Brendon Schmidt v Try It Emu Farm Marburg Pty Ltd T/A Try It Emu Farm Marburg

[2021] FWC 6411

[2021] FWC 6411

FAIR WORK COMMISSION

DECISION

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

Brendon Schmidt
v
Try It Emu Farm Marburg Pty Ltd T/A Try It Emu Farm Marburg
(U2021/7374)

DEPUTY PRESIDENT LAKE BRISBANE, 22 NOVEMBER 2021

Application for an unfair dismissal remedy – whether the applicant resigned – the Applicant resigned – jurisdictional objection upheld – application dismissed

[1] Brendon Schmidt (Brendon) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with Try It Emu Farm Marburg Pty Ltd T/A Try It Emu Farm Marburg (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Respondent is a business owned and operated by Brendon’s father, Stephen Schmidt (Stephen) and Stephen’s partner, Sarah Schmidt (Sarah). Brendon had been working there periodically for many years, the most recent stint commencing in more than six months ago.

[3] Prior to the hearing of this application, the Respondent raised two jurisdictional objections to the application. First, that the Applicant was not dismissed but rather, that he voluntarily resigned and second, that his application was made out of time. Given my conclusion in respect of the first jurisdictional objection, it is unnecessary for me to consider the latter.

[4] On 7 September 2021, issued directions for the filing of material and listed the matter for a combined hearing on 18 October 2021 by Microsoft Teams. Both parties subsequently provided at least some correspondence in support of their position.

[5] At 10 am on 18 October 2021, Sarah and Stephen joined the Microsoft Teams hearing. As did I. Brendon did not. I asked my Associate to try and call the Applicant a couple of times. She left a message. There was no response. Consequently, at 10:15am, I commenced the hearing with only Sarah and Stephen in attendance.

Was Brendon dismissed?

Respondent’s material

[6] Sarah and Stephen described the events leading to the termination of the Applicant’s employment in their evidence at the hearing.

[7] On Friday 18 June 2021, Brendon came to visit Stephen and Sarah. He had tried a few times through the week to come up and see them but each time had cancelled. On the Friday when he did arrive, he explained to them that because his ex-wife was moving away to Chinchilla, he would not be able see his son if he continued to work for the Respondent. Brendon told them that he had found a job in the mines that allowed him to work two weeks on, two weeks off, which would mean he would be able to work and then see his son during his two weeks off. He told them that he had got the other job and could only work with them until 7 July 2021. That would give him a few days to get his affairs in order and then start his new job. He was excited about the new job. Sarah and Stephen told Brendon that was fine, thanked him for his work for the Respondent and everything he had done in the past. They all agreed that 7 July 2021 would be his last day with the Respondent. Sarah and Stephen agreed with Brendon that the job in the mines was probably the best thing for Brendon given the circumstances.

[8] On Saturday 19 June 2021, Sarah and Stephen attended a muster with their friends. Brendon was there too, and they were all getting on well. At around lunch time that day, Brendon had a motorbike accident. Sarah and Stephen were not there for the actual accident but were told by their other friends that Brendon had “face planted into the ground”. His face was battered but he did not go to the hospital immediately because he was not that bad. He later got it checked out by a doctor and had some scans.

[9] On Monday, 21 June 2021, Brendon was supposed to go to the farm, mow the lawns and collect the emu eggs but instead went into the office. Sarah and Stephen did not realise he was there, because they were at the other farm.

[10] On Tuesday, 22 June 2021, Sarah called one her assistants, who told her he had been at the office all day and was bossing the staff around. That assistant told Sarah that “If this keeps up for the next couple of weeks I'll need to go on stress leave.” Sarah asked what she was talking about. The assistant told Sarah that Brendon had been there the day before bossing people around, and saying that he and Jessica, his sister (who was also working for the Respondent at the time), were going to take over the business and so the staff were to do what he told them. She said he was also taking over serving customers and giving away products.

[11] Following that conversation, Sarah called Stephen, who in turn called the office and told Brendon to stop the nonsense and get back to doing the work he was supposed to be doing and leave the office alone. That conversation occurred around midday. Brendon did not listen but started having a “tantrum”. The staff later told Stephen and Sarah that Brendon had stood outside the glass door staring at them for some time before leaving the farm. The office girls told them that they were afraid of Brendon.

[12] Very late that night, Brendon started calling and texting Stephen and Sarah very frequently. They described it as “harassing”. He’d told them, among other things, that he had not slept in days.

[13] At around 3am on Wednesday, 23 June 2021, Stephen finally responded to Brendon’s barrage of texts with a message that said:

“Go to sleep go to sleep you as off now know longer work for me i will sort out Marburg we have ap-preciated all the work you have done for us go to sleep go and get your job we love you and all ways will it is extremely dangerous to go more than three days with out sleep do not go to our farms to day get some sleep all go to the doctors to do so we love you”

[14] Later that day, Brendon picked up Stephen’s car from the mechanic even though he was not supposed to. At that time – and several times over the course of the day – Stephen reiterated that Brendon no longer worked from him, effective immediately. He kept telling Brendon that “you no longer work for me” and to just go and get himself sorted for his job at the mines. Brendon’s behaviour was erratic and it did not seem to be registering.

[15] Over the subsequent hours, Brendon’s responses were erratic and varied. He told Sarah and Stephen they were no good at running the farm, made several demands for money, threatened to not let them see his son, told them he would make an unfair dismissal application if they did not do what he said and even accused then publicly (on Facebook) of orchestrating an assault on him. They vehemently deny any such accusations. Brendon was subsequently made an inpatient for two weeks in the acute mental ward at Ipswich Hospital and diagnosed with a mental health condition.

[16] The Respondent subsequently paid Brendon all his outstanding entitlements, including what they described as “banked hours”. These were paid up until Brendon until mid-August even though he did not work for them after 23 June 2021. Sarah and Stephen’s evidence was that these payments were made out of Brendon’s “banked hours”. Stephen said that:

“So that was money that was owed to him.  So through the time he was working for us, when he didn't need money we sort of kept it for him for when he wanted to have holidays or whatever.”

[17] Sarah went on to say that:

“That was at his request. He requested that we hold it back so when he has a holiday… So, say like he'd worked 40 hours, 30 hours or something, and he wanted us to hold 5 hours back, or this back, well, we'd hold it and my paymaster would organise it with him and she wrote a little book and put it on a graph, the graph that I - Annexure B where she's got his accumulated hours.  So when he actually left we owed him money for his accumulated hours that he'd accumulated.”

[18] In the course of preparing for this hearing, Sarah also discovered an email that Brendon had sent to the Respondent’s email address on 16 June 2021, attaching a cover letter and his resume. He asked that the email be given to Jessica, his sister who was also employed by the Respondent at the time, to review it for him. The Respondent submits this is further evidence to support their assertion that Brendon resigned.

[19] The Respondent submits, based on the evidence given with respect to the chronology of events as detailed above, that Brendon was not dismissed by the Respondent. Rather, he resigned on 18 June 2021. It was agreed that 7 July 2021 would be his last day because he had to get himself ready and then begin his new job at the mines. Though it had initially been agreed that Brendon would continue to work out his notice period (that is, until 7 July 2021), that changed on 23 June 2021 following the events set out above. The Respondent did not terminate Brendon’s employment but rather simply instructed him not to attend work again during his notice period.

[20] I should note that a lot of correspondence was also provided regarding the interaction between the parties in the subsequent months. However, as they were not relevant to the jurisdictional issue before me, I have not included them in this decision.

Applicant’s material

[21] As has been stated above, Brendon did not attend the hearing. The evidence and submissions he provided was thus limited to his unfair dismissal application and his email correspondence with my Chambers. In his unfair dismissal application, Brendon indicates that he was terminated on 19 August 2021 and seeks “at least four weeks pay plus free emu oil for life”. He claimed that Stephen had no reason to fire him and that he had been there longer than everyone else.

[22] Brendon did not provide any sworn evidence in these proceedings either. However, on 8 September 2021, the Applicant wrote to my Chambers and gave the following account of the events leading to his alleged dismissal:

“Hello this is what happened leading up to my dismissal. On the 19th of June I went to see Stephen and sarah schmidt at their property in coleyville as a social visit outside of work hours. I did inform them that I would be exploring the possibility of finding a new job however I never said that I was leaving it was simply an idea that I was sharing with my father which never eventuated.

I did receive a text message on the morning of the 23rd june from my father Stephen schmidt saying I was no longer working for the farm however we later talked and worked this out and I continued working for him until the middle of august. I will send my payslips from July and august 2021 to prove that I was in fact still working at the time.”

[23] He did provide those payslips which demonstrated that he did receive payments from the Respondent until 15 August 2021.

Legislative Framework

[24] Section 386(1) of the Act relevantly provides that 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.”

[25] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench expanded on the content of the two limbs:

“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” 1

Consideration

[26] I have had regard to all the material and evidence provided by each party in these proceedings.

[27] In short, I am satisfied that Brendon’s employment was not terminated at the initiative of either Sarah or Stephen, and by extension, the Respondent. I accept the evidence given by Sarah and Stephen to the effect that on 18 June 2021, Brendon visited them for the purpose of having a conversation about his future employment. His resignation did not seem to be one made in the heat of the moment. Sarah and Stephen had indicated that Brendon had sought to catch up with him throughout the week and eventually came to visit them on the Friday. Prior to that conversation, they did not have any idea that he was going to resign.

[28] Brendon approached them. He told them about the developing situation with his ex-wife and that he had taken a job in the mines so that he would be able to spend time with his son. They all agreed that this was the best thing for him to do in the circumstances. Based on the evidence in front of me, it appears that Brendon had agreed with them that his final day of employment would be 7 July 2021. That was just over two weeks away. He would then have a few days to sort out his affairs before commencing his new job in the mines. The three of them seemed in good spirits and all attended a friendly family muster together the following day.

[29] After Brendon’s erratic behaviour on between 22 and 23 June 2021 – which included behaviour that caused other staff to report to Sarah and Stephen that they felt unsafe with Brendon around, as well as a barrage of messages and calls from Brendon at all hours of the night to Sarah and Stephen – Stephen told him to no longer come to work and that he no longer worked for him. Brendon was obviously unwell at the time and it was an incredibly difficult situation for Stephen and Sarah to be in, both personally and professionally. While they obviously cared for Brendon, they were also obliged to protect their staff as well. The effect of Stephen’s words was simply that Brendon was not to work out his notice period.

[30] Though it is a little unusual to continue paying an individual who has ceased working their “banked hours” as if they were wages for several weeks after their termination, I am mindful that this was a family business and that Stephen and Sarah were seemingly doing the best they could to allow Brendon the opportunity to “get himself sorted” before commencing his new role at the mines.

[31] Brendon had asked his sister to check his cover letter and indeed had told Sarah and Stephen that he had obtained that role and would need to finish working for the Respondent on 7 July 2021. That was not uncharacteristic of him. He has worked on and off for the Respondent for many years.

[32] Consequently, based on the evidence before me, I am satisfied that Brendon was not dismissed under the definition provided for in s.386 but rather resigned.

[33] Accordingly, I order that the jurisdictional objection be upheld and that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736038>

 1   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47]; see also Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.