1
Fair Work Act 2009
s.365—General protections
Fareshta Karimi
v
Aker Group Pty Ltd
(C2022/6007)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 24 MARCH 2023
Application to deal with contraventions involving dismissal – jurisdictional objection – whether
the applicant was dismissed.
[1] On 30 August 2022, Ms Fareshta Karimi made an application to the Commission
pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). Ms Karimi alleges that she was
dismissed from her employment with Aker Group Pty Ltd in contravention of the general
protections contained in Part 3-1 of the Act.
[2] The respondent objects to the application on the basis that Ms Karimi was not dismissed.
The matter proceeded to a determinative conference before me on 28 February 2023.
[3] For the reasons that follow, I find that Ms Karimi has been dismissed within the meaning
of s 386(1)(a) of the Act. Accordingly, the respondent’s jurisdictional objection is dismissed.
Background
[4] Ms Karimi commenced employment with the respondent on 4 April 2021.1 Ms Karimi
was employed on a casual basis, providing front of house duties at the respondent’s kebab shop.
Ms Karimi was managed during her employment by Ms Somaya Amiri, who gave evidence at
the determinative conference.
[5] Ms Karimi is a high school student, who is presently completing her year 12 studies.
The parties agree that at times during Ms Karimi’s employment, Ms Karimi sought, and was
granted, time off work to allow her to attend to her schooling commitments.
[6] It was not in dispute that Ms Karimi was a member of a WhatsApp group, established
by the respondent for the purposes of allocating shifts to its employees. The evidence before
the Commission is that the respondent typically notifies its employees of a rostered shift by
way of a message sent via the WhatsApp group.2
[7] The evidence discloses that on occasion during the employment, Ms Karimi would
request time off work. One such request was made by Ms Karimi on 21 May 2022. In relation
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DECISION
AUSTRALIA FairWork Commission
[2023] FWC 717
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to this request, Ms Karimi sent Ms Amiri a message through WhatsApp advising that she would
be unable to work for the next few weeks.3 Ms Karimi gave evidence that this request was made
due to her need to focus upon her heavy schoolwork load. Despite only seeking a “few weeks”
off work, it is apparent that Ms Karimi performed no further shifts for the respondent.
[8] The substantive dispute concerns the alleged underpayment of Ms Karimi’s wages by
the respondent.4 In the period following Ms Karimi’s 21 May 2022 request for time off work,
Ms Amiri met with Ms Karimi to discuss Ms Karimi’s concerns regarding her pay. Mr Aker,
the respondent’s Directing Manager, also attended this meeting. Ms Amiri gave evidence that
she held the view that Ms Karimi’s pay queries had been resolved during the meeting, and that
the respondent had demonstrated that Ms Karimi had not been underpaid; rather that Ms Karimi
had been overpaid by approximately $300.5
[9] It is apparent that Ms Karimi did not share Ms Amari’s view that the pay dispute had
been resolved. Ms Karimi subsequently advised Ms Amiri that the respondent had incorrectly
recorded her working hours which had resulted in an underpayment. On 10 August 2022, Ms
Karimi sent a text message to Ms Karimi requesting that her working hours be recalculated and
restating her concerns that her hours had not been fully paid.6
[10] It is not in dispute that the respondent removed Ms Karimi from the WhatsApp group
on 10 August 2022, following receipt of Ms Karimi’s text message.7 The respondent contends
that it routinely adds and removes employees from the WhatsApp group, including when
employees make themselves unavailable to perform work for a short period of time. In support
of this contention, Ms Amiri said that she had been removed from the WhatsApp group by Mr
Aker at a time when she was unavailable to perform work for the respondent’s business.
[11] Ms Karimi gave evidence that in her experience, employees were never removed from
the WhatsApp group unless they were “fired.” Ms Karimi said that on no other occasion had
she been removed from the WhatsApp group, including when she sought time off to attend to
her studies.
[12] On 15 August 2022, Ms Amiri sent the following three text messages to Ms Karimi:8
• “Salem fereshta, let me know when you can come to shop yo [sic] make it clear?”
• “Message me please”
• “Sorry the other day they were injecting my daughter and I wasn’t feeling good”
[13] Ms Amiri also sent a WhatsApp message to Ms Karimi on 15 August 2022 requesting
that Ms Karimi attend the shop to “make it clear.” Ms Karimi replied to Ms Amiri’s message,
stating that she was very busy with school and would come in the next few weeks. This
exchange constitutes the final communication between the parties.9
[14] The respondent contends that Ms Amiri sent the 15 August 2022 text messages to Ms
Karimi in order to discuss Ms Karimi’s availability to attend for work. Ms Karimi submits that
she did not attend the respondent’s workplace as invited because she felt intimidated by the
respondent in light of their pay dispute, which Ms Karimi deemed to be unresolved.
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[15] Ms Amiri further contends that she attempted to telephone Ms Karimi to discuss her
availability to perform work for the respondent.10 The WhatsApp messages between Ms Karimi
and Ms Amiri demonstrate that a phone call was made to Ms Karimi on 15 August 2022, which
Ms Karimi did not answer.11 There is otherwise no evidence before the Commission in support
of the respondent’s contention that it sought to roster Ms Karimi after 10 August 2022.
Statutory framework
[16] Section 365 of the Act provides that a person who has been dismissed may apply to the
Commission to deal with the dispute.
[17] The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the
Act. Section 386(1) relevantly provides as follows:
(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.
[18] Section 368 of the Act confers authority on the Commission to deal with a dismissal
dispute in the event that an application is made under s 365.
Consideration
[19] Ms Karimi contends that the respondent terminated her employment at its initiative
within the meaning of s 386(1)(a) by removing her from the WhatsApp group on 10 August
2022.12 The respondent denies that it dismissed Ms Karimi.13
[20] Accordingly, the question for determination in this application is whether Ms Karimi
was dismissed by the respondent.14 This is an antecedent issue that must be resolved before the
Commission may exercise the powers conferred by s 368 of the Act.15
[21] It is not in dispute that s 386(1)(a) of the Act refers to a dismissal occurring where a
person’s employment has been “terminated on the employer’s initiative.” There may be a
dismissal pursuant to s 386(1)(a) where the action of the employer is the principal contributing
factor leading to the employment termination.16
[22] The respondent contends that it did not dismiss Ms Karimi and that Ms Karimi’s
removal from the WhatsApp group does not amount to a termination of employment. The
respondent submits that it did not say to Ms Karimi that her employment had ceased. On the
contrary, the respondent points to its attempts on 15 August 2022 to understand Ms Karimi’s
availability so that it could roster her for shifts. The respondent maintains that Ms Karimi is
welcome to return to work.
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[23] For the reasons that follow, I find that the respondent’s action in removing Ms Karimi
from the WhatsApp group was the principal contributing factor which brought the employment
of Ms Karimi to an end on 10 August 2022.
[24] It is not in dispute that the respondent uses the WhatsApp group to allocate shifts to its
employees.17 While Ms Amiri gave evidence that the respondent would call or text individual
employees on occasion to offer them shifts, these steps were taken in respect of “extra shifts.”
The evidence before the Commission demonstrates, and I am satisfied, that the WhatsApp
group is the primary means by which shifts are allocated to the respondent’s employees.18 It
follows that being removed from the WhatsApp group meant that Ms Karimi, in the ordinary
course, would not be allocated shifts by the respondent.
[25] In these circumstances, the respondent’s contention that it did not advise Ms Karimi that
she was dismissed does not change my view. This is because it does not alter the effect of the
respondent’s conduct in removing Ms Karimi from the WhatsApp group.
[26] In reaching this conclusion, I do not accept the respondent’s submission that Ms Karimi
was removed from the WhatsApp group so as to not distract Ms Karimi with the group messages
while she studied. If this was the respondent’s view, it is not apparent why it did not take the
step of removing Ms Karimi from the WhatsApp group in or about May 2022 when Ms Karimi
sought time off work to attend to her studies. In the absence of explaining this matter, the
respondent’s contention cannot succeed.
[27] Nor do I accept that it was the respondent’s practice to routinely add and remove
employees from the WhatsApp group during short periods of absence. Ms Karimi’s evidence
that she had not previously been removed from the group despite earlier periods of absence
from the workplace was not challenged by the respondent, and I accept it. While the respondent
relied upon Ms Amiri’s undated period of exclusion from the WhatsApp group in support of its
position, there is insufficient material before the Commission explaining Ms Amiri’s
circumstances at the time she is said to have been removed. Further, there is not any
documentary evidence demonstrating Ms Amiri’s removal from the WhatsApp group. In any
event, I consider that little weight can be attached to a comparison between Ms Amiri and Ms
Karimi in circumstances where Ms Amiri holds a managerial position and is responsible for the
allocation of shifts to employees of the respondent.
[28] I have carefully considered the respondent’s contention that it attempted to contact Ms
Karimi to ascertain her availability to work and offer Ms Karimi shifts.19 The text messages
between Ms Amiri and Ms Karimi reveal that the focus of the respondent’s correspondence
prior to, and on, 10 August 2022 was in relation to the resolution of Ms Karimi’s underpayment
concerns. In the circumstances, I am satisfied the respondent’s communications with Ms Karimi
prior to 10 August 2022 were directed towards the resolution this matter.
[29] Ms Amiri’s attempt to call Ms Karimi with the stated intention of offering her further
shifts after 10 August 2022 does not alter my conclusion that the respondent’s conduct on 10
August 2022 constituted a dismissal at the respondent’s initiative. Ms Karimi did not answer
the call on 15 August 2022.20 Further, the text messages and WhatsApp message on 15 August
2022 are also only concerned with the underpayment issue, and not with arranging further shifts.
[2023] FWC 717
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[30] The respondent’s submission that it is open to Ms Karimi working with it again does
not evidence ongoing employment after 10 August 2022 but rather, at its highest, a preparedness
on the respondent’s part to offer Ms Karimi new employment.21
[31] Having regard to the above matters, and the conclusions reached, I am satisfied that Ms
Karimi was dismissed by the respondent in accordance with s 386(1)(a) of the Act.
Conclusion and disposition
[32] I find that Ms Karimi has been dismissed within the meaning of s 386(1)(a) of the Act.
Accordingly, at the time that Ms Karimi lodged her general protections application with the
Commission, Ms Karimi was a person who “has been dismissed” for the purposes of s 365 of
the Act.
[33] The respondent’s jurisdictional objection is dismissed.
[34] The application will be referred for conciliation in accordance with s 368 of the Act.
DEPUTY PRESIDENT
Appearances:
Mr Rohan Sethi on behalf of the applicant
Mr Aker on behalf of the respondent
Hearing details:
28 February 2023, by Microsoft Teams
Final written submissions:
7 March 2023
Printed by authority of the Commonwealth Government Printer
PR760590
WORK COMMISSION THE SEALLBE THE
[2023] FWC 717
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1 Court Book 9 at [1.1], Court Book 16 at [5]
2 Court Book 10-11, 3.1 at [2], Court Book 12, 3.3 at [2]
3 WhatsApp message from Ms Karimi to Ms Amiri dated 21 May 2022
4 Court Book 10-11, 3.1 at [3]-[5]
5 See text message from Ms Amiri to Ms Karimi dated 10 August 2022
6 Text message from Ms Karimi to Ms Amiri dated 10 August 2022
7 Court Book 18
8 Text messages from Ms Amiri to Ms Karimi dated 15 August 2022
9 WhatsApp message from Ms Karimi to Ms Amiri dated 15 August 2022
10 Court Book 25
11 WhatsApp messages between Ms Karimi to Ms Amiri dated 15 August 2022
12 Court Book 16 at [6]-[7]
13 Court Book 22-23 at 2.2 and 2.4
14 Fair Work Act 2009 (Cth), s 365
15 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67]
16 Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205, 206; Khayam v Navitas English Pty Ltd
[2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James [2022] FWCFB 55; 316 IR 1 at [45] which concluded that
s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see
Shane John Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 at [33]
17 Court Book 10-11, 3.1 at [2]
18 See WhatsApp message allocating shifts on 10 May 2022
19 Court Book 25 at 4.1
20 WhatsApp messages between Ms Karimi and Ms Amiri dated 15 August 2022
21 Court Book 26 at 5.1, Court Book 28
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
