Andrew Cochrane v Petrolink Engineering

[2014] FWC 7571

[2014] FWC 7571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Cochrane
v
Petrolink Engineering
(U2014/8277)

DEPUTY PRESIDENT BOOTH SYDNEY, 24 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Andrew Cochrane was employed by Petrolink Engineering Pty Ltd until his employment ceased in June 2014.

[2] Mr Cochrane lodged an application pursuant to s. 394 of the Fair Work Act 2009 for an unfair dismissal remedy.

[3] Petrolink objects to this application on the grounds that Mr Cochrane is not protected from unfair dismissal because he resigned from his employment, that is, he was not dismissed. 1

[4] The Act provides that a person is dismissed if their employment has been terminated on the employer’s initiative or they have resigned, but they were forced to do so because of conduct or a course of conduct engaged in by their employer. 2

[5] If I am satisfied that Mr Cochrane was not dismissed within the meaning of the Act then I must uphold Petrolink’s jurisdictional objection and dismiss Mr Cochrane’s application.

[6] The issue to be determined is whether or not Mr Cochrane was dismissed within the meaning of the Act.

Was Cochrane dismissed?

[7] On 19 June 2014 at 8.55am Mr Cochrane emailed his colleagues at Petrolink saying that he would “not be in today”.

[8] This email was followed by an email from the CEO of Petrolink, Barry Boné, indicating that he was aware that Mr Cochrane had been seeking alternative employment and that Petrolink does not have a time in lieu policy. This email concluded with the words:

“I strongly advise you to consider submitting your resignation, effective immediately, whilst I can still provide a work reference and before I have to get involved in further performance issues.”

[9] It is agreed that about one hour after that email was sent, Petrolink disconnected Mr Cochrane’s work email account and mobile phone.

[10] At 6.42pm that same day Mr Cochrane emailed Mr Boné with the subject line “Lynne has disconnected my phone.” In this email Mr Cochrane included the words:

“In reply to your altermatumn (sic) .....I will not be at work tomorrow, however my wages better be in the bank and over the weekend you can issue me with a letter of dismissal with an account for my wages and entitlements including a group certificate....Pay wages tomorrow, Get the Letters ready for Monday, I will drop off the car and Phone...”

[11] At 6.51pm Mr Cochrane followed with an email including the words:

“While you are at it! A reference for projects such as .... (I have references for them all) just waiting for yours!”

[12] On 20 June 2014 at 3.39pm Mr Boné dispatched a letter to Mr Cochrane attached to an email. In this letter Mr Boné said, amongst other things:

“As you have not reported for work again today, I can take it that you have ceased employment from the date of your emails last night.

If you wish to think it over across the weekend it would be to your advantage to send me your official resignation by Monday am. As I stated previously I am willing to provide you with an acceptable Work Reference despite your emails, however that ceases on Monday.”

[13] Petrolink submits that they did not dismiss Mr Cochrane but that the employment relationship ceased at the initiative of Mr Cochrane by way of the email of 19 June 2014 at 6.42pm.

[14] Mr Cochrane submits that the email of 19 June 2014 at 8.55am and the disconnection of his Petrolink supplied email account and mobile phone was an objective and clear repudiation of the employment relationship. He says this conclusion is fortified by the fact that he received a termination payment that included payment in lieu of notice.

[15] The principle stated in the Federal Court decision Mohazab v Dick Smith Electronics Pty Ltd (No.2) 3 is that an important feature of termination at the initiative of the employer 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.”

[16] A Full Bench of the Australian Industrial Relations Commission, the predecessor to this Commission, has refined the principle to “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”. 4 This Full Bench was guided by the Full Bench in Pawl v Advanced Precast Pty Ltd 5which said that circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee must also be examined.

[17] Mr Cochrane says that in applying these principles to the facts of this case I must consider the objective circumstances, not the subjective intentions of the parties. I agree with this submission and observe that as Mr Boné did not attend the hearing and did not give evidence, I would not be in a position to know what the employer’s subjective intentions were in any event. Mr Cochrane was a witness and it was his evidence that he considered that he had been dismissed on Thursday 19 June 2014.

[18] In examining the objective circumstances disclosed in the email exchanges between the parties I have asked myself two questions. Firstly, ‘was it reasonable for Mr Cochrane to come to the conclusion he came to?’ and secondly, ‘would a reasonable person have come to this conclusion?’ I conclude that the answer to these two questions is “yes”.

[19] The action taken that brought the employment relationship to an end or had the probable result of bringing the employment relationship to an end was taken by Mr Boné. It was the email of 19 June 2014 followed by the disconnection of Mr Cochrane’s email account and mobile phone.

[20] I do not consider that an email advising colleagues that an employee was taking a day off (whether in breach of policy or not) is an action that could bring an employment relationship to an end.

[21] The letter of 20 June 2014 was not responded to by Mr Cochrane. It was dispatched after the action was taken to cease Mr Cochrane’s employment. It was only produced in the hearing in Petrolink’s reply as before Petrolink had heard oral submissions on behalf of Mr Cochrane they did not consider it to be relevant. I think their original conclusion was correct. It is not relevant because by the time it was dispatched Mr Cochrane’s employment had ceased at the initiative of the employer.

Conclusion

[22] I am satisfied that Mr Cochrane was dismissed within the meaning of the Act. I order that Petrolink’s jurisdictional objection is dismissed. Mr Cochrane’s application may proceed. The Commission’s Unfair Dismissal Case Management Team will advise the parties on the next steps at the earliest opportunity.

DEPUTY PRESIDENT

Appearances:

A Jenshel of Counsel, for Mr Andrew Cochrane

A Bland, BlandsLaw, for Petrolink Engineering Pty Ltd

Hearing details:

2014.

Sydney

29 September.

 1 Section 385 Fair Work Act 2009.

 2 Section 386 Fair Work Act 2009.

 3 (1995) 62 IR 200.

 4   O’Meara v Stanley Works Pty Ltd (2006) AIRC 496.

 5   Print S5904.

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