Andrean Liu v Itsumo Aus Pty Ltd [2023] FWC 2471

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Andrean Liu v Itsumo Aus Pty Ltd (U2023/4580) COMMISSIONER RIORDAN SYDNEY, 20 NOVEMBER 2023 Application for an unfair dismissal remedy [1] On 25 May 2023, Mr Andrean Liu (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant claims that he was dismissed by Itsumo Aus Pty Ltd (the Respondent) on 11 May 2023. [2] In its Form F3 – Employer response to unfair dismissal application, the Respondent raised jurisdictional objections on the grounds that the Applicant was not dismissed and/or that the application has been filed out of time. The Respondent claims that the employment relationship was brought to an end at the initiative of the Applicant on one of the following dates: 23 February 2023; 21 March 2023; or 17 May 2023. [3] Section 394(2) of the FW Act provides that an application for unfair dismissal remedy made pursuant to section 394 of the must be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows. [4] Given the date the employment relationship came to an end is contested, this is the first matter to be determined before it can be determined whether the application was filed within the statutory timeframe, and, if not, whether a further period should be granted for Mr Liu to bring his application. [5] The matter was listed for Jurisdictional Hearing by Microsoft Teams on 7 September 2023 to deal with these two jurisdictional issues. Leave was granted pursuant to s.596 of the FW Act for both parties to be represented at the Hearing. The Applicant was represented by Ms Julia Leeds, Associate, Dentons Australia Limited. The Respondent was represented by Mr Garry Dircks, Just Relations – Consultants. [6] The following persons gave evidence for the Respondent at the Hearing: • Ms Grace (Bohee) Jung, Owner of Itsumo Aus Pty Ltd; and [2023] FWC 2471 DECISION -- 1 of 13 -- [2023] FWC 2471 2 • Mr Sutthikiat Wongsittipat, Ms Jung’s partner and an employee of Itsumo Aus Pty Ltd. [7] The Applicant gave evidence on his own behalf. [8] This Decision determines the jurisdictional objections only. Was there a ‘Dismissal’ and what date did it take effect? [9] Section 385 of the FW Act provides: “385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.” [10] Section 386 defines ‘dismissed’ as: “386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [11] Relevantly, in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,1 the Full Bench explained the two limbs in s.386(1) as follows: “(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the -- 2 of 13 -- [2023] FWC 2471 3 employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”2 Submissions [12] Relevantly, the Respondent accepted that, while the Applicant failed to be in contact with the Respondent between 31 January 2023 and 23 February 2023, this did not necessarily establish that the Applicant had abandoned his employment, given that he was on a worker’s compensation related absence at the time. However, the Respondent submitted that there was no barrier to the Applicant terminating his own employment while on Workers Compensation. [13] The Respondent submitted that the employment relationship came to an end at the Applicant’s initiative on one of the following dates: a) On 23 February 2023, when the Applicant contacted Ms Jung seeking alternate and modified duties, in response to which the Respondent offered cold sushi section work. This was rejected by the Applicant; or b) On 21 March 2023 when the Applicant arranged for his girlfriend to collect his knives from the workplace; or c) On 17 May 2023 when the Applicant asked the Respondent to complete a Separation Certificate so that he could apply for a Centrelink benefit. [14] The Applicant submitted that the employment relationship came to an end at the Respondent’s initiative on one of the following dates: a) On 9 May 2023 when the Applicant was informed the Respondent had hired a new chef to replace his pre-injury role; or b) On 11 May 2023 when the Applicant had a telephone conversation with Ms Jung, during which she said words to the effect of: “how come you haven’t been able to find a job, it’s been 5 months already”. 23 February 2023 offer of alternative duties [15] The Respondent’s primary position was that the employment relationship came to an end on 23 February 2023 for the following reasons. -- 3 of 13 -- [2023] FWC 2471 4 [16] The Respondent relied on the Full Bench decision in the Abandonment of Employment3 test case where the Commission stated: “[21] “Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.” (Respondent’s emphasis) [17] The Respondent submitted that, applying the relevant test above, a reasonable person in the employer’s shoes would regard that refusal of modified duties by the Applicant as a renunciation of the employment contract. [18] The Respondent submitted that if it is accepted by the Commission that the employment relationship ended at 23 February 2023 by way of abandonment of employment, there is no termination at the initiative of the employer, and any application for unfair dismissal remedy is several months out of time for purposes of section 394 of the FW Act. [19] In response, the Applicant submitted that he took appropriate steps, as advised by his doctor, to communicate with the Respondent regarding suitable duties. The Applicant submitted that this demonstrated his willingness to promptly return to work. The Applicant submitted that the Respondent’s unwillingness to appropriately accommodate his need for modified duties is demonstrated by the telephone call between the Applicant and Ms Jung on 23 February 2023 in which the Applicant was told he could perform his pre-injury duties but be paid cash to avoid notification to the Workers Compensation insurer. [20] The Applicant relied here on the decision in Shamrock Consultancy Pty Ltd v Norma Ah San (Shamrock),4 in which it was held that the test for abandonment is an objective one, i.e., whether the: “employee’s conduct is such to convey to a reasonable person in the position of the employer and based on the facts reasonably known to the employer at the time, that the employee has repudiated their duty to meet their obligations under the contract of employment”.5 [21] The Applicant submitted that it was not open to the Respondent to assume that the Applicant had abandoned his employment in circumstances where the Respondent was aware of the Applicant’s work related injury and that he was absent on an ongoing period of Workers Compensation related leave. Further, on the basis that the Respondent failed to take genuine -- 4 of 13 -- [2023] FWC 2471 5 steps to contact the Applicant and ask about his plans to return to work. The Applicant relied on the following evidence in this regard: “(a) The Applicant, in his witness statement, states that he did not receive any communication from the Respondent to ask about the status of his employment; (b) In cross-examination, Ms Jung conceded that she did not take steps to communicate with the Applicant about his intention to return to work after the 23 February 2023 telephone call. Ms Jung conceded that she did not call, text or email the Applicant, she also did not provide a termination letter, pay the applicant any accrued annual leave entitlements or provide a separation certificate despite believing that the Applicant had abandoned his employment.” [22] The Applicant submitted that the Respondent’s failure to contact the Applicant and/or communicate its acceptance of the Applicant’s alleged repudiation following the 23 February 2023 telephone call meant that the employment continued past this date and the Applicant simply remained absent on Workers Compensation leave. The Applicant noted, in this regard, that the Respondent failed to confirm the ‘alleged termination’ with a required Separation Certificate. [23] For the above reasons, the Applicant submitted that his actions on 23 February 2023 did not amount to a renunciation or abandonment of his employment. RehabCo Workplace Assessment Report and Recover @ Work Plan dated 9 March 2023 [24] The parties also made reference to a RehabCo report dated 9 March 2023, from which the Respondent stated it was made clear that the Applicant’s ‘return to work plan’ was to seek work with a new employer. [25] The Applicant noted that this Report was commissioned as part of the Workers Compensation process and was not prepared at his request. The Applicant submitted that any reference to him seeking work with a new employer did not represent a true intention for him not to return to work with the Respondent. The Applicant rejected any argument in this regard and submitted that it was only after the Respondent refused to provide him with suitable alternative duties that the Workers Compensation insurer assigned a rehabilitation consultant to the Applicant. [26] The Applicant submitted that at no point did he inform the Respondent that he would be resigning to seek new employment. 21 March 2023 collection of the knives [27] The Respondent submitted that if it is not accepted by the Commission that the employment relationship came to an end on 23 February 2023, then the next major event was on 21 March 2023, when the Applicant contacted Ms Jung’s partner, Mr Sutthikiat Wongsittipat, to arrange for the Applicant’s girlfriend to pick up his knives from the workplace. -- 5 of 13 -- [2023] FWC 2471 6 [28] The Respondent submitted that it took this as a firm indication that the Applicant had no intention of coming back to work. The Respondent submitted that, again applying the test from the Abandonment of Employment decision, a reasonable person in the shoes of the employer would regard that removal of the Applicant’s work tools as an unambiguous indicator that the Applicant regarded that the employment relationship had ended. [29] The Respondent noted that if this date is accepted as the relevant date that the employment relationship came to an end, then the unfair dismissal application was filed around two months late. [30] The Applicant submitted that the Respondent’s position that the employment relationship came to an end on 21 March 2023, as a result of collection of his knives, is simplistic and fails to take into account the broader context of the situation. [31] The Applicant’s evidence was that he would carry his knives to and from work each day. The Applicant stated that as he purchased the knives himself and that he did not to leave them at the Respondent’s premises. The Applicant submitted that it is not uncommon for employees in any industry to take their tools home at the conclusion of the workday. [32] The Applicant submitted that he did not take his knives home on his last day of work, being 5 January 2023, as he was required to urgently leave the shop and obtain medical attention for his oil burn injury. The Applicant submitted that as he had not returned to the workplace during his period of Workers Compensation, it was reasonable for him to ask his girlfriend to pick up his knives. The Applicant maintained that this was not an indication that he was not going to return to his employment. [33] The Applicant noted that, if the Respondent believed he had abandoned his employment at 21 March 2023 due to the collection of his knives, the Respondent should have made contact with him to confirm this, however, it did not. [34] For these reasons, the Applicant denied that a reasonable person in the shoes of the employer would regard the simple act of removing a knife from the workplace as an unambiguous indicator that the Applicant did not intend to return to work. [35] In its reply submissions, the Respondent disputed the Applicant’s evidence that he normally took his knives home with him after finishing work. The Respondent relied on evidence of Ms Jung that she never saw him bring knives in to work and that the knives remained in the kitchen. [36] Further, the Respondent noted that the accident occurred on 5 January 2023, and the Applicant did not arrange for collection of his knives until 21 March 2023, being 75 days later. The Respondent submitted that if the Applicant truly took home his knives every day and brought them back into work every day, “you would be inclined to think that maybe he wouldn’t have left it 75 days before he decided to pick them up after his accident”. [37] The Respondent maintained that the removal of the knives should properly be taken as an indication by the Applicant that he had no intention to return to work and was effectively renouncing his employment. -- 6 of 13 -- [2023] FWC 2471 7 9 May 2023 conversation regarding new chef being hired [38] The Applicant submitted that on 9 May 2023, he was informed, via his girlfriend, that the Respondent had hired a new chef. The Applicant submitted that in light of the small number of staff employed by the Respondent, it was reasonable to believe that the Respondent hiring a new chef had significant implications for the Applicant who was a full-time worker. He submitted that this signalled a replacement of his role. [39] The Respondent submitted that if the Commission were to accept that the employment relationship remained on foot until 9 May 2023, then the Applicant’s evidence in this regard cannot lead to a conclusion that the Respondent dismissed him. While the Applicant claimed that the Respondent had replaced his role, the Respondent submitted that the Applicant should have been aware that he was not the only chef in the business. The Respondent submitted that, as supported by the evidence before the Commission, it had a number of hot food chefs. [40] Ms Jung stated that her husband told the Applicant’s girlfriend that he was looking for somebody to help him and had found someone. The Respondent submitted that the Applicant’s girlfriend misreported, or the Applicant misheard, the relevant facts and there was nothing in the 9 May 2023 conversation that could lead the Applicant to believe that he had been dismissed. In fact, the Respondent submitted that on the totality of the evidence before the Commission, there is nothing to demonstrate that any person replaced the Applicant’s role. [41] Further, the Respondent submitted there is no authority to suggest that because an employer hires a new employee in the same category as an existing employee, who is absent from work for some or other reason, it then follows that that the absent employee has had his/her employment contract terminated. 11 May 2023 conversation between the Applicant and Ms Jung [42] Further to the above, the Applicant submitted that he had a telephone conversation with Ms Jung on 11 May 2023, which confirmed to him that the Respondent had terminated his employment. [43] The Applicant submitted that during the 11 May 2023 telephone conversation, Ms Jung said words to the effect of, “how come you haven’t been able to find a job, it’s been 5 months already”. The Applicant submitted that, to the reasonable person, this comment would suggest that Ms Jung assumed the Applicant’s employment had ended around the time of the workplace injury on 5 January 2023, but this was not communicated to the Applicant. [44] The Applicant submitted that as a result of the events on 9 and 11 May 2023, and on the evidence before the Commission, it is demonstrated that the Respondent directly or consequentially terminated the Applicant’s employment, or alternatively, evidenced an intention to no longer be bound by the employment contract.6 In this regard, the Applicant referred to the Full Court’s decision in Mozahab v Dick Smith Electronics Pty Ltd (No 2),7 in which it was found that a termination at the initiative of the Employer may be treated as such when the action of the employer is the principal contributing factor that leads to the termination of the employment relationship. The Applicant also referred to the decision in Barkla v G4S -- 7 of 13 -- [2023] FWC 2471 8 Custodial Services Pty Ltd,8 which provides that there must be action by the employer that either intends to bring the relationship to an end or has that probable result. The Applicant submitted that actions of the Respondent on 9 and 11 May 2023, “directly or consequentially” resulted in the termination of employment or had the probable result of doing so. The Applicant submitted that “had the Respondent not taken [these actions], the Applicant would have remained employed”.9 [45] In response, Ms Jung disputed that she said those words to the Applicant during the 11 May 2023 call. However, the Respondent submitted that, taken at its highest, it is not a situation of an employer notifying an employee of their dismissal. The Respondent submitted that the claimed words are not an unambiguous statement of termination of employment.10 [46] The Respondent submitted that any comment to the effect of “why haven’t you found a job yet” cannot be claimed to have the probable effect of bringing the employment to an end, particularly given the evidence before the Commission that the Applicant was actively seeking alternative employment at that time. The Respondent relied here on the Applicant’s evidence under cross-examination where he stated that, during the call of 11 May 2023, he told Ms Jung that he was looking for a job. [47] The Respondent submitted that the Commission should prefer its submissions and evidence of what occurred in the phone call on 11 May 2023, and therefore find that there was no dismissal at the initiative of the Respondent. The Respondent submitted that if the Commission finds that the employment relationship had been ongoing at 11 May 2023, then it was the Applicant’s reaction to what he was told about not having found another job that caused him to regard the employment relationship at an end and to subsequently seek a Separation Certificate. 17 May 2023 request for Separation Certificate [48] The Respondent submitted that if it is not accepted that the employment relationship came to an end on 23 February 2023 or on 21 March 2023, then the employment relationship came to an end on 17 May 2023 when the Applicant contacted Ms Jung seeking that the Respondent fill out an Employment Separation Certificate so that he could apply for a Centrelink benefit. [49] The Respondent submitted that the Applicant’s reasoning for seeking the Separation Certificate was not a claim that he had been dismissed by the Respondent but that he was seeking a Centrelink benefit because he was in financial need. [50] The Respondent submitted that for there to be a ‘dismissal’ for the purposes of the FW Act, there needs to be a termination at the initiative of the employer or a forced resignation. The Respondent relied on the Full Bench decision in Biennias v Iplex,11 which reaffirmed at [44] that Mohazab v Dick Smith Electronics Pty Ltd remained good authority for termination at the initiative of the employer: “[44] In Mahony, the Court affirmed as remaining good authority that connotation of the formula “at the initiative of the employer” set out in the judgment of the Full Court of -- 8 of 13 -- [2023] FWC 2471 9 the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2), in which the Court said: ‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’” [51] The Respondent also relied on the decision in O’Meara v Stanley Works Pty Ltd,12 where the Full Bench stated: “[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”” (Respondent’s emphasis) [52] The Respondent submitted that on all accounts, the Applicant has failed to demonstrate what action the Respondent took that was intended to bring the employment to an end or would have that probable result. [53] In reply, the Applicant submitted that, contrary to the Respondent’s submissions, the Applicant’s request for the Separation Certificate was prompted by his belief that Ms Jung had terminated his employment during the telephone call on 11 May 2023. The Applicant submitted that his request for a Separation Certificate cannot be taken as a resignation on his part. [54] As to any of the ‘Abandonment Events’ alleged by the Respondent, the Applicant relied again on the objective test as outlined in Shamrock (see paragraph [20] of this decision). The Applicant submitted that each of the alleged Abandonment Events, whether individually or combined, could not have conveyed to a reasonable person that the Applicant intended to abandon his duties. [55] The Applicant maintained that 11 May 2023 was the relevant ‘dismissal’ date, that his dismissal was at the initiative of the Respondent, and that his unfair dismissal application was filed within time. Filing of the unfair dismissal application [56] In maintaining that there was no dismissal at the initiative of the employer, the Respondent submitted that if the Commission finds that the employment relationship was -- 9 of 13 -- [2023] FWC 2471 10 ongoing at May 2023, then it was only the act of the Applicant filing his unfair dismissal application that brought the employment relationship to an end.13 CONSIDERATION [57] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. [58] This is an unusual case in so many respects. Both parties have acted on assumption and supposition. I note that English is a second language for the Applicant, Ms Jung and Mr Wongsittipat. [59] What is apparent is that the Applicant was not directly dismissed by the Respondent. There was no written or verbal termination. A Separation Certificate was not issued nor was the Applicant paid any of his entitlements. [60] Section 386 of the Act states:- “386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. -- 10 of 13 -- [2023] FWC 2471 11 (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.” [61] I do not accept the argument that the Respondent terminated the Applicant simply because the Respondent employed a casual part-time employee whilst the Applicant was on Workers Compensation. This practice is common within Australian workplaces. The Respondent is a very small business. The Applicant was predicted to be off work for 12 months. It is not feasible or logical for the Respondent to operate short-staffed for the duration of the Applicant’s time on Workers Compensation. The Respondent was well within its rights to employ someone to undertake the Applicant’s duties whilst he was recovering from his injury. [62] I am satisfied that the Respondent did not dismiss the Applicant. [63] However, I do not accept that the Applicant repudiated his contract of employment, or provided an indication of his intention to resign, simply because his girlfriend collected his knives from the Respondent’s restaurant. A chef’s “tools of trade” are their knives. It is widely accepted that most chefs take great pride in their tools. They are individually preferred based on weight, balance and comfort. It is also not unusual for a chef to remove their knives on a daily or weekly basis in order to sharpen them to their individual preference. In this circumstance, it is irrelevant what the Applicant would normally do on a daily basis with his knives. The undisputable fact is the Applicant would not be returning to his former role for a 12-month period. No tradesman would leave their personal tools at any place of employment for a period of 12 months for fear of them being lost or stolen. In this circumstance, I am satisfied that the Applicant had a bona fide reason to have his tools at home during his absence. I have taken this into account. [64] It is my understanding that every Workers Compensation claim in NSW involving an insurance company is allocated a rehabilitation provider and co-ordinator. The role of these individuals is to provide assistance to the injured worker to get them back to work as soon as possible. The rehabilitation provider becomes the de facto employer in these circumstances. It is not unusual for an injured worker to undertake training or temporary employment in areas not associated with their traditional role. This opportunity provides the worker with new skills and employment opportunities whilst reducing the financial burden on the NSW Workers Compensation scheme. I am satisfied and find that neither party understood the processes of the NSW Workers Compensation system. I have taken this into account. [65] In this matter, the Applicant was assessed to be incapable of returning to work in the next 12 months. The insurance company accepted that diagnosis and was providing the Applicant with alternate and appropriate work and training opportunities, as required. I have taken this into account. [66] Neither party called anyone from the insurance company to give evidence in relation to the offer of employment in the “cold sushi section”. However, it stands to reason that if the rehabilitation provider had regarded the role as being acceptable, the Applicant would have been required to perform that work or risk losing his Workers Compensation entitlements. I -- 11 of 13 -- [2023] FWC 2471 12 have taken into account that the Applicant was not required to work in the “cold sushi section” of the Respondent. [67] It is settled jurisprudence that if an employer suspects that an employee has abandoned their employment, then the employer must attempt to contact the employee to ascertain the employee’s answer to that question. It is not in dispute that the Respondent did not contact, or attempt to contact, the Applicant to ask whether he intended to return to work. I have taken this into account. [68] I am satisfied that the decision in Charlton v Eastern Airlines,14 as relied on by the Respondent, can be distinguished on the facts. The Applicant has not been demoted. Nor has the Applicant been dismissed by the Respondent. The filing of an unfair dismissal application by an unrepresented party is nothing more than an error, a mistake, a lack of understanding of the Australian employment law. It certainly does not show an acceptance of a contract repudiation. CONCLUSION [69] For the reasons stated above, I am satisfied and find that the Applicant was not dismissed by the Respondent. The Respondent did not intend to dismiss the Applicant, nor did it do anything or say anything which can infer that it would not welcome the Applicant back to work when he was fit and able. [70] This jurisdictional objection of the Respondent is upheld. [71] I am also satisfied and find that the Applicant did not abandon his employment. The Applicant was complying with the requirements of his rehabilitation provider in applying for new roles. I am satisfied that the Applicant expected to return to work with the Respondent when he received his medical clearance. [72] This jurisdictional objection of the Respondent is dismissed. [73] I find that the Applicant is still employed by the Respondent and remains on Workers Compensation. [74] The application for an unfair dismissal remedy is therefore dismissed. [75] I so Order. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR766555> -- 12 of 13 -- [2023] FWC 2471 13 1 [2017] FWCFB 3941. 2 Ibid at [47]. 3 [2018] FWCFB 139. 4 [2021] FWCFB 274. 5 Ibid at [17]. 6 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 2000, at [205]; Marwa Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 38-0 348 T/A Commonwealth Financial Planning at [13]. 7 (1995) 62 IR 2000. 8 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011), [24]. 9 Applicant’s Outline of Submissions – Jurisdiction at [8]. 10 (1995) 62 IR 2000. 11 [2017] FWCFB 38. 12 O’Meara v Stanley Works Pty Ltd (2006) 11 August [PR 973462]. 13 Charlton v Eastern Australia Airlines Pty Ltd (2006) 154 IR 239, 247. 14 Ibid. -- 13 of 13 --