1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Imad Takerei
v
Prestige Foods International Pty. Ltd.
(C2024/425)
COMMISSIONER LEE MELBOURNE, 12 APRIL 2024
Application to deal with contraventions involving dismissal – jurisdictional objection that
Applicant not dismissed – determination that employment not terminated on employer’s
initiative – jurisdictional objection upheld.
Introduction
[1] This decision concerns an application made by Mr Imad Takerei (the Applicant) to deal
with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair
Work Act 2009 (Cth) (the Act). The Applicant contends that Prestige Foods International Pty.
Ltd. (Respondent) contravened various provisions of Part 3-1 of the Act by dismissing him
from his employment. The Respondent disputes that the Applicant was dismissed and pressed
a jurisdictional objection on that basis.
[2] The Fair Work Commission (Commission) generally does not have a determinative
function in relation to applications brought under s.365 of the Act unless the Parties agree to
the Commission arbitrating the matter. Rather, the Commission’s role is to convene a
conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts
to resolve the dispute have been or are likely to be unsuccessful. However, where the
Respondents deny that they dismissed the Applicant and objects to the application on this basis,
the Commission is required to determine whether the Applicant was dismissed.1
Background
[3] The Applicant in this matter was initially represented by Employee Dismissals. The
matter was first listed for mention hearing in order to consider programming the matter to deal
with the jurisdictional objection. That listing was by Video using Microsoft Teams. The
Applicant failed to attend the mention hearing. The matter was adjourned and listed for mention
Hearing in person on Wednesday, 28 February 2024. The Applicant was advised he was
expected to attend.
[4] Soon after on 26 February 2024 the Applicant’s representative Employee Dismissals
lodged a Form F54 ceasing to act for the Applicant. The relisted mention hearing proceeded on
[2024] FWC 836
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 836
2
28 February 2024 and the Applicant did not appear and made no contact with my Chambers.
Directions were set in his absence.
[5] The Respondent filed their submissions and two witness statements in response to the
directions. The Applicant did not file any material, in breach of the directions. The Applicant
was advised by email by my Chambers on 18 March 2024 that he had failed to file any
submissions. The Applicant was advised that if he wished the discontinue the application, he
was to complete and lodge Form F50 – Notice of Discontinuance or respond to the email
indicating he wished to withdraw the application. In the email the Applicant was reminded that
the matter was listed for Hearing in person at the Fair Work Commission in Melbourne at 10am
on Wednesday 20 March 2024 and that should the Applicant not attend, the matter would
proceed in his absence and a determination would be made.
[6] The Hearing took place on 20 March 2024, Ms Leonie Brasier, the HR Manager and Mr
James Henry, the Warehouse Manager both attended on behalf of the Respondent and provided
sworn evidence The Applicant failed to attend the Hearing. Given the Applicant’s complete
lack of contact with the Commission, I determined to proceed with the hearing.
The evidence
[7] I have only the sworn evidence of the Respondent.
[8] In summary the evidence is as follows:
[9] The Applicant did not arrive at work at the rostered time on 2 January 2024. Mr Henry
called the applicant to ascertain his whereabouts. In the conversation with the Applicant, he did
not confirm whether or not he was coming to work that day and then hung up the phone. Mr
Henry called the Applicant a number of times but the Applicant did not answer the phone.
Ultimately, the Applicant did arrive at work albeit some 2 hours late. Mr Henry inquired with
the Applicant as to why he had refused to answer his phone calls and hung up on him. The
Applicant became angry and started raising his voice and swearing at Mr Henry. This went on
for some time after which Mr Henry decided to ask the Applicant to leave the workplace. Mr
Henry stated in his witness statement:
“I said to the Respondent, "Imad, you know what man, just leave, I don't want you here
if you are going to be like this". Imad dropped the box of product he was working on
and walked out without a word. Omar also walked out.
I do not recall that I told him to "Fuck off" but I may have, as it was a pretty heated
exchange. I aimed to stop the "aggro" he was causing, so we could all get on with our
work. His presence in such an angry state was making everyone uncomfortable.
It was not my intention to dismiss him as the Respondent alleges, I just wanted him to
stop his behaviour and calm down. I thought removing him from the warehouse at that
time might give him a chance to take a breath and calm down and then come back when
he had sorted himself out.
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I agree that this was not the most professional way of dealing with the situation and
probably should not have sworn, but by that time I was really frustrated that not only
was the Respondent late causing extra work for everyone, but was now causing more
disruption and unpleasantness. If he wasn't being useful, then it was better to get him
out so we could get on with our work as we were really busy and he could come back
when he was calm.”2
[10] Subsequently, Ms Brasier contacted Mr Henry. Mr Henry told her about what had
occurred and also raised concerns that there had been a report that the Applicant had been seen
“smoking a bong in the car park of the premises when at work.”
[11] Ms Brasier was concerned about the events in the workplace and the further allegation
of bong smoking in the car park and contacted the Applicant by telephone. Her evidence as to
what was said on the phone call is as follows:
“I rang the Respondent about 12 .30pm and said that I understood there had been a
problem at Logistics and I wanted to know his side of the story so we could work things
out.
The Respondent said he had walked out because he argued with James Henry about
being late.
I asked him if he had been late to work and he agreed that he had but said that James
had been unreasonable and swore at him and carried on.
I acknowledged that there had been a heated disagreement and wondered if there was a
way that this could be sorted out with James. He said he did not think it could be sorted
out. He said he did not want to work with James.
The Respondent then said that he was afraid of James Henry and that he (James) had
threatened him and others. I said that this was a serious issue and asked him what had
happened to make him feel this way. He said that one time James had challenged a
former worker to a "punch up" outside "away from the cameras". I was shocked at
that allegation and I asked for more detail about when this occurred but he was not able
to tell me.
The Respondent sounded upset and "worked up" but could provide any detail to back
up these allegations. The more he talked the more outrageous and worked up his
allegations became, saying "You don't know what goes on out there". I agreed with
him that I did not know and that this was his opportunity to tell me so I could deal with
any problems. He was not able to tell me anything specific about any incidents that had
occurred but at one point said "I am afraid for my life".
I was shocked at that. I thought it sounded overly dramatic and asked him "was he really
telling me he was afraid for his life in the workplace?" He backed down from that, saying
he was not really afraid for his life. I told him that it was a very serious thing to say and
that as an employer, the company was responsible for his safety and we needed to know
if he was feeling unsafe and so we could find out why and do something about it."
[2024] FWC 836
4
The Respondent did not give any particulars or details about why he felt that way and
backed down from his statement. This made me think that he was affected either by
emotions or drugs or just being overly dramatic.
I listened to the allegations made, and the longer they went on the less credible his
allegations seemed. However, I acknowledged his concerns and said that I would
investigate them - which I later did and they were without foundation.
At the end of the telephone discussion the Respondent told me he did not feel safe to
return to work at Prestige.
The Respondent's brother who was with him said that he did not want to go back to
Prestige.
I told them both that I was sorry to hear that, but understood and accepted their decisions.
I asked them both to send me an email that afternoon, putting their resignations in
writing.
As nothing was received from either of them, I wrote an email to them both at 5.33pm
that day referring to the phone discussion and formally accepting their resignations.
Nothing further was heard until receipt of the Application.”3
[12] During the hearing I asked Ms Brasier’s what the response of the Applicant was when
she asked him to send in a resignation in writing. Her evidence was:
“Mr Imad Takerei said something like, 'Okay. No worries,' or – by that stage, some of
the things he was saying weren't full sentences. He indicated that's what he was going
to do and I took that to be he didn't want to return to Prestige ever and that he was
resigning.”4
The law to be applied.
[13] Section 12 of the Act provides “dismissed: see section 386”
[14] Section 386 of the Act 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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period
of time, for a specified task, or for the duration of a specified season, and the
[2024] FWC 836
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employment has terminated at the end of the period, on completion of the task,
or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement; and the
employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.”
[15] What it means to be terminated at the employer’s initiative has been considered in a
number of decisions of the Commission and other jurisdictions:
“The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is
treated as a termination in which the action of the employer is the principal contributing
factor (directly or consequentially) that leads to (or has the objective probable result of
leading to) the termination of the employment relationship. That is, had the employer
not taken the action that it did, the employee would have remained employed.” 5
[16] Further, the particular facts and circumstances of the case are important:
“a decision whether there has been termination at the initiative of the employer must
depend upon the facts and circumstances of the particular case. Because each case
depends on the facts established….”6
[17] In Ms Susann Sharpe v MCG Group Pty Ltd it was stated the interpretation of
‘initiative’ requires broad analysis:
“The term “initiate” should not be given a narrow meaning. Even where an employee
does some act which is the first in a chain of circumstances that leads to termination, the
focus should be on the step or steps that effectively terminated the employment, or the
critical action or actions.”7
[18] I agree with and adopt the various principles cited above and will apply them as relevant
in determining this matter.
Consideration
[2024] FWC 836
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[19] I only have the evidence of Mr Henry and Ms Brasier. I prefer that sworn evidence over
any assertions made by the Applicant in the Form F2, that being the only material I have that
provide some information as to the Applicants claims as to what occurred.
[20] The key issue for determination is whether the action of the employer caused the
termination. The interactions of Mr Henry and the Applicant on 2 January 2024 is a key
consideration here as is the subsequent conversation with Ms. Brasier.
[21] Mr Henry told the Applicant to “just leave, I don’t want you here if it’s going to be like
this.” He may have also told the Applicant to “fuck off.” In response the Applicant left the
factory. In the circumstances, it is open to construe the actions of Mr Henry as action that
resulted in the termination of the employment relationship. However, it is important to examine
all of the circumstances including the conduct of the employer and the employee.8
[22] The Applicant left the workplace and was contacted by Ms Brasier. There was nothing
said by the Applicant to Ms Brasier to indicate that he understood the employment relationship
had ended. Her evidence was to the effect that despite her offering to investigate the allegations
made by the Applicant, the Applicant advised he would not return to the workplace. In light of
that, she requested he send an email of his resignation and that the Applicant said that he would
do so. The Applicant did not send a letter of resignation. Mr Brasier then wrote to the Applicant
referring to the phone conversation and her acceptance of his “verbal advice that you do not
want to return”.
[23] The Applicant did not respond to that email. A Form F8 was lodged in the Commission
21 days later alleging that the Applicant was told to “Fuck out of the warehouse.”
[24] Having regard to all the circumstances. I am not satisfied that the Applicant was
terminated at the initiative of the employer. While the actions of Mr Henry viewed in isolation,
could be found to be action that brought the employment relationship to an end, all of the
circumstances must be considered. I accept his evidence that there was a heated exchange
between the two men, with the Applicant ultimately being asked to leave the workplace in order
to defuse the situation. On the balance of probabilities, I also think Mr Henry told the Applicant
to “fuck off” at some point in the conversation. Importantly, there is nothing in the conversation
that the Applicant had with Mr Brasier later in the day to suggest he thought he had been
dismissed. Ms Brasier made it clear that she wanted him to return. The Applicant indicated he
would not because he felt unsafe. There is no evidence that the workplace was unsafe because
of Mr Henry or for any other reason.
[25] There is no evidence to support a finding that Mr Henry was a “threat” to the Applicant.
In all the circumstances, I am satisfied that the employment relationship ended when the
Applicant advised Mr Brasier that he would not return to the workplace.
[26] As set out earlier, the definition of “dismissed” under s.386 of the Act applies to
applications pursuant to s.365 of the Act. I am not satisfied that the Applicant’s employment
relationship with the Respondent was terminated at the employer’s initiative. His employment
ceased on 2 January 2024 when he advised Ms Brasier he did not intend to return to the
workplace.
[2024] FWC 836
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[27] As set out earlier, the definition of “dismissed” under s.386 of the Act applies to
applications pursuant to s.365 of the Act. I am not satisfied the Applicants employment
relationship with the Respondent was terminated at the employer’s initiative.9 The Applicants
employment ceased on 2 January 2024 when he advised Ms Brasier he did not intend to return
to the workplace. Ultimately it was the action of the employee, not the employer, that bought
the employment relationship to an end.
[28] The jurisdictional objection is upheld, and the application will be dismissed.
[29] An order10 to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
L Brasier from the Respondent
Hearing details:
2024.
Melbourne:
March 20
Printed by authority of the Commonwealth Government Printer
PR773028
1 See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB
5365).
2 Witness statement of James Henry at 35-38.
3 Witenss statement of Leonie Brasier at 21-35.
4 PN59.
5 Richards v Woolworths Group Limited [2023 FWC 1082 at 18; Mohazab v Dick Smith Electronics (2005) 62 IR 200, at
205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC
160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd
(1996) 67 IR 154, at 160.
6 ABB Engineering Construction Pty Ltd v Doumit [Print N6999].
7 [2010] FWA 2357 at [25].
8 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23,
[(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay
C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62
IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9
December 1996).
9 See Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162.
10 PR773452.
90 OF THE FAIR WORK NOISSIN THE SEA
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5365.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5365.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa2357.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr973462.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr773452.pdf
