Cary Longman v QBD the Bookshop Pty Ltd T/A QBD the Bookshop

[2016] FWC 2578

[2016] FWC 2578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cary Longman
v
QBD The Bookshop Pty Ltd T/A QBD The Bookshop
(U2016/4364)

COMMISSIONER GREGORY MELBOURNE, 26 MAY 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Cary Longman was first employed as a Sales Assistant with QBD The Bookshop Pty Ltd T/A QBD The Bookshop (“QBD”) in August 2014. He initially worked at its store in Canberra as a casual employee and worked, on average, between 10 – 20 hours each week.

[2] After moving to Melbourne in 2015 he again worked for QBD at its store at Northland in the lead up to Christmas. However, in January this year Mr Longman concluded that because he was not receiving any further offers of casual work he had been dismissed. He now claims to have been unfairly dismissed. However, QBD submits he has not been dismissed and further offers of casual work are available. This decision accordingly deals with Mr Longman’s unfair dismissal application.

[3] The matter was dealt with in an unconventional way. Both Mr Longman and QBD provided submissions in accordance with the directions issued and the matter was set down for hearing. However, no representative from QBD appeared at the hearing, and after being contacted by phone the Commission was advised the business did not understand it was required to attend. The Commission subsequently contacted Mr Gary Parker-Shirley from QBD, He said Mr Longman had not been dismissed and he was free to work other casual shifts.

[4] It was then agreed Mr Longman could provide a further written submission, and the matter would then be determined on the basis of the material before the Commission at the time, without the requirement for a further hearing.

The Issue to Be Decided

[5] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides:

“What is an unfair dismissal,”

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable”. 1

[6] Section 386, “Meaning of dismissed,” continues to relevantly provide:

“(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;” 2

[7] QBD submits Mr Longman was not “terminated on the employer’s initiative,” as required by s.386(1), and the option of further casual work with the business is still open to him. Mr Longman rejects this view and submits that after making several enquiries with the Manager of the Northland store he was told “didn’t quite fit the vibe of the team.” 3 He then came to the conclusion that he was not going to be offered further casual work by the business.

[8] Therefore, the first issue to be determined is whether Mr Longman has “been dismissed,” in terms of s.385(a) of the Act. If it is found that he has not been “dismissed,” then the application must also be dismissed. However, if it is found that he has been dismissed then the Commission must determine whether his dismissal was “harsh, unjust or unreasonable,” having regard to the considerations in s.387 of the Act.

The Evidence and Submissions

[9] Mr Longman said he decided to move to Melbourne from Canberra late last year and was told by the Manager of the QBD store in Canberra, where he was working, that he should make enquiries about whether work was available at any QBD stores in Melbourne. Mr Longman said he was then told to contact the Manager of the QBD store at Southland in Melbourne, but after doing so it was suggested he contact the store at Northland where better opportunities for casual work were likely available.

[10] Mr Longman said he then contacted the Northland store and was told that on-going casual work was available, and he commenced working at the store on 3 December. He estimates that he worked for approximately 70 – 100 hours in total in the period between 3 – 24 December, before he then returned to Canberra during the Christmas/New Year period.

[11] Mr Longman said that after returning to Melbourne he contacted the Manager of the Northland store, Mr Philip Huntingford, on 3 January and was told he had not been rostered on for any casual work during the next two weeks because there was none available. He was then in contact again on 12 January and 30 January and submits he received the same response, although he was told the business would be happy to discuss the situation with him further.

[12] Mr Longman said he again spoke with the Store Manager in early February and was told on this occasion there was no further work available at the Northland store because “I didn’t quite fit the vibe of the team.” 4 However, it was also suggested he was welcome to look for work at other QBD stores in Melbourne. Mr Longman then lodged his unfair dismissal application.

[13] Mr Longman acknowledges in his submissions that he was told he could contact other QBD stores to advise of his availability for casual work, and this may make it more likely that he would be employed at those stores. However, he states that regardless of any offers made by QBD he can no longer trust the business to treat him fairly, given what has occurred in the past, and he would be “highly vulnerable as an employee” if he were to return. 5 He also submits he can no longer trust the business to do the right thing by him, and is not interested in any offers of reinstatement or being provided with further casual work at any QBD stores. He also takes issue with the description of him as a casual employee because he was employed on a “regular and systematic basis.”6

[14] QBD submits, in response, that Mr Longman worked with the business in Canberra as a casual salesperson from July 2014, and worked a range of different hours each week during that time. It submits he then advised the business late last year that he was moving to live in Victoria, and it was suggested in response he make contact with the Store Managers in Melbourne about future work opportunities at those stores. As a consequence he commenced working with the business in Victoria at the Northland store on 2 December.

[15] QBD continues to submit Mr Longman was not dismissed in February, and he has still not been dismissed. It submits instead that after the Christmas period the volume of work at the Northland store meant the business was not in a position to offer further casual work to him. However, Mr Gary Parker-Shirley from QBD said Mr Longman was provided with the opportunity to investigate the possibility of further casual work at other QBD stores in Melbourne, but to date he has not taken up this opportunity. It continues to submit those opportunities are still available if Mr Longman wishes to take up those options.

[16] It also submits, “there is nothing in his performance or conduct that would prevent him from working at any of our other stores, should shifts become available.” 7

Consideration

[17] The relevant provisions in ss.385 and 386 of the Act have already been detailed. They obviously require that for an employee to have been “unfairly dismissed” they must first have been dismissed from their employment.

[18] Mr Longman was originally employed by QBD at its bookstore in Canberra. He appears to have been a valued employee during that time. After informing the business that he intended to move to Melbourne to live, QBD encouraged him to enquire about obtaining casual work at its stores in Melbourne. Mr Longman followed up this opportunity and obtained casual shifts at the store in Northland in the lead up to Christmas. He then returned to Canberra during the Christmas/New Year period.

[19] On his return to Melbourne Mr Longman enquired on several occasions about whether further casual work was available at the Northland store, but was advised in response there was no requirement for further casual shifts at the time. He submits he was eventually told in early February by the Store Manager that he was not a “good fit” for the store. However, he was encouraged to seek casual work at other QBD stores in Melbourne. This was confirmed by Mr Gary Parker-Shirley, who again confirmed that Mr Longman had been a valued employee in the past who was welcome to pursue casual work opportunities at other QBD stores in Melbourne.

[20] In all the circumstances I am not satisfied that Mr Longman has been dismissed from his employment at QBD. It is clear he has been employed on a casual basis throughout his employment with QBD in both Canberra and Melbourne, and his hours fluctuated at different times. This is consistent with the nature of a casual engagement. On relocating to Melbourne Mr Longman was able to obtain casual work in the lead up to Christmas, but this was not available after that time. These circumstances are again not unusual in the retail sector, which commonly has its busiest period in the lead up to Christmas. This again is consistent with the nature of casual work, which can involve regular and systematic work patterns, but is also characterised in essence by the absence of a firm advanced commitment as to the duration or nature of employment in the future.

[21] It is acknowledged that Mr Longman feels that he can no longer trust the business because it has not been able to provide on-going casual work to him. He is also clearly disappointed by this outcome given that he had previously worked on a regular and on-going basis during his employment at the QBD store in Canberra. However, I am also not satisfied that Mr Longman has necessarily exhausted all available options to obtain casual work at the QBD stores in Melbourne, in circumstances where the business is indicating that casual work is available.

[22] In this context I refer to the following extract from the decision in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 8 when the Court concluded:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 9

Conclusion

[23] The parties provided limited submissions and evidence in this matter. However, in all the circumstances I am not satisfied, in conclusion, that QBD’s actions have resulted directly or consequentially in the termination of Mr Longman’s employment. It appears instead that he has decided not to pursue any possible casual work options that might be available in the business. As a consequence I am not satisfied that Mr Longman has been “dismissed.” It follows from this conclusion that he cannot be a person who has been “unfairly dismissed.” The application is accordingly dismissed.

COMMISSIONER

Final written submissions:

The Applicant filed his final submissions on 19 February 2016.

The Respondent filed his final submissions on 26 February 2016.

On 5 April 2016 the Applicant advised the Commission that he was seeking the matter be determined, in further submissions.

 1   Fair Work Act 2009 (Cth) at s.385.

 2 Ibid at s.386

 3   Applicant’s Statement of Evidence at page 5

 4   Ibid

 5   Letter from Applicant to the Fair Work Commission dated 5 April 2016 at page 2

 6   Ibid at page 1

 7   Respondent’s Outline of Arguments at question 6

 8 (1995) 62 IR 200

 9   Ibid at 205

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579402>