Andrew Claffey v Casabene Group
[2018] FWC 1116
•23 FEBRUARY 2018
| [2018] FWC 1116 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Claffey
v
Casabene Group
(U2017/9038)
COMMISSIONER CRIBB | MELBOURNE, 23 FEBRUARY 2018 |
Application for an unfair dismissal remedy – jurisdiction – whether employee resigned or was dismissed.
[1] Mr Andrew Claffey (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application is in relation to the alleged termination of his employment by the Casabene Group (the company, the Respondent). The Respondent advised of a jurisdictional objection, on 12 September 2017, which was that the Applicant was not dismissed as the Applicant had resigned.
[2] A determinative conference was held to deal with the Respondent’s objection and the substantive application on 21 November 2017. Neither the Applicant nor the Respondent were represented. Mr Claffey and Ms Lisa Taylor (Mr Claffey’s sister) gave evidence as did Mr Marty Vaina, General Manager, Ms Natalie Mark, Operations Supervisor and Mr Pip Casabene, Director, for the Respondent. Evidence was also given by all of the witnesses in relation to whether the termination was harsh, unjust or unreasonable.
[3] This decision deals with the Respondent’s jurisdictional objection in the first instance. If required, the decision will then consider whether the dismissal was unfair.
Legislative framework
[4] Section 385 of the 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[5] Section 386(1) sets out the meaning of dismissed as follows:
“(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.”
Evidence
[6] Key to determining the company’s jurisdictional objection, is what occurred on the night of Tuesday 25 July 2017 and then on 26 July, 27 July and 28 July 2017. There was no agreement about what took place during this period, particularly in relation to Tuesday night, 25 July 2017. Mr Vaina gave one account of these events whilst Mr Claffey and Ms Taylor provided different ones.
Mr Vaina
[7] It was Mr Vaina’s evidence that:
• Ms Mark had also called Mr Claffey. 1
There was no message bank on Mr Claffey’s phone so he could not leave a message. 2
Tuesday 25 July 2017
• He knew that Mr Claffey had issues with his hands. 3
• On 25 July 2017, Mr Claffey told him that he was going to go and see a doctor. 4
• The company was told that Mr Claffey had a medical certificate but there were no details regarding how long Mr Claffey would be off. Between 25 July and 28 July 2017, the medical certificate wasn’t actually given to the company. 5
• There was no communication from Mr Claffey about him being unwell. 6
• On the night of 25 July 2017 at approximately 6.00pm, he spoke to Mr Claffey who stated that he was on his way out the door and that he would be coming into work. This was said to have been his last conversation with Mr Claffey. 7
• At 9.48pm on 25 July 2017, he sent a text to Mr Claffey saying “Don’t forget to call me”. 8
• Around 10.00pm, he had rung Mr Claffey and spoken to him. The reason for ringing was because he had not seen any movement from the company truck in the depot and Mr Claffey was supposed to be on his way in, which he had assumed would have been by 7.30pm/8.00pm. 9 Later in his evidence, Mr Vaina stated that, when he had phoned Mr Claffey, his phone had rung out and so he had sent him text messages. There was no response from Mr Claffey.10
• He sent a further text to Mr Claffey at 11.20pm saying that he had been told that Mr Claffey was coming in on dayshift; all good; and that he would see him tomorrow. He had sent the text because he had rung the other driver who was going to work the afternoon shift. Mr Vaina thought that Mr Claffey and this driver must have spoken as the other driver had rung him and told him what was going to happen. Mr Vaina recalled being happy with that and, as far as he knew, he would see Mr Claffey to take over in the morning. 11
• Mr Claffey’s absence from work was not related to the visit to the doctor because he had spoken to Mr Claffey that night and he said that he was coming to work and that he was fine to work. 12
Wednesday 26 July 2017
• Prior to texting Mr Claffey at 7.55am, he had sent a text to Ms Taylor (at 6.24am) asking if Mr Claffey was awake. There was no response. 13
• At 7.55am, he sent a text to Mr Claffey asking him if he was coming in or not as he was supposed to be on site at 8.00am. This was because Mr Claffey had not turned up at work. 14
• He made numerous phone calls and sent numerous text messages throughout the day to Mr Claffey without a response. 15
• He had received a response from his text to Ms Taylor at 2.45pm explaining that she was not at home and that she had only just got phone reception. Mr Vaina had responded with “It’s okay Don’t bother” with a further response from Ms Taylor indicating that she was in Echuca. 16
• With respect to his text message to Ms Taylor “It’s okay Don’t bother”, he was saying don’t bother if you’re not home. It was not saying don’t bother trying to reach him. Ms Taylor was not home so she couldn’t wake Mr Claffey up. Mr Vaina explained that prior to sending this text, he had received the text from Ms Taylor saying that she was not at home and had only got just got phone reception. It was recounted that he had assumed that Ms Taylor was not at home and so he had said well don’t bother in response to Ms Taylor’s text saying that she was not at home. 17
• There were no further texts between himself and Mr Claffey and himself and Ms Taylor following the afternoon text exchange between himself and Ms Taylor. 18
• He had also made phone calls but with no response. 19 There were at least a dozen calls made to Mr Claffey on 26 July 2017.20
• There were no telephone calls following his text to Mr Claffey at 7.55am but there may have been one or two unanswered phone calls. After that, it was radio silence. 21
• Because of Mr Claffey’s inconsistency with attending work on time, he formed the view that Mr Claffey would not return to work. 22
• Mr Vaina stated that he did not have any conversations with Ms Taylor. 23
Thursday 27 July 2017
• There was radio silence on 27 July 2017 as well. 24
• Because he felt uncomfortable about Mr Claffey’s reliability, he formed the view that Mr Claffey would not return to work. Therefore, no further contact was attempted with Mr Claffey on 28 July 2017. 25
• He had not received any return call from Mr Claffey or any family member about his absence. 26
Friday 28 July 2017
• At 4.26pm, he received a text message from Mr Claffey which said that he took it that he did not have a job and that he will bring the iPad, phone etc. to Mr Vaina now, or at the yard or he would leave it in the office. Mr Claffey had also advised that he would return the fuel card and give all company items to a colleague working on another site so he would not hold Mr Vaina up. 27 Mr Vaina had responded by saying that he needed the fuel card and the Winslow key.28
• His understanding from Mr Claffey’s message was that Mr Claffey was telling him that he had resigned. This was on the basis of Mr Claffey’s previous unreliability and without having heard from him for three days and without having received a medical certificate. 29
• He explained that the work emails had stopped because, if the company had not heard from an employee, the company was not going to supply company information about where customers’ equipment was. It was stated that, if the company had wanted to stop Mr Claffey’s emails completely or phone calls, the company would have disconnected or barred his services. The company had decided that, as they hadn’t heard from Mr Claffey, he should not know where customers’ or the company’s property was. 30 Mr Vaina explained that, when employees go on leave, they don’t get work emails and that this was the normal system which the drivers would know.31
Mr Claffey
[8] Mr Claffey gave evidence that:
Tuesday 25 July 2017
• He had problems with his hands and so he had left work about 12.30/1.00pm to go to the doctor. 32 Mr Claffey stated that Mr Vaina knew that he had left work and that he had problems with his hands. This was because, when he had brought the truck back, Mr Vaina was in the yard. Mr Claffey stated that he had told Mr Vaina that he had to go and get his hands seen to as they were killing him. Mr Claffey had then left work and gone to the doctor.33
• After the doctors’ he had gone home, taken some painkillers and gone to sleep. He had worked through from 4 o’clock the day before until 12.30/1.00pm the next day (approximate 19 - 20 hours straight). 34
• He had a medical certificate from the doctor for that night but he did not give it to the company. 35
• He did not remember talking to the other driver. 36
• His sister had spoken to Mr Vaina that night. 37
Wednesday 26 July 2017
• He only received one call and one text message from Mr Vaina on 26 July 2017. 38
He could not recall whether or not he had asked his sister to tell Mr Vaina that he would be in at 6.00am the following morning. This was because he had taken a few (strong) painkillers as he was in a lot of pain and so he did not really remember. 39
He obtained a medical certificate from the doctor but he did not give it to the company because of what was happening in between. 40
• He was going to go back to work the next night (26 July 2017) but he received a message which asked whether he was coming in or not. Mr Claffey said that the machine was supposed to be on site at 8 o’clock. This was the only text he received apart from the missed call. 41
• He received a call at 7.55am on 26 July 2017. He did not respond because he was still asleep. 42 He had then spoken to his sister who showed him the message which she had received from Mr Vaina which said that it was okay and don’t bother. Mr Claffey said that the ‘don’t bother’ meant not to bother ringing him (Mr Vaina). He knew straight away that he didn’t have a job anymore. He wasn’t receiving any emails from work. The emails had stopped on Wednesday 26 July 2017.43
Thursday 28 July 2017
• The next day (Friday, 28 July 2017), he had texted Mr Vaina at 4.26pm saying “I take it I don’t have a job” and that he would bring the company’s iPad etc. 44
• Mr Vaina had responded by saying yes and make sure you bring back the Winslow keys the fuel cards. 45 The request for the fuel cards and the Winslow key confirmed for him that he did not have a job.46
• Mr Claffey explained that he had not heard anything from the company following the text message on 26 July asking if he was coming in. There had been no phone calls, no emails or text messages. That was why he had taken it that he did not have a job. 47
[9] It was also Mr Claffey’s evidence that, one day, when he could not move his hands, he had gone and seen Ms Marks and she had sent him a photo of some gloves (hand warmers) in June 2017. Mr Claffey explained that it had been an ongoing thing with his hands and that there was a text message from Ms Marks about having a look at hand warmers. It was stated that Mr Vaina was also aware of the ongoing issues with his hands. 48
[10] Mr Claffey also stated that, when the company paid him one week in lieu of notice, he took that as having been sacked. This was because he understood that employers only paid in lieu of notice if they had terminated somebody. 49
Ms Taylor
Tuesday 25 July 2017
[11] Ms Taylor gave evidence that:
• Mr Claffey had asked her to get him up at 3 o’clock on 25 July 2017 as he needed to ring Mr Vaina. 50
• She tried to get Mr Claffey up but he wouldn’t wake up. At the time, she did not realise that he had taken pain killers. 51
• She had texted Mr Vaina around 5.00pm asking if Mr Claffey was meant to be at work and had said that Mr Claffey had asked her to give him a call. Ms Taylor stated that she had said that Mr Claffey had asked her to wake him up but she couldn’t. 52
At 5.20pm, she received a text from Mr Vaina saying that he needed Mr Claffey in that night and asking how Mr Claffey was feeling. 53
• At 10.53pm she got a message from Mr Vaina asking if Mr Claffey had left yet as he was due in the yard an hour ago but was not there. 54
• There were two telephone calls between herself and Mr Vaina that night (25 July 2017). The first one was probably just before 6.00pm and the second one was probably at 11.00pm. It was recounted that, when she rang Mr Vaina, she had told him that Mr Claffey had been to the doctor and had a medical certificate and that Mr Claffey had an appointment with the hand specialist. 55 In addition, she had said to Mr Vaina that she had been told to say that Mr Claffey would be in at 6 o’clock in the morning.56
• It was recounted that Mr Claffey must have still been asleep and so did not get up in the morning. She had had to leave and so was not at home as she had to go to Echuca. 57 She had responded to a text from Mr Vaina saying that she was not home and that she had only just got reception. She had then received a message from Mr Vaina saying “It’s ok Don’t bother”.58 Ms Taylor recalled that she had texted back saying that she was sorry and that she was in Echuca.59
• She had mentioned to Mr Vaina that there was a medical certificate. 60
Ms Mark
[12] It was Ms Mark’s evidence that:
• She made one or two calls but did not speak to Mr Claffey. 61
• She confirmed that she had sent Mr Claffey a text message inviting him to have a look at hand warmers. Ms Mark recalled that she had spoken to Mr Claffey in the yard after a night shift in the middle of winter and he had said that his hands were very cold and that they were not working very well. Ms Mark had thought that the hand warming gloves might help his cold hands. 62
• Because she works closely with Mr Vaina she knew, on 26 July 2017, that there was a problem with Mr Claffey and that the company was not sure if he was coming to work. 63
• The following day (27 July 2017), she knew that Mr Claffey was meant to be at work but he did not show up again. She also knew that Mr Vaina was trying to make contact with him but had had no success. 64
• On 28 July, the company had still not heard from Mr Claffey and she thought he was not coming back because there had been no communication with him. On the previous occasions he had not worked, Mr Claffey would generally let the company know that he was not coming in. 65
• She had no contact with Mr Claffey until she received a text message from him on 9 August 2017 asking whether it was worth ringing Mr Vaina to get his job back. Ms Mark had replied that it was and that she would have him back and that he needed to say that he would be reliable and communicate with either herself or Marty. 66
• Mr Claffey’s text confirmed for Ms Mark that Mr Claffey had resigned and that he wanted his job back. 67
• She confirmed that if an employee was not at work because they were sick or on annual leave, the company would not send the employee information about the work. 68
Mr Casabene
[13] Mr Casabene gave evidence that:
• Mr Claffey was a good worker but unreliable. 69
• He knew that Mr Claffey did not attend work on 25 July 2017 nor on 26 and 27 July 2017. He knew that Mr Vaina had been trying to make contact with Mr Claffey regularly with no success. 70
• During the determinative conference, Mr Casabene clarified that it was 26 and 27 July 2017 when Mr Claffey was not at work. 71
• On 28 July 2017, he was told that Mr Claffey had sent a message that he had resigned and that he was returning the keys, phone and iPad. On 9 August 2017, he was told that Mr Claffey had made contact with the company but he did not know the details. 72
• There was nothing that the company had done that had forced Mr Claffey to resign. 73
The company could not schedule jobs for Mr Claffey into the system as the customers relied on the company getting equipment to site on time. 74
• Employees were allocated the jobs by email the previous day. If an employee could not attend a job, the employee would email back or make a phone call and say that they were sick. 75
SUBMISSIONS
[14] Mr Casabene stated that the company did not know if Mr Claffey was coming to work and so the company were not going to schedule jobs for him until he made contact and said that he was fine to return to work. However, he stated that the company could not allocate work to Mr Claffey if he did not contact the company and the company did not contact him until Mr Claffey finally made contact. 76
[15] It was also submitted that, if Mr Claffey could ring another driver, he could have rung his boss and told him what was happening. 77
[16] The company denied sacking Mr Claffey and stated that he should have faxed in his doctor’s certificate or told somebody that he couldn’t come into work because his hands were sore. It was stated that no one had ever been sacked when they’ve been sick because it is against the law. 78 Mr Casabene stated that, as far as he was concerned, Mr Claffey had resigned and was not sacked.79
[17] The company submitted that, after the conversations on 25 July 2017, until the text message from the Applicant, on 28 July 2017 at 4.26pm, there was no communication from Mr Claffey about being unwell. It was stated that the business was well aware of its obligations regarding personal leave and that the company did not initiate Mr Claffey’s dismissal. 80
[18] In support of its submissions, the company referred the Commission to a number of authorities. These were Englebrecht v BMI Group Pty Ltd T/A BCC Crushing 81 and Bruce v Fingal Glen Pty Ltd (in liq)82 (Fingal Glen). The first authority was said to be authority for the contention that Mr Claffey should have texted or rung to retract his resignation and that the reason he did not do this was because he had resigned. It was argued that, if there had been any uncertainty about what was meant by the beginning of the Applicant’s text (I take it I don’t have a job), the second group of words regarding returning the company’s property provided insight into what the beginning of the text meant. The company contended that there was no uncertainty and that Mr Claffey initiated the ending of his employment.83
[19] It was further argued by the company that confirmation that the company did not initiate the Applicant’s dismissal was provided by the text message, sent to Ms Mark by Mr Claffey, on 9 August 2017. It was stated that, in this text, Mr Claffey wanted to know if he should ring up and get his old job back. The company argued that no reasonable person would ask for their job back if they were terminated but that a reasonable person would ask for their job back if they had resigned. It was stated that this text message further highlighted the fact that the Applicant was not dismissed.
[20] With respect to the constructive dismissal argument, it was submitted by the company that Mr Claffey was not forced to resign. Further, it was stated that the company was never aware of any issues relating to conduct or to the job itself that would have forced Mr Claffey to resign. 84 The Commission was referred to the Fingal Glen decision in support of this argument.85
[21] The Applicant argued that he was away sick and had a medical certificate and that the company knew that. It was alleged by Mr Claffey that the company had terminated him because his WorkCover claim (for his hands) was pending. 86
PHONE RECORDS
[22] At the conclusion of the determinative conference, it was agreed that each party would provide the Commission, and the other party, with the relevant phone records. Mr Vaina emailed the phone records to the Commission on 23 November 2017 and to the Applicant on 24 November 2017. 87 Ms Taylor provided the itemised bill from her phone to the Commission on 24 November 2017 and was then requested to send it to the Respondent also.88 In the covering email, Ms Taylor stated that the phone records showed that she had called Mr Vaina twice, once at 17.18pm and the second time at 22.58pm (for a short period of time). In relation to the first call, Ms Taylor thought that Mr Vaina had missed the call but that he must have returned her call because she remembered speaking about the doctors to him.89
[23] On 28 November 2017, Mr Vaina requested that all of the documents be certified as either an original or a copy of an original. 90 Ms Taylor forwarded a Statutory Declaration, dated 29 November 2017, attaching certified copies of her phone records together with certified copies of two letters from Optus.91 In Ms Taylor’s covering email, she indicated that she was mistaken and that she did ring Mr Vaina but he did not answer and then he returned her call at 5.26pm and they spoke for 2.03 minutes. This was said to be the conversation when she told Mr Vaina that Mr Claffey had a medical certificate.92
[24] Mr Vaina provided his certified phone records on 8 December 2017. 93 It is noted that these phone records contained pages in addition to the records that were provided on 23 November 2017. These are pages 143 and 145 (Mobile Originated SMS).94
[25] In his covering email of 8 December 2017 Mr Vaina disputed the legitimacy of the original copy of Ms Taylor’s Optus phone records. This was on the basis of the different placement of the Optus logo on the two letters from Optus. In addition, it was stated that he acknowledged receiving two text messages from Ms Taylor - one at 1722 hours on 25 July 2017 and the second at 1445 hours on 26 July 2017. Mr Vaina indicated that these did not appear on Ms Taylor’s phone records. 95 It was submitted that these matters needed to be addressed as there was ambiguity related to the credibility of Ms Taylor’s phone records.96
[26] Ms Taylor responded by reporting on her enquiries with Optus in Melton about how she could prove that the email she received was true and correct. She also explained the reasons for the different placements of the logo. With respect to the SMS messages not appearing on the phone records, Ms Taylor explained that this was because both herself and Mr Vaina had iPhones and both used iMessages which is a message service provided by Apple which uses data. 97 Ms Taylor also made the observation that there were no SMS messages being sent to either herself or Mr Claffey recorded in Mr Vaina’s phone records as they all used iPhones.98
[27] I have considered the issues raised by the company together with the responses from Ms Taylor which include a signed Statutory Declaration and the certification that the phone records and the two Optus documents are certified copies of the original. I am satisfied that the documentation provided by Ms Taylor is legitimate.
[28] Consideration of the phone records provided by Ms Taylor and Mr Vaina, together with the text messages previously provided 99, indicates the following:
Tuesday 25 July 2017
• At 5.18pm, Ms Taylor made a voice call (2 seconds) to Mr Vaina. 100
• At 5.22pm, Ms Taylor texted Mr Vaina asking if he needed Mr Claffey in tonight and that she had been trying to get Mr Claffey up from 3 to ring him. 101
• Mr Vaina texted back that he did and how was Mr Claffey feeling. 102
• At 5.26pm, Mr Vaina called Ms Taylor and the call lasted 2 minutes and 3 seconds. 103
• At 8.51pm, Mr Vaina called Mr Claffey. The call lasted 44 seconds. 104
• At 9.48pm, Mr Vaina texted Mr Claffey telling him not to forget to call him. 105
• At 9.58pm and 10.17pm Mr Vaina called Mr Claffey. Each call lasted three seconds. 106
• At 10.37pm and 10.52pm, Mr Vaina called Mr Claffey. Each call lasted four seconds. 107
• At 10.53pm, Mr Vaina sent a text to Ms Taylor asking if Mr Claffey had left yet and that Mr Claffey had told him that he would be in the yard an hour ago. 108
• At 10.57pm, Mr Vaina called Mr Claffey. The call lasted three seconds. 109
• At 10.58pm, Ms Taylor made a voice call (27 seconds) to Mr Vaina. 110
• At 11.20pm, Mr Vaina texted Mr Claffey and said that Roy had told him that he (Mr Claffey) was coming in on day shift and all good and that he would see him in the morning. 111
Wednesday 26 July 2017
• At 6.11am, Mr Vaina called Mr Claffey. The call lasted three seconds. 112
• At 6.24am, Mr Vaina texted Ms Taylor asking if Mr Claffey was awake. 113
• At 6.40am, Mr Vaina called Mr Claffey. The call lasted five seconds. 114
• At 6.54am, Mr Vaina called Mr Claffey. The call lasted three seconds. 115
• At 7.29am, 7.43am and 7.54am, Mr Vaina called Mr Caffey. The calls lasted four seconds. 116
• At 7.55am, Mr Vaina texted Mr Claffey and asked him whether he was coming in or not and that he was supposed to be on site at 8.00am. 117
• At 8.03am, Mr Vaina called Mr Claffey. The call lasted three seconds. 118
• At 2.45pm, Ms Taylor texted Mr Vaina that she was not home and that she had only just got phone reception. 119
• Mr Vaina had replied it’s okay Don’t bother. 120
• Ms Taylor responded that she was in Echuca. 121
Thursday 27 July 2017
[29] There is no evidence of any telephone or text contact between Mr Claffey, Ms Taylor and Mr Vaina on 27 July 2017.
Friday 28 July 2017
• At 4.26pm, Mr Claffey texted Mr Vaina saying that I take it I don’t have a job and that he would bring the company’s iPad etc. to Mr Vaina now at the yard or he would leave it with the office. 122
• Mr Vaina responded that he also needed the fuel cards and Winslow key. 123
• Mr Claffey texted back that that was fine and that he was going to bring them with him anyway. 124
Considerations
[30] It was submitted by the Respondent that Mr Claffey had resigned and so was not dismissed by the Respondent. The company contended that Mr Claffey’s text on Friday, 28 July 2017 was Mr Claffey’s resignation. This was said to follow three days of absence from work with no contact by Mr Claffey. It was Mr Vaina’s evidence that, after numerous phone calls and text to Mr Claffey, on 26 July 2017, with no response, he had formed the view that Mr Claffey would not return to work. This was because of Mr Claffey’s prior inconsistency in attending work on time. Mr Vaina also explained that there were no further phone calls to Mr Claffey, by the company, following his text to Mr Claffey at 7.55am on 26 July 2017.
[31] On the other hand, Mr Claffey contended that he was dismissed by the company and that he had not resigned. It was Mr Claffey’s evidence that, because his sister had received a text from Mr Vaina saying not to bother and he had stopped receiving emails from the company, he understood that he had been dismissed. Mr Claffey argued that these were the reasons why he had texted Mr Vaina on 28 July 2017 saying that he took it that he didn’t have a job. Mr Vaina’s response (that he needed the fuel cards and Winslow key) confirmed for Mr Claffey that he had been dismissed.
[32] The telephone records support Ms Taylor’s evidence that she spoke to Mr Vaina on the night of 25 July 2017. It is accepted that Ms Taylor told Mr Vaina that Mr Claffey had been to the doctor, that he had an appointment with the hand specialist, that he had a medical certificate and that she had been told to say (to Mr Vaina) that Mr Claffey would be in at 6.00am in the morning.
[33] The telephone records also support Mr Vaina’s contention that he spoke to Mr Claffey on the night of Tuesday 25 July 2017. Mr Vaina’s evidence was that, during the conversation, Mr Claffey had said yes, he was on his way in and that he was walking out the door. 125 Mr Claffey has explained that he has no memory of speaking with Mr Vaina. In addition, Ms Taylor’s contention that she told Mr Vaina that Mr Claffey would be in at 6.00am in the morning (and not on the night of Tuesday, 25 July 2017) was confirmed by Mr Vaina’s evidence. Mr Vaina had stated that he had spoken to the other driver who had advised that in essence he and Mr Claffey had done a shift swap. The evidence is also that Mr Vaina was content with this arrangement.
[34] Therefore, I am satisfied that the company was advised, on the night of Tuesday, 25 July 2017, that Mr Claffey had been to the doctor, that he had a medical certificate, that he was going to a hand specialist and that he would be in at 6.00am in the morning. The company also knew, and was content, that the other driver would do Mr Claffey’s shift on the Tuesday night and that Mr Claffey would be in the following morning at 6.00am.
[35] It was common ground that Mr Claffey did not attend work the next morning (Wednesday 26 July 2017). The phone records show that, between 6.11am and 8.03am, Mr Vaina called Mr Claffey seven times and texted both Ms Taylor and Mr Claffey once. Apart from an exchange of texts between Mr Vaina and Ms Taylor, mid-afternoon, there were no further attempts to contact Mr Claffey by the company. Mr Vaina’s text to Ms Taylor was “it’s okay Don’t bother”. 126 Mr Claffey did not try and contact the company on 26 July 2017. It was Mr Vaina’s evidence that he had stopped trying to get in touch with Mr Claffey after the morning telephone calls because he had formed the view that Mr Claffey was not returning to work. This was on the basis of Mr Claffey’s previous inconsistencies in attending work.
[36] There was radio silence between the parties on Thursday 27 July 2017.
[37] By Friday 28 July 2017, Mr Claffey had been absent from work for nearly three days. Late afternoon on Friday, 28 July 2017, Mr Claffey sent the company a text saying that he took it that he didn’t have a job and that he would bring the company’s iPad etc. in. Mr Vaina had responded by saying to also bring the fuel cards and the Winslow key.
[38] It was the Respondent’s submissions that this text from Mr Claffey was Mr Claffey resigning. Mr Claffey’s evidence was that he believed that he had been dismissed because of Mr Vaina’s “it’s okay don’t bother” text on Wednesday, 26 July 2017 together with the fact that he had stopped receiving emails from the company and that there had been no attempts to contact him by the company following Mr Vaina’s text at 7.55am on Wednesday 26 July 2017.
[39] I have not been persuaded that the text from Mr Claffey on 28 July 2017 constituted a resignation by Mr Claffey, from the company. Rather, it was Mr Claffey saying to the company that he assumed that he no longer had a job. This was confirmed in Mr Claffey’s mind by Mr Vaina’s response. Mr Vaina’s response was that Mr Claffey was to also bring in the fuel cards and the Winslow key. By the nature of Mr Vaina’s response, it is my view that the company terminated Mr Claffey’s employment by responding to Mr Claffey’s email text in the way that it did. There does not appear to be any ambiguity in the company’s response.
[40] Therefore, I find that Mr Claffey did not resign on 28 July 2017 and that Mr Claffey was dismissed by the company on that date. Accordingly, the Respondent’s jurisdictional objection is dismissed. An order 127 dismissing the Respondent’s jurisdictional objection will be issued separately.
[41] With respect to the substantive application, it was agreed between the parties that, if it was determined that there was a dismissal at the initiative of the employer, the parties would provide written submissions in relation to whether Mr Claffey’s dismissal was harsh, unjust or unreasonable and also in relation to remedy. The Commission will be in contact with the parties in regard to the further progression of the matter.
Appearances:
A Claffey on his own behalf with L Taylor
M Vaina, P Casabene and N Mark from the Respondent
Determinative conference details:
2017.
Melbourne:
November 21.
<PR600598>
1 Transcript PN 176
2 Ibid PN 187
3 Ibid PN 722 - 725
4 Ibid PN 726 - 727
5 Ibid PN 367 - 370
6 Ibid PN 560 and 580
7 Ibid PN 562, 575 - 576, 595 - 596 and 713 - 714
8 Ibid PN 621 - 627 and 635 and Exhibit R2
9 Ibid PN 627 - 632 and 714
10 Ibid PN 714
11 Ibid PN 635 - 636, 655 - 658 and 715 and Exhibit R2
12 Ibid PN 728 - 729
13 Ibid PN 663 - 664 and Exhibit A1
14 Ibid PN 554, 659 - 662 and 665, Exhibit R1 and Exhibit R2
15 Ibid PN 716 and Exhibit R3
16 Ibid PN 667 - 671
17 Ibid PN 606 - 620
18 Ibid PN 671 - 672
19 Ibid PN 666
20 Ibid PN 178 - 185 and 191
21 Ibid PN 673 - 682
22 Ibid PN 717
23 Ibid PN 561 - 578, 595 - 598 and 639 - 653
24 Ibid PN554 and 683 - 684
25 Ibid PN 717 and 1108 - 1109
26 Ibid PN 717
27 Ibid PN 554 - 556, 685 - 686 and 718
28 Ibid PN 719
29 Ibid PN 1118 - 1121
30 Ibid PN 1125 - 1126
31 Ibid PN 1129 - 1135
32 Ibid PN 250 - 255
33 Ibid PN 256 - 274
34 Ibid PN 276 - 280, 733 - 735 and 824
35 Ibid PN 847 - 848
36 Ibid PN 820 and 833
37 Ibid PN 282 - 284 and 437
38 Ibid PN 189 - 190
39 Ibid PN 355 - 357 and 437
40 Ibid PN 361 - 364
41 Ibid PN 374 - 376
42 Ibid PN 376 - 380
43 Ibid PN 382 - 416 and 1082 - 1089 and Exhibit A2
44 Ibid PN 417 - 428, Exhibit A2 and Exhibit R2
45 Ibid PN 810
46 Ibid PN 1101 - 1105
47 Ibid PN 428 - 435 and 1095 - 1100
48 Ibid PN 437 - 445
49 Ibid PN 771 - 779
50 Ibid PN 287 - 293
51 Ibid PN 294 - 298 and 300
52 Ibid PN 300 - 307, 334 - 336 and 338 and Exhibit A1
53 Ibid PN 310 and 336 - 337 and Exhibit A1
54 Ibid PN 310
55 Ibid PN 310, 345, 736 - 741 and 877 - 885
56 Ibid PN 310 and 349 - 351
57 Ibid PN 312 and 351 - 353
58 Ibid PN 312 and Exhibit A1
59 Ibid
60 Ibid PN 365 - 366
61 Ibid PN 193 - 195
62 Ibid PN 446 - 454
63 Ibid PN 974
64 Ibid PN 974
65 Ibid PN 975
66 Ibid PN 975 - 982
67 Ibid PN 983 and Exhibit R4
68 Ibid PN 1143 - 1148
69 Ibid PN 1067
70 Ibid
71 Ibid PN 1075
72 Ibid PN 1068 and Exhibit R5
73 Ibid
74 Ibid PN 1159
75 Ibid PN 1168 - 1177
76 Ibid PN 783 and 1140 and Exhibit R1
77 Ibid PN 811 - 819 and 1250
78 Ibid PN 580, 792 - 800 and 1246 - 1248
79 Ibid PN 1010
80 Ibid PN 580 - 581
81 [2017] FWC 3431
82 [2013] FWCFB 5279
83 Transcript PN 587 - 589
84 Ibid PN 591 - 592
85 Ibid PN 593
86 Ibid PN 786
87 Email to the Fair Work Commission from Mr Vaina dated 23 November 2017 and to both the Fair Work Commission and Mr Claffey on 24 November 2017
88 Email to the Fair Work Commission from Ms Taylor, dated 24 November 2017
89 Ibid
90 Email to the Fair Work Commission from Mr Vaina, dated 28 November 2017
91 Email to the Fair Work Commission from Ms Taylor, dated 29 November 2017
92 Ibid
93 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
94 Ibid
95 Ibid
96 Ibid
97 Email to the Fair Work Commission from Ms Taylor, dated 8 December 2017
98 Ibid
99 Exhibit A1 and Exhibit R2
100 Email to the Fair Work Commission from Ms Taylor, dated 24 November 2017
101 Exhibit A1
102 Ibid
103 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
104 Ibid
105 Exhibit R2
106 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
107 Ibid
108 Ibid
109 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
110 Email to the Fair Work Commission from Ms Taylor, dated 24 November 2017
111 Exhibit R2
112 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
113 Exhibit A1
114 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
115 Ibid
116 Ibid
117 Exhibit R2
118 Email to the Fair Work Commission from Mr Vaina, dated 8 December 2017
119 Exhibit A1
120 Ibid
121 Ibid
122 Exhibit R2
123 Ibid
124 Ibid
125 Transcript PN 903 - 905 and 577 - 578
126 Exhibit A1
127 PR600698
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