Ben Hendrie v Eagle Contractors Pty Ltd
[2023] FWC 1845
•28 JULY 2023
| [2023] FWC 1845 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ben Hendrie
v
Eagle Contractors Pty Ltd
(C2023/3624)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 JULY 2023 |
Application to deal with contraventions involving dismissal – jurisdiction – whether dismissed – dismissal found – jurisdictional objection dismissed
On 21 June 2023 Ben Hendrie (Mr Hendrie or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.
Mr Hendrie’s application is against his former employer Eagle Contractors Pty Ltd (Eagle Contractors, the respondent or the employer), which he alleges committed the contraventions.
The respondent opposes the application. It filed a response on 5 July 2023 raising a jurisdictional issue. It claims that Mr Hendrie was not dismissed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Hendrie’s application is to proceed further.
I issued directions on 19 July 2023.
I heard the jurisdictional matter on 25 July 2023.
Mr Hendrie was self-represented. Eagle Contractors was represented by its Managing Director, Ms Danielle Tregeagle.
I heard evidence from both Mr Hendrie and Ms Tregeagle.
I have redacted certain content in this decision from publication where potential prejudice outweighs the case for publication. The unredacted decision has been sent to the parties.
Facts
Eagle Contractors is a small private family business in the road transport industry based in Adelaide.
Mr Hendrie commenced working in the business as a casual employee on 25 October 2022.
Operationally, Mr Hendrie reported to Michael Disibio.
In early May 2023 a customer made a complaint to Eagle Contractors to the effect that a female employee of the customer had been sent an explicit photograph from a device the customer believed to be Mr Hendrie’s.
On 10 May 2023 the employer advised Mr Hendrie that an investigation into the complaint had commenced. During the investigation, Mr Hendrie was placed on ‘yard’ duties and taken away from work with the customer.
On 10 May 2023 Mr Hendrie denied the allegation that he had sent the photograph. He told Mr Disibio (by text) that he was “utterly disgusted” that the employer would think he would do such a thing. Mr Disibio replied that the employer needed to ask questions and follow due process.[2]
The investigation took longer than expected as the employer sought evidence from the customer and the customer’s staff member (who had taken leave).
The longer the investigation took, the more concerned Mr Hendrie became about losing his job.
On 14 May 2023 Mr Hendrie (by text) told Mr Disibio, in relation to possible fake social media accounts:[3]
“Doesn’t really matter though does it. Danielle [Ms Tregeagle] already clearly stated that doesn’t matter if it has my name on any of it I will no longer be employed by eagles despite the fact I provided my evidence…”
“…I know what exactly is going to happen tomorrow and what the outcome of my employment with eagles will be…
On 15 May 2023, after being rostered in the yard, Mr Hendrie asked (by text) “so am I actually coming in to wash excavators or am I just coming in to be fired?”. Mr Disibio replied “…you are coming in to wash excavators…”.[4]
On 17 May 2023, aware that the employer had met with the customer, Mr Hendrie messaged Mr Disibio as follows:[5]
“What happened with [customer] meeting? Doubt it matters anyway I probs don’t have a job with eagles anymore especially with me not coming in on Tuesday.”
On 22 May 2022 Mr Hendrie (by text) again expressed concern to Mr Disibio about the time taken to investigate and his fear that he would be dismissed. The text exchange included:[6]
“Mr Hendrie: Can I please get a response at least send me an actual letter of employment termination and why. I need that to be able to try and get back on Centrelink.
Mr Disibio:You need to get off it bro, we have not sacked you, we have told you that 85 times, you need to calm down or leave. You knock back shifts not us…
Mr Hendrie: I’ve only ever not worked because of being sick or my young kids being sick. I still deserve to get a response about the accusations and what the outcome is and not to mention [the customer] was 80% of my shifts.
Mr Disibio: Once we know, you will know, they are still investigating…”
Mr Hendrie’s last shift working for Eagle Contractors was on 31 May 2023. He was paid for this shift the following week (6 June 2023). He was not rostered after 31 May.
On the morning of 9 June 2023 Mr Hendrie telephoned Ms Tregeagle. He asked if his job network provider had contacted the employer to help Mr Hendrie apply for a Maritime Security Information Card as information was needed from the employer. Mr Tregeagle said that no contact had been made. She then stated that there would be no point doing so. Mr Hendrie asked why.
There is a dispute as to what was next said.
According to Mr Hendrie:
“Ms Tregeagle: It is best if you no longer work for Eagles.
Mr Hendrie: So you are sacking me.
Ms Tregeagle: I think you can work it out.”
According to Ms Tregeagle:
Ms Tregeagle: “I think you can work out why.”
I prefer Ms Tregeagle’s version. It is more consistent with her evidence (which I accept) that she was speaking cryptically as she had other employees within earshot, and the fact that the call concluded with Mr Hendrie hanging up after retorting “so that’s it, I’m fired” (below).
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Mr Hendrie interpreted Ms Tregeagle’s response as an inference that Ms Tregeagle believed that he had sent the explicit photograph.
Mr Hendrie became angry with what was said. He talked over Ms Tregeagle and said words to the effect, “so that’s it, I’m fired”. He hung up.
Minutes later, Mr Hendrie asked Ms Tregeagle by text for an Employment Separation Certificate:[7]
“Seeing that you just fired me over the phone wow! You can email me a letter of separation detailing that you have fired me and what were the reason or reasons.”
Ms Tregeagle responded immediately by return text:[8]
“already done and in the post”.
In actual fact, a separation certificate had not been completed nor posted at that time. It was only over the following days that Ms Tregeagle completed an Employment Separation Certificate and posted it to Mr Hendrie.
Ms Tregeagle dated the Employment Separation Certificate 31 May 2023. She did so because that was the last day Mr Hendrie worked a shift. It was posted on or about 13 June 2023.
The Certificate provided eight options for the employer to indicate why Mr Hendrie’s employment had ended:
“Reason for separation
Shortage of work
Unsuitability for this type of work
End of season or contract
Redundancy
Unsatisfactory work performance
Misconduct as an employee
Employee ceasing work voluntarily
Other”
Of the eight options, Ms Tregeagle marked the box “Misconduct as an employee”. No other box was marked.
Relevantly, Ms Tregeagle did not mark the box “Employee ceasing work voluntarily”.
Beneath the options and when asked to state the reason(s), Ms Tregeagle wrote:[9]
“Sending inappropriate texts to customers staff after told not interested causing emotional harm”.
On 21 June 2023 Mr Hendrie filed these proceedings.
Submissions
Mr Hendrie
Mr Hendrie submits that he was dismissed because he was not given further work and that this was because Ms Tregeagle believed he had committed misconduct.
Mr Hendrie says the proof of this is the Employment Separation Certificate sent by Ms Tregeagle some days later.
Eagle Contractors
Eagle Contractors submit that Mr Hendrie was not dismissed. It submits that he remained on the books as a casual until he asked for an Employment Separation Certificate. It says that his employment ended when he asked for the Certificate.
Eagle Contractors submit that the Certificate was worded in the way it was because Ms Tregeagle believed that stating Mr Hendrie had been dismissed on the Certificate meant that Mr Hendrie would have immediate access to unemployment benefits.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[10] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
“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.”
Termination of the employment relationship needs to have occurred as a matter of fact for there to be a “dismissal”.
That Mr Hendrie was a casual employee does not preclude a finding that he was dismissed. Whilst a casual employee is a person employed on a series of separate contractual engagements, the legal concept of dismissal concerns termination of the employment relationship and not necessarily the ending of a contract. Thus, a casual (especially one commonly rostered or called on) can have, in the absence of evidence to the contrary, a continuing employment relationship with their employer from which they can be dismissed.
I find that Mr Hendrie had a continuing employment relationship from which he could be dismissed.
Was Mr Hendrie dismissed?
For the following reasons, I conclude he was.
Eagle Contractors did not offer Mr Hendrie further work after 9 July 2023. That was the employer’s decision. The failure to offer work and sending the Employment Separation Certificate in the terms drafted ended the employment relationship. It was, within the meaning of s 386(1)(a) conduct on the employers initiative.
I do not accept the employer’s submission that Mr Hendrie ended the relationship on his own initiative on 9 June 2023 when asking for an Employment Separation Certificate.
Whilst there may be some circumstances where an employee asking for an Employment Separation Certificate is evidencing an intention to terminate an employment relationship on their own initiative, this is not such a case.
Mr Hendrie was asking for an Employment Separation Certificate in order to access unemployment benefits because he believed that he had been dismissed moments earlier and because the government agency (Centrelink) required that very certificate to do so. Where an employee requests an Employment Separation Certificate believing that their employment has already been ended by their employer’s conduct then the mere asking for the Certificate is not a termination on the employee’s initiative.[11]
The surrounding circumstances clearly support a finding of dismissal.
Firstly, in the same text message asking for the Certificate Mr Hendrie expressed the view that the employer had minutes earlier sacked him.
Secondly, the employer could have but did not correct the view expressed by Mr Hendrie even if it believed it to be erroneous.
Thirdly, Ms Tregeagle did the very opposite. She responded to Mr Hendrie’s text message by stating in a reply text that she had already completed the Certificate and posted it. It matters not that she had not done so; it is clearly established on the evidence that she intended to do so.
Fourthly, Mr Hendrie was not rostered again after asking for the Certificate.
Fifthly, the employer was aware since Mr Hendrie’s text on 22 May 2023 that if terminated a certificate would be sought to access unemployment benefits.
Sixthly, in the Certificate the employer expressly stated that Mr Hendrie’s employment ceased for reason of misconduct.
As to notification, Mr Hendrie was notified in writing when he received the Certificate.
Ms Tregeagle’s evidence that Mr Hendrie misunderstood her cryptic comment in their 9 June 2023 telephone conversation (“I think you can work that out”) as a reference to a finding of misconduct for which he was being sacked) does not preclude a finding of dismissal irrespective of whether Mr Hendrie jumped to the wrong conclusion.
______________________________________________________________________________________the employer allowed Mr Hendrie’s belief in the fact of dismissal to stand uncorrected. It was within its power to correct Mr Hendrie’s belief that an adverse finding had been made against him for which he was being dismissed, if he was mistaken. The employer’s failure to do so and subsequent conduct plainly brought the employment relationship to an end.
Nor was there any ambiguity in the terms of the Certificate. It expressly stated the fact of dismissal.
I do not accept that Ms Tregeagle made an error in the Certificate. The evidence suggests otherwise. Her evidence was that at the time of the 9 June 2023 telephone conversation she believed it to be more probable than not that Mr Hendrie was responsible for the misconduct she referenced in the Certificate and that she became certain of that in the days following. In any event, it is conduct and not intention that determines the fact of dismissal. An employer, even a small business, advising the fact of dismissal to a government agency carries a high bar to subsequently establish in Commission proceedings that it did so by mistake. In this matter there is no objective evidence of mistake.
Conclusion
As I have found that Mr Hendrie was dismissed within the meaning of the FW Act, application C2023/3624 is within jurisdiction. The jurisdictional objection is dismissed.
The Commission will exercise the powers conferred by s 368. A conference of the parties will be conducted for the purposes of conciliating the dispute.
An order[12] giving effect to this decision will be issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances
Mr B Hendrie on his own behalf
Ms D Tregeagle of Eagle Contractors Pty Ltd
Hearing details:
Adelaide (by video)
25 July
[1] [2020] FCAFC 152
[2] A3 page 10
[3] A3 page 22
[4] A3 page 20
[5] A3 page 21
[6] A3 page 9
[7] R3
[8] Recording of Hearing, 25 July 2023 at 1:57:29
[9] A5
[10] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
[11] Harmer v The Trustee for the Noonan Family Trust trading as Noonan Builders Pty Ltd[2023] FWC 1760, [62]
[12] PR764618
Printed by authority of the Commonwealth Government Printer
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