Chris Meadows v SPD Earthworks Pty Ltd
[2023] FWC 2547
•5 OCTOBER 2023
| [2023] FWC 2547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chris Meadows
v
SPD EARTHWORKS PTY LTD
(C2023/3553)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 5 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection of no dismissal – objection dismissed.
On the 19 June 2023, Mr Chris Meadows (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 6 June 2023 by SPD Earthworks Pty Ltd (the Respondent) contravened his workplace rights. In its Form F8A response the Respondent raises a jurisdictional objection to the Application that being the Applicant was not dismissed.
The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from his employment within the meaning of s. 386(1)(a) or (b).
The application was allocated to my Chambers on 8 August 2023 following which the matter was listed for an on-line Mention on 22 August 2023. While the Applicant appeared at the Mention the Respondent failed to attend. Attempts by my Associate to contact the Respondent by telephone in relation to his attendance at the Mention were unsuccessful. No return call was received from the Respondent despite a request to do so by my Associate.
Following the Mention on 22 August 2023, Directions were issued the same day requiring the filing of material in relation to the Respondent’s jurisdictional objection. The matter was also listed for hearing on 4 October 2023. The Respondent was required to file its material on or by the close of business on 6 September 2023 while the Applicant was required to file his material in reply by the close of business on 20 September 2023.
The Respondent failed to file any material by the required filing date so correspondence was sent from my Chambers on 7 September 2023 noting that no material had been filed and that in the absence of any material I would proceed to determine the jurisdictional objection on the material before me. The Applicant also failed to file any material in reply and advised my Chambers on 21 September 2023 that he would seek to rely on his Form F8 and accompanying material that been lodged.
On 28 September 2023, correspondence was sent to the parties attaching a Court Book for the hearing listed on 4 October 2023.
On 3 October 2023, further correspondence was sent to the Respondent in the following terms;
“……………
The Deputy President notes that the Respondent failed to attend the mention/conference on 22 August 2023 and has also failed to file any material in accordance with the directions.
The Deputy President advises that the hearing will proceed tomorrow as listed. Should the Respondent fail to appear, the jurisdictional objection will be determined in its absence.
…………”
On the 4 October 2023, neither the Applicant or the Respondent attended the hearing listed for that day.
Having regard to the above chronology of events and the opportunities afforded to the Respondent to advance its jurisdictional objection, which it has not taken advantage of, I intend to now determine the application based on the material before me which is limited to a series of text messages exchanged between the Applicant and the Respondent on 5 & 6 June 2023. That series of text messages is set out below.
Text message exchange
On 5 June 2023 an apparent issue with heavy machinery the Applicant was operating arose which led him to contact the Respondent’s business owner Mr Dimitrios Dallas, sending him a picture of the excavator. Mr Dallas responded to the message with a question;
“Are you using the battery or hand pump”
The Applicant then replied in the following terms;
“Battery
I don’t want to track on it. It needs to be looked at by a professional.
The nipple on the left track is threaded or something and grease just pisses out and track cannot be adjusted. Not operating on it.
Please organise a mechanic to come and look.
Thanks”
Mr Dallas then replied;
“Mate I’m in Sydney bout to board. I’ll send Clint down. It just needs undoing Cleaning and re tighten.”
The Applicant then responded as follows;
“I took it out. Its threaded. Grease pisses everywhere.
I left the site.
Currently looking at my super contributions and tax declarations.
ATO says I’m not registered by SPD and no super contributions have been made.”
Mr Dallas then sent a further text message as follows;
“Mate I didn’t tell you to go home. I could’ve sent you to Sumitomo to get a nipple assembly. I’m going through a lot of shit and need my life made a little easier. This doesn’t help. I havnt even been to my accountant to process you. And super contributions get paid 4 months. I hear no complains when I over pay every week though to try make things easy. When I land I’ll go get the machine sorted. If you’re not happy mate. I don’t care if you leave. I’m honestly on the verge of giving up. It’s never enough. People always want more.”
Mr Dallas sent a further text message to the Applicant in the following terms;
“I’m not doing this over text mate. Either have the decency to speak on the phone Or don’t speak at all stop hiding behind the keyboard. I’m not stupid. Of course I over pay you for that reason. But let me tell you it’s a lot more you are getting than tax being with held. You don’t work over time don’t work Saturdays and do as you please which I pay you for and don’t question. This is not the first time you’ve made the decision to leave on your own judgement. You get paid. I don’t care if you sit in your car for the rest of your day. I pay the bills on that machine not you. So I’m sorry you’re completely wrong. It’s all in the best interest for you. When you pay my bills and my repayments then you can do what you want.”
The Applicant then replied as follows;
“We can talk on the phone. It won’t be pretty
I very often work till 5 and work Saturdays when required or I can!!
You do know that they don’t actually work til 5 every day yeh?”
Mr Dallas then immediately replied as follows;
“Out of all that that’s what u have to say. It’s a little late now to talk I’m bout to board. I’ll call u later. And tread carefully with threats mates. I think we both know I try and help your situation as much as I can.”
The Applicant then sent a further text message to Mr Dallas in the following terms;
“I’m not interested in listening to your bullshit. It’s that simple.
Contact me through email only please.
Keys are with the machine hidden.
GPS is in my possession currently.”
Mr Dallas then replied to the Applicant as follows;
“Scene as though you’re still getting paid for the rest of the day. Please take the gps to Clint. Then I’ll contact you through email from now on then.”
At 8.51am on 6 June 2023 Mr Dallas sent the following text message to the Applicant;
“Mate you have 1 hour to get the gps and fuel card to site or I will be calling the police. You have my property and not returning it. Cheers”
The Applicant then immediately responded to Mr Dallas’ demand for the return of the gps as follows;
“Oh are you firing me? What for?”
Mr Dallas then replied;
“I have requested you to return my gps. You were getting paid and not following instructions. Your job was to bring the gps and fuel card back to site. You had all day to do it yesterday after leaving site with out instruction again and still didn’t do what you were told.
Return the gps and card immediately…..”
The final text was sent by the Applicant in reply to Mr Dallas in the following terms;
“Fuel card was never mentioned
You’re going to fire me the same day I discovered that
-you haven’t made one super contribution
-haven’t registered me with the ato
-no payslips in 2 months”
Consideration
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute if an application is made under s 365.
The circumstances in which a person is taken to be “dismissed” are set out in s. 386 of the Act. Section 386(1) relevantly provides as follows:
(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; 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.
In the present matter the Applicant has not articulated in the proceedings which limb of s. 386(1) he claims to have been dismissed under although it is apparent that his case proceeds on the basis that he claims to have been terminated by the Respondent within the meaning of s. 386(1)(a). The Respondent in its Form F8A response contends that there was no dismissal.
The authorities in respect of the meaning of the term ‘dismissed’ are well traversed. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[3] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’
“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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee.”
and at 5:-
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
Whether Applicated terminated at the Respondent’s initiative (s. 386(1)(a))
Returning to the present matter, neither party led evidence in relation to the circumstances leading up to and including the dismissal. All that is before me is the series of text messages exchanged between the Applicant and Mr Dallas on the 5 & 6 June 2023 that was attached to the Respondent’s Form F8A response.
What is immediately apparent from the text message exchange is that an issue with the excavator being operated by the Applicant on 5 June 2023 led him to stop work, report the issue to Mr Dallas, request a mechanic attend the site to repair the equipment and then leave the work site early to go home. He later raised a query with Mr Dallas regarding his superannuation entitlements and registration of his employment with the ATO. Mr Dallas took umbrage at the Applicant’s communication with him both in respect of the Applicant’s entitlements and his decision to leave the site early. The subsequent communication between the two then deteriorated which reflects poorly on both. At the end of the communication between the Applicant and Mr Dallas on 5 June 2023, Mr Dallas then asked the Applicant to return the GPS to site that day. Up to this point there is nothing in the text message exchange to indicate the Applicant has resigned his employment.
Early the following day on 6 June 2023, Mr Dallas sent a further text message to the Applicant demanding he return both the GPS and fuel card within an hour, or he would call the police. The fact that Mr Dallas demanded the return of equipment necessary for the performance of the Applicant’s work strongly indicates he did not regard the Applicant as an employee at that point. The Applicant then queried whether he was being dismissed. Mr Dallas in his response to the Applicant did not deny the Applicant had been dismissed but sought to justify his position by describing the alleged misconduct of the Applicant in failing to comply with Mr Dallas’ instructions. In the final message the Applicant then sought to confirm that he was being dismissed for raising concerns regarding his ATO status and superannuation entitlements.
It is unclear whether the above text message exchange is complete but in the absence of further evidence from either party I am left with that exchange to decide the Respondent’s jurisdictional objection. There is nothing in the exchange that indicates the Applicant had resigned from his employment with the Respondent. In fact, the text message exchange strongly indicates the contrary, that being the Respondent was unhappy with the Applicant’s conduct and took steps to require the return of company equipment that was necessary for the performance of work by the Applicant. That conduct was at the initiative of the Respondent and was consistent with its intention of bringing the employment relationship to an end. The Applicant reasonably believed and accepted that the conduct ended his employment.
It follows from the above that the employment of the Applicant was ended at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act.
Conclusion
I find that the Applicant was dismissed within the meaning of s. 386(1)(a) of the Act. It is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. The requirements of s 365 have been met. The respondent’s jurisdictional objection is dismissed. The application will shortly be listed for a conciliation conference.
DEPUTY PRESIDENT
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] [1995] IRCA 625; 62 IR 200.
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