Ben Simpson v As You Like It Landscaping Pty Ltd T/A Safe Dig Services

[2021] FWC 6011

[2021] FWC 6011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ben Simpson
v
As You Like It Landscaping Pty Ltd T/A Safe Dig Services
(C2020/7992)

COMMISSIONER WILLIAMS PERTH, 29 SEPTEMBER 2021

Application to deal with contraventions involving dismissal - jurisdiction.

[1] On 27 October 2020, Mr Ben Simpson (Mr Simpson or the Applicant) made an application under section 365 of the Fair Work Act 2009 (the Act). The respondent is As You Like It Landscaping Pty Ltd T/A Safe Dig Services (the Respondent or Safe Dig).

[2] Safe Dig objects to the application on the jurisdictional ground that the Applicant was not dismissed.

[3] At the hearing of this matter evidence was given by the Applicant, Mr Brendon Singleton (Mr Singleton), Mr Brett Lord (Mr Lord) and Ms Alana Altmann (Ms Altmann). For the Respondent, evidence was given by Mr Michael Vidler (Mr Vidler) a Director of the Respondent, Mr Robbie Rutledge (Mr Rutledge) the Operations Manager of the Respondent , Mr Roni Philip (Mr Philip) the Business Development Manager of the Respondent and Ms Sharon Gemmell (Ms Gemmell) the General Manager of the Respondent. Only Misters Singleton, Lord and Vidler were cross-examined in the hearing.

[4] This decision deals only with the Respondent’s jurisdictional objection.

[5] Only a person who has been dismissed is able to make an application such as this under section 365 of the Act.

[6] Both parties to this matter were self-represented at hearing.

Factual findings

[7] On 12 October 2020, prior to making this application under section 365 of the Act, the Applicant had made an application under section 372 of the Act. 1 This section 372 application was dealt with by another member of the Commission.

[8] Much of the evidence in this matter is not relevant to the determination of whether or not Mr Simpson had been dismissed by Safe Dig and so, was entitled to make this application.

[9] The evidence is that Mr Simpson was first employed by the Respondent in September 2019 as a truck driver/operator/all-rounder.

[10] His evidence was that over the last 26 weeks of his employment he had averaged about 32.5 hours per week.

[11] On 4 September 2020, whilst working at an Aurizon rail corridor, there was an incident which was reported by Mr Simpson where a co-worker had attempted to cross the railway track without sufficient sighting distance from an oncoming train.

[12] Mr Simpson says the following week, the week beginning 7 September 2020, Mr Lord and Mr Singleton separately approached him and told him that management was trying to get rid of him and to start looking for another job because they will slowly reduce his hours until he quits. 2

[13] A weekly timesheet tendered by Mr Simpson, for the week between 28 September 2020 and 4 October 2020 shows that he worked everyday Monday to Friday inclusive respectively for 12.5 hours, 9 hours, 10 hours, 10 hours and the Friday number of hours is not legible.

[14] Mr Simpson’s evidence is that his last day of work was Friday, 2 October 2020.

[15] Between Saturday, 3 October 2020 and Tuesday, 6 October 2020 he says he made numerous phone calls and text messages to the Respondent’s staff regarding when he was working next but did not receive a response.

[16] On Wednesday, 7 October 2020 he spoke to the Respondent about his pay and work hours and issues he had regarding his payslips and timesheets. He later phoned one of the Respondent’s Directors, Mr Vidler, who told him that he would get it sorted out and his pay was then fixed.

[17] On 13 October 2020, the Applicant says he received a phone call from Mr Vidler who told him that he promised that towards the end of the next week Mr Simpson would be able to ‘come off the dole’. Ms Altmann’s evidence regarding this conversation was that Mr Vidler said words to the effect of “You will have full-time employment in the near future.”

[18] The day before, 12 October 2020, the Applicant had filed his prior section 372 claim in the Commission. His evidence was that it 2:01p.m. on 13 October 2020, Mr Vidler rang again and stated that “We have no work for you while these claims are being sorted.”

[19] On 18 October 2020, the Applicant says he realised the Respondent had cancelled his sim card on his work mobile phone.

[20] Mr Singleton and Mr Lord gave nearly identical evidence in their witness statements to the effect that between 5 October and 12 October 2020 they had overheard a phone conversation, which was not on speakerphone, between Mr Vidler and an unknown person, where Mr Vidler stated that Mr Simpson was to blame for a workplace incident and that he would no longer be assigned any work until he quits. 3

[21] Under cross-examination Mr Singleton said he was not too sure whether there was anyone else overhearing this conversation. 4

[22] Under cross-examination Mr Lord said he didn’t believe there was anyone else overhearing this conversation. He believed it was just himself and Mr Vidler in Mr Vidler’s office.

[23] Mr Lord is no longer employed at the Respondent and explained he was dismissed because he claimed a few hours that he wasn’t entitled to. 5

[24] Both of these witness’s evidence apparently concerns the same phone conversation of Mr Vidler.

[25] The conversation both these witnesses say they overheard was clearly the basis for Mr Simpson’s evidence that these same co-workers had separately told him that management was trying to get rid of him and will slowly reduce his hours until he quits.

[26] Firstly, their evidence is this conversation of Mr Vidler’s they overheard occurred between 5 and 12 October 2020. However, Mr Simpson’s evidence is that they told him that management intends to get rid of him by reducing his hours in early September 2020, a month before they say they overheard Mr Vidler’s phone conversation to this effect.

[27] Separately it is not explained how Mr Singleton (who was unsure whether there was anyone else overhearing this conversation) could have overheard this conversation if Mr Lord’s evidence was true that it was just himself and Mr Vidler in Mr Vidler’s office when he overheard Mr Vidler’s conversation.

[28] I have considerable doubt about these two witness’s evidence concerning Mr Vidler’s phone call.

[29] The evidence of Mr Rutledge, Safe Dig’s Operations Manager was that Mr Simpson worked out of their Mackay depot under the supervision of Mr Vidler.

[30] His evidence was that on 12 October 2020 he received a missed call from Mr Simpson and then a text message saying he was wondering what’s going on with work and that no one answered his calls. Mr Rutledge says that by then the first application had been made to the Commission and so he decided not to respond to any texts unless advised by his management.

[31] He says he was directed to disconnect Mr Simpson’s phone due to legal formalities, but Mr Simpson still has the company work phone and all his Safe Dig work uniforms. His evidence was that Mr Simpson’s employment was never terminated and he continues to be in their active staff folder.

[32] Relevantly the evidence of Mr Vidler was that because of what he characterised as Mr Simpson’s unreliability, lack of care for safety, poor work ethic and attitude a number of the Respondent’s client site supervisors stated they did not want him back on their sites.

[33] Mr Vidler says they continued to find other work for Mr Simpson to do despite these problems.

[34] Mr Vidler says that towards the end Mr Simpson continued to ask what was next for him and he always assured him that there would be something else for him despite knowing he had caused more harm than good for the business. His evidence was that four of the Respondent’s largest client did not want Mr Simpson on site and it proved to be more and more difficult to find sites that Mr Simpson could go to.

[35] Some detail regarding the incidents that appear to have triggered the decisions by the Respondent’s clients’ site supervisors has been given in the evidence of the Respondent, 6 however for the purposes of this decision it is not necessary for the Commission to determine the merits or otherwise of the decisions made by the site supervisors regarding Mr Simpson working on their sites.

[36] An email was tendered dated 2 October 2020 from Aurizon to Mr Vidler titled “Safe Dig Compliance” which says that,

“As discussed earlier, Ben Simpson is not to carry out any more work within the Aurizon rail corridors, as he no longer works for your company it won’t be your problem.”

[37] A letter dated 14 October 2020 addressed to Ms Gemmell General Manager of the Respondent was also tendered. The letter is from Civil Mining and Construction (CMC) and details the events of 16 November 2019 and concludes by saying that CMC advised Mr Vidler and Mr Rutledge of the Respondent that due to Mr Simpson’s behaviour the Respondent was never to send Mr Simpson back to a CMC job site.

[38] Also tendered was a letter from Ms Gemmell to Mr Simpson dated 29 October 2020 which says the letter is to provide him with information on what work is and is not available to him. It then reads as follows,

“It was mentioned that there are certain sites that we are unable to send you to due to our customers not allowing you on site. These sites are listed below:

•  CMC

•  Aurizon

•  CPB

•  WHF

We also determined that to avoid any further issues, with our current contract clients, we will also be unable to send you to those sites. However, when we have jobs that become available to us, where it is not contract work, will be happy to provide this work for you.

When this work appears, our Mackay supervisor will be in touch.”

[39] Under cross-examination Mr Vidler’s evidence was that there were not a lot of workers up in Mackay so the Respondent had bent over backwards every step of the way with Mr Simpson. 7

[40] The evidence of Mr Philip, the Respondent’s Business Development Manager, was that notwithstanding Mr Simpson had cost the Respondent some big contracts he has not been taken off the books and the Respondent has provided him the opportunity to work on other non-contracted works.

[41] The evidence of the General Manager, Ms Gemmell, was that whilst Mr Simpson was not permitted to work for certain contracted customers the Respondent’s intention was to provide Mr Simpson with work with customers that they are not contracted to. They felt there were enough of these other customers to provide Mr Simpson with work. Her evidence was that as it turned out the Respondent had no uncontracted work in October, November or December 2020 that they were able to send Mr Simpson to.

[42] Her evidence was that Mr Simpson is still on their books and has not at any stage been dismissed, they have just not been in a position to provide any suitable work for him because he is unable to work on the Respondent’s contracted jobs.

The legislation

[43] This application is made under section 365 of the Act and is set out below.

“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.”

[44] Section 386 of the Act defines when “a person has been dismissed” and is set out below.

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

Consideration

[45] The question to be determined by the Commission is whether Mr Simpson is a person who has been dismissed. If he was not dismissed, then he is unable to make this application and so this application must be dismissed.

[46] In this case there is no evidence that Mr Simpson resigned from his employment. Consequently section 380 (1)(b) does not apply in the circumstances of this matter.

[47] Therefore, the issue is whether Mr Simpson’s employment with Safe Dig has been terminated on the employer’s initiative.

[48] A termination is at the employer’s initiative when the employer’s actions directly and consequently result in the termination of employment. There must be action by the employer that either intends to bring the relationship to an end and has that probable result.

[49] On Mr Simpson’s own evidence in the second week of September 2020 he was told by Mr Lord and Mr Singleton that the Respondent was going to reduce his hours until he quit.

[50] Directly contradicting this rumour, Mr Simpson’s own evidence is that in the week beginning 28 September 2020 through 2 October 2020 he worked every day and for more than 9 hours on those days.

[51] Mr Simpson then made enquiries of the Respondent through to Tuesday, 6 October 2020 as to when he would be working next. The following day, 7 October 2020, there was some discussion about his pay which was then fixed.

[52] On 13 October 2020, Mr Vidler told him that he promised that towards the end of the next week Mr Simpson would be able to ‘come off the dole’ and have full-time work.

[53] The day before this however Mr Simpson had filed his prior section 372 application. There was then no further communication from the Respondent, other than during Commission proceedings, and following this the Applicant made this application on 27 October 2021.

[54] Mr Simpson may have had good reason to be dissatisfied with the fact that he hadn’t been offered any work after 2 October 2020 and the Respondent may have had good reason why this was the case, but the mere fact that this had occurred is not an action that resulted in the termination of Mr Simpsons employment. There is no evidence the Respondent intended to terminate Mr Simpson’s employment.

[55] The evidence does not disclose any action of the Respondent that directly and consequently terminated Mr Simpson’s employment.

[56] My decision is that the Applicant’s employment was not terminated on the Respondent’s initiative. Mr Simpson was not dismissed.

[57] I uphold the Respondent’s objection. This application is dismissed and an order [PR734398] to that effect will now be issued.

Appearances:

B. Simpson on his own behalf.
S. Gemmell & R. Philip on behalf of the Respondent.

Hearing details:

2021.
Perth (by Telephone):
July 8.

Printed by authority of the Commonwealth Government Printer

<PR734397>

 1   See C2020/7625.

 2   Exhibit A3 at paragraph 5.

 3   Exhibit A2 at paragraph 7 and Exhibit A1 at paragraph 5.

 4   Transcript at PN63 and PN64.

 5   Ibid., at PN109.

 6   Ibid., at PN 170 and PN190.

 7   Ibid., at PN170.