Fair Work Act 2009

s.365 - General protections

Douglas and Mann Pty Ltd t/a Histopath Diagnostic Specialists

Application to deal with contraventions involving dismissal.

[1] This decision concerns an application lodged by Mr Zahar Levin (Applicant) under section 365 of the Fair Work Act 2009 (Cth) (Act), alleging contraventions of Part 3-1 of the Act associated with his alleged dismissal by the entity trading as Histopath Diagnostic Specialists (Respondent).

[2] The Respondent contended that the Applicant was employed as a casual, his last engagement ended when he walked off the job on 28 June 2021 and the application was filed one day outside the statutory timeframe. The Applicant opposed.

[3] I have determined that Mr Levin was not dismissed from his employment. Accordingly, this application is dismissed. The reasons for this decision follow.

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

[5] Section 386 of the Act provides that a person has been dismissed if the person's employment has been terminated at the employer's initiative or the person has resigned but was forced to do so because of a conduct, or a course of conduct, engaged in by the employer.

[6] The expression 'termination at the initiative of the employer' is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. A termination is at the employer's initiative when:

• the employer's action 'directly and consequentially' results in the termination of employment; and

• had the employer not taken this action, the employee would have remained employed.

[7] On 18 June 2021, the Respondent was offered employment as a Pathology Collector for the Respondent at its Cromer Collection Clinic.

[8] There was no contract of employment in evidence, although the Respondent said it had sent one which was not signed and returned. The offer of employment was in evidence and confirmed there would be annual leave and sick leave entitlements, a six day roster and rostered times of 8.15am to 4.21pm.[1] A pay slip was also in evidence which confirmed that the Applicant was paid a base rate, was not paid a casual loading and also accrued annual and personal leave entitlements.[2]

[9] The Applicant commenced work on 21 June 2021. On 27 June 2021 he sent an email to the Respondent's COVID Clinic Manager (a Mr Vongsuvanh) regarding his next roster and the long hours.[3] Mr Vongusvanh gave evidence to the Commission that, due to a "surge" in positive cases, staff were asked to work additional hours to help with the surge in testing but could leave early. The process for leaving early was to seek approval from the site supervisor before leaving and then log out of the shift on an "app". He said that he had expressly explained this to the Applicant.[4] For his part, the Applicant gave evidence that he understood he could leave flexibly after the ordinary rostered shift (eight hours).[5]

[10] On 28 June 2021, the Applicant was rostered to work 7.30am to 8.30pm.[6] During the course of the shift there was an incident which involved an allegation that the Applicant had incorrectly administered a test contrary to the infection control procedures and a colleague by the name of "Kathryn" corrected him on the proper procedure. This was reported to the site supervisor and an incident report was completed.[7] The Applicant denied the allegation; felt that he had been discriminated against and bullied by Kathryn; said he had been working long hours and not been given a break; so he told his shift supervisor that he was leaving and not coming back. The Applicant then left the workplace, went to his car and messaged Mr Vongsuvanh. A screenshot of the following text messages, sent from the Applicant to Mr Vongsuvanh, were in evidence:

At 1:56PM I'm registered nurse I don't need some girl telling me what to do. I put cannulas in children and now they banned me doing children. What's her qualification please.

At 1:56PM All this time I was bullied big time by her. I felt like contacting police for avo

At 2:23PM Ok she's just racist she tells anyone who is not Australian. Even she tells at every patient. Her infection control knowledge is totally absent if I go to more details. She wears her own hoodie on top of ppe and when you talk to her on how to take gown or what to touch has very primitive ideas. Racism is her main thing. So I know you will back her. And ignore me That's why I make sure I will contact appropriate government instance to sue this place

[11] Before the Commission, the Applicant explained that whilst he told the shift supervisor that he was leaving and not coming back he did not mean that he was leaving his employment. Also, at least at the time of those text messages, he did not know what he might "sue" the Respondent for. It was not until the next day that the Applicant learned he could bring claims (such as a bullying claim) during employment. He said the reference to "good bye" was because he was not getting any replies from Mr Vongsuvanh which frustrated him; he also figured Mr Vongsuvanh was busy. In a statement prepared for a subsequent claim, the Applicant said "I had no idea as to whether I will be returning back for work unless [Mr Vongsuvanh] will intervene."[9]

[12] For his part, Mr Vongsuvanh understood by the Applicant's communications on 28 June 2021 that the Applicant intended to leave the job and not return. He gave evidence that he attempted to call the Applicant later that day but there was no answer; the Applicant said he had no knowledge of such attempt. The Applicant did say he had received a text message from Mr Vongsuvanh with words asking if he was leaving his job.[10] There is no record of that message (or any response) before the Commission.

[13] Also on 28 June 2021, the shift supervisor completed an incident report regarding the Applicant's complaint of alleged bullying by his co-worker.[11]

[14] The Applicant had a pre-arranged rostered day off on 29 June 2021 and did not attend for work that day. That morning, he attended his general practitioner and sent a certificate - first to Mr Vongsuvanh and then directly to the Respondent's workers' compensation insurer. That certificate refers to a diagnosis of work-related injuries described as carpal tunnel syndrome (right hand) and stress/anxiety due to bullying at work.[12]

[15] On 29 June 2021, Mr Vongsuvanh telephoned the Applicant and "after several attempts, was able to get into contact with him".[13] According to the Applicant, they did not speak until around 4pm and after his workers' compensation claim was submitted. Mr Vongsuvanh told the Commission that the purpose of his telephone call was to discuss how the Applicant "was feeling" and to try and "alleviate his anger" and "placate" him. In response to my questions at the hearing, Mr Vongsuvanh said the clinic was busy and whilst he believed the Applicant had walked off the job the day before he had initially "wanted to try and keep him on". They spoke about work on other sites but, by this point of the discussion, Mr Vongsuvanh considered the Applicant was intent on not coming back, his manner was extremely angry and threatening and a role at another site was not an option.

[16] The Applicant's evidence about this call was that Mr Vongsuvanh had phoned and said "I'm not sure if you're interested in employment", that he had wanted to work at another site away from the alleged bully but was told there were no positions at other sites and "at that stage I hang up on him, saying I will see him the court, which is what I am doing now" (sic.).[14] The Applicant denied he was threatening.[15]

[17] The Applicant's evidence about whether he was dismissed during or following the 29 June 2021 telephone call was somewhat inconsistent. His evidence variously referred to being "terminated" on 29 June 2021; but at the hearing he confirmed that he was not told that he was "dismissed" during that telephone discussion and said that, even after the call on 29 June 2021, he still was not sure that he was dismissed but had decided he did not want to go back there anyway.

[18] The Applicant was rostered to work on 30 June 2021 and after the telephone call on 29 June 2021 received an email reminding him of the shift - but did not want to go to work and did not attend for work that day.[16]

[19] According to the Respondent, the Applicant was not taken off the roster for at least a few days; the Applicant said he was still receiving roster notifications in July 2021. However the Applicant did not attend for work again and there is no evidence of further communication between the Applicant and the Respondent until a series of three emails sent on 7 and 8 July 2021. In those emails, among other things, the Applicant raised outstanding payment for work he had performed (described as "stolen pay") and said he had engaged a lawyer who was preparing to sue the Respondent and had lodged several government body complaints. Those emails included statements the Respondent described as unacceptable, such as: "You fucking Asian dog You either pay me today my firnichtky wage or face the consequences" and "I will make sure you either in hell I devote my life tho you rotting in jail your parents were in Cabramatta drugged dealers" (sic.).[17] The Applicant sought to defend those statements as made after the employment relationship had ended.

[20] It is not contentious that the Applicant did not receive a termination letter or any written confirmation that the employer understood he did not intend to return to work for the Respondent.[18] Mr Vongsuvanh said he did not contact the Applicant after 29 June 2021 because it was clear the Applicant did not intend to return to his job and due to concerns about their safety.[19]

[21] On 20 July 2021, the Applicant filed this claim with the Commission.

[22] As the parties agreed to participate, a conciliation was conducted before a Commission staff member. As the matter did not resolve, and the Respondent objected on jurisdictional grounds, the matter was referred for determination of jurisdiction. A further conciliation was agreed but not able to proceed. Accordingly, materials were filed and the matter proceeded to hearing on 22 November 2021.

[23] The Respondent's primary contention was that the Applicant was engaged as a casual employee and his last engagement on 28 June 2021 was brought to an end when he walked off the job. At the hearing, the Respondent properly accepted that the evidence before the Commission does not establish that the Applicant was engaged on a casual basis - there is no contract of employment, the written offer does not say that the offer was of casual employment and the conditions were indicative of a permanent engagement.

[24] It is apparent that the Applicant did not leave the workplace on 28 June 2021 with approval of a shift supervisor. His subsequent communication certainly conveyed his upset and evinced an intention to pursue his grievances. However, even if the Applicant had intended to leave his employment when he left the workplace on 28 June 2021, the Respondent did not accept his decision to leave at that time. Indeed, Mr Vongsuvanh telephoned him the next day with the intention of persuading him to stay on. At the time of that discussion on 29 June 2021, the Applicant was on a rostered day off (and not required at work).

[25] In my view, the evidence establishes that the critical act which brought the Applicant's employment to an end was the Applicant's approach to the discussion with his manager on 29 June 2021 - which un-controversially ended with the Applicant stating his intention to sue the Respondent immediately followed by his termination of the call. I accept Mr Vongsuvanh's evidence regarding the nature, tone and content of the Applicant's communication and, in my view, this was reflective of the Applicant's decision not to return to the job.

[26] The evidence does not establish that the Respondent ever told the Applicant he was "dismissed" or "terminated". As of the commencement of the discussion on 29 June 2021, the Applicant could have chosen to remain in employment, at the Cromer site, whilst his grievances were resolved. He told the Commission that by this time he was aware that he could bring claims, such as a bullying claim, whilst remaining in employment. On the materials before the Commission, I consider that the Applicant by his own conduct did not afford an opportunity for the employer to resolve his grievances whilst remaining employed.

[27] Further, I do not accept that the Applicant was of the clear impression that his role was terminated during or after the 29 June 2021 call because he admitted that even then it was not clear whether he should return to work as rostered on 30 June 2021 and he decided for himself that he did not want to attend for work that day or indeed to go back there again.

[28] On the evidence before the Commission, the Applicant did not communicate with the Respondent again until around one week later. That communication was about his final pay and contained content that, in my view, was not consistent with continuation of the employment relationship in any event.

[29] Accordingly, I find that that the employment relationship came to an end by the Applicant's own actions and not at the Respondent's initiative. At the earliest, this was effective 29 June 2021.

[30] For completeness, whilst I accept that the workers' compensation claim was lodged on 29 June 2021 I do not consider this alters the finding that the Applicant's conduct in the subsequent telephone call was the critical act that brought the employment relationship to an end. Further, there was no indication in those emails or the certificate of any period of incapacity to attend for work and there is no evidence that the Applicant applied for or requested to take a period of personal leave.

[31] For the above reasons, I find that the Applicant was not dismissed within the meaning of s.386 of the Act and is not therefore a person who has been dismissed for the purposes of s.365 of the Act. The application was filed within the statutory timeframe but, as I have found that the Applicant was not dismissed, there is no jurisdiction for the claim to the proceed.

[32] Accordingly, the application is dismissed.

[1] Attachment 1 to Respondent's F8A Response filed 30 July 2021.

[2] Attachment 7 to Respondent's Witness Statement filed 19 November 2021; Mr Arnold Vongsuvanh in evidence at the Hearing on 22 November 2021.

[3] Attachment 6 to Respondent's Witness Statement filed 19 November 2021.

[4] Respondent's Witness Statement; Mr Arnold Vongsuvanh in evidence at the Hearing on 22 November 2021.

[5] Mr Zahar Levin in evidence at the Hearing on 22 November 2021.

[6] Email containing Applicant's roster - bundle of documents filed by Applicant on 11 November 2021.

[7] Respondent's Witness Statement filed 19 November 2021; Attachment 2 to Respondent's Witness Statement filed 19 November 2021.

[8] Mr Zahar Levin confirmed in evidence at the Hearing on 22 November 2021 that these text messages were sent on 28 June 2021 and that he had left the workplace around 2pm.

[9] Bundle of materials filed with Fair Work Commission - document titled Applicant's Witness Statement dated 26 July 2021.

[10] Bundle of materials filed with Fair Work Commission - document titled Applicant's Witness Statement dated 26 July 2021.

[11] Attachment 2 to Respondent's Witness Statement filed 19 November 2021.

[12] Applicant's First Witness Statement filed on 11 November 2021; Bundle of documents filed with the Commission - Emails of 29 June 2021.

[13] Respondent's Witness Statement filed 19 November 2021.

[14] Applicant's First Witness Statement filed 11 November 2021.

[15] F8 Application filed 20 July 2021; Applicant's Second Witness Statement filed 11 November 2021.

[16] Applicant's First Witness Statement filed 11 November 2021; Mr Zahar Levin in evidence at the Hearing on 22 November 2021.

[17] Attachments 5 and 6 to Respondent's Witness Statement filed 19 November 2021.

[18] Applicant's Second Witness Statement filed 11 November 2021.

[19] Respondent's Witness Statement filed 19 November 2021.

Printed by authority of the Commonwealth Government Printer