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. These words were not on letterhead but on unsigned plain paper which bore the stamp of Dr B K Desai of Merrylands. 8 Mr Zakaria said that he took the back route through Merrylands which was familiar to him and avoided a toll, rather than travelling along the motorway to return to the showroom at Bankstown. He said it was his intention to return to the showroom but he had not felt well. He said that he rang the showroom and a salesperson named Mary answered the phone. When he asked to speak to Mr Wakim he said that Mary indicated Mr Wakim was not available. Therefore he asked Mary to give a message to Mr Wakim that Mr Zakaria would be away on "certified stress leave" for two days. Mr Zakaria then did not attend work on 17 or 18 January as these were his days off but did attend on Saturday 19 January. Mariam Givarges, known as Mary, gave evidence that she did not take such a message. She said that there was no reason for her to answer the phone for this type of call. Ms Givarges was confident that she would have remembered if she had spoken to Mr Zakaria, because Mr Wakim had expressed concern about Mr Zakaria's absence. 9 When he arrived at work on 19 January Mr Zakaria said that Mr Wakim immediately approached him and stood before him like a security guard, telling him that he had instructions from Mr Fahd that he was not to enter the premises and that he should contact Mr Fahd. Mr Wakim said that when Mr Zakaria had been absent from work during that week he had been concerned about him. 10 Ms Khoury said that she had been instructed first by the showroom manager Mr Raad and then by Mr Fahd to try to call Mr Zakaria, which she did on 15, 16 and 18 January, but she said the calls were not answered. 11 I note here that the evidence of Mr Wakim was of no use to the Commission. While he stated in his witness statement some specific recollections of 14 January, he then could not recall anything of that week during cross-examination. There were many questions asked by Mr Lee for the applicant that Mr Wakim obviously did not understand. Nor did he understand when I made attempts to clarify certain issues. I cannot be satisfied on the basis of his responses that he understood any of what was put to him and so, as I say, his testimony was of no use to the Commission. 12 Mr Zakaria said that he went home and attempted to contact Mr Fahd several times on 19 January. On the following day he was also unsuccessful in contacting Mr Fahd until later in the evening when Mr Fahd answered the phone. Mr Fahd insists that he was readily available and that Mr Zakaria would have known where to contact him in the office by landline if his mobile was not answering. 13 Mr Zakaria's statement sets out the effect of the conversation between himself and Mr Fahd in which Mr Fahd supposedly said, "I am not going to give you anything, you do whatever you like but you are not working for me again". Mr Fahd denied that he said anything of that nature. Mr Fahd conceded that a telephone conversation took place on the evening in question between himself and Mr Zakaria, but that it was to the effect of Mr Fahd asking why Mr Zakaria had abandoned his employment and Mr Zakaria responding with words to the effect of, "That's fine, you will be sorry". 14 There was evidence given that Mr Zakaria had suffered a fractured toe at work at the end of November or early December 2001. This resulted in his having four weeks off work and a successful workers' compensation claim which covered his pay, medical costs and a settlement sum. Mr Zakaria agreed that he had made a claim for around $19,000 but had settled for a sum of $2,460 or thereabouts. 15 In final submissions Mr Fahd submitted that Mr Zakaria's actions indicated that he knew where he was going and that the series of phone calls and actions were a set up. Mr Fahd believed that the doctor's certificate should be ignored since it did not take the form of a professional document. He also said it was ludicrous to suggest that he would sack a good salesperson. He agreed that the applicant was a good salesman. In fact he said he did not want Mr Zakaria to leave. This was evidenced by his welcoming the applicant back to employment, after he had resigned in 2001. 16 Mr Fahd described himself as a giving employer. The evidence showed that he had paid annual leave loading whenever Mr Zakaria took annual leave rather than waiting to the end of twelve months when it was due. Also Mr Zakaria agreed that he had been allowed to purchase tiles and repay his debt over a period of nine months. 17 Mr Fahd also suggested that it was unreasonable that Mr Zakaria remained out of work for a period of six months after he was dismissed. He believed this was because Mr Zakaria did not want to work, had set up the circumstances where he would say he had been dismissed because he had developed a taste for not working at the end of 2001 when his toe was fractured. Mr Zakaria's comments about education in the law and going to court, should be taken to indicate that he was well aware of the availability of making a claim for unfair dismissal and that he knew the jurisdiction and the limit of compensation available to him, submitted Mr Fahd. The evidence showed that Mr Zakaria had never otherwise been out of work for any substantial period of time when he was available to work. 18 The pay records of the respondent showed there was no final date of pay at the time of the alleged dismissal but rather the records showed that a week after the termination of employment Mr Zakaria remained on the pay records. He was not owed any annual leave payment or loading or other entitlement at the time that his employment came to an end because he had taken all the leave due to him and had been paid the loading at the time. 19 Mr Fahd submitted that the application was a sham and that if Mr Zakaria had acted responsibly, the respondent would not have been placed with the enormous expense of over $25,000 involved in taking the case to its current stage. He also asked the Commission to take into account that the duration of employment was only eleven months and the fact that the employment existed at all was due to the kindness of the respondent in accepting Mr Zakaria back after his resignation. 20 Mr Lee submitted that the evidence spoke for itself. He said that the applicant was dismissed in a manner that must be considered harsh, unreasonable or unjust. 21 In determining the outcome of this case I am required to consider section 84 of the Act which reads in part: 84(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part . The question is this case was whether or not the employer dismissed the employee. According to Mr Fahd's version of events, the applicant abandoned his employment. According to Mr Zakaria's version of events, he was verbally dismissed on Monday 14 January 2002, which dismissal Mr Zakaria did not accept, and again verbally dismissed on Sunday 20 January 2002 by Mr Fahd over the telephone. There is no explanation offered as to why Mr Zakaria would accept a second verbal dismissal when his response to the first alleged verbal dismissal was that it was required to be put in writing. 22 It is well established that the onus to make a case is on the applicant, except in cases of summary dismissal. In Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 it was said: The onus is on the applicant to establish that intervention is warranted…he must discharge the onus which rests on him to satisfy the Commission that his is a proper case for the Commission's intervention. (See Bigg v NSW Police Service (1998) 80 IR 434; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565; Re Homebush Abattoir [1966] AR (NSW) 386.) 23 In this case the applicant has not fulfilled that onus. There were no witnesses to any of the relevant conversations alleged by Mr Zakaria to have taken place and Ms Khoury provided very credible testimony that Mr Zakaria had not attended the office of Mr Fahd on Monday 14 January where he said the initial verbal dismissal took place. While there were doubts raised in terms of recollections necessarily by the passage of time, as I stated earlier, there was nothing particularly in the evidence of the respondent's witnesses (apart from those comments which I have made earlier in regard to Mr Wakim) that causes me any concern about their credibility. 24 After careful consideration of the evidence and the submissions of the parties I am not convinced on the balance of probabilities that the applicant was dismissed from his employment. In finding this I am not saying that the respondent's version, that the applicant abandoned his employment, is more likely to have occurred. Rather I say that the applicant has not fulfilled the onus on him to prove that a dismissal occurred. Accordingly, the application must fail. 25 The application is dismissed. __________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.