspondence did not ask
the Applicant to reconsider his resignation, nor did it address the extended period of notice
provided by the Applicant.
[18] On 8 January 2023 the Applicant forwarded to the Respondent an email advising that
he was sick, that he expected to return to work on 12 January and attached a medical certificate
covering the period 9-11 January 2023.5 The Respondent’s Building Manager submits that he
acknowledged the email and the period of absence, confirming that he would see the Applicant
on site on 12 January.
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[19] On 12 January 2023, the Building Manager and Applicant had a discussion early in the
morning and it was agreed that they would meet up later that morning. The Applicant submits
that he was made to come on site to return keys, which was premeditated to terminate his
employment. The Building Manager submits that the Applicant phoned him in the morning and
advised he was still not feeling well but agreed to bring in the keys so that the Respondent could
access the homes to resolve issues with the clients. It is uncontested that the Applicant drove to
the site arriving sometime around 8.30am but before 9.00am. During the hearing the Applicant
provided inconsistent statements regarding his reasons for attending the site.
[20] On balance I am satisfied that he made the decision to bring down the keys and expected
to continue a discussion regarding the decision to extend the probation period.
[21] The Respondent’s Building Manager submits that during the discussion on 12 January
he stated to the Applicant that it was best that he finishes up and he submits that they agreed
that his employment would conclude that day instead of at the end of the notice period given
by the Applicant. It was also agreed, and not contested between the parties, that arrangements
would be made to pick up the company vehicle and other company assets an hour after the
meeting from the Applicant’s home. This was to allow him an opportunity to prepare them for
collection. The Respondent referred to two witnesses present during the discussion but provided
no witness evidence.
[22] What was actually said that morning about finishing up is in dispute, however email
correspondence from the Applicant on 12 January confirms the vehicle was picked up and as
he did not have time to clean the vehicle, he asks that he not be charged for its cleaning. An
email from the Respondent the following morning expresses dissatisfaction over complaints
from customers the previous day including the state of the motor vehicle. The Applicant was
informed that his entitlements were on hold and were to be reviewed while matters pertaining
the vehicle are considered. Further the Respondent submits that later in the morning after their
agreement to move on, the Applicant sent through a second medical certificate covering the
period 12 and 13 January 2023.
[23] The Applicant follows up with an email demanding payment of his entitlements and
informs the Respondent that they may take legal action in respect to any money he may owe
them.
[24] The correspondence of 12 and 13 January 2023 does not support the Applicant’s
submissions that his employment was terminated at the initiative of the employer, but rather
that the parties mutually agreed to bring the termination of the employment relationship
forward. Additional correspondence between the parties relates to the following grievances:
• Payment of outstanding employee entitlements;
• Failure to provide an incident report or any detailed report concerning the damage to
the motor vehicle to enable claims through insurance;
• The requirement to detail the vehicle because the Applicant smoked in the vehicle which
was inconsistent with the company’s motor vehicle policy; and
• Whether the Applicant is responsible for payment of body repair costs to the motor
vehicle.
Conclusion
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[25] Having considered the submissions and evidence of the parties, I find that the Applicant
tendered his resignation on 22 December 2022. The notice period provided was for two weeks
commencing from the date the business reopened following the Christmas shutdown period.
Instead of working the notice period, the Applicant took a period of sick leave from 9 – 11
January 2023. On 12 January, the Applicant informed the Respondent he was still feeling
unwell but chose to meet the Building Manager on site to hand over keys to the homes, which
required discussion with customers and further works. While it was disputed what was actually
said, the evidence does show that the Applicant made arrangements to hand over the company
vehicle, computer, mobile phone and any other company property in his possession an hour
after he left the site. Further, the Applicant did advise, when he tendered his resignation, that
he was open to an earlier completion date if the Respondent required it.
[26] The immediate correspondence does not concern allegations of dismissal by the
employer. Rather the Applicant escalates his grievance to writing on 13 January to demand
payment of his entitlements because the employer informed him the same morning that it
withheld his entitlements to sort out costs or evidence associated with damage to the company
vehicle. The correspondence of 13 January includes the statement “You have not been given
permission to deduct any of my moneys. You are to take legal action if you wish to follow up
with any money I owe you claims.” 6 The Applicant chooses not to provide any details regarding
damage to the vehicle as requested, nor does the email suggest any dispute regarding a
termination by the employer. The dispute concerns the payment of entitlements.
[27] It was evident during proceedings that the Applicant was aggrieved over the extension
of the probation period which he considered was unfair as it denied him an immediate $10,000
yearly pay rise. While his grievance was evident, it did not alter the circumstances, that being
that the agreed contract of employment allowed for the extension and the Respondent opted to
implement the change within the terms of the contract. The Applicant refused to accept the
extension and this led to his resignation. There is no evidence of a resignation in the heat of the
moment or on any other basis for a constructive dismissal, nor is it argued by the Applicant.
[28] Instead, the Applicant submits that instead of extending the probation period the
Respondent should have determined within the first six months employment whether he was
suitable for the position and if not, it should have terminated his employment.
[29] Further the facts concerning the events of 12 January 2023 on balance support an
agreement between the parties to terminate the employment relationship immediately in lieu of
the notice period provided. It is relevant to consider all of the circumstances, particularly in
light of disputed recollections of what was said on the day. It is relevant that the Applicant
invited an earlier conclusion date if the Respondent required it.7 There is an absence of any
evidence challenging the conclusion that an agreement occurred or any evidence of the
employer unilaterally terminating the employment.
[30] Further relevant to the parties was the dispute regarding the Applicant’s refusal to
provide information or cover the costs for vehicle damage. In response to an email from the
Respondent which attached the quote for repairs and threatened legal action if information was
not provided to initiate an insurance claim,8 the Applicant demanded payment of his outstanding
wage entitlements and raises for the first time questions whether his employment was
terminated by the Respondent.9 Despite this, he maintains the position that the matter can be
resolved by simply paying his due entitlements. On 24 January 2023, the Respondent’s lawyers
wrote to the Applicant providing details of an intent to sue and a provisional offer to settle. The
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dispute concerning entitlements continued into February when on 7 February 2023, the
Applicant filed his unfair dismissal application.
[31] A dispute about wage entitlements on termination of employment are not correctly
resolved through unfair dismissal applications. While it is a serious question whether the
Respondent had lawfully deducted the Applicant’ wages to recoup costs associated with
damage to the company vehicle, it most likely has exposed itself to legal action. Again, both
disputes cannot be resolved through this application.
[32] For the above reasons I cannot conclude that the Applicant was dismissed. On the
evidence I find that the Applicant resigned, and the events of 12 January 2023 was a mutual
agreement to vary the period of notice consistent with the Applicant’s invitation.
[33] I need not consider the extension of time application. I do note however that had I not
found that the Applicant resigned, I observe that the Applicant provided limited persuasive
materials of exceptional circumstances in support of a five-day extension, noting that the bar to
an extension is high.
[34] As I have found that the Applicant was not dismissed, this application cannot proceed
on jurisdictional grounds. Under s.587 (1) of the Fair Work Act 2009, the Commission may on
its own motion dismiss an application that is not made in accordance with the Act. Section 587
(1)(a) is enlivened as the application has not met the requirements of s.386(1) of the Act.
[35] Accordingly, the application for an unfair dismissal remedy is dismissed.
[36] An order10 will be issued to give effect to this decision.
COMMISSIONER
Appearances:
Mr A. Lebdeh on his own behalf.
Mr T. Cosar for the Respondent.
Hearing details:
2 March 2023
Melbourne (By Video using Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
PR760397
OF THE FA WORK COMMISSION THE SE
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1 Letter of offer of employment signed by the Applicant on 24 June 2022.
2 Email of 21 December 2022 from Jay Bluschke, Regional Building Manager to Ali Lebdeh at 2:36pm
3 Email of 22 December 2022 from Ali Lebdeh to Jay Bluschke, Tamer Cosar and Nathan Jenkinson at 08:25am.
4 Email of 27 December 2022 from Tamer Cosar, Building Manager to Ali Lebdeh at 07:16 am.
5 Email of 8 January 2023 from Ali Lebdeh to Tamer Cosar at 09:17am.
6 Email of 13 January 2023 from Ali Lebdeh to Tamer Cosar at 07:57am.
7 Email of 22 December 2022 from Ali Lebdeh to Jay Bluschke, Tamer Cosar and Nathan Jenkinson at 08:25am.
8 Email of 17 January 2023 from Tamer Cosar to Ali Lebdeh at 4:06pm.
9 Email of 17 January 2023 from Ali Lebdeh to Tamer Cosar at 4:14pm and a further email of 18 January 2023 from Ali
Lebdeh to Tamer Cosar, Jan Lo, Nathan Jenkinson and Stanley Huang at 8:44am.
10 PR760398
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr760398.pdf
