Andrei Melster v Select Initiatives Pty Ltd
[2022] FWC 2244
•12 SEPTEMBER 2022
| [2022] FWC 2244 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Andrei Melster
v
Select Initiatives Pty Ltd
(C2022/560)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 12 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection - no dismissal – applicant dismissed - jurisdictional objection dismissed
On 17 January 2022 Mr Andrei Melster (Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (Act) (Application), for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal from his employment with Select Initiatives Pty Ltd (Respondent).
The Respondent objects to the application on the basis that Mr Melster was not dismissed. The Respondent contends that Mr Melster remains a casual employee of the Respondent.
On 5 May 2022 I issued directions for the parties to file materials, with further directions issued on 16 June 2022. Final materials were filed by the Respondent on 29 June 2022 and by Mr Melster on 14 July 2022. In addition materials were filed by Mr Melster on 8 August 2022 and the Respondent on 9 August 2022.
On 9 August 2022 I conducted the proceeding by way of determinative conference via Microsoft Teams. At the determinative conference Mr Melster appeared on his own behalf and Mr Alec Zammitt, Director of the Respondent, appeared and gave evidence for the Respondent. Ms Sandra Phelan, bookkeeper for the Respondent, was called as a witness for the Respondent.
Section 365 and section 386 of the Act
Section 365 of the Act provides that a person who has been dismissed and alleges that the dismissal was in contravention of the general protections provisions of the Act, can make an application to the Commission for it to deal with the dispute.
Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:
“Section 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.
…”
The Respondent contends that Mr Melster’s employment has not been terminated[1] and as such, the Commission does not have jurisdiction to deal with the dispute.[2] Mr Melster submits that Mr Zammitt “attempted to coax [him] into leaving employment voluntarily after having lodged a workers compensation form” and that upon being removed from the group forum on Facebook Messenger on 27 December 2022 Mr Melster took this as notification of dismissal.[3]
Background and Factual Findings
The Respondent provides business solutions to third parties, including the provision of labour. Ordinarily the work undertaken by the Respondent is artistically focused. The Respondent is a small employer, employing 3 employees and Mr Zammitt. The Respondent engages contractors when additional skills or labour are required for a particular client’s requirements.
The Applicant commenced employment with the Respondent in May 2021 in the role of Project Manager (Role) on a casual basis. It appears that the title Project Manager is used somewhat loosely and Schedule 1 to Mr Melster’s contract provides that his title is “Casual All Rounder” and his duties are “content creation primarily with Adobe Creative Cloud Software as well as odd jobs including but not limited to site and project management.” In the Role, Mr Meltser worked at the premises of Hunter-Douglas (H-D), a client of the Respondent, undertaking night shift patrolling duties on H-D’s premises. From about July 2021 in addition to the patrolling duties the Role also required Mr Melster to undertake QR Code checking for couriers entering the H-D site. Mr Melster also undertook a one off engagement with the Respondent as a videographer and a further one off engagement with the Respondent as a photographer.
It appears that the services provided by the Respondent to H-D are not the type of services ordinarily provided by the Respondent.
Mr Melster’s last night shift at H-D was on the evening of 23 August 2021. He was rostered to work the night shift on 24 August 2021 but was unwell. Mr Melster has not worked for the Respondent at H-D or in any other capacity since that date.
It is uncontested that on 25 August 2021 Mr Melster provided a certificate of capacity (CoC) stating that he was unfit for duties for the period of 25 August 2021 to 21 September 2021. That CoC is not before the Commission. Mr Melster lodged a workers compensation claim in respect of this injury. Mr Melster provided a further CoC on 22 September 2021 for the period 22 September 2021 to 20 October 2021. That certificate provides a diagnosis of “sleep disorder secondary to prolonged night shift work” and that Mr Melster is “unable to do current job.” It provides that Mr Melster has capacity to work 4 hours per day for 5 days, from home, during normal office hours.[4] On 22 September 2021 Mr Melster sent Mr Zammitt a message via Facebook advising that he could work from home for 4 hours per day, 5 days a week during the day until 20 October 2021. Mr Zammitt responded saying “I don’t think we have anything that could be done from home”, to which Mr Melster replied, “No worries.” The evidence is that Mr Melster did not work for the Respondent again after 23 August 2021 and it therefore appears that a further CoC was provided for the period 21 October 2021 to 16 November 2021, however, that CoC is also not before the Commission. A further CoC is before the Commission for the period 17 November 2021 to 15 December 2021. That provides the same diagnosis and also that Mr Melster remains unable to perform the Role. It also provides that Mr Melster can only work during normal office hours and “cannot go back to old night shift job”. It provides that Mr Melster has capacity to work 7 hours per day for 5 days per week during normal office hours.[5]
Mr Melster’s workers compensation claim was rejected on 19 November 2021[6] however his evidence at the determinative conference was he continued to receive workers compensation entitlements until 15 December 2021 when his last CoC expired.
It is uncontested that after 19 November 2021 Mr Melster has provided no further medical certificates or information to the Respondent regarding his capacity for work.
Mr Zammitt’s evidence is that during the management of Mr Melster’s workers compensation claim the case management specialist, Samantha F, told him that Mr Melster said that he did not want any further work from the Respondent and would not be returning to work for the Respondent.[7] Mr Zammitt did not call Samantha F, nor did he have any records of these conversations. Further, the evidence is heresay. Accordingly, I give this evidence little weight.
Mr Zammitt’s evidence is that on 19 or 20 November 2021 immediately after the rejection of Mr Melster’s workers compensation claim, Mr Melster telephoned him (19 November Call). Mr Zammitt says in the 19 November Call Mr Melster said he was a bad person and that he didn’t want to work for a person like him. He says Mr Melster also made reference to the Commission in this call.[8] Mr Zammitt says he hung up on Mr Melster as he considered the telephone call abusive. He said that he was unsure if Mr Melster had resigned in the telephone call and wanted to give him time to either formally resign or provide medical clearance to return to work.[9] His further evidence was that he could not produce a telephone log to demonstrate the call occurred as logs are not retained for that long.
Mr Melster denies that the 19 November Call occurred. Mr Melster’s evidence was that he and Mr Zammitt did not communicate by telephone. Mr Melster produced a screen shot of his recent calls for the period 14 November 2021 to 23 November 2021[10] to support his assertion that the 19 November Call did not occur. I do not consider this to be probative evidence that the 19 November Call did not, in fact, occur. Recent calls lists are not a log of calls made and received. They are able to be manipulated and calls are able to be deleted from the list. Accordingly, I don’t consider the screenshot to be reliable evidence upon which to concluded that the 19 November Call did not occur.
Mr Zammitt’s evidence was that around 10 December 2021 he asked Mr Laurie, the site manager for H-D, for an extra set of keys to the H-D premises as there were insufficient keys and keys had to be shared between employees of the Respondent working at the H-D site. His evidence was that Mr Laurie requested that the H-D keys held by Mr Melster be returned so that they could be used by other staff. Mr Zammitt’s evidence was that on or around 10 December 2021 he telephoned Mr Melster about the keys and offered to collect them (10 December Call). His evidence was that Mr Melster said he would return them. He said that Mr Melster did not return the H-D keys and on 15 December 2021 he messaged Mr Melster via Facebook asking for the keys to be returned. That exchange was as follows:
“Z: Hey Andrei, could you bring the keys back today please
M: Not going to be travelling anywhere today
Z: When are you able to bring them back?
M: Ill let you know. Will you be providing me a letter of termination of employment?
Z: Not at this point
Later that day the following further exchange occurred:
Z: Hey Andrei, how’d you go working out a time?
M: I didn’t, its not a rush to me. It wasn’t a rush to you to compensate me for tripod you lost, and you lied to me that man reimbursement will happen the week I sent you a receipt
Z: You don’t think we’ve absolutely gone above and beyond for you, to which you’ve benefited a lot?
You get that workers comp isn’t like pulling an insurance job on your car yeah?M: No you greatly benefited yourself with misclassified caretaker award, and unpaid breaks and induction training and typical corporate tricks
Z: Lol what’s the caretaker award?
Feel free to go to fair workM: Yeah I will. Not lol
Your keys will be returned, don’t worry about it. I don’t travel rydalmere often but sometimes” (15 December Message)
Mr Zammitt’s evidence was that he said “not at this point” in the 15 December Message to emphasise that the return of the keys was not a termination. His further evidence was he was worried about Mr Melster’s mental health and was hoping that things “would come around at a later date” and “was just trying to wait”. I understand this to mean that he was hoping that the relationship between Mr Melster and the Respondent would improve and that Mr Melster would return to work.
On 17 December 2021 Mr Zammitt again messaged Mr Melster about returning the H-D keys. That exchange was as follows:
“Z: Hey Andrei, are you able to stop in today?
M: I’ll be travelling on Monday
It will be left on the desk along with best pass and maskZ: You won’t be able to secure it inside, we can arrange a time for Monday
M: Around 2pm
Z: Ok sure”
On 20 December 2021 at 11.29 am Mr Melster sent the following message to Mr Zammitt:
“M: I lodged a fair work report today. Delivering keys to you before I have been terminated would be work and you would need to schedule and pay for one hour of my time to do this.
Z: Thanks Andrei, see you at 2
M: Ok”
Mr Melster returned the H-D keys on 20 December 2021 to Mr Zammit who was working at the H-D site at the time. Mr Zammitt’s evidence was that when Mr Melster returned the keys he expressly told Mr Melster that his employment with the Respondent had not been terminated (20 December Conversation).
Mr Melster denies that the 10 December Call occurred. He denies the 20 December Conversation. His evidence was that on 20 December 2021 he returned the keys, a vest, a face mask and a media pass and advised Mr Zammitt where his graphics tablet had been left. He says he was there less than one minute and there was no discussion as to whether he had been dismissed or not.[11]
For the reasons that follow I prefer the evidence of Mr Zammitt as to the 19 November Call, the 10 December Call and the 20 December Conversation. Firstly, I consider Mr Zammit to be a credible witness. He did not understand that the matter was listed for hearing on 9 August 2021 and consequently his evidence was entirely unprepared and, in my view, unfiltered and uncontrived. Conversely, I found Mr Melter’s evidence on these points to be somewhat contrived and strained. Secondly, I find it implausible that Mr Zammitt contrived each of the 19 November Call, the 10 December Call and the 20 December Conversation and all of their contents. Thirdly, the 19 November Call is said to have occurred on the day (or possibly the day after) the parties were advised that Mr Melster’s workers compensation claim had been rejected. Mr Melster’s evidence at hearing is that he is appealing that decision. He is therefore, at the least, dissatisfied with this outcome. I consider Mr Zammitt’s evidence as to the 19 November Call to be consistent with this. Fourthly, I consider the 15 December Message supports Mr Zammitt’s evidence as to the 10 December Call and the 20 December Conversation. The message of 15 December 2021 starts with “Hey Andrei, could you bring the keys back today please”. I consider this consistent with some prior discussion regarding the keys having occurred. I do not consider a message in this form would have been sent without more or absent some prior discussion regarding the return of the keys. Further, in both the 15 December Message and the 20 December Conversation Mr Melster raises the issue of termination. The 20 December Message was sent at 11.29am and Mr Melster returned the keys at 2pm that day. Accordingly, in those circumstances I consider it entirely credible that there was a conversation as contended by Mr Zammitt confirming that Mr Melster’s employment had not been terminated.
It is uncontested that communication between the parties regarding working arrangements for H-D occurred via Facebook messenger. It also appears uncontested that there are numerous chats in respect of different projects and clients on foot at any one time. It is agreed that on 27 December 2021 Mr Zammitt removed Mr Melster from the Facebook group for H-D.[12] Mr Melster’s evidence is that every other employee working on the H-D site remained added to the group. Mr Zammitt’s evidence was that a different chat was created at this time and the previous chat dissolved due to H-D’s QR Code scanning requirements changing. His further evidence was that the chat was dissolved at that time and accordingly every other employee was also removed from the chat. There is no probative evidence before the Commission to establish whether or not all employees, or just Mr Melster, were removed from the group on 27 December 2021. It appears that this information is not stored by Facebook or accessible at a later time. However, I accept Mr Zammit’s evidence as to the reason for the dissolution of the group and relevant chat and therefore consider it more likely than not that all employees were removed at that time. I find accordingly.
It is also uncontested that Mr Melster was later removed from the Sling application, which is the application used by the Respondent for time sheets and scheduling and the Click Up application which is used by the Respondent to manage its workspace digitally. Mr Zammitt’s evidence was that Mr Melster was removed from these applications around 13 January 2021 as Mr Melster was no longer using them and they are paid for by the Respondent per user. It was therefore an unnecessary expense within the business given the period of Mr Melster’s absence.
Ms Sandra Phelan, the Bookkeeper for the Respondent, gave evidence that she had been advised of Mr Melster’s workers compensation claim by Mr Zammit in August 2021 when the claim was made and told that Mr Melster would be absent from work until further notice. Her evidence was that Mr Melster remains an employee of the Respondent and was still “on the books” and the Respondent was waiting for Mr Melster to tell them when he would return to work.
I address Mr Zammitt and Mr Phelan evidence as to these matters below.
Consideration
Respondent’s submissions
The Respondent submits that Mr Meltser has not been dismissed. It says that he is still “on the books.” It submits that Mr Melster did not communicate with it regarding any return to work following his workers compensation claim being rejected and that it was the Respondent’s understanding based on the last CoC provided that Mr Melster was unable to perform the Role as he was unable to work night shifts.
Applicant’s submissions
Mr Melster submits that his removal from the H-D Facebook group on 27 December 2021, following his return of the H-D keys, brought about the termination of his employment. At hearing Mr Melster submitted that his removal from the Sling and Click Up applications further evidences that the Respondent terminated his employment on 27 December 2021. Mr Melster further submits that on 25 August 2021 Mr Zammitt “attempted to coerce me into leaving employment voluntarily after having lodged a workers compensation claim.” He relies upon a message from Mr Zammitt on 25 August 2021 in which he says Mr Zammitt said “it might not be worth having and downs weeks apart”[13] (25 August Message). He submits that the Respondent chose not to offer him day time work “in order to carry out my eventual removal from the company as reprisal for filing a workers compensation” and relies upon a message from Mr Zammitt in which he says Mr Zammitt says “You don’t think we’ve absolutely gone above and beyond for you, to which you have benefited a lot? You get that worker’s comp isn’t like pulling an insurance job on your car yeah?” At hearing Mr Melster submitted that Mr Zammitt had “clear motivation” to terminate his employment submitting that Mr Zammitt did not consider his sleep disorder genuine.
Was Mr Melster dismissed?
Section 386(1) of the Act is set out above.
In order for an employee to have been dismissed for the purposes of section 386(1) the employee’s employment must have been terminated at the initiative of the employer. In Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 the Full Bench found that termination at the initiative of the employer in section 386(1)(a) did not, on its ordinary meaning, refer to termination of a contract of employment. Rather, the Full Bench found that a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.[14] In NSW Trains v Mr Todd James[2022] FWCFB 55 the Full Bench, in the context of a case concerning demotion, found that the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.[15]
As has been observed in other cases, it is often difficult to determine when the employment of a casual employee has terminated. It is also the case that the continued failure of an employer over a sustained period of time to offer employment to a casual employee will, eventually, bring about the termination of the employee’s employment.
I consider that, ordinarily, the removal of Mr Melster from the H-D Facebook group on 27 December 2021, coupled with the earlier return of the H-D keys would, as submitted by Mr Melster, be strongly suggestive that the employment relationship between the parties had been brought to an end at the initiative of the employer. However, in the particular circumstances of Mr Melster’s employment, I do not consider that his employment with the Respondent was, in fact, terminated on 27 December 2021 as he contends. Firstly, I accept Mr Zammit’s evidence as to the reasons for Mr Melster’s removal from the H-D Facebook group. The evidence before the Commission is that a number of groups and chats were in existence at any one time, were routinely used for a range of work communications and that the situation in relation to these was fluid and subject to change and variation. The evidence is that currently there are 20 chats in use. Further, the requirements of, and obligations upon, businesses due to the pandemic were fluid and subject to variation. Additionally, although Mr Melster had capacity to perform work, he had been certified as unable to perform the Role and had not performed any work for the Respondent at all, and most specifically had not performed the Role, since 23 August 2021. The Facebook group was in relation to Mr Melster’s performance of the Role. Secondly, I also accept Mr Zammitt’s evidence as to the reason that Mr Melster was requested to return the keys to H-D’s premises. Further, in circumstances where Mr Melster had been absent from work since 23 August 2021 and had no capacity to perform the Role, noting that the first CoC provided stated that Mr Melster “cannot go back to old night shift job” I consider it entirely unsurprising that the keys to a third party’s premises where the Role was carried out were required to be returned and were not to continue to be retained by Mr Melster.
However, I consider that by removing Mr Melster from the ClickUp and the Sling applications on 13 January 2022 the Respondent did bring about the termination of the employment relationship between it and Mr Melster. Firstly, the final CoC provided on 15 November 2021 expired on 15 December 2021. Whilst it continues to provide a diagnosis of “sleep disorder secondary to prolonged night shift work” and that Mr Melster is “unable to do current job” page 2 of the CoC provides that Mr Melster has capacity to work 7 hours a day for 5 days during normal office hours. It is uncontested that the Respondent did not offer Mr Melster work during the day. Mr Zammitt’s evidence was that he was unaware that Mr Melster had any capacity for work and that his understanding was, consistent with the 19 November Call, that Mr Melster did not want further work from the Respondent and that Mr Melster had not contacted him to say that he was fit and able to return to work. I reject that evidence. In light of the express provisions of the CoC I am unable to see how Mr Zammitt could not have been unaware that Mr Melster had some capacity for work. Further, it is clear from Mr Melster’s contract, and also from the other one-off engagements undertaken by Mr Melster for the Respondent, that Mr Melster was not engaged purely to perform the Role but was available to and had undertaken other roles for the Respondent. Additionally, the obligation is on the employer to comply with the terms of a CoC and not to wait for the employee to make contact regarding a desire to return to work. Secondly, as set out above, the Sling application is used by the Respondent for time sheets and scheduling and the Click Up Application is used by the Respondent to manage its workspace digitally. Without access to these applications Mr Melster could not be notified of work scheduled to be undertaken or access timesheets to enable work undertaken to be recorded (and ultimately paid). In those circumstances, notwithstanding Ms Phelan’s belief that Mr Melster is still “on the books”, I am unable to see how that could be so. Without access to the applications Mr Melster is not able to participate in any further employment with the Respondent and I consider that no other conclusion can be reached than that the Respondent’s action in removing him from these applications has brought the employment relationship between the parties to an end.
Accordingly, I consider Mr Melster’s employment with the Respondent was terminated at the Respondent’s initiative on 13 January 2022.
In light of the finding set out above, it is not necessary that I consider Mr Melster’s contention that Mr Zammitt sought to coerce him into leaving his employment, that the Respondent’s failure to offer day work to Mr Melster was designed to remove Mr Melster from his employment as reprisal for making a workers compensation claim or Mr Melster’s contentions based on his contract of employment. However, on the evidence before the Commission I do not consider any of these assertions could be made out.
Conclusion
I find that Mr Meltser was not dismissed on 27 December 2021 as he contends. However, I find he was dismissed, within the meaning of 386 of the Act, on 13 January 2022. I find therefore, that at the time at which Mr Melster made the Application he was a person who has been dismissed for the purposes of section 365 of the Act.
Disposition
The Respondent’s jurisdictional objection is dismissed.
The matter will be referred for conciliation in accordance with section 368 of the Act.
DEPUTY PRESIDENT
Appearances:
A Melster for the Applicant
A Zammitt for the Respondent
Hearing details:
Melbourne
9 August 2022
By Microsoft Teams Video
Final written submissions:
Respondent: 29 June 2022
Applicant:14 July 2022
[1] Witness statement of Alec Zammitt at [10], Court Book (CB) pg 64
[2] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
[3] Form F8, q.3.1, CB pg 10
[4] CB pg 57
[5] Ibid 60
[6] Ibid 68
[7] Witness statement of Alec Zammitt at [4], CB pg 64
[8] Ibid at [5], CB pg 64
[9] Ibid
[10] CB pg 30-31
[11] Applicant’s witness statement, CB pg 39
[12] Form F8, q.3.1, CB pg 10
[13] Ibid
[14] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [50]
[15] NSW Trains v Mr Todd James[2022] FWCFB 55 at [45]
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