Brenton Frankish v Itradegolf Pty Ltd T/A Itradegolf
[2022] FWC 2243
•23 AUGUST 2022
| [2022] FWC 2243 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.739—Dispute resolution
Brenton Frankish
v
Itradegolf Pty Ltd T/A Itradegolf
(C2022/5172)
| COMMISSIONER HUNT | BRISBANE, 23 AUGUST 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 21 July 2022, Mr Brenton Frankish made an application pursuant to s.739 of the Fair Work Act 2009 (the Act), with respect to a dispute with his employer, ITRADEGOLF Pty Ltd (the Respondent).
The Respondent is a retail store selling new and used golfing products.
Mr Frankish is employed pursuant to the General Retail Industry Award 2020 (the Award). The Award contains a dispute resolution procedure at clause 36:
“36.1 Clause 36 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
36.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
36.3 If the dispute is not resolved through discussion as mentioned in clause 36.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
36.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 36.2 and 36.3, a party to the dispute may refer it to the Fair Work Commission.
36.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
36.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
36.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 36.
36.8 While procedures are being followed under clause 36 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
36.9 Clause 36.8 is subject to any applicable work health and safety legislation.”
In his application, Mr Frankish stated that he had been questioned by Mr Justin Romer, Director of the Respondent with respect to a number of issues, including alleged theft of product from the store. Mr Frankish stated that he was informed not to attend for work and there would be a future discussion. Mr Frankish stated that he requested allegations be put in writing, and when he attended to meet on 19 July 2022, nobody was available to meet with him. He has not attended for work as he is awaiting the allegations to be properly put to him. He categorically denies any theft or other improper conduct.
On 21 July 2022, I notified the parties I had carriage of the application, directing the Respondent to provide a response by 28 July 2022, and listed the application for a telephone conference on 4 August 2022. I specifically requested the Respondent advise by no later than 28 July 2022 if it had dismissed Mr Frankish or if it was considering dismissing Mr Frankish.
On 25 July 2022, Mr Frankish corresponded with chambers advising he had not been paid wages and had not been notified by the Respondent that he would not be paid.
On 28 July 2022, Mr Romer stated in written correspondence that at no time has Mr Frankish’s employment been terminated, and it is Mr Frankish’s decision not to return to work.
In the evening of 3 August 2022, Mr Frankish sent correspondence and material to chambers, copying in Mr Romer. At 11:43pm on 3 August 2022, Mr Romer emailed requesting the telephone conference on 4 August 2022 be adjourned on account of the material sent by Mr Frankish some hours earlier.
At 9:31am on 4 August 2022, the following correspondence was sent to the parties from my chambers:
“Dear Parties,
The Commissioner is in receipt of several emails from the parties, including the attached adjournment request from the Respondent which was not copied to the Applicant.
The Conference will proceed as scheduled and the Commissioner will address the correspondence.
In preparation for the conference, Mr Romer is requested to confirm his best contact number as soon as possible.”
Numerous attempts were made to contact Mr Romer for the 10:00am telephone conference. Mr Romer failed to provide any explanation for his non-attendance.
Mr Corey Romer, who I understand to be Mr Justin Romer’s brother informed my Associate that he was available to participate in a telephone conference and accordingly the conference commenced that morning with Mr Corey Romer representing the Respondent.
I informed the parties that the Commission has conciliation and mediation powers pursuant to the terms within the Award but could only arbitrate a dispute if the Respondent consented to arbitration. Mr Corey Romer stated that Mr Frankish’s employment was ongoing.
I informed the parties that I considered it appropriate for Mr Frankish to be paid wages for the time he has been suspended from work. The parties advised that they would likely meet very promptly and discuss a potential separation. Mr Frankish stated that he would be expecting a modest separation payment in addition to the wages owed to him. I informed the parties that in light of Mr Frankish’s relatively small length of service and the expected ease he would have in finding another job, any separation payment in addition to his entitlements should be modest. The parties committed to meet.
In the time between the telephone conference on 4 August and 15 August 2022, the parties exchanged correspondence, each time copying in chambers. The parties were not close to a resolution.
On 16 August 2022, I provided draft settlement terms to the parties and informed them if the matter could not be resolved by them, I would require their attendance at a telephone conference before me on 22 August 2022. In that communication I stated the following:
“The application before the Commission is a dispute. The Commission has only conciliation and mediation powers in this application, unless the Respondent consents to arbitration. As the Commissioner currently understands, the employment is still live and it is her expectation that the Applicant would be entitled to payment of wages until such time as his employment has ended.”
On 16 August 2022, Mr Frankish sent the following correspondence to the Respondent:
“Good Afternoon Corey/Justin
Referring to the previous email, as my employment has not been terminated I require a payslip for the last 4 weeks. And also my wage to be paid for the last 3 weeks.
18th July——24th July (paid)
25th July——31st July (not paid)
1st August ——7th August (not paid)
8th August ——14th August (not paid)Furthermore you have received my offer in our previous correspondence. [redacted ]weeks termination pay, plus my annual leave paid out at the right amount. (83.21 hours owed upto the 14th August)
Please respond confirming the settlement with these terms by 1pm Thursday 18th August.”
On 22 August 2022, my Associate contacted Mr Frankish to participate in the telephone conference. He was available and had provided his best contact number. Numerous attempts, without success were made to contact Mr Justin Romer to participate in the telephone conference. Correspondence was sent to the parties informing the Respondent that in the event the Respondent did not participate in a telephone conference at any time during 22 August 2022, I was inclined to issue a Statement in this matter.
I consider the conduct of Mr Justin Romer with respect to Mr Frankish’s employment to be unprofessional, unethical and unreasonable. Mr Justin Romer has stated to the Commission that Mr Frankish remains employed by the Respondent. Yet he will not pay him or meet with him and has chosen not to participate in any conferences before the Commission. Mr Justin Romer has not provided any explanation for his conduct.
In my view, the Respondent should reach an agreement with Mr Frankish to pay to him wages up until today’s date, pay to him his accrued annual leave, and pay to him no less than two weeks’ notice and sever the employment relationship. In my view, wages should be immediately paid to Mr Frankish, with the amounts in respect of accrued annual leave and notice paid within seven days in accordance with clause 18.4 of the Award.
If the Respondent fails to engage with Mr Frankish, it is open to Mr Frankish to bring a claim for unfair dismissal where he will have to determine a date he considers the employment to have ended at the initiative of the Respondent. It is clearly not in the Respondent’s best interests to ignore Mr Frankish.
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