s.394 - Unfair dismissal

• [1] Nikhil Bassi was employed by Xpress Agi Hire Pty Ltd as a truck driver to drive concrete trucks. He claims that he was dismissed from his employment on 10 September 2024. On 20 September 2024, he filed an unfair dismissal application with the Fair Work Commission.[1]

• [2] Xpress Agi Hire denies that it dismissed Mr Bassi. It objects on that basis to the Commission dealing with the matter.

• [3] I find that Xpress Agi Hire did not dismiss Mr Bassi. My reasons follow.

• [4] There was some confusion as to the identity of Mr Bassi's employer. In his unfair dismissal application, Mr Bassi named his employer as "PNR Transport Pty Ltd". The employer's response was filed by Xpress Agi Hire.

• [5] The identity of Mr Bassi's employer was not, unfortunately, resolved in the material filed by the parties prior to the hearing of the matter or at the hearing itself. As a result, I invited the parties to file further material to clarify the issue.

• [6] Having considered that material, it seems clear that Mr Bassi was not employed by "PNR Transport Pty Ltd". However, Mr Bassi was engaged in a business operating under the name "PNR Transport". As will be seen, the correspondence he sent to and received from his "employer" was to and from PNR Transport, or was to and from individuals whose email addresses included "pnrtransport". This may have contributed to the confusion.

• [7] The additional material also suggests that Mr Bassi's employment may have been "transferred" between companies without his awareness. As unsatisfactory as this may be, it is ultimately not material to the decision I need to make.

• [8] Mr Bassi did not expressly challenge the proposition that he was employed by Xpress Agi Hire at the relevant time. His position was that the name of the employer did not change the fact that he was engaged in the PNR Transport business. I accept that.

• [9] Xpress Agi Hire's evidence included two payslips for Mr Bassi for the pay period 19 to 25 August 2024. They record the payments as being made by Xpress Agi Hire. Having regard to that evidence and the additional material filed by the parties following the hearing, I find that Mr Bassi was employed by Xpress Agi Hire at the time of his alleged dismissal.

• [10] It is perhaps self-evident that a person bringing an unfair dismissal application must have been dismissed.[2] A dismissal may occur in one of two ways. First, where a person's employment with their employer is terminated on the employer's initiative.[3] A termination will be "on the employer's initiative" if it is brought about by an employer without the employee's agreement. The question is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.[4]
• [11] Second, where the person has resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.[5] Mr Bassi did not suggest that he had been forced to resign.

• [12] At 7.31pm on 25 August 2024, Mr Bassi sent an email to the address "admin@pnrtransport.com.au". He stated that he was applying for annual leave starting the next day "due to a family emergency that requires my immediate attention to travel overseas ASAP". The email stated that Mr Bassi would "need to be away for sometime [sic]".

• [13] As it turned out, Mr Bassi did not travel overseas. However, he gave evidence that due to the family emergency, his head "wasn't at the right place"[6] and it was not safe that he remain at work.

• [14] Mr Bassi gave divergent accounts as to what followed. In his written material he stated that:

1. On 6 September 2024 he tried calling the "PNR accounts team" regarding his annual leave payment for that week. He was not able to speak to anyone. However, that evening he received an email signed off by "Accounts, PNR Transport" stating that his "final settlement will be processed on Tuesday 10.09.2024" ("Accounts Email"). The email caused Mr Bassi shock and distress. He had not asked for a "final settlement". Rather, he was simply following up late payment of his annual leave pay.

1. On 10 September 2024 he called his manager, Bhuvnesh Salhotra. Mr Salhotra told him that he would check with the accounts team as to what was happening. When Mr Bassi stated that he intended to return to work on 16 September 2024, Mr Salhotra told him that PNR Transport did not have a truck available for him and that his services were no longer required.

• [15] At the hearing, Mr Bassi stated that:

1. He called Mr Salhotra on 6 or 7 September 2024. He told Mr Salhotra that he was ready to come back. Mr Salhotra said that PNR Transport did not need him. Mr Bassi asked what had happened. Mr Salhotra said that the business did not have a place for him and that Mr Bassi could not return.

• b. After this conversation, Mr Bassi tried calling Mr Salhotra "again and again"[7] but he did not answer. He also attempted to call the "accounts team" and the "admin office" but nobody answered.

• [16] Mr Salhotra's recollection of the conversation on 6 September 2024 differed from both of those versions. He stated that he received a call from Mr Bassi who requested that he be paid out all of his leave entitlements as he "may not be coming back".[8] The payment of those entitlements was arranged.

• [18] There was a delay in Mr Bassi receiving the payment referred to in the Accounts Email. This led to several conversations and emails between Mr Bassi and Mr Salhotra.

• [19] In an email to Mr Bassi of 13 September 2024, Mr Salhotra wrote:

"As per our telephonic conversation, first you have gone on infinite annual leave and wanted to clear all of your leaves. And you didn't confirm if you wanted to come back and resume the work. So in that case, we settled and cleared all your paid leaves.

If you intended to rejoin the company again, please give me your availability and I will organise the paperwork for you to start the work again."

• [20] Mr Bassi responded by email on 14 September 2024. He stated, amongst other things:

"I went on emergency leave which is a legal right of every Australian citizen. And should have been given the same position after I come back from holidays. But you decided to expel me from my job without any notice which doesn't come under any Australian law. As I have been working full time with pnr transport for 2 and a half years. I should have been given me notice before my employment termination but without any notice I have been fired from the job. I need to give you the documents if I was joining new but I am old employee."

• [21] In an email to Mr Bassi in response on 17 September 2024, Mr Salhotra stated:

"As per the previous email on Thursday 13th September 2024, I have asked you for your availability to work, but I haven't heard back from you regarding your availability.

If you are interested in joining the team again, please provide me with your availability so that I will arrange paperwork for you and put you on the roster accordingly."

• [22] Xpress Agi Hire led evidence in the form of a short statement from Narinder Pal, a manager of the company. He stated that during this period he had a conversation with Mr Bassi. He offered Mr Bassi work at a site at Lidcombe until a position became available at Artarmon (the site at which Mr Bassi had previously worked). Mr Bassi turned this down on the basis that he wished to work at Artarmon.

• [23] Mr Pal further stated that he had asked Mr Bassi verbally and via text message to "send his availability to the office people". However, Mr Bassi did not do so.

• [24] Mr Bassi led some evidence that could only be said to go to Mr Pal's credibility. However, he did not directly challenge Mr Pal's evidence.

• [25] Rather, Mr Bassi conceded at the hearing that he did not engage with the attempts by the business to return him to the workplace. In his view, he had been dismissed without notice and the company had delayed paying him his entitlements. He claimed that he longer had trust in the company to do the right thing by him.

• [26] In this case, much turns on what was said in the initial conversation between Mr Bassi and Mr Salhotra. According to Mr Bassi, it was during that conversation that he was dismissed. Xpress Agi Hire contends to the contrary that Mr Bassi asked to be paid out his entitlements as he may not be returning.

• [27] At the outset, I observe that Mr Bassi referred to the conversation occurring either on 10 September 2024 or on 6 or 7 September 2024. Mr Salhotra stated that the conversation occurred on 6 or 7 September 2024. In light of the Accounts Email in particular, it is most probable that the conversation took place on 6 September 2024.

• [28] On all of the evidence (limited as it is), I prefer Mr Salhotra's version of the conversation. That is for several reasons.

• [29] First, the inconsistencies in Mr Bassi's evidence calls into question its reliability. For instance, his unfair dismissal application gave a dismissal date of 10 September 2024. This is consistent with his written evidence regarding the conversation having taken place on 10 September 2024. It is, however, hard to reconcile with his evidence at the hearing that the conversation occurred on 6 or 7 September 2024.

• [30] Further in this regard, in his written material Mr Bassi stated that when he went on "emergency leave" he informed PNR Transport that he "will be away for not too long". This is not what he said in his email to PNR Transport of 25 August 2024, in which he stated that he would "need to be away for sometime [sic]". In his email to Mr Bassi of 13 September 2024, Mr Salhotra stated that Mr Bassi had "gone on infinite [which I take to mean indefinite] annual leave".

• [31] Second, Mr Salhotra's version is consistent with and corroborated by his email of 13 September 2024.

• [32] Third, Mr Salhotra's version is also more consistent with the contents and timing of the Accounts Email.

• [33] Fourth, the repeated attempts by Mr Salhotra and Mr Pal from and after 13 September 2024 to arrange for Mr Bassi to return to work are inconsistent with Mr Salhotra having told Mr Bassi on 6 September 2024 that the business did not need him or did not have a place for him, and that he could not return. Mr Bassi contended that there was a difference between the things that were said to him in conversations and that which had been written in emails. He did not, however, provide any basis on which I could properly draw that conclusion so as to call into question the veracity of the emails sent to Mr Bassi.

• [34] I am mindful on Mr Pal's evidence that there was no work available for Mr Bassi at Artarmon in or about mid-September. That is not necessarily of great consequence. If Mr Bassi had gone on indefinite leave, it would come as no surprise that the business would fill his place on the roster. The fact remains that there was work available for him in the business at the time, albeit at a different location.

• [35] I am also mindful that Mr Bassi gave (limited) evidence at the hearing that Mr Salhotra told him that if he wished to come back he would need to complete paperwork as if he were a new hire. This is referenced also in his email to Mr Salhotra of 14 September 2024. Xpress Agi Hire did not respond to that evidence. However, a request from Mr Salhotra to essentially start the relationship afresh is not of itself evidence that he had been dismissed. It is equally consistent with him having relinquished his employment and later seeking to return.

• [36] In all of the circumstances, I am not satisfied that Mr Bassi has established that he was dismissed by Xpress Agi Hire. He asked to be paid out his accrued entitlements on the basis that he may not be returning. He did not engage with the company's attempts to have him return to the workforce. He has not demonstrated that any action by Xpress Agi Hire was the principal contributing factor which resulted, directly or consequentially, in the termination of his employment. I find that Mr Bassi was not dismissed.

• [37] Having made that finding, the only available order is that the proceedings be dismissed.

[1] The application was brought under Part 3-2 of the of the Fair Work Act 2009. Unless otherwise stated, all references in this decision to legislative provisions are to provisions of that Act.

[2] Section 385(a)

[3] Section 386(1)(a)

[4]Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200

[5] Section 386(1)(b). This provision is intended to reflect the common law concept of constructive dismissal: Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13]

Printed by authority of the Commonwealth Government Printer