s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant was dismissed.

[1] On 30 August 2022, Ms Fareshta Karimi made an application to the Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). Ms Karimi alleges that she was dismissed from her employment with Aker Group Pty Ltd in contravention of the general protections contained in Part 3-1 of the Act.

[2] The respondent objects to the application on the basis that Ms Karimi was not dismissed. The matter proceeded to a determinative conference before me on 28 February 2023.

[3] For the reasons that follow, I find that Ms Karimi has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, the respondent's jurisdictional objection is dismissed.

• [4] Ms Karimi commenced employment with the respondent on 4 April 2021.[1] Ms Karimi was employed on a casual basis, providing front of house duties at the respondent's kebab shop. Ms Karimi was managed during her employment by Ms Somaya Amiri, who gave evidence at the determinative conference.

[5] Ms Karimi is a high school student, who is presently completing her year 12 studies. The parties agree that at times during Ms Karimi's employment, Ms Karimi sought, and was granted, time off work to allow her to attend to her schooling commitments.

• [6] It was not in dispute that Ms Karimi was a member of a WhatsApp group, established by the respondent for the purposes of allocating shifts to its employees. The evidence before the Commission is that the respondent typically notifies its employees of a rostered shift by way of a message sent via the WhatsApp group.[2]

• [7] The evidence discloses that on occasion during the employment, Ms Karimi would request time off work. One such request was made by Ms Karimi on 21 May 2022. In relation to this request, Ms Karimi sent Ms Amiri a message through WhatsApp advising that she would be unable to work for the next few weeks.[3] Ms Karimi gave evidence that this request was made due to her need to focus upon her heavy schoolwork load. Despite only seeking a "few weeks" off work, it is apparent that Ms Karimi performed no further shifts for the respondent.

• [8] The substantive dispute concerns the alleged underpayment of Ms Karimi's wages by the respondent.[4] In the period following Ms Karimi's 21 May 2022 request for time off work, Ms Amiri met with Ms Karimi to discuss Ms Karimi's concerns regarding her pay. Mr Aker, the respondent's Directing Manager, also attended this meeting. Ms Amiri gave evidence that she held the view that Ms Karimi's pay queries had been resolved during the meeting, and that the respondent had demonstrated that Ms Karimi had not been underpaid; rather that Ms Karimi had been overpaid by approximately $300.[5]

• [9] It is apparent that Ms Karimi did not share Ms Amari's view that the pay dispute had been resolved. Ms Karimi subsequently advised Ms Amiri that the respondent had incorrectly recorded her working hours which had resulted in an underpayment. On 10 August 2022, Ms Karimi sent a text message to Ms Karimi requesting that her working hours be recalculated and restating her concerns that her hours had not been fully paid.[6]

• [10] It is not in dispute that the respondent removed Ms Karimi from the WhatsApp group on 10 August 2022, following receipt of Ms Karimi's text message.[7] The respondent contends that it routinely adds and removes employees from the WhatsApp group, including when employees make themselves unavailable to perform work for a short period of time. In support of this contention, Ms Amiri said that she had been removed from the WhatsApp group by Mr Aker at a time when she was unavailable to perform work for the respondent's business.

[11] Ms Karimi gave evidence that in her experience, employees were never removed from the WhatsApp group unless they were "fired." Ms Karimi said that on no other occasion had she been removed from the WhatsApp group, including when she sought time off to attend to her studies.

• [12] On 15 August 2022, Ms Amiri sent the following three text messages to Ms Karimi:[8]

• "Salem fereshta, let me know when you can come to shop yo [sic] make it clear?"
• "Message me please"
• "Sorry the other day they were injecting my daughter and I wasn't feeling good"

• [13] Ms Amiri also sent a WhatsApp message to Ms Karimi on 15 August 2022 requesting that Ms Karimi attend the shop to "make it clear." Ms Karimi replied to Ms Amiri's message, stating that she was very busy with school and would come in the next few weeks. This exchange constitutes the final communication between the parties.[9]

[14] The respondent contends that Ms Amiri sent the 15 August 2022 text messages to Ms Karimi in order to discuss Ms Karimi's availability to attend for work. Ms Karimi submits that she did not attend the respondent's workplace as invited because she felt intimidated by the respondent in light of their pay dispute, which Ms Karimi deemed to be unresolved.

• [15] Ms Amiri further contends that she attempted to telephone Ms Karimi to discuss her availability to perform work for the respondent.[10] The WhatsApp messages between Ms Karimi and Ms Amiri demonstrate that a phone call was made to Ms Karimi on 15 August 2022, which Ms Karimi did not answer.[11] There is otherwise no evidence before the Commission in support of the respondent's contention that it sought to roster Ms Karimi after 10 August 2022.

[16] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute.

[17] The circumstances in which a person is taken to be "dismissed" is set out in s 386 of the Act. Section 386(1) relevantly provides 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.

[18] Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.

• [19] Ms Karimi contends that the respondent terminated her employment at its initiative within the meaning of s 386(1)(a) by removing her from the WhatsApp group on 10 August 2022.[12] The respondent denies that it dismissed Ms Karimi.[13]

• [20] Accordingly, the question for determination in this application is whether Ms Karimi was dismissed by the respondent.[14] This is an antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368 of the Act.[15]

• [21] It is not in dispute that s 386(1)(a) of the Act refers to a dismissal occurring where a person's employment has been "terminated on the employer's initiative." There may be a dismissal pursuant to s 386(1)(a) where the action of the employer is the principal contributing factor leading to the employment termination.[16]

[22] The respondent contends that it did not dismiss Ms Karimi and that Ms Karimi's removal from the WhatsApp group does not amount to a termination of employment. The respondent submits that it did not say to Ms Karimi that her employment had ceased. On the contrary, the respondent points to its attempts on 15 August 2022 to understand Ms Karimi's availability so that it could roster her for shifts. The respondent maintains that Ms Karimi is welcome to return to work.

[23] For the reasons that follow, I find that the respondent's action in removing Ms Karimi from the WhatsApp group was the principal contributing factor which brought the employment of Ms Karimi to an end on 10 August 2022.

• [24] It is not in dispute that the respondent uses the WhatsApp group to allocate shifts to its employees.[17] While Ms Amiri gave evidence that the respondent would call or text individual employees on occasion to offer them shifts, these steps were taken in respect of "extra shifts." The evidence before the Commission demonstrates, and I am satisfied, that the WhatsApp group is the primary means by which shifts are allocated to the respondent's employees.[18] It follows that being removed from the WhatsApp group meant that Ms Karimi, in the ordinary course, would not be allocated shifts by the respondent.

[25] In these circumstances, the respondent's contention that it did not advise Ms Karimi that she was dismissed does not change my view. This is because it does not alter the effect of the respondent's conduct in removing Ms Karimi from the WhatsApp group.

[26] In reaching this conclusion, I do not accept the respondent's submission that Ms Karimi was removed from the WhatsApp group so as to not distract Ms Karimi with the group messages while she studied. If this was the respondent's view, it is not apparent why it did not take the step of removing Ms Karimi from the WhatsApp group in or about May 2022 when Ms Karimi sought time off work to attend to her studies. In the absence of explaining this matter, the respondent's contention cannot succeed.

[27] Nor do I accept that it was the respondent's practice to routinely add and remove employees from the WhatsApp group during short periods of absence. Ms Karimi's evidence that she had not previously been removed from the group despite earlier periods of absence from the workplace was not challenged by the respondent, and I accept it. While the respondent relied upon Ms Amiri's undated period of exclusion from the WhatsApp group in support of its position, there is insufficient material before the Commission explaining Ms Amiri's circumstances at the time she is said to have been removed. Further, there is not any documentary evidence demonstrating Ms Amiri's removal from the WhatsApp group. In any event, I consider that little weight can be attached to a comparison between Ms Amiri and Ms Karimi in circumstances where Ms Amiri holds a managerial position and is responsible for the allocation of shifts to employees of the respondent.

• [28] I have carefully considered the respondent's contention that it attempted to contact Ms Karimi to ascertain her availability to work and offer Ms Karimi shifts.[19] The text messages between Ms Amiri and Ms Karimi reveal that the focus of the respondent's correspondence prior to, and on, 10 August 2022 was in relation to the resolution of Ms Karimi's underpayment concerns. In the circumstances, I am satisfied the respondent's communications with Ms Karimi prior to 10 August 2022 were directed towards the resolution this matter.

• [29] Ms Amiri's attempt to call Ms Karimi with the stated intention of offering her further shifts after 10 August 2022 does not alter my conclusion that the respondent's conduct on 10 August 2022 constituted a dismissal at the respondent's initiative. Ms Karimi did not answer the call on 15 August 2022.[20] Further, the text messages and WhatsApp message on 15 August 2022 are also only concerned with the underpayment issue, and not with arranging further shifts.

• [30] The respondent's submission that it is open to Ms Karimi working with it again does not evidence ongoing employment after 10 August 2022 but rather, at its highest, a preparedness on the respondent's part to offer Ms Karimi new employment.[21]

[31] Having regard to the above matters, and the conclusions reached, I am satisfied that Ms Karimi was dismissed by the respondent in accordance with s 386(1)(a) of the Act.

[32] I find that Ms Karimi has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, at the time that Ms Karimi lodged her general protections application with the Commission, Ms Karimi was a person who "has been dismissed" for the purposes of s 365 of the Act.

[33] The respondent's jurisdictional objection is dismissed.

[34] The application will be referred for conciliation in accordance with s 368 of the Act.

[1] Court Book 9 at [1.1], Court Book 16 at [5]

[2] Court Book 10-11, 3.1 at [2], Court Book 12, 3.3 at [2]

[3] WhatsApp message from Ms Karimi to Ms Amiri dated 21 May 2022

[4] Court Book 10-11, 3.1 at [3]-[5]

[5] See text message from Ms Amiri to Ms Karimi dated 10 August 2022

[6] Text message from Ms Karimi to Ms Amiri dated 10 August 2022

[8] Text messages from Ms Amiri to Ms Karimi dated 15 August 2022

[9] WhatsApp message from Ms Karimi to Ms Amiri dated 15 August 2022

[11] WhatsApp messages between Ms Karimi to Ms Amiri dated 15 August 2022

[14] Fair Work Act 2009 (Cth), s 365

[15] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67]

[16] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205, 206; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James [2022] FWCFB 55; 316 IR 1 at [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see Shane John Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 at [33]

[18] See WhatsApp message allocating shifts on 10 May 2022

[20] WhatsApp messages between Ms Karimi and Ms Amiri dated 15 August 2022

[21] Court Book 26 at 5.1, Court Book 28

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