Bizuneh v Department of Communities and Justice [2019] NSWIRComm 1088

Industrial Relations Commission New South Wales Medium Neutral Citation: Bizuneh v Department of Communities and Justice [2019] NSWIRComm 1088 Hearing dates: 15 October 2019. Decision date: 03 December 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – constructive dismissal – offer of extension of employment rejected – applicant resigned freely and without undue pressure – employer's conduct not the real and effective initiator of the termination of the contract of employment – application dismissed Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Industrial Relations (General) Regulation 2015 Cases Cited: Allison v Bega Valley Council [1995] 63 IR 68 Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48 Maher v Department of Corrective Services (NSW) [2006] 151 IR 102 Maher v Department of Corrective Services (NSW) [2005] NSWIRComm 1127 Category: Principal judgment Parties: Tafese Bizuneh (Applicant)

Department of Communities and Justice (Respondent) Representation: The Applicant in person

Mr D Yuille with Mr W Jardine (Respondent) File Number(s): 2019/00273304

DECISION 1. The applicant, Tafese Bizuneh, commenced employment as a Housing Assistant with the Department of Family and Community Services, now the Department of Communities and Justice ("Department"), on 25 February 2019. 2. Prior to receiving a formal letter of offer of employment from the Department, on 11 February 2019 the applicant received an email from Joseph Toleafoa, Talent Acquisition Officer with the Department, which contained the following: Hey Tafese Thanks again for your time over the phone as discussed we have a 6 Month opportunity at our Maroubra Office for a Housing/Clerical Assistant role with possibility of extension ………………………. 1. A letter of offer of employment dated 19 February 2019 was subsequently sent to the applicant. The letter was accompanied by a "Confirmation of Acceptance" document which was electronically accepted by the applicant on the same date. Both the letter of offer and the acceptance document contained the following: Entry on duty: 25 February 2019 End date: 25 July 2019 1. The letter of offer also contained the following: It is important to note that this offer of temporary employment does not constitute ongoing employment, and your employment will cease effective from the above mentioned end date unless otherwise notified. Your temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where: • work is no longer available • funds are no longer available • performance of duties is unsatisfactory The offer of employment is conditional upon: • your acceptance of the offer of temporary employment on the conditions stated above 1. The acceptance document contained a similarly worded provision whereby the applicant acknowledged that he accepted the employment offer on those terms. The fact that the period of employment offered by the Department was five months and not six months, as previously foreshadowed by Mr Toleafoa, would subsequently become a source of complaint by the applicant, even though he accepted the offer of five months employment at that time. 2. There is a dispute between the parties as to whether or not the applicant continued to work for the Department after 25 July 2019. In the Employer's Reply to the application, which was filed in the Commission on 13 September 2019, it was stated that the applicant's last day of service with the Department was Tuesday 6 August 2019. However, in written submissions filed by the Department on 14 October 2019, it was stated that the applicant did not work after Thursday 25 July 2019. During the proceedings the applicant claimed that he continued working up to and including Friday 2 August 2019. 3. The Commission was provided with a number of emails sent to the applicant by employees of the Department on or after 25 July 2019 which indicated that the applicant was still working for the Department after that date. Further, the Statement of Service dated 23 September 2019 which was provided to the applicant contained the following entry: Planned working time: 25.02.2019 to 05.08.2019 35 hours/week 1. I am prepared to accept that the applicant continued as an employee of the Department after the "end date" of his contract of employment of 25 July 2019, up to and including Friday 2 August 2019. However, as will be seen from what follows in these reasons for decision, my determination of this matter does not turn on the date of termination of the applicant's employment. 2. As it transpired, by letter dated 24 July 2019, the applicant was offered a further period of temporary employment from 25 July up to 31 August 2019. The applicant did not see this letter of offer, which was sent to him through the post, until Saturday 3 August 2019. However, the content of a number of emails sent by the applicant to other employees of the Department on 25 July 2019 indicate that the applicant had been advised on the previous day, Wednesday 24 July, that his contract had been "extended by five weeks" to 31 August 2019. 3. On 25 July 2019, the applicant sent the following email to a number of employees of the Department, including Ms Briana Magno, Senior Business Support Officer: Hi All You will be well aware that the expiry date of my contract was yesterday 24/07/2019. Even though I was only advised by SSESNSD Business Support yesterday that my contract is extended by five weeks to 31/07/2019 (subsequently corrected to 31/08/2019) it was without completion of the necessary procedures. As a result my login detail has expired and I was not able to login to my workstation to do my job. The IT department has extended my login expiry by 7 days to 31/07/2019. Can you please resolve this matter so I can concentrate on my job? Kind regards Ms Magno replied as follows: Hi Tafese You have already been extended to 30.08.19 and there is nothing further to be done right now. The Business Support Team will be advised closer to the end of August regarding your extension. Kind regards 1. On the bottom of the letter of offer dated 24 July 2019 was an "Acceptance of Offer" statement which the applicant altered to read "I do not accept my temporary employment under the terms/conditions and salary stated above". The applicant signed this altered statement and dated it 5 August 2019. 2. In a letter which was emailed to Ms Sharlene Kelly, Director, Payroll Services, of the Department, on Monday 5 August 2019, the applicant stated: Thank you for your letter of 24 July 2019 regarding an offer of 5 (five) weeks extension to my current employment in the role of Housing Assistant till Saturday 31 August 2019. As it is shown on the copy of attached envelope, your letter was delivered in my mail box on Friday 02 August 2019 and I was able to read it on Saturday 03 August 2019. However, I do not accept the offer of 5 (five) weeks extension to my current employment. The Department of Communities and Justice ('the Department') is aggressively and continuously engaged in the process of constructive dismissal since I accepted the original offer on 19 February 2019. I found your letter of 24 July 2019 regarding an offer of 5 (five) weeks extension to my current employment till Saturday 31 August 2019 as part of the continuous constructive dismissal process. I am in the process of filing an application against the department -my employer- at Fair Work Commission for numerous breaches of The Fair Work Act 2009. Please note that I am not resigning or quitting my job voluntarily, rather I am seeking remedy from Fair Work Commission as a result of the conduct of my employer. It is also unreasonable, impractical; and more importantly unsafe for me to continue working at Maroubra office while I am filing the constructive/ unfair dismissal application. To make it clear I am not coming to work from today 05 August 2019. I would also like to advise clearly - in addition to Director, Payroll Services- that this email/ letter is also addressed to all recipients of the email/ letter. Thank you for taking the matter accordingly. 1. On 7 August 2019, the applicant lodged an application with the Fair Work Commission under section 372 of the Fair Work Act 2009 (Cth). In that application , the applicant stated the outcome that he was seeking as follows: I want to resume my job immediately in a location other than Maroubra office. To sign a fair and reasonable employment agreement that is based on Fair Work Act 2019 and according to the relevant Australian contract laws and to continue working at a location other than Maroubra office. 1. Vice President Catanzariti of the Fair Work Commission convened a telephone conference of the parties on 28 August 2019. On that day, the application was discontinued on the basis that the Fair Work Commission did not have jurisdiction to hear and determine it. On the same day, the applicant filed the application which is now before this Commission. 2. In his application, the applicant claimed that he was constructively dismissed and sought a "remedy that involved reinstatement my employment with reasonable conditions and duration (not five weeks)".