Zakaria v Alex Fahd and Ibtisam Fahd t/as Versatile Ceramics [2005] NSWIRComm 1113

Industrial Relations Commission of New South Wales

CITATION: Zakaria v Alex Fahd and Ibtisam Fahd t/as Versatile Ceramics [2005] NSWIRComm 1113

APPLICANT Farhad Zakaria PARTIES: RESPONDENT Alex Fahd and Ibtisam Fahd t/as Versatile Ceramics

FILE NUMBER(S): 593 of 2002

CORAM: McLeay C

CATCHWORDS: Termination of employment - unfair dismissal - whether dismissed by employer - unexplained absence - claimed abandoned employment - onus on applicant - onus not established - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Western Suburbs District Ambulance Committe v Tipping [1957] AR (NSW) 273 at 279

HEARING DATES: 07/11/2005

DATE OF JUDGMENT: 07/19/2005

APPLICANT Mr R Lee of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Mr A Fahd Managing Partner In Person

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MCLEAY C

19 July2005

Matter No IRC 593 of 2002

Farhad Zakaria and Alex Fahd and Ibtisam Fahd t/as Versatile Ceramics

Application by Farhad Zakaria re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1113

1 This is an application by Farhad Zakaria for unfair dismissal against Alex Fahd and Ibtisam Fahd t/as Versatile Ceramics pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Zakaria was dismissed from the position of salesperson on 20 January 2002. The applicant had been employed by the respondent originally since March 2000 and after a resignation was re-employed in about March 2001. The matter was listed for conciliation before Cambridge C. Following an application pursuant to s173 of the Act, it was then listed on two occasions for conciliation before McKenna C who issued a decision dismissing the matter for want of prosecution when the applicant did not appear on either of those two occasions without providing a reason. This decision was overturned on appeal in matter number IRC 6624 of 2002 and the matter was then remitted to me. 2 When conciliation before me was unsuccessful, directions were issued and the matter was set down for hearing on 11 July 2005. At this time the applicant was represented by Mr Lee, barrister and the respondent was self represented by Mr Alex Fahd, being the owner of the business. 3 Because of the time lag between the filing of the original application and the proceedings, the respondent's witness statements were not filed until 26 May 2005. At the outset I need to express my concern about the effect that such delay would ordinarily and necessarily have on the ability of the witnesses to recall details of the events which occurred such a long time previously. 4 The applicant's witness statement had been filed on 16 July 2002. It would be a usual presumption that the evidence of Mr Zakaria, having been put into the form of an affidavit in July 2002, would be more reliable than that of the respondent's witnesses, but even Mr Zakaria's statement was prepared some six months after the date of dismissal. 5 Mr Lee submitted that the applicant's dismissal was harsh, unjust or unreasonable because he was told not to come back to work and he was told that he had abandoned his employment. Mr Fahd said that this was not true. According to Mr Zakaria's evidence, he was told by Mr Fahd that "I don't want you to work here any more, I am terminating your employment, I think you are lying and I don't doubt my instincts". It was Mr Zakaria's further evidence that he responded by telling Mr Fahd, "You can't do that to me. I suggest you educate yourself with the law and I am going back to work". During cross-examination Mr Fahd said that he would admire such a response in an employee who was told he was dismissed and would see him as having the appropriate attitude to his work. Mr Fahd said if such a thing had happened he would have kept on the employee. However he denied not only the detail of the conversation but the fact that a conversation took place at all between himself and the applicant on Monday 14 January 2002. 6 Mr Fahd's personal assistant, Zalfa Khoury, gave evidence that Mr Zakaria did not attend the office of the respondent on 14 January or make an appointment to see Mr Fahd on that date. Her evidence was that her desk is located opposite Mr Fahd's office and that she arrives early, leaves late and has lunch either at her desk or in the adjacent kitchen. She said it was not possible for anyone to talk to Mr Fahd in his office without her knowing it. 7 Mr Zakaria testified that when driving from the head office where he had been to see Mr Fahd to the showroom where he worked, he stopped by "the nearest doctor" and got a medical certificate. He said that he provided this certificate when he next arrived at work on Saturday 19 January to his supervisor Mr Charlie Wakim, but Mr Wakim denied that he was given a certificate. The medical certificate provided in evidence was not the certificate supposedly provided that day. On the morning of the hearing a faxed copy of what purported to be a medical certificate was provided in lieu of the certificate referred to in Mr Zakaria's affidavit but not provided at the time of filing. The certificate read as follows: 14/1/2002 Mr Farhad Zakaria gave H/O problem at work - could not go to work for three days as he was accused for price fixing with customer.