Chris Meadows v SPD Earthworks Pty Ltd - [2023] FWC 2547

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2547
Decision Date: 5 OCTOBER 2023

CaseChat Overview and Summary

In the matter of Chris Meadows v SPD Earthworks Pty Ltd, the Fair Work Commission was tasked with determining whether the Applicant was dismissed within the meaning of the Fair Work Act 2009. The Applicant, Mr Chris Meadows, claimed that his employment was terminated by the Respondent, SPD Earthworks Pty Ltd, on 6 June 2023. The Respondent, however, objected to the jurisdiction of the Commission, asserting that no dismissal had occurred. The central issue before the Deputy President was to decide whether the Applicant's employment was indeed terminated by the Respondent, thus establishing the Commission's jurisdiction to hear the matter.

The Deputy President examined the series of text messages exchanged between the Applicant and the Respondent on 5 and 6 June 2023, which were the primary pieces of evidence. The text messages revealed that the Applicant had reported an issue with the machinery he was operating and subsequently left the site early. This action led to a deteriorating exchange between the Applicant and the Respondent, culminating in the Respondent demanding the return of company equipment and the Applicant questioning whether he was being dismissed. Although there was no explicit statement of dismissal in the text messages, the Respondent's demand for the return of equipment necessary for the Applicant's job strongly suggested that the employment relationship had been terminated. The Applicant also reasonably believed that his employment had ended due to the Respondent's conduct.

The Deputy President concluded that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act. The Respondent's conduct in demanding the return of company equipment and the lack of any indication that the Applicant had resigned pointed towards a termination initiated by the Respondent. Consequently, the Respondent's jurisdictional objection was dismissed, and the application was to be listed for a conciliation conference.

Orders