Aaron Jordan v Security Fencing Pty Ltd

[2013] FWC 5456

[2013] FWC 5456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Jordan
v
Security Fencing Pty Ltd
(U2013/6771)

COMMISSIONER DEEGAN CANBERRA, 7 AUGUST 2013

Application for unfair dismissal remedy - jurisdictional objection - termination at initiative of employer - dismissal was unfair - compensation ordered.

[1] This is an application by Mr Aaron Jordan made pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief in respect of the alleged termination of his employment by Security Fencing Pty Ltd (the employer).

[2] The matter was not settled at the conciliation held on 18 March 2013. Directions were issued for the filing of submissions and witness statements and the matter listed for hearing on 20 June 2013.

[3] On 6 March 2013, the employer lodged the Employer’s Response (Form F3) claiming that the application was not within the jurisdiction of the Fair Work Commission (the Commission) as the applicant had not been dismissed. It was the employer’s position that the applicant was a casual employee who had not been offered any shifts due to a downturn in work.

[4] The hearing dealt with both the question of jurisdiction and the merits of the application. The parties were informed that the question of jurisdiction will be determined and that no decision as to the merits will be made if the Commission lacked the necessary jurisdiction.

[5] Permission was granted for the applicant to be represented by a legal practitioner at the hearing. In support of the application, the applicant provided oral evidence at the hearing. Evidence was given for the employer by Mr Drew Ketley, owner and director of the employer, and Mr Andrew Hill, a contractor engaged by the employer.

[6] At the request of the applicant’s representative and given the jurisdictional issue it was agreed that the respondent would present its case first.

The Background

[7] A number of the main facts of the matter were not in dispute.

[8] The applicant commenced work with the employer, as a fencing labourer, in January 2011. He was a casual employee, paid as such, and usually worked about 38 hours per week. The applicant’s father, Mr Stephen Jordan was also employed by the employer.

[9] In late January 2013 the applicant injured his arm in an incident not related to his work. He had one day off work and then worked for about a week with his arm heavily bandaged. On or about Wednesday 6 February he informed his employer that he will need a day off on Friday 8 February as he will need to get his stitches removed. The applicant did not attend for work on the Friday. The applicant did attend a court hearing on that day and his driver’s licence was suspended.

[10] On Friday 8 February, an altercation occurred between the owner of the employer and the applicant’s father. The applicant’s father ceased employment that day.

[11] On Tuesday 12 February, the applicant attended for work at the workplace and discovered that the locks on the premises had been changed and he could not gain access. He made a telephone call to Mr Ketley and was informed that the locks had been changed as a consequence of the altercation with the applicant’s father, and was questioned about his failure to appear for work on 8 February. In the ensuing conversation the applicant became aware that there was no work for him and considered that he had been dismissed.

The Employer’s Case

[12] Mr Andrew Hill, a contractor who worked for the employer, filed a statement of evidence 1 in support of the employer’s case and was cross-examined at the hearing. Mr Hill had been a fencing contractor for 30 years. Mr Hill’s first day of work with the employer was 7 February 2013. According to Mr Hill he spent that day working with the applicant’s father installing fencing. The applicant’s father had driven the truck in which Mr Hill was a passenger.

[13] Mr Hill’s evidence was that he also worked Friday 8 February under the same arrangement. When he and the applicant’s father returned to the workplace at the end of the day, Mr Hill witnessed an incident between the applicant’s father and Mr Ketley, in which the applicant’s father ‘took a few swings’ at Mr Ketley. 2 Immediately following the incident the applicant’s father left the yard. Mr Ketley requested that Mr Hill return to the workplace the following Tuesday (the Monday was a public holiday).

[14] Under cross-examination, Mr Hill was questioned about the conversation he overheard the following Tuesday morning between Mr Ketley and the applicant. It was put to him that during that conversation there had been no mention of a court hearing the previous Friday. Mr Hill maintained that a court hearing had been mentioned. Mr Hill elaborated about the conversation as follows:

Well I put it to you that there was not a discussion about a court hearing?---No, Drew had brought up to Jordan about there was a - the conversation was going about as was he sacking him and he said no. And something came up about the Friday, why he wasn't at work, and he said, "The stitches". And he said, "Well what about the court hearing?" that, you know, "you're losing your licence" and the reason that he - Drew knew about that because on the Friday I had told Drew that - after they had an argument I said Steve was all fired up on Friday. He had been bagging a couple of clients about Drew and everything like that, and I'd gone to Drew and I said, "Look, he's bagging you. He had said to me, 'Don't work for the guy. He doesn't pay you. He won't do this, won't do that'" and that I just felt it was wrong that me just starting that he did that. And Drew said, "Look, it's got nothing to do with you. You just do your job" and that was it. But when he did ring, Drew had mentioned about the court hearing and Jordan didn't reply and just said to him, "Are you sacking me?" and he said, "No, I just don't have the hours for you at the moment". 3

[15] It was put to Mr Hill that the reason Mr Ketley did not have any hours for the applicant was because he, Mr Hill, was doing the applicant’s job. He noted that the applicant was a labourer and stated that he, Mr Hill, was not a labourer but ran the jobs. He later agreed that he did perform physical labour on the jobs. He also stated that he had had a lot of time off since he commenced contracting with Mr Ketley as he had to return to Queensland for personal reasons. It was also his evidence that he had not worked for any other company in Tasmania due to a shortage of work and indicated that it is very quiet in construction at present.

[16] When re-examined it was Mr Hill’s evidence that on Thursday 7 February when he worked with the employer the applicant had not been working at the same worksite.

[17] Mr Drew Ketley filed a witness statement 4 and expanded on that statement in his oral evidence.

[18] Essentially it was Mr Ketley’s evidence that he had expected the applicant to turn up for work on Friday 8 February. He agreed that the applicant had told him on 6 February that he would be having the stitches removed on 8 February but that he had not asked for the whole day off work. He also stated that the applicant had not called him or texted him to explain his absence.

[19] It was Mr Ketley’s evidence that he became aware later on Friday 8 February that the applicant had been at the Magistrates Court that day and that he had his driver’s licence suspended.

[20] According to Mr Ketley, when the applicant telephoned him about 7.30 on Tuesday 11 February he informed him that he had no hours for him ‘at the moment’ 5. When the applicant queried whether he was being sacked Mr Ketley responded that he was not. It was also Mr Ketley’s evidence that he had queried why the applicant had not told him that he had taken the Friday off to go to court or informed Mr Ketley that he had lost his licence. It was Mr Ketley’s evidence that the applicant did not reply to his questions.

[21] Mr Ketley stated that he was upset that the applicant did not notify him about his absence for the full day and had lied about his whereabouts that day. He stated that had the applicant been working on the Tuesday it would have been at the job site he had been at on the Thursday before and would need to drive to the site. The applicant could not do this as he had lost his licence. Although he admitted to telling the applicant there were no hours for him as he was upset, Mr Ketley denied sacking the applicant.

[22] When a representative of the CFMEU contacted Mr Ketley some days later to ask why the applicant’s hours had been cut, Mr Ketley had responded that it was because he had not attended work on Friday 8 February and because he had lost his licence. Mr Ketley also informed the CFMEU representative that work had slowed and requested the applicant provide a medical certificate for 8 February and proof that he had a licence.

[23] When cross-examined, Mr Ketley claimed that although he knew the applicant did not have a driver’s licence when he originally hired him he had instructed him that it was a requirement of the position that he gain and retain a licence. He had also asked him to get a learners permit for the medium rigid truck so that he could be trained on the job and actually drive it himself.

[24] Mr Ketley reiterated his previous evidence that the applicant had not requested to have all of Friday 8 February off but had told him only that he was to have his stitches removed that day.

[25] It was Mr Ketley’s position that the applicant had been deceptive about being in court and losing his licence and that no dismissal had occurred as the applicant was a casual who was not being offered any more shifts due to a downturn in work.

The Applicant’s Case

[26] The applicant filed a witness statement 6 setting out his evidence. He commenced employment with the employer during January 2011. He was employed as a fencing labourer working about 38 hours per week.

[27] It was the applicant’s evidence that on 6 February he had informed Mr Ketley that he would not be at work on 8 February as he needed to get his stitches removed. When he returned to work on the next working day, Tuesday 12 February, the locks had been changed at the workplace and he could not gain access. He phoned Mr Ketley who advised him that the locks had been changed because of the incident with the applicant’s father the previous Friday. Mr Ketley had also explained to the applicant that ‘an employee’ of Security Fencing had not “turned up” on that Friday. The applicant had explained that he asked for the day off to have his stitches removed. According to the applicant, Mr Ketley then informed him that there was no longer any work for him and hung up.

[28] At the hearing the applicant indicated that he had attended the Magistrates Court on Friday 8 February. He also stated that he had visited his doctor to have his stitches removed the same day but that the procedure could not occur as he had damaged the stitches by working with his injured arm.

[29] According to the applicant he did not need a driver’s licence to perform his job with the employer and was normally a passenger in the truck.

[30] Evidence was given in support of the applicant’s case by Mr Bill White, a CFMEU representative. Mr White stated that he had had a conversation with Mr Ketley the same day the applicant claimed to have had his employment terminated. He had asked Mr Ketley why the applicant had been sacked and Mr Ketley responded that he had not sacked the applicant; he just did not have any work for him at the moment. Mr White did not recall Mr Ketley asking him for a medical certificate and proof of licence but conceded that Mr Ketley told him that the applicant had been to court and lost his licence.

[31] Mr Ketley put to Mr White that he had told Mr White that the applicant had not turned up for work on the previous Friday and had lied to him as he was actually in court that day. He also put to Mr White that he had told him that it was for those reasons that Mr Ketley did not have any hours for him at the moment. Mr White agreed that Mr Ketley had mentioned that the applicant was not at work on the Friday and that he had been to court. He also agreed that Mr Ketley had told him that there was no work for the applicant.

[32] It was submitted for the applicant that he had turned up for work but was unable to gain access and that this, together with the employer’s statement that there was no work for him, was a clear indication that there had been a termination at the initiative of the employer. It was contended that in these circumstances there was no valid reason for the termination as the applicant had advised Mr Ketley that he would not be at work on the Friday as he needed to get his stitches removed. The applicant’s evidence was that he did visit a medical practitioner for the purpose of having the stitches removed on the Friday and had also attended court the same day. It was further contended that the applicant had not been afforded procedural fairness by his employer and there was no suggestion that the employer had complied with the Small Business Fair Dismissal Code in effecting the termination.

Consideration

[33] The only objection made to the jurisdiction of the Commission to deal with this matter is that there was no termination at the initiative of the employer. In those circumstances, and in light of the information given in the proceedings, I am satisfied that the applicant is a person protected from unfair dismissal, that there is no claim that the termination arose from a genuine redundancy and that the employer is not relying on compliance with the Small Business Fair Dismissal Code.

Was there a termination at the initiative of the employer?

[34] It is often difficult to determine whether a casual employee has been dismissed from employment as there is no guarantee of work. In the circumstances of this case, I accept Mr Ketley’s evidence that it was his initial intention not to offer the applicant work as he was annoyed about the applicant’s failure to appear for work on Friday 8 February and because he believed that the applicant had deceived him about his movements on that day. It is apparent from his evidence that Mr Ketley believed the applicant would attempt to put things right with him but instead the applicant contacted his union for assistance.

[35] Mr Ketley was aware that the applicant had lost his licence on 8 February. It may be that without his licence the applicant could not have performed useful work for the employer. That matter was not fully canvassed. In any event there was little utility in Mr Ketley asking that the applicant produce proof of licence when he was well aware that this was not likely to occur. Similarly, that the applicant may have been able to produce a medical certificate indicating that he had visited a medical practitioner on 8 February would not have satisfied Mr Ketley’s concern that the applicant did not advise him that he would be at court for the full day on Friday. In these circumstances I am satisfied that, at least by the time Mr Ketley had his conversation with Mr White, he had no real intention of continuing the applicant’s employment.

[36] I am satisfied that there was a termination of the applicant’s employment at the initiative of the employer.

Was the dismissal unfair?

[37] Section 387 of the Act sets out those matters which I must take into account in determining whether a dismissal was harsh, unjust or unreasonable, and therefore, unfair.

Valid reason

[38] It is apparent from the evidence that Mr Ketley’s decision not to give the applicant any work stemmed from two matters, the applicant’s failure to inform him that he would not be attending work at all on Friday 8 February, together with the applicant’s deception (in Mr Ketley’s mind) concerning his whereabouts on that day and the loss of his licence.

[39] As the applicant was a casual employee he was entitled to inform his employer that he was unavailable for work on a particular day, in the same way that an employer is not required to offer work to a casual employee if none is available. The applicant’s evidence was that he had informed Mr Ketley that he would not be at work on the Friday and that he was to have his stitches removed that day. I do not accept that the applicant set out to deliberately deceive Mr Ketley about his whereabouts that Friday. It is not inconceivable that he did not want it widely known that he was going to court. I accept the applicant’s evidence that he believed he had cleared his day off with Mr Ketley. I also accept Mr Ketley’s evidence that he was expecting the applicant to work that day and was annoyed when he did not turn up or notify his intention to be absent for the full day. Clearly there was a lack of appropriate communication, no doubt exacerbated by the altercation between Mr Ketley and the applicant’s father which occurred on the same day.

[40] In all the circumstances, I am unable to find that there was a valid reason for the termination of the applicant’s employment. He was not given an appropriate opportunity to explain his absence and, given such an opportunity, may have notified his employer that he had lost his licence. I note that the suspension was for one month only and the applicant may have been able to make other arrangements if required to drive to worksites. The loss of his driver’s licence was not sufficient reason for the termination of the employment.

Notification of the reason

[41] As the employer denies terminating the applicant this matter has no application.

Unreasonable refusal to allow support person

[42] There were no discussions of the type contemplated by s.387(d) of the Act so this issue is of no relevance.

Warnings

[43] The termination was not for reasons of unsatisfactory performance.

Size of Business/ HR expertise

[44] Mr Ketley is the owner and sole director of the employer. Since the applicant and his father ceased employment, Mr Ketley has operated his business with the assistance of one or two contractors for various periods. I have no doubt that the close working relationship Mr Ketley had with his employees explains the manner in which the dismissal occurred. Mr Ketley does not have access to human resources expertise and the procedures he adopted in dealing with the applicant’s employment and its cessation is indicative of this.

Other matters

[45] I have taken into account the fact that Mr Ketley believed that the applicant had deceived him when he decided to advise him that he had no work. I accept Mr Ketley’s evidence that there has been a downturn in business and that this may have contributed to the decision not to offer the applicant work at that time. I have also taken into account that the applicant was suffering an injury at the time, through no fault of the employer, and that this may have made it difficult to find other employment. In this regard, I note that the applicant had been told by his medical practitioner that he should not work for two weeks following the injury to his arm but that the applicant did not inform Mr Ketley of that fact. 7

[46] Taking into account all these matters, I find that the decision not to offer the applicant any further work, thus terminating his employment, was harsh in the circumstances and the dismissal was unfair.

Remedy

[47] The applicant has gained other employment and reinstatement is not sought. As reinstatement is not appropriate I must consider whether the payment of compensation is appropriate. 8

[48] In accordance with s.392(2) of the Act, I take the following matters into account:

• There was no evidence that any order for compensation would affect the viability of the employer’s business;



• The applicant was employed, on a casual basis, by the employer for a period of about two years;



• The applicant actively sought, and obtained other employment;



• I am unable to find that, had he not been dismissed, the applicant would have continued to earn remuneration at a similar rate as he had over the previous months, or that his employment would have been as consistent or have lasted for more than a few more months, given his injury, his lack of ability to drive himself and the downturn in business; and

• There was no evidence as to the earnings of the applicant since dismissal but as he is only seeking compensation between the time of his termination and his new employment, and it is my intention not to exceed this amount, I do not consider that such evidence is necessary.

[49] In determining the amount of compensation that should be paid, I have taken into account the applicant’s evidence as to the damage caused to his injured arm by his continuing to work with the injury. Clearly the applicant, on his own medical advice, should not have been working while injured. In addition, I accept Mr Ketley’s evidence that the applicant would have required his driver’s licence to fully perform his tasks (in this respect I note that the applicant’s father, the usual driver, was no longer employed).

[50] I intend to order that the applicant be paid, in lieu of reinstatement, an amount of money equivalent to two weeks wages. Given that the applicant’s wage fluctuated he should be paid at the average of his final eight weeks of employment. An order [PR539915] to that effect is published separately.

COMMISSIONER

Appearances:

Mr R. Wainwright, of the Construction, Forestry, Mining and Energy Union, for the Applicant.

Mr D. Ketley, for the Respondent.

Hearing details:

2013.

Hobart:

June 20.

 1   Exhibit K1.

 2   Transcript PN141.

 3   Transcript PN154.

 4   Exhibit K2.

 5   Transcript PN350.

 6   Exhibit J1.

 7   Transcript PN667.

 8 Section 390(3) Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539909>