1
Fair Work Act 2009
s.394—Unfair dismissal
Mohammed Hakim
v
Nanak Doors and Bathroomware Pty Ltd
(U2023/2843)
COMMISSIONER MCKINNON SYDNEY, 26 JUNE 2023
Application for an unfair dismissal remedy – whether applicant dismissed
[1] Mr Mohammed Hakim was employed as a loader and delivery driver by Nanak Doors
and Bathroomware Pty Ltd (Nanak Doors) from February 2021 until 3 April 2023.
[2] On 11 April 2023, Mr Hakim applied for an unfair dismissal remedy under s.394 of the
Fair Work Act 2009 (Cth) (the Act). Nanak Doors objects to the application, including on the
basis that Mr Hakim was not dismissed.
[3] A remedy for unfair dismissal is only available if the Commission is satisfied that an
employee has been dismissed.1 Relevantly, under section 386(1) of the Act, a person has been
dismissed if their employment has been terminated on the employer’s initiative.
[4] 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. It requires the
action of the employer to be the principal contributing factor which leads to the termination of
the employment relationship.
[5] The question is whether Mr Hakim was dismissed for the purposes of section 386(1) of
the Act. I find that Mr Hakim was dismissed from his employment with Nanak Doors on 3 April
2023. These are my reasons.
Was Mr Hakim dismissed?
[6] The facts in dispute relate to a single conversation in the Hindi language on 3 April
2023. Mr Hakim says that after going to the tip that day, he returned to site with his lunch and
was given five deliveries for the afternoon. He called Mr Gurwinder Singh, Director, on the
phone while he was having his lunch. The following conversation ensued, in words to the effect:
[2023] FWC 1524
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1524
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Mr Hakim “How come I got 5 jobs when you promised me one or two jobs a day?”
Mr Singh “Sometimes you have to do it.”
Mr Hakim “You want me to do more work, but you won’t give me more money that
I have asked you for before.”
Mr Singh “That’s the end of you, you don’t work here anymore.”
[7] According to Mr Hakim, Mr Singh was angry by this time and hung up. Mr Hakim
finished his lunch and went to see the other Director, Mr Kushal Jain. Mr Jain “wished him the
best” in the future. Mr Hakim asked for his day’s pay and reimbursement of the cost of the
morning’s tip run. Mr Jain made a phone call, and by the time Mr Hakim was at the bus stop,
the pay was in his account with the description “waste drop and final”.
[8] Nanak Doors submits a different version of events. Mr Singh agrees that he had a phone
call with Mr Hakim on or about 3 or 4 April 2023. He agrees that Mr Hakim asked him about
having five jobs that day and responding to the effect that “sometimes you have to do it”.
However, Mr Singh denies the balance of the conversation outlined above and denies that he
dismissed Mr Hakim.
[9] According to Mr Singh, Mr Hakim complained that he did not want to keep driving the
company truck. He asked to drive one of the company’s utility vehicles (utes) instead. Mr Singh
advised Mr Hakim that the utes were all being used by other employees and that there was no
other ute for him to drive. He told Mr Hakim that the other employees were not as experienced,
were new to Australia and did not have the qualifications to drive the truck. He said the
company was already in the process of ordering another company ute and that once it arrived,
Mr Hakim could stop driving the truck and resume driving the ute. Mr Singh says Mr Hakim
got angry and refused to drive the truck “in the meantime”, to which he responded, in words to
the effect:
“If you are not able to drive the company truck, and you are a casual employee, we will
call you once the ute is available. Otherwise there are shifts available if you are willing
to drive the truck.”
[10] I accept the account of Mr Hakim about his exchange with Mr Singh on 3 April 2023.
It is the most likely version of events, and it is consistent with both the actions of the parties
and the documents brought into existence at or around the time of dismissal. Mr Hakim’s
recollection was clear and his evidence was consistent about what Mr Singh said to him.
[11] I do not accept the evidence of Mr Singh about what was said in the phone call with Mr
Hakim on 3 April 2023. Mr Singh’s evidence was not reliable. He could both recall and not
recall aspects of the exchange with Mr Hakim on 3 April 2023, including on the issue of whether
there was a phone call between them. At least two aspects of what Mr Singh recalls do not bear
scrutiny: firstly, the suggestion that other employees of Nanak Doors did not have the
qualifications to drive the company truck cannot be accepted. The relevant qualification is the
same (driver licence) as employees require to drive company utility vehicles. Secondly, if the
[2023] FWC 1524
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company was “already” in the process of ordering another ute, there is no explanation for why
the order was not placed until 28 April 2023, some 25 days later.
[12] I do not accept the evidence of Mr Jain given in support of Mr Singh’s evidence about
what transpired in the conversation on 3 April 2023. Mr Jain was not a party to the exchange
between Mr Singh and Mr Hakim and his evidence in this respect is hearsay.
[13] There was no attempt by Nanak Doors to contact Mr Hakim after 3 April 2023 in
connection with future work, or to clarify his intentions to return to work after he requested an
Employment Separation Certificate.
[14] Text messages sent by Mr Hakim to Mr Singh and Mr Jain in the week after dismissal
both make clear that Mr Hakim understood his employment had been terminated on 3 April
2023. To Mr Jain, Mr Hakim wrote:
“On Monday 3 April 2023 [Singh] told me on the phone ‘that is the end of you’. Can you
please confirm in writing that my employment in [sic] terminated? I will need a
separation certificate for Centrelink. Thank you”.
[15] The message is inconsistent with an understanding on the part of Mr Hakim that he was
effectively standing by, waiting by for the company to order a new ute so that he could return
to work.
[16] Text messages sent by Mr Singh and Mr Jain in reply to Mr Hakim also confirm their
understanding that Mr Hakim’s employment had come to an end. Mr Jain expressly stated “Ok
no worries I will give u a employment termination after easter”. I do not accept Mr Jain’s
evidence that he did not pay attention to these messages, or that he did not understand what Mr
Hakim meant when he asked for confirmation that his employment had been “terminated”, or
that he understood from this message that Mr Hakim did not want to work for the business any
longer. One simply cannot read Mr Hakim’s text message in that way.
[17] Mr Hakim submits that he asked Mr Jain for, and was paid, his final pay on the day of
dismissal. I accept that this occurred, as evidenced by the fact of the payment, which was the
last payment made to Mr Hakim, as well as the label given to the payment: “waste drop and
final”. The words “and final” demonstrate that the payment was not only for reimbursement of
tip fees. It was for this purpose (as evidenced by the words “waste drop”) but also something
more, as the words “and” (in addition to) “final” (Mr Hakim’s final pay) make clear. I reject
the contrary evidence of Mr Jain in this regard.
[18] Nanak Doors has been in business since 2016. Mr Jain and Mr Singh both work hard in
the business, and Mr Jain has a practice of making himself available to respond to messages
from his employees as needed, including while on holidays. Mr Jain has recent experience with
at least one other employee who had been dismissed. He has a good grasp of the English
language and a reason to disclaim the fact of Mr Hakim’s dismissal, given that a finding in
favour of the business would prevent Mr Hakim from proceeding with this application. I do not
accept that he read “termination” as interchangeable with “separation”, in circumstances where
both terms were used separately by Mr Hakim for different reasons – one to describe what he
[2023] FWC 1524
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thought had happened to the employment (it had “terminated”) and one to describe what he
needed (a “separation” certificate).
[19] If Mr Singh or Mr Jain genuinely believed that Mr Hakim had left on his own accord or
was waiting for the future allocation of shifts, they had a duty to clarify or confirm Mr Hakim’s
intentions after a reasonable time, particularly after having received the text messages seeking
clarification that his employment had been terminated by Mr Singh. In Bupa Aged Care
Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli2, a Full Bench of this
Commission summarised the position under the Act in relation to resignation that may amount
to a termination at the initiative of the employer and observed, in relation to section 386(1)(a),
that:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where,
although the employee has given an ostensible communication of a resignation, the
resignation is not legally effective because it was expressed in the “heat of the moment”
or when the employee was in a state of emotional stress or mental confusion such that
the employee could not reasonably be understood to be conveying a real intention to
resign. Although “jostling” by the employer may contribute to the resignation being
legally ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of the
employment at the initiative of the employer.”
[20] Nanak Doors took no steps to clarify or confirm the position with Mr Hakim as to
whether he intended to return to work. The failure of the business to take these steps would, in
circumstances of doubt about whether Mr Hakim had resigned, be sufficient to characterise the
exchange on 3 April 2023 as a termination of the employment relationship at the initiative of
the employer.
[21] However, there was no such doubt. Neither Mr Singh nor Mr Jain thought that Mr
Hakim had resigned. Mr Singh knew that he had dismissed Mr Hakim. He may have failed to
tell Mr Jain the truth of what occurred, although that would not change the fact of dismissal.
And in any event, I doubt this is what happened. Mr Jain organised Mr Hakim’s final pay on
3 April 2023 after quickly making a phone call. He must have done so knowing that the
employment had come to an end.
Conclusion
[22] I find that Mr Hakim was dismissed by Mr Singh in the phone call on 3 April 2023. The
dismissal likely occurred in the heat of the moment while Mr Singh was angry. However, Mr
Singh did not subsequently resile from, or seek to correct, his decision by asking Mr Hakim to
return to work. Mr Hakim did not resign in the heat of the moment, and he did not agree to
simply stand down pending the offer of future shifts once a new company vehicle had arrived.
Mr Hakim was dismissed by the clear words of Mr Singh and his dismissal took effect
immediately.
[2023] FWC 1524
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[23] Mr Hakim’s employment was terminated at the initiative of Nanak Doors. I am satisfied
that Mr Hakim was dismissed for the purposes of section 386(1).
[24] The jurisdictional objection is dismissed.
COMMISSIONER
Appearances:
M Hakim on his own behalf.
K Jain and G Singh for the respondent.
Hearing details:
2023.
Sydney (by video):
June 19.
Printed by authority of the Commonwealth Government Printer
PR763573
1 Fair Work Act 2009 (Cth), s 385(a).
2 [2017] FWCFB 3941.
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
