Carlo Marchio v Australian Essential Services Maintenance Pty Ltd T/A Aesm Pty Ltd
[2012] FWA 10683
•28 DECEMBER 2012
[2012] FWA 10683 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Carlo Marchio
v
Australian Essential Services Maintenance Pty Ltd T/A AESM Pty Ltd
(C2012/3456)
COMMISSIONER BISSETT | MELBOURNE, 28 DECEMBER 2012 |
Application to deal with contraventions involving dismissal - jurisdiction.
[1] On 18 April 2012 Mr Carlo Marchio (the Applicant) made an application to Fair Work Australia (FWA) alleging that his employment had been terminated in breach of the general protections provisions of the Fair Work Act 2009 (the Act).
[2] Mr Marchio was employed by Australian Essential Services Maintenance Pty Ltd T/A AESM Pty Ltd (AESM, the Respondent). He says that his employment was terminated on 27 February 2012. Whilst Mr Marchio is not specific in his application it appears he considers that his employment was terminated because of matters associated with his WorkCover claim.
[3] The Respondent denies that it dismissed the Applicant and says that he abandoned his employment. The Respondent objects to the issuing of a certificate under s.369 of the Act on the grounds that as the Applicant was not dismissed, there is no dispute subject to a conference and therefore no basis on which a certificate can be issued.
[4] The Applicant was represented at the hearing of the jurisdictional objection by Mr Reidy of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Respondent was represented by Mr McCosh of The National Electrical Contractors Association (NECA).
Legislation
[5] Section 365 of the Actstates:
365 Application for FWA to deal with a 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 FWA for FWA to deal with the dispute.
[6] If the person has not been dismissed it would appear that there is no basis on which an application under s.365 can be made to FWA.
[7] In this case the Respondent says the Applicant was not dismissed but that he abandoned his employment.
Background
[8] Much of the background to this matter is not in dispute.
[9] On 27 February 2012 the Applicant and two colleagues (Alex and Richard) undertook some testing of the fire alarm at a commercial property in South Wharf. One of them failed to make an announcement prior to the test that the fire alarm was a test only (who was responsible is not relevant). The failure to make the announcement resulted in the Applicant and Alex being called back to the Respondent’s office. Once there he and Alex were asked to separately write up their version of what had occurred. He and Alex then met with David Ellerton, Mario Apela and Edward (Ted) Murray from management.
[10] Whilst the Applicant says he was told he (and Alex) would be given a written warning the Respondent disputes this and says they were told they could get a written warning. Again a determination of this is not relevant to the matter before me.
[11] The Applicant developed a severe headache He was called back into the meeting and told that Alex said he did not want to work with him anymore. He told Mr Murray of his headache and asked if a ride home could be arranged. Mr Murray agreed to arrange this and later called and said Richard, a colleague, would drive him home. The Applicant says that a short while later he rang Mr Murray and said he was getting a bite to eat.
[12] Mr Murray and the Applicant then had some exchanges on the phone with the Applicant eventually turning off both his work and private mobile phones. The Applicant then handed his work car keys into a nearby shop (Work Wear). A person from the shop later returned the keys to the Respondent. The Applicant then went to Bunnings where he called a taxi and went home.
[13] The Applicant did not contact or return to work on 28 or 29 February. On 1 March the Respondent sent a letter to the Applicant (received by the Applicant on 2 March) in which it said that his actions indicted he intended to resign and that this resignation was accepted. 1
Evidence for the Respondent
[14] Evidence for the Respondent was given by Mr Mario Apela, a Director of AESM; Mr Edward (Ted) Murray, Compliance Manager; and Ms Marly Barca, Office Manager.
[15] Mr Apela says that when he met with the Applicant and Alex on 27 February 2012 the Applicant appeared calm and not agitated.
[16] After the meeting he says he went to get lunch and, on his return, was approached by an employee of a nearby store and handed the car keys left by the Applicant. Mr Apela says he approached Ted Murray and said ‘I think Carlo has resigned - I have his car keys’.
[17] Mr Murray’s evidence is that he was present at the meeting with the Applicant and Alex. Later, when the Applicant said he had a headache, Mr Murray took action to get the Applicant safely back to his car and/or home. Whilst the Applicant said that he was going to get something to eat Mr Murray says the next he heard was that the Applicant was at Bunnings and had organised a cab home.
[18] Mr Murray says he spoke to the Applicant’s wife, Maria Marchio, on the evening of 27 February 2012 and that she told him the Applicant would be in contact with the Respondent the following day. He says he was not aware that the Applicant was returning to the doctor the next day and that Mrs Marchio had not told him this.
[19] Ms Barca works in administration at AESM and is responsible for dealing with the Applicant’s workers’ compensation claim. She typed the letter sent to the Applicant on 1 March 2012 on the instruction of Mr Apela.
[20] On 5 March 2012 at about 11.00am Maria Selga from Xchanging (the Respondent’s insurer) sent to Ms Barca a copy of the Applicant’s certificate of capacity (relating to his knee injury). 2
[21] Her evidence is that on 5 March 2012 she also spoke to Christine from Xchanging who said that the Applicant had told her that he had been given three written warnings and had received a letter saying he had been dismissed. She advised Christine that the Applicant only had two written warnings (which she provided to her) and that the Respondent had taken from his actions that he had resigned from his employment.
[22] Ms Barca says that she asked Christine, given that she appeared to be in contact with the Applicant, to ask the Applicant to call the office so a discussion could be arranged about his employment.
Evidence for the Applicant
[23] Evidence for the Applicant was given by the Applicant and Mrs Maria Marchio, his wife.
[24] The Applicant says when he arrived home on 27 February 2012 he went to see his doctor and received a medical certificate for 27 and 28 February. He again went to the doctor on 28 February 2012 when he received a certificate of capacity in relation to his knee injury (his existing workers’ compensation claim) and an additional WorkCover certificate of capacity in relation to stress (for which, at the time, no WorkCover claim had been made or determined). Each of these certificates certified him unfit for work from 27 February 2012 until 6 March 2012.
[25] The Applicant says he faxed all of these certificates to Ms Selga (his workers’ compensation case manager) at Xchanging and understood that she would pass these on to the appropriate person at the Respondent. He accepts that in the past he had always provided such certificates to the Respondent himself. Further, he says that when he received the letter dated 1 March 2012 from the Respondent on 2 March 2012 and when his entitlements were paid on 5 March 2012 he contacted Xchanging to find out what was happening. He says to save time he faxed his medical certificates directly across to Xchanging again.
[26] The Applicant says that he did not have direct contact with the Respondent until sometime after 31 May 2012 when he called Ms Barca to ask if he was still employed.
[27] Mrs Marchio gave evidence that she had a phone discussion with Mr Murray on the evening of 27 February 2012 and that she told Mr Murray that the Applicant had a medical certificate for 27 and 28 February 2012 and that he would be going back to the doctor the next day. She says that the discussion with Mr Murray became quite heated.
Respondent’s submissions
[28] Mr McCosh for the Respondent submits that many of the facts in this matter are not in contention.
[29] Ultimately he submits that the Respondent was left with no option but to assess the lack of contact by the Applicant for three days and the return of the car keys to the Respondent as evidence that the Applicant did indeed resign from his employment.
[30] Mr McCosh submits that even after the receipt of the letter dated 1 March 2012 the Applicant did nothing to disabuse the Respondent of the incorrect conclusion he considered it had reached.
[31] Mr McCosh refers me to the decision of the Federal Magistrates Court in Maan v Swift Australia (Southern) Pty Ltd (Maan) 3inwhich Burchardt FM found that employment had ended because the employer accepted what it perceived to be abandonment of employment.
[32] Mr McCosh says that the actions of the Respondent were reasonable in the circumstances.
Applicant’s submissions
[33] Mr Reidy submits that the key question to be answered is whether or not there has been a dismissal. In this respect he refers to the decision of Roe C in Dragan Jasevski v Australia Post (Jasevski) 4in which the Commissioner found that, whilst an application under s.365 required that there be a dismissal to attract the jurisdiction of FWA, it was not necessary that the dismissal be at the initiative of the employer (as was required in an application for unfair dismissal).5
[34] Mr Reidy also refers me to the decision of Asbury C in Susann Sharpe v MCG Group Pty Ltd (Sharpe) 6in which the Commissioner considered authorities on abandonment of employment including the decision of the Full Bench in J Searle v Moly Mines Limited (Searle).7 In her decision Asbury C quotes a key passage from the decision in Searle in which the Full Bench states that where there is a question as to jurisdiction it is the facts that are relevant and not the parties’ subjective beliefs.8
[35] Mr Reidy submits that it is uncontested that there was a counselling session on 27 February 2012 involving the Applicant and another employee. The Applicant told Mr Murray that he was going home as he had a headache and was not well. Mr Murray spoke to the Applicant’s wife on the evening of 27 February 2012 and was told that the Applicant had a medical certificate for 27 and 28 February and was returning to the doctor the next day (although I interpose here that the conversation between the Applicant’s wife and Mr Murray is clearly contested despite Mr Reidy’s assertion to the contrary). On 2 March 2012 the Applicant received a letter from the employer dated 1 March 2012 indicating that the Respondent accepted the Applicant’s resignation.
[36] Mr Reidy submits that the actions of the Applicant were not such to indicate that he had any intention of resigning. He arranged to have the keys to his work vehicle returned to the Respondent as he was unwell and could not drive but did not wish to leave the car in a public place. He did not return any other employer equipment in his possession such as the mobile phone. Further, Mr Reidy submits that if the Applicant did intend to resign it makes no sense that he would go to the doctor that day and get a medical certificate and then return to the doctor again the following day.
[37] Mr Reidy submits that the Applicant reasonably believed that Ms Selga of Xchanging would forward his medical certificates to the Respondent.
Consideration
[38] A number of assertions of fact were made in the evidence given in these proceedings. Because of my determination below I do not need to, and therefore do not, make any findings on these. These include the number of warnings given the Applicant and allegations of harassment to name but two. That I have not made specific findings either in support of or adverse to the claims should not be taken as any acceptance of the truthfulness or otherwise of the statements uttered. I have sought to limit my findings to those things that are necessary to the determination of the issue before me.
[39] In this case I am required to decide if the Applicant was dismissed from his employment. The Applicant says he was, the Respondent says the Applicant resigned.
[40] The area of law relating to abandonment of employment, resignation (imputed through some actions) and acceptance of that resignation and termination at the initiative of the employer is fraught with misunderstanding.
[41] A useful summary of the applicable law on termination at the initiative of the employer and abandonment of employment is provided by Asbury C in Sharpe.In that decision the Commissioner says, on the question of termination at the initiative of the employer:
[24] In O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the Australian Industrial Relations Commission (AIRC) considered cases dealing with the concept of termination at the initiative of the employer, with particular emphasis on the decision of the Full Court of the Federal court in Mohazab v Dick Smith Electronics (Mohazab). A number of principles can be distilled from passages of Mohazab emphasised by the Full Bench in O’Meara. Essentially, termination at the initiative of the employer involves as an important feature, that the act of the employer results directly or consequentially in the termination of the employment, so that the employee does not voluntarily leave the employee relationship. That is, had the employer not taken the action, the employee would have remained in the employment relationship.
[25] The term “initiate” should not be given a narrow meaning. Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, or the critical action or actions.
[emphasis added, footnotes omitted]
[42] On abandonment of employment Asbury C says in Sharpe:
[29] The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment.
...
[31] At common law it is well established that the concepts of termination of employment and the discharge of a contract of employment are different, and that it does not follow that because a wrongful dismissal is effective to bring the employment relationship to an end, it also discharges the contract of employment. There is also authority for the proposition abandonment of employment is conduct that constitutes repudiation of the contract of employment, and that acceptance by an employer of the repudiation brings the employment relationship to an end, rather than the abandonment itself.
[emphasis added, footnotes omitted]
[43] I should comment on the decision of Roe C in Jasevski as this was raised as intending some different test in an application under s.365 of the Act than is required when an application is made under s.394 with respect to unfair dismissal in determining what is meant by ‘dismissal’.
[44] Mr Reidy put to me that, in this case, there does not need to be a dismissal at the initiative of the employer and relied on the decision in Jasevski to support this proposition. Mr Reidy asserts that the meaning given to the word dismissal in Part 3-1 of the Act (which deals with general protections) is not the same as the meaning given to the term in Part 3-2 of the Act (which deals with unfair dismissal), in particular in s.386.
[45] I do not understand this to be the decision of Roe C.
[46] Part 3-1 of the Act, unlike Part 3-2, does not just apply to those circumstances that exist in relation to the dismissal of an employee by an employer.
[47] The general protections provisions apply to actions taken by certain organisations against persons. This includes actions taken by an employer against an employee, a prospective employer against a prospective employee, a person who has entered into a contract for services with an independent contractor and so on (s.342).
[48] Given the range of circumstances to which Part 3-1 applies, if s.365 restricted a dismissal to an act at the initiative of the employer it would preclude prospective employees, independent contractors etc from making an application under s.365 that otherwise may come within the scope of s.365.
[49] The provisions of s.365 must be read in the context of the relationship between the parties to the dispute. In this case it is an employer and employee and the employee claims he was dismissed and that this was done by virtue of the letter of 1 March 2012.
[50] In Mohazab v Dick Smith Electronics 9 the Full Court of the Industrial Relations Court of Australia found:
Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the “termination at the initiative of the employer” as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. 10
[51] Where a claim with respect to a breach of the general protections provisions of the Act relates to the dismissal of the employee by his or her employer there is no reason to suggest that the dismissal should not be considered as one at the initiative of the employer. There can be no other logical meaning given to the term ‘dismissal’ in such a context.
[52] In Jasevski Roe C was dealing with a person who was not employed by Australia Post (he appears to have come from a labour hire company of some sort). A dismissal at the initiative of the employer (who was not Australia Post) was clearly not the matter under consideration although a dismissal in a broader sense perhaps was.
[53] As to the decision in Maan, that case went to the reason for termination of employment and not whether or not there was a dismissal (as I am required to decide). In any event, having found that the employment came to an end because the employer perceived there to be an abandonment of employment his Honour then commented that this ‘might be said to give rise to interesting questions as to whether the termination of employment was effected by Mr Maan or by the employer’. 11
[54] In Searle a Full Bench of the Australian Industrial Relations Commission found:
It seems to us that the Commissioner has dealt with the matter by evaluating the reasonableness of the parties’ conduct. If that is the case he fell into error. The respondent’s conduct may have been reasonable, but that is not a matter which was relevant at that stage of the proceedings. The question is whether the respondent initiated the termination. It may be that if there had been more direct communication the medical certificate would have been produced earlier, but a number of important facts were directly relevant. The whole of the appellant’s absence was covered by a workers compensation medical certificate. She had relied on the medical staff to forward the certificate to the respondent. Furthermore the respondent knew the appellant had a workers compensation claim. It may be true, as the Commissioner found, that the respondent concluded from the appellant’s failure to attend work and her silence that she had abandoned her employment. But the respondent’s conclusion was clearly incorrect. Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct. 12
[55] Further, the Full Bench in Searle found that the breach of the contract of employment (the employee was in breach of a clause of her contract which constituted abandonment of employment) would not necessarily lead to termination of employment as such a breach could be waived by the other party (in this case the employer). 13
[56] The caution in Searle with respect to the reasonableness of the conduct of the employer is apposite in this case. A finding that there was, in fact, a dismissal by the employer should not be taken as criticism of the Respondent for its actions which may well be determined to be reasonable (although this is not a decision I am required to make).
Conclusion
[57] I accept that the Applicant left work on 27 February 2012. That day he attended his doctor and was given a medical certificate for 27 and 28 February 2012. The following day he again attended his doctor who gave him two WorkCover certificates of capacity (although I am not clear as to why they were dated 27 February - Mr Reidy’s explanation for this is unsatisfactory), one relating to his existing workers’ compensation claim in relation to his knee and one for stress, that did not relate to any existing claim but, it can be accepted, would be the basis of another WorkCover claim.
[58] I find that the Respondent was of the belief, following the discussion between Mr Murray and Mrs Marchio, that the Applicant would contact the Respondent the following day.
[59] When the Respondent did not hear from the Applicant (and in circumstances where the Applicant had handed back the keys of his motor vehicle with no explanation) it took advice from the NECA and sent a letter to the Applicant indicating that Mr Apela considered he had resigned from his employment and accepted his resignation.
[60] It needs to be understood that the Respondent, not having heard from the Applicant, did have alternatives available to it besides accepting a ‘resignation’ as it understood the actions of the Applicant to be. However, Mr Apela took advice from the NECA and followed through on the advice given to him. This action of Mr Apela may be viewed as reasonable in the circumstances (although perhaps a bit hasty). This, however, does not alter the effect of the actions of Mr Apela.
[61] I consider that there is no evidence to support the submission of Mr Reidy that, following the phone call between Mr Murray and Mrs Marchio on 27 February 2012, everyone at the Respondent decided that they would ‘just sit back and do nothing as all...wait a couple of days and then...set it up for an abandonment of employment.’ 14 Such an assertion, when no evidence was called on it and it was not put to any of the Respondent’s witnesses, is disingenuous and has no basis.
[62] As the authorities set out above indicate, it is not the reasonableness or otherwise of the conduct of the parties that is relevant.
[63] The Applicant did not voluntarily leave the employment relationship, in fact he says he never left it and his contact with the Applicant in June is evidence of this. The Applicant thought the Respondent had ‘abandoned’ him and was waiting for it to approach him about returning to work.
[64] Whilst the reasonableness of the conduct is not the issue here I do consider the lack of any positive action by the Applicant to correct the Respondent following receipt of the letter of 1 March 2012 to be unreasonable. I have only his word that on 27 or 28 February 2012 he took action to contact his WorkCover case manager to ask her to send his medical certificates to the Respondent. Even then he appears, in his evidence, uncertain as to whether she was going to do this or whether he just thought she would. In addition, his reliance on his case manager to act as a mediator between him and the Respondent with respect to his employment more broadly seems unusual at best.
[65] I should also say in passing that I do not consider that the decision of the Respondent to pay the Applicant his entitlements is definitive as to the question of whether the Applicant resigned or was dismissed. This is part of the fabric of the actions of the parties and payment was effected by the Respondent because of its belief that the Applicant had resigned.
[66] As was the case in Searle, whilst the Respondent may have assumed the Applicant had abandoned his employment because of his failure to contact anyone at the Respondent, this conclusion was not correct. Whilst there may have been confusion as to who was to provide the certificates of capacity and medical certificate to the Respondent the Applicant was, in fact, unable to attend work because of a medical condition. The Respondent was aware of this at the latest on 5 March 2012 when Ms Barca spoke to Christine at Xchanging.
[67] On the basis of the facts in this case and the authorities cited, I must reach the conclusion that the Applicant was dismissed by the Respondent by virtue of the letter sent to the Applicant on 1 March 2012.
[68] In passing I note that, in taking action to dismiss the Applicant, the Respondent was not aware that he had a medical certificate for 27 and 28 February and was not aware that the Applicant had two WorkCover certificates of capacity for the period 27 February 2012 to 6 March 2012. Had the Respondent been aware of these certificates it is my opinion it would not have taken the actions in did in writing the letter dismissing the Applicant from his employment.
[69] Having found the Applicant was dismissed from his employment I will issue a certificate under s.369 of the Act concurrent with this decision.
COMMISSIONER
Appearances:
K Reidy of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for the Applicant.
K McCosh of The National Electrical Contractors Association for the Respondent.
Hearing details:
2012.
Melbourne:
November 30.
1 Exhibit AESM1, attachment MA3.
2 Exhibit AESM3, attachment MB1.
3 [2010] FMCA 136.
4 [2010] FWA 9472.
5 [2010] FWA 9472, [9].
6 [2010] FWA 2357.
7 [2008] AIRCFB 1088.
8 [2010] FWA 2357, [38].
9 (1995) 62 IR 200.
10 (1995) 62 IR 200, 205.
11 [2010] FMCA 136, [60].
12 [2008] AIRCFB 1088, [38].
13 [2008] AIRCFB 1088, [36].
14 Transcript PN803.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR532557>
0
4
0