Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Jurisdictional objection dismissed - Applicant was dismissed - Application to proceed

• [1] On 24 March 2025 Edgar Elters (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. PM Operations NSW Pty Ltd (Respondent) is the Respondent to the application.

• [2] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [3] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• the Applicant is an employee who has completed the minimum period of employment; and
• the Applicant's annual rate of earnings is less than the high income threshold.

• [5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [6] Section 365 of the FW Act provides that:

(a) the person's employment with his or her employer has been terminated on

(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.

(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 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

(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.

• [7] The Respondent had objected to the application on the basis that the Applicant was not dismissed and resigned voluntarily. This decision deals with that objection.

• [8] Both parties were directed to file materials and evidence ahead of the hearing. The Applicant did so on 23 June 2025.

• [9] However the Respondent did not file its materials by Friday 4 July 2025 in accordance with the directions. On Monday 7 July 2025 the Commission sent a follow up email to the Respondent seeking to understand whether it wished to proceed with its jurisdictional objection and seeking reasons for non-compliance with the directions. The email indicated that if the Commission did not hear otherwise by 8 July 2025 the matter may be determined based on the materials before the Commission. On 8 July 2025 Remon Fayad emailed the Commission and stated that it had been placed into administration, that Newpoint Advisory was the administrator appointed and he was no longer able to make a decision on behalf of the Respondent.

• [10] On 9 July 2025 the Commission wrote to the parties and Newpoint Advisory providing the context for the matter and listed the matter for case management conference. The Respondent did not attend the conference however Newpoint Advisory indicated that it was not an administrator and that the Respondent was in receivership and not administration. Newpoint Advisory did not identify any reason why the matter should not proceed. The Commission emailed the Respondent requesting that it file its materials by 11 July 2025 and was put on notice that if it did not the matter may be determined on the basis of the material before the Commission as at the date of hearing. On 15 July 2025 Remon Fayad ultimately sent an email to the Commission stating:

"The companies position at the time was that Edgard resigned after a dispute between he and Sam Fayad. Sam Fayad was not an employee of the company.

There were no representatives of the company during that conversation.

Edgard is now purporting that his employment was terminated hence his request for compensation relevant to a termination scenario."

• [11] The Respondent did not attend the determinative conference on 17 July 2025. When the Respondent did not appear at the determinative conference, my Chambers:

• sent an email to the Respondent shortly before its commencement requesting that he join using the Microsoft Teams link; and
• called Remon Fayad of the Respondent and left a voicemail message requesting that he join.

• [12] The Respondent sent Chambers an email in reply stating that the link was not working and asking that it be resent. Chambers sent an email in reply providing the Microsoft Teams link again, which had already been provided, and included a further option to join via video using a meeting ID and passcode. The Respondent did not join the call and as such Chambers sent a further email indicating that while it was preferred that the Respondent joined the determinative conference by video, it would dial Remon Fayad into the online proceedings. However when Chambers then called Remon Fayad the call went straight to his voicemail. Chambers sent a further email advising that the determinative conference would be commencing and again providing the Microsoft Teams details. I am satisfied that the Respondent was aware of the determinative conference and had the correct details to enable its participation in the determinative conference, but did not do so.

• [13] The Applicant was the General Manager of Parklea Markets for 25 years. The Applicant became an employee of the Respondent in 2016 when it purchased the business. The Applicant was employed on a full time basis and earned $2,131.38 per week when his employment came to an end.

• [14] In its Form F3 response, the Respondent submitted that following a disagreement between the Applicant and Sam Fayad of the respondent regarding a matter unrelated to the Applicant's employment, the Applicant resigned voluntarily.

• [15] This was contested by the Applicant who gave evidence that on Friday 14 March 2025:

• he received a text message from Sam Fayad (Fayad), who he says is the owner of the Respondent, demanding shares in his business which he did not respond to;
• Mr Fayad called the Applicant and began yelling and swearing at him;
• he went into Mr Fayad's office, Mr Fayad again began to yell and again demanded shares;
• when the Applicant told Mr Fayad he was not going to give him any shares Mr Fayad said "give me your back, get out of my face and don't come back here";
• within 15 minutes of this happening an email was sent to all stall holders advising that the Applicant was no longer the General Manager. A copy of that email was filed with the Commission indicating it was sent from 'Jannyl' who the Applicant said was the front desk employee. That email states:

Please be advised Edgard Elters has ceased in the role of General Manager of Parklea Markets.

Please don't contact Edgard in relation to any matters involving Parklea Markets.

Please place all future enquires to the following contact details: ..."

• [16] The Applicant filed witness statements in respect of his former colleagues Stan Koolbanis (Koolbanis), Brendon Spiteri (Spiteri) and Justin Vella (Vella).

• On 14 March 2025 he missed a call from Mr Fayad and then received a text from Mr Fayad requesting a meeting at the markets.
• During a discussion with Mr Fayad on 16 March 2025, Mr Fayad mentioned an argument with the Applicant and offered Mr Koolbanis the Applicant's former position, which Mr Koolbanis declined.

• [18] Mr Spiteri's evidence was that on 14 March 2025:

• he received a phone call from the Applicant advising him that Mr Fayad had just fired him;
• shortly thereafter he received a phone call from Mr Fayad asking him to come to his office;
• Mr Fayad offered him the Applicant's former position which he declined.

• [19] Mr Vella's evidence was that on 15 March 2025 Mr Fayad called him to his office to explain what had happened with the Applicant and when he asked Mr Fayad if the Applicant had quit or was told to leave Mr Fayad replied that he had told the Applicant to go.

• [20] The Applicant gave evidence that prior to dismissal Mr Fayad had send text messages to him requesting shares in his business and he had been subjected to verbal abuse when he declined to provide them.

• [21] The Applicant's gave evidence that on 17 March 2025 he wrote to Ray Khoura, Remon Fayad and Fayad Fayad. The Applicant provided a copy of that letter that stated, among other things that:

• For six months he had been bullied and pressured by Mr Fayad to hand over shares in his own car business and on 14 March 2025 he sent the Applicant another text message demanding that he hand shares over to Mr Fayad.
• When the Applicant attended the office Mr Fayad verbally abused him and terminated his employment on the spot for not handing the shares over to him.
• He would be seeking legal representation for unfair dismissal and bullying and taking action.

• [22] The Applicant gave evidence that on 17 March 2025 Fayad Fayad sent him a text message. A copy of the text message was provided to the Commission and stated:

'Morning Ed, I don't condone anything that has gone on over the last few days. I waited to give you the opportunity to reach out first. Can we meet up tomorrow one on one/"

• [23] The Applicant responded that he could meet up in the morning 'one on one'. The Applicant's evidence was that he met up with Fayad Fayad and during this meeting Fayad Fayad:

• clarified that he could not influence his father's decision;
• did not wish to discuss the situation further;
• wanted to discuss the responsibilities of the Applicant's other roles;
• advised that he would be paid his entitlements.

• [24] The Applicant's evidence was that he did not receive his termination entitlements and week of pay owing to him for work prior to his dismissal.

• [25] I find that on 14 March 2025 Mr Fayad demanded that the Applicant provide him with shares to his company and when he declined said words to the effect of "give me your back, get out of my face and don't come back here". It is apparent that Mr Fayad intended to end the Applicant's employment in making such a statement because shortly thereafter he caused an email to be sent to stall holders notifying them that the Applicant had ceased in the role of General Manager of Parklea Markets and asking them not to contact him. While Mr Fayad may not have been an employee of the Respondent, I am satisfied based on the material before me that he was a decision maker for the Respondent on matters concerning employment, including making offers to other people to fill the Applicant's role and causing an email to be sent about the cessation of the Applicant's employment. The Applicant's evidence was that in his meeting with Fayad Fayad after these events, Fayad Fayad clarified, in reference to Sam Fayad, that he could not influence his father's decision. There is no evidence that Respondent indicated to the Applicant at any time that Sam Fayad was not authorised to make decisions concerning his employment.

• [26] Having regard to the above, I find that it was that the actions of the Respondent, through Mr Fayad, that brought the employment relationship to an end and that the Applicant was dismissed at the Respondent's initiative.

• [27] I find that the Applicant was dismissed and the jurisdictional objection the subject of this decision is dismissed.

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