s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether employee "dismissed" - not dismissed - employment ended at conclusion of apprenticeship agreement - application dismissed.

[1] Mr Allawi Alzuwaini was, until 19 February 2025, an apprentice electrician with his former employer, Northside Electrical Contractors Pty Ltd. On 19 February 2025, Mr Alzuwaini's employment came to an end upon the successful completion of his apprenticeship. That date was not the original end date for Mr Alzuwaini's apprenticeship. The original ending time for the apprenticeship was July 2025.

[2] Mr Alzuwaini says he was forced to resign. The employer says there was no dismissal but, rather, Mr Alzuwaini's apprenticeship came to an end on an agreed date (as brought forward by agreement) and there was no further offer of employment. For the reasons that follow, I prefer the employer's account and Mr Alzuwaini's application must be dismissed.

[3] Mr Alzuwaini began his employment with Northside Electrical in August 2022. By 2024, Mr Alzuwaini was a 4th-year apprentice.

[4] One allegation that Mr Alzuwaini relies upon as a reason for the end of his employment concerned conduct of other apprentices behaving poorly towards Mr Alzuwaini. The employer investigated that matter and evidently agreed with Mr Alzuwaini that he was the subject of poor treatment by others and, as a result, were minded at the time to dismiss the employee in question. Mr Alzuwaini requested that the individual should not be dismissed. Mr Alzuwaini says his confidentiality during that process was not respected. I do not accept that proposition but, even if it were the case, it happened in July 2024. On no sensible basis could it be said that the matter has any connection to the end of Mr Alzuwaini's employment some seven months later.

[5] Mr Alzuwaini says that in August 2024, Northside announced all 4th-year apprentices could be considered for early sign-off. Mr Alzuwaini also says he was assured that he would be "supported once my training was complete". I agree that the employer indicated 4th-year apprentices were told they might get an early sign-off but I disagree Mr Alzuwaini was in any way promised he would be supported (i.e. employed) after that event. Mr Alzuwaini included in his material a letter from Northside Electrical on 27 August 2024. It was addressed to all employees and was titled "Workload and short-term labour management - August 2024".

[6] The letter outlined various market conditions at the time, some positive but most were challenging. The letter stated that, at that time, there was not enough forecast work to support its current labour numbers. The letter then stated:

1. All 4th year apprentices will be contacted to complete their apprenticeships early where possible

2. Due to our tradesman to apprentice ratios, we will be reducing the number of our apprentices in addition to A-grades across the company

3. We have contacted some of our competitors to discuss the possibility of more labour-hire arrangements, at this stage it appears most EBA contractors are in similar positions

4. Voluntary redundancy is available for anyone within the company who would find this viable/preferred - for all interested please make us aware by COB Wednesday 4th September '24"

[7] The letter stated that in the absence of sufficient voluntary redundancies, "we will be in the unfortunate position applying forced redundancies."

[8] In his witness statement, Mr Alzuwaini says that between November 2024 and January 2025, despite all his necessary training being completed, no action was taken about his early sign-off. He says he was not contacted about an early sign-off despite repeated requests, while others were.

[9] During the beginning of January 2025, Mr Alzuwaini sent various messages to the employer relating to an early sign-off for his apprenticeship.

[10] On 20 January 2025, Mr Alzuwaini spoke with the Construction Manager by telephone. During that call, Mr Alzuwaini was told that he would need to complete his apprenticeship to his contracted finish date [i.e around July 2025]. Mr Alzuwaini requested again further consideration for an early finish, and was told the available options are to be signed out early if that is what he really wanted, however, it would be at a detriment of his employment with Northside Electrical. The other option was simply to complete the apprenticeship as planned. The Construction Manager's evidence made clear to Mr Alzuwaini there was not an A Grade position available for him.

[11] On 29 January 2025, Mr Alzuwaini sent his employer a formal email requesting an early sign-off for his apprenticeship or provision of a detailed written reference. Following further discussions, during which Mr Alzuwaini indicated he had found another job, he again pressed his request for an early sign-off for his apprenticeship. The opening parts of that email were as follows:

"I hope this email finds you well. I am writing to formally request an early sign-off for my electrical apprenticeship, as per the company's communication dated 27th August 2024, which stated that all 4th-year apprentices would be contacted to complete their apprenticeships early where possible.

Additionally, I would like to clarify that I was not formally contacted regarding this opportunity, which is why I am reaching out directly."

[12] On 31 January 2025, Mr Alzuwaini met with the Construction Manager and Operations Manager. It is not necessary to set out the detail of that discussion but an essential part of it was the employer's view that Mr Alzuwaini was expected to see out his apprenticeship to its full term (i.e. no early sign-off). There were various further discussions as Mr Alzuwaini pressed his case for early sign-off but no part of those discussions included the employer offering to keep Mr Alzuwaini on as an A-Grade electrician once his apprenticeship was completed.

[13] On 3 February 2025, Mr Alzuwaini sent a further email again pressing the case for an early sign-off.

[14] On 3 February 2025, the employer acceded to Mr Alzuwaini's request. The employer stated in an email to Mr Alzuwaini that he would be given two options. The first was that Mr Alzuwaini could continue his apprenticeship, as scheduled to conclude in July 2025. The second was supporting signing Mr Alzuwaini out of his apprenticeship as soon as practicable, albeit the email made clear that there would not be a position offered as an A-grade electrician once the apprenticeship ended. Mr Alzuwaini was asked to confirm his intentions by the end of the day.

[15] The following day, the Construction Manager made numerous attempts to call Mr Alzuwaini (who was on site at a different location at the time) to find out what Mr Alzuwaini wanted to do in response to the two options put to him. The Construction Manager then asked another person on site to ask Mr Alzuwaini to call the Construction Manager but was told that Mr Alzuwaini had told him that he refused to speak to the Construction Manager over the phone and advised that he would only communicate via email.

[16] On 4 February 2025, Mr Alzuwaini was then directed to attend a meeting with the Construction Manager the following day. In the evening of 4 February 2025, Mr Alzuwaini sent an email complaint to the employer's director complaining about the Construction Manager. I do not consider the complaints are validly based but it is unnecessary for me to say anything further on that for the purposes of this decision.

[17] On 5 February 2025, Mr Alzuwaini sent the director a Whatsapp message requesting that the meeting scheduled for 3pm be cancelled. Mr Alzuwaini then wrote:

"Instead, I would like to propose a solution that I believe would be in the best interest of both myself and Northside Electrical. Given the circumstances, I am requesting to be signed off from my apprenticeship and to part ways with the company amicably. In return, I would greatly appreciate a positive reference or a letter of reference highlighting my contributions and achievements during my time at Northside Electrical."

[18] The director responded to Mr Alzuwaini that day and (relevantly) wrote:

"I can facilitate what you are requesting and genuinely hope it works out for you.

I will do as you are asking regarding a reference letter and it will come from me personally.

[Another employee] will finalise school arrangements etc. and we will let you know when this can be achieved."

[19] At about this time, Mr Alzuwaini was working on site at a different firm called Kelly Electrical. As best as I can tell, that was not work for Northside Electrical, although there was evidently some arrangement in place to facilitate or 'loan' Mr Alzuwaini's work at Kelly Electrical. Mr Alzuwaini was also seeking at the time to obtain future ongoing employment with Kelly Electrical.

[20] On 7 February 2025, Kelly Electrical informed Northside Electrical that Mr Alzuwaini was no longer allowed on its site. I do not consider this is relevant to the end of Mr Alzuwaini's employment although he says it is. Mr Alzuwaini says that Northside Electrical "sabotaged" his work chances with Kelly Electrical. There is simply no credible evidence to suggest that Northside Electrical sabotaged Mr Alzuwaini's employment prospects with Kelly Electrical. To the extent that there is information before me about the matter, it was solely a decision of Kelly Electrical. In an email from Kelly Electrical to Northside Electrical sent on 7 February 2025, Kelly Electrical says there were "conduct issues" on Mr Alzuwaini's behalf that they tried, but were unable, to manage. In a later letter dated 14 March 2025 from Kelly Electrical, the letter states (among other matters) "The week of 7th Feb Allawi had become problematic by insisting he be hired to multiple staff at Kely Electrical, by Friday he had requested our site HSR intervene, at this point I phoned [the Northside Electrical Construction Manager] and notified him Allawi cannot stay any longer as his behaviour was becoming too disruptive."

[21] Following this, Mr Alzuwaini was asked if he wanted to undertake general factory work at Northside Electrical or utilise available leave while "we await formal sign-out of your apprenticeship". Mr Alzuwaini opted to take the leave.

[22] The formal sign-out of Mr Alzuwaini's apprenticeship evidently occurred.

[23] Mr Alzuwaini's Form F2 application states that the final day of his employment was 18 February 2025. On that day, Northside Electrical sent a letter to the Licensing Section of Energy Safe Victoria advising of various types of electrical installation work experience Mr Alzuwaini had undertaken in the previous 12 months.

[24] The employer's Form F3 response states the final day of employment was the following day, 19 February 2025. On that day, the employer sent Mr Alzuwaini a letter by email titled "Apprenticeship Sign off". It stated that "As agreed, your apprenticeship will be signed off and employment with us will terminate effective close of business 19/02/2025". I am satisfied that this was the end date of the apprenticeship, and the employment, although nothing turns on if the date was 18 February 2025.

[25] Under section 385 of the Act, a necessary element for a successful unfair dismissal claim is that the employee must have been dismissed. By s 12 of the Act, the term "dismissed" has a meaning defined by the criteria in s 386. Section 386 is as follows:

(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."

[26] There are exceptions to s 386(1), one of which included employment under a training arrangement. Section 386(2)(b) provides:

"(2) However, a person has not been dismissed if: ...

(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; ...".

[27] A "training arrangement" is defined in section 12 of the Act. It means "a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees."

[28] A training arrangement under that definition clearly includes an ordinary apprenticeship arrangement. I note that the Explanatory Memorandum to the Fair Work Bill 2008 states, at paragraph [1537], a "Training arrangement as defined covers both trainees and apprentices." There was no suggestion that Mr Alzuwaini's electrical apprenticeship was anything other than an orthodox apprenticeship of the kind described by the Act.

[29] I consider it clear that Mr Alzuwaini's employment was "limited to the duration of the training arrangement" and this ended "at the end of the training arrangement". On this basis, Mr Alzuwaini was not dismissed as he met the description in section 386(2) of the Act.

[30] For completeness, however, I will deal with Mr Alzuwaini's wider arguments.

[31] Mr Alzuwaini's Form F2 application states he had requested to be signed off from his apprenticeship early, "with the understanding that I would not be left without income or employment before obtaining my A-grade license from ESV. However, Northside Electrical terminated my employment before my license was granted, leaving me unable to secure work. This violated the implied agreement and put me in a difficult financial position."

[32] For Mr Alzuwaini's argument to be correct, there would need to be an "implied agreement" for post-apprenticeship employment of the kind he contends. There was no agreement of any type, whether implied or express. To the contrary, Northside Electrical had been crystal clear since August 2024 that there would be no employment following the completion of the apprenticeship.

[33] Mr Alzuwaini was entitled to serve out the full duration of his apprenticeship, which would have taken his employment (as an apprentice) to the middle of 2025. But on no scenario would there have been ongoing employment after the apprenticeship unless there was an agreement to do so - and there was no offer of further employment and no agreement.

[34] Mr Alzuwaini's witness statement says he was dismissed within the meaning of section "386(1)(b) of the FW Act. I contend that I was constructively dismissed - that is, I resigned, but only because I was forced to do so by the Respondent's conduct." To similar effect, Mr Alzuwaini's Form F2 says he was "forced" into an untenable work environment, denied work allocation, and having his job prospects as an A-grade electrician sabotaged by the Northside Electrical Construction Manager with Kelly Electrical.

[35] The difficulty with Mr Alzuwaini's contention of a forced resignation is that there was no resignation. There was a bringing forward of the end date of his apprenticeship, which was agreed to by the employer following the repeated insistence by Mr Alzuwaini that they should do so. The circumstances that Mr Alzuwaini says "forced" him to ask for that agreement were, objectively considered, too remote or did not occur. For example, the issue of another apprentice's behaviour around Mr Alzuwaini had occurred - and been dealt with - over half a year before the end of his employment. The alleged "sabotage" incident was not established and, so far as there is evidence before me about that matter, did not occur at all.

[36] I acknowledge that Mr Alzuwaini was evidently unhappy at Northside Electrical as the final year of his apprenticeship was progressing but the end of his apprenticeship - and employment - came about by the effluxion of his apprenticeship contract, not at the initiative of the employer or by any forced resignation.

• [37] It follows that Mr Alzuwaini was not "dismissed" within the meaning of section 386 of the Act and he is ineligible to pursue an application for an unfair dismissal remedy. Mr Alzuwaini's application is dismissed and an order[1] to that effect will be issued separately.

[1] PR797243.

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