Brenden Cooper v Golden Group of Companies T/A Golden It

[2016] FWC 3909

[2016] FWC 3909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Brenden Cooper
v
Golden Group of Companies T/A Golden IT
(U2016/4909)

VICE PRESIDENT WATSON MELBOURNE, 17 JUNE 2016

Application for relief from unfair dismissal – whether dismissed – Fair Work Act 2009, ss.385, 394.

[1] This decision is an amended version of a decision given on transcript on 8 June 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr Brenden Cooper arising from the termination of his employment with Golden Group of Companies T/A Golden IT.

[2] Golden IT opposes the application on the jurisdictional bases that Mr Cooper was not dismissed and, in the alternative, that the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] This decision relates to the first threshold issue.  It goes without saying that an unfair dismissal case must be based on the dismissal by the employer, and s.385 of the Act states that the Commission must be satisfied that the person has been dismissed as one of the ingredients of an unfair dismissal.  The question arises therefore whether Mr Cooper was dismissed by the employer or whether the employment relationship came to an end from his own actions in ceasing employment on 19 February 2016.

[4] A termination of employment can arise from a representation by one side or the other that employment is to be terminated by notice or summarily, or it can arise from conduct by one party which demonstrates an intention that the employment is to come to an end. 

[5] Evidence has been given in this matter by Mr Cooper, Mr Baala and Mr Shukla.  It is contended by Mr Cooper that his employment was terminated by oral comments by Mr Baala in a telephone conversation on 20 January, and that the thrust of that conversation was that the business is going to be liquidated and there would no longer have been a job for Mr Cooper.  In an email of 22 February, after his employment ceased, Mr Cooper said that, he took from an email on the Friday previously the 19th, that the phone call on 20 January was in fact giving him notice, and that Mr Baala intended to bring about a change in pay rate and hours, and effect a change in the employment contract.

[6] I have considered the evidence of each of the three witnesses concerned.  Mr Cooper maintains that comments were made in the conversation of 20 January that amounted to giving notice of termination.  Mr Baala denies that.  He says that the conversation was more in the nature of a performance discussion and that although he did say that unless circumstances change the business may have to go into liquidation, he, in no way, gave notice of termination or said words to the effect that Mr Cooper's employment was terminated.  Mr Shukla's evidence, although he only heard Mr Baala's side of the conversation, is consistent with Mr Baala's account that no statement of dismissal occurred.

[7] It is clear on the evidence also that there was no written communication after that conversation on 20 January, either from Mr Cooper or from Mr Baala or other management representatives that suggested that a termination of employment had occurred.  The first written communication to that effect was on 22 February where Mr Cooper referred to the earlier conversation.

[8] I have to make a judgment about the evidence of all of the witnesses, and I prefer the account of Mr Baala and Mr Shukla as to the content of the relevant conversation.  It does seem unlikely to me that if a termination of employment did occur in that conversation there were no subsequent conversations or comments, either orally or in writing, which acknowledged that particular construction.  Indeed it appears that the employer expected Mr Cooper to continue his employment in the week of 22 February.  They expected him to be performing work onsite on the Upway Link changes, and that on receipt of Mr Cooper's email the response from Ms Ezzat was one of surprise rather than consistent with an understanding that the employment had been terminated by the employer by notice some four weeks previously.

[9] So in all of the circumstances, considering all of the evidence, I am not satisfied that Mr Cooper was dismissed by the Golden Group on 20 January 2016.  His employment came to an end when he regarded his employment as at an end, and it effectively arose from his decision rather than dismissal by the employer.  It follows from that finding that there is no jurisdiction to deal further with Mr Cooper's unfair dismissal application, and on the basis of that finding I dismiss the application.  An order to that effect has been issued. 1

VICE PRESIDENT

Appearances:

Mr B Cooper on his own behalf.

Ms S Ezzat on behalf of Golden Group of Companies T/A Golden IT.

Hearing details:

2016.

Melbourne.

8 June.

Final written submissions:

Mr Cooper on 27 May 2016.

Golden Group of Companies T/A Golden IT.

 1   PR581391.

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