Anthony Peter Mouat v Kelly Logistics Pty Ltd

[2023] FWC 2149

[2023] FWC 2149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Anthony Peter Mouat

v

Kelly Logistics Pty Ltd

(U2023/4009)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 10 OCTOBER 2023

Application for an unfair dismissal remedy– no dismissal jurisdictional objection – applicant not dismissed.

1. The applicant, Mr Anthony Peter Mouat applied to the Commission on 10 May 2023 under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. It is uncontested that the applicant was employed by the respondent, Kelly Logistics Pty Ltd, commencing on or about 11 March 2022. The applicant contends he was notified of his dismissal on 27 or 28 April 2023. The respondent says that this application is not within jurisdiction as the applicant was not dismissed within the meaning of s 386 of the Act.

1. A person cannot be “unfairly dismissed” unless the Commission is satisfied, inter alia, that the person has been “dismissed” (s 385(a)). Relevantly, 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.[1]

…

1. The respondent is a trucking/logistics company based in Geelong, Victoria which employs approximately 70 employees and operates 30 trucks on a 24/7 roster.

2. I accept that the applicant, who worked as a heavy vehicle driver for the respondent, was employed as a casual employee as reflected in the contract of employment.[2] As a casual employee the respondent was not committed to offering the applicant ongoing work. Consistent with a casual employment relationship the applicant was under no obligation to present for work unless he had accepted a shift offered by the respondent.  On or about 10 March 2023 the applicant informed the respondent that he would not be accepting shifts for a period of time for medical reasons. The respondent continued to keep the applicant on the books as a casual employee on the basis that the applicant would continue to work for the respondent once he was well enough to do so. 

3. On or about Friday 21 April 2023, after about 6 weeks off work, the applicant attended the respondent’s office to inform the respondent that he was fit to resume work the following week, being the week of 24 April 2023. The applicant spoke with Mr Jye McDonald, the applicant’s Supervisor, and Mr Jake Williams, Operations Supervisor, who both gave oral evidence at the hearing on 11 August 2023. 

4. It is uncontested that the applicant had performed ‘Boral or tipper work’ (carting clinker concrete for the respondent’s client, Boral, and driving tipper trucks) and occasionally fresh freight work (transporting refrigerated and frozen goods) for the respondent.[3]  The respondent says that when the applicant returned to work after his hiatus there was no Boral or tipper work available. The respondent says that on 21 April 2023 Mr Williams offered the applicant fresh freight work as well as the potential for hiab (crane truck) work with a related company.[4] The applicant maintains that only hiab work with a related company was offered and there was no offer of fresh freight work.[5]

5. The applicant says he waited and received no contact from the respondent so went into work again on Thursday, 27 April 2023 at which time, consistent with the respondent’s evidence, there was still no Boral or tipper work available. The applicant says he inquired about fresh freight work and was told the respondent had hired others for that work.[6] Mr Williams could not recall the dates the applicant attended the office however maintains that fresh freight and hiab work was offered,[7] consistent with Mr McDonald’s evidence.[8]

6. On Friday, 28 April 2023 text messages were exchanged between the applicant and Mr McDonald and a message was sent to Mr Williams. The applicant says that fresh freight work was not offered, asking the Commission to draw this inference from the messages as only the hiab work is mentioned, contrary to the respondent's witnesses’ evidence that fresh freight work was offered. The text messages with Mr McDonald of 28 April 2023 are as follows:

APPLICANT at 6:09 am:
Hey bud been thinking half the night lol probably too old to be doing Hiab work (woozy face emoji)
that's for younger blokes crawling all over loads hooking up shit !!think will just wait till tipper or boral work comes up !! (thumbs up emoji)
if it doesnt ok will will start looking for something else I spose !! (thumbs up emoji) (ok hand emoji)

MR MCDONALD at 8:18 am:
That's fair enough, I would do that if I was you aswell cheers (thumbs up emoji)

APPLICANT at 8:20am:
(thumbs up emoji) yeah left foot gives me a bit of curry these days !! (woozy face emoji) best just to stick to easy auto tipper work I reckon !! Lol sucks getting old !! lol

APPLICANT at 11:55am:
Will need a separation certificate!!

MR MCDONALD
Nah I don’t think so probably a jake question
(sic)

1. The applicant then sent the following message to Mr Williams:

11:58am:
I need a seperation certificate then mate for dole !! (thumbs up emoji)
(sic)

1. The respondent pointed out that this inference cuts both ways.  The applicant’s message that he would wait for Boral or tipper work to come up did not say he will wait for fresh freight work, indicating he had already been offered fresh freight work and he did not want to take up that offer.[9] This controversy does not need to be resolved.  I accept the Respondent’s evidence that work other than that which was offered was not then available. Moreover, as at or before 8:20 am on 28 April 2023 the applicant had not accepted any work that was offered, and he was waiting for Boral or tipper work to become available.

2. The applicant asked the respondent for a separation certificate, which was initially provided to him stating he had left employment with the respondent voluntarily. The applicant contacted the respondent’s office seeking a revised certificate which provided the reason for separation as ‘other’.[10] Both certificates noted 10 March 2023 as the cessation date of his employment.[11]  The applicant accepted that a separation certificate indicates an employment relationship has ceased so that unemployment benefits can be received when unemployment occurs.  In his materials before the hearing the applicant maintained that his employment with the respondent terminated on 27 April 2023.[12]

3. The applicant contends that as the respondent failed to provide him with any shifts once he was fit to return to work, he was dismissed.  This is why he sought a separation certificate.[13]  I do not accept this contention. First, as a casual employee, the respondent was under no obligation to provide further work to the applicant since the employment is on the basis that the respondent makes no firm advance commitment to continuing and indefinite work. Second, the evidence of Mr Williams and Mr McDonald is that the applicant did not want the work that the respondent was able to offer (which the text messages tend to corroborate). Third, as the text messages disclose, the applicant gave consideration to the work that was available but ultimately rejected the work and said he would wait “till tipper or [B]oral work comes up”. This is self-evidently inconsistent with any suggestion that he believed the respondent was terminating the employment. Fourth, the applicant’s oral evidence was that at the time that he sent the earlier produced text messages about waiting for appropriate work he did not regard himself as having been dismissed but simply as a casual employee without allocation of work.[14]  In sum, as a casual employee, the applicant indicated that he would wait until suitable work was available.

4. The respondent’s case is that the employment came to an end at the initiative of the applicant when the applicant asked for and received a separation certificate. This is consistent with his intention expressed in the text message to Mr McDonald that if no Boral or tipper work is offered, he will “start looking for something else”, which the applicant said in his evidence was to search for work with another employer.[15]

1. I accept the respondent’s contention that the applicant was not dismissed on the employer’s initiative as there was no action taken by the respondent to terminate the applicant’s employment.  The applicant requested a separation certificate, which was akin to resignation. And then the only action taken by the respondent was to accede to the applicant’s request. This is also reflected in the first iteration of the separation certificate given to the applicant.  The applicant’s contention that the employment separation certificate was sought to try to get some unemployment benefits and was not tantamount to a resignation,[16] is nonsense. The only relevant benefit obtainable by producing an employment separation certificate is an unemployment benefit. Indeed, the applicant accepted that that was the purpose for which the certificate was sought.[17] The nature of the certificate itself connotes the termination of employment and asks for the reason for the ending of employment to be specified. The respondent did not provide the certificate because it had decided to terminate the employment relationship. Rather it provided the certificate at the applicant’s request, in circumstances where he had earlier indicated he might look for something else and had then decided he would end the employment relationship and seek to secure unemployment benefits.

1. At 6.09 am on 28 April 2023 the applicant was still on the books with the respondent, he was still employed and was waiting for work. Less than 6 hours later, and after no further action of the respondent,[18] the applicant requests a separation certificate, thus indicating that he would no longer wait for suitable work to become available but was wanting to bring the casual employment relationship with the respondent to an end. The only action taken by the respondent was to accede to the applicant’s request by issuing the separation certificate. 

2. This is not a case where it might be said that an employment relationship has ended where work is not offered to a casual employee over an extended period in circumstances where it is available, and the person could expect to be offered that work.  Here, the applicant had not been in a position to accept any work for about 6 weeks.  When he was available to accept work, the work that was offered was not accepted.  Having initially indicated that he would wait for his preferred work to become available, it appears that shortly thereafter he had a change of mind.  By seeking the separation certificate, the applicant made clear he no longer wished to continue in an employment relationship with the respondent. The employment relationship did not terminate on the respondent’s initiative. It was the applicant who brought the relationship to an end. 

3. I am not satisfied that the applicant was dismissed from his employment with the respondent and as such Mr Mouat’s application under s 394 of the Act will be dismissed.

Order

1. The application in U2023/4009 is dismissed.

DEPUTY PRESIDENT

Appearances:

G Dircks for the applicant

C Pase of counsel, for the respondent

Hearing details:

11 August 2023
Melbourne

Final written submissions:

Applicant: 2 August 2023

Respondent: 7 August 2023

[1] Fair Work Act 2009, s 386(1)

[2] Annexure A and one to the statement of Mr Mouat, and also JW1 to the statement of Mr Williams

[3] Respondent’s outline of submissions at 9

[4] Exhibit 1 at 9-11

[5] Applicant’s outline of submissions at 22

[6] Exhibit 4 at 41

[7] Exhibit 2 at 10

[8] Exhibit 3 at 9

[9] Transcript PN579

[10] Exhibit 4 at 52-54

[11] Ibid at 55

[12] Form F2 at 1.5

[13] Exhibit 4 at 62

[14] Transcript PN 533 – PN 534

[15] Ibid PN463

[16] Ibid PN678

[17] Ibid PN541

[18] Ibid PN498

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