Fair Work Act 2009_

s.394 - Unfair dismissal

[1] This matter concerns an application made by Mr Sohiel Ahadizad (the Applicant) under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges that he had been unfairly dismissed by ACT Optical (the Respondent) on 27 October 2014. ACT Optical on the other hand alleges that Mr Ahadizad resigned his employment.

[2] By way of background, Mr Ahadizad's brother, Soorage, is a director of ACT Optical. On 27 October 2014 Mr Ahadizad visited ACT Optical's Queanbeayan store, his workplace, on his day off. His brother took advantage of his presence to ask Mr Ahadizad some questions about a job. Mr Ahadizad responded that he knew nothing about the job, despite a note with his handwriting apparently being attached to the job. According to his brother, Mr Ahadizad then became abusive and an argument ensued. What was precisely said is disputed. Mr Ahadizad submits that he had a massive anxiety attack and needed to leave.

[3] Mr Ahadizad submits that his brother said words to the effect that it may be best if he was to look for a new role, which prompted him to respond "I've had enough of this crap. I'll take your advice". His brother's evidence was that Mr Ahadizad did say "I've had enough of this crap", adding that as he walked out the door Mr Ahadizad said words to the effect "I expect a letter of resignation".

[4] Ms Murray, a receptionist at ACT Optical's Queanbeyan store gave evidence for the Respondent. The evidence set out how the argument arose. Ms Murray attests that Mr Soorage Ahidizad said to the Applicant that he had to take responsibility for his mistakes. The Applicant's response was to the effect the he deserved better than this and that he could find a job elsewhere tomorrow, to which his brother responded then maybe is for the best. Ms Murray in both her witness statements and under cross examination attested that Mr Ahadizad has asked for a letter of resignation as he left the store. I found Ms Murray's oral evidence to be clear and consistent with her witness statement.

[5] Mr Ahadizad alleges that he was dismissed and that a number of concerns regarding staff support and constant feedback about mistakes made his situation a classic case of constructive dismissal.

[6] While much of the evidence in this case is disputed, on balance I find that Mr Ahadizad probably did resign and probably did ask for a resignation letter as he left the store on 27 October 2014. The question that flows from that finding is whether Mr Ahadizad was constructively dismissed, i.e. that he had no real choice but to resign. The evidence in this regard does not support such a finding. Most compelling in this regard was the undisputed evidence that a similar occurrence had previously occurred after which Mr Ahadizad apologised and sought to return to work. However, Mr Ahadizad's actions on this occasion were quite different, he contacted his paymaster seeking a certificate of separation - though I acknowledge Mr Ahadizad evidence was that he said he had been sacked.

[7] Taken together I find that on the balance of probabilities Mr Ahadizad did resign and that he was not forced to resign by the actions of ACT Optical.

[8] Accordingly, I find that Mr Ahadizad was not dismissed for the purposes of s.386 of the Act and the termination of his employment was not an unfair dismissal. Mr Ahadizad's application is therefore dismissed. An order to that effect will be issued separately.

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