Chris Twigley v Fieldforce Services Pty Ltd T/A Uasg Skilltech

[2017] FWC 4018

[2017] FWC 4018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chris Twigley
v
Fieldforce Services Pty Ltd T/A UASG Skilltech
(U2017/2983)

DEPUTY PRESIDENT KOVACIC CANBERRA, 1 AUGUST 2017

Application for relief from unfair dismissal – Respondent raised two jurisdictional objections - Applicant had not served the minimum employment period and Applicant was not dismissed - first jurisdictional objection upheld - application dismissed.

[1] Mr Chris Twigley (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 20 March 2017 alleging that he had been constructively dismissed by Fieldforce Services Pty Ltd T/A UASG Skilltech (the Respondent) on 16 March 2017 and that his dismissal was unfair.

[2] The Respondent in its Form F3 – Employer Response to Unfair Dismissal Application raised two jurisdictional objections contending that Mr Twigley was not dismissed but rather resigned via email on 16 March 2017 and that he had not completed the 6 month minimum employment period specified in s.383 (a) of the Act.

[3] The Respondent’s jurisdictional objections were heard on 23 June 2017. At the hearing, Mr Twigley appeared on his own behalf, while Ms Celia Yuen, the Respondent’s Head of Group Workplace Relations and HR Legal, appeared for the Respondent.

[4] Mr Twigley gave evidence on his own behalf, while Mr Alex Fischer, a Contract Delivery Manager with the Respondent, gave evidence for the Respondent.

[5] For the reasons outlined below, I have found that Mr Twigley was not protected from unfair dismissal because he had not served the 6 month minimum employment period set out in the Act. Accordingly, his application is not competent and must therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[6] Mr Twigley commenced employment with the Respondent as a Meter Reader on 1 September 2016. Mr Twigley was engaged as a casual employee under the Fieldforce Meter Readers EBA 2011 1 with his contract of employment providing inter alia as follows:

“Employment Status

Your employment will be on a casual basis.

As a casual employee your employment commences on each engagement and ceases at the completion of each engagement. You may be offered subsequent engagements and such offers of engagement may be in accordance with a pattern previously or subsequently offered to you, although the Company is under no obligation to do so. You may accept the offer of such engagements, although you are under no obligation to do so. Each subsequent engagement will be under the terms set out in this offer. Any prior engagement or understanding on anything connected with your employment is superseded by this letter.

Any casual engagement may be terminated with notice in accordance with the terms of the applicable Award/Agreement.” 2

[7] In late October 2016 the Respondent introduced a new meter reading system called MiMtr. Mr Twigley encountered a number of issues with MiMtr and in the absence of what he considered to be a satisfactory response from Mr Fischer and his colleague, Mr Joseph Moore, he sent a text message on 14 December 2016 to Mr Nathan Cole, the Respondent’s Operations Manager, outlining his concerns and indicating that whilst his dealings with Messrs Fischer and Moore were cordial they had had become increasingly frustrating.

[8] Mr Twigley worked his last shift for the Respondent on 16 December 2016.

[9] On 1 January 2017 Mr Twigley sent an email to the Respondent’s Customer Care Team, which was responsible for work allocation, requesting that he be allocated work from Monday, 2 January 2017 3.

[10] On 9 January 2017 Mr Twigley sent an email to Mr Moore which read as follows:

“Further to my email 1 Jan can you please allocate work to be tomorrow.

I note that I was available to work Mon 19/12/16 and then Mon 2/1/17 and then today (bearing in mind your out of office email stated you are back at work today I figured work would be allocated to me this morning).” 4

[11] Later that day Mr Twigley sent a further email to the Respondent’s Customer Care Team asking that he be allocated work.

[12] On either 9 or 10 January 2017 Mr Twigley received a call from Mr Fischer. Mr Twigley’s record of that conversation is set out in the chronology of events attached to his application and read as follows:

“Telephone call from Alex Fisher at 4.45pm

There is currently no work available and probably none for at least 2 weeks. I queried this and he told me the clients contract had been changed and there was now less work and or the work could not be completed until a later date due to a new billing cycle. He also said it was likely there would be no more work unless someone left. He asked me to return the device so he had a spare one at hand but to hang on to the uniform for now.” 5

[13] On 9 March 2017 Mr Twigley received a further call from Mr Fischer. Mr Twigley’s notes of their conversation is as follows:

“Telephone with Alex Fisher

Alex asked me to return the device. I asked him if he had any work for me as I have been waiting to hear. He said he didn’t think so. I asked him why not. He said he had other people doing the work. I pointed out that he had previously told me there was always a lot of work so why wasn’t I getting any. He said there was no work to give me. I told him that I thought he was not being honest. I said it was obvious that following me messaging Nathan about my frustration with the situation Alex had simply cut me off, and he had given no reason for not allocating me work. I told him I was aware that he was continuing to advertise for new meter readers so he must need readers. He said he didn’t employ anyone but just kept running the advert. I told him I didn’t believe him. I asked him if he was going to give me more work. He said no. I told him that was effectively going to cause a forced resignation and I will take Spotless to Fair Work over it. I told him he can come and get the device if he wants it and to text me tomorrow to let me know when he will be picking it up.” 6

[14] Mr Fischer subsequently arranged to collect the meter reading device from Mr Twigley on 14 March 2017.

[15] On 16 March 2017 Mr Twigley sent an email to Mr Fischer resigning from his position with the Respondent. The email stated among other things:

“Alex

I hereby resign from my position as a meter reader with UASG Skilltech.

...

I worked on a regular and systematic basis from 1 September 2016 until 16 December 2016, being a period of 15 weeks. Over that time I earned an average of $472 weekly.

On 14 December 2016 I sent Nathan Cole a text message outlining a number of issues that had arisen during my employment. As you know some of those issues related to you and the overall management of meter reading in the ACT. Following that action there was no follow up by you and your response was to effectively stop assigning me work in an attempt to force me to resign. You have ultimately succeeded.

…

I record my position that I have been forced to resign due to your refusal to assign me work. At no point in time have you provided me with any valid or honest reason why you have not assigned me work. You have never raised any performance issue with me, and since 19 December 2016 I have communicated with you or your associates that I’m available and willing to work.” 7

[16] As previously noted, Mr Twigley’s unfair dismissal application was received by the Commission on 20 March 2017.

The Respondent’s Case

[17] The Respondent submitted that the Commission did not have jurisdiction to hear Mr Twigley’s claim because he:

(a) had not met the minimum employment period of 6 months specified in ss.382(a) and 383 of the Act; and

(b) was not dismissed as required by s.385(a) of the Act.

[18] With regard to (a) above, the Respondent submitted that prior to his resignation Mr Twigley did not perform any work over the period 17 December 2016 until his resignation on 16 March 2017, adding that there were no portions of this period that could count towards Mr Twigley’s period of employment for the purposes of s.382 of the Act. More specifically, the Respondent submitted that there was no basis upon which Mr Twigley could establish employment on a regular and systematic basis after 16 December 2016 in circumstances where he did not work any shifts at all and had no reasonable expectation of continuing employment with the Respondent on a regular and systematic basis after that date. Beyond that, the Respondent submitted that:

• Mr Twigley did not initiate any further contact with the Respondent seeking to be allocated work after his discussion with Mr Fischer on 9 or 10 January 2017, adding that Mr Twigley ceased to have a reasonable expectation of continuing employment on a regular and systematic basis at that point in time; and



• Mr Twigley’s claim regarding constructive dismissal was inconsistent with his claim that he had a reasonable expectation of continuing employment on a regular and systematic basis for a minimum period of 6 months.

[19] As to (b) above, the Respondent submitted that it could not be said that in the circumstances of this matter Mr Twigley had no effective or real choice but to resign. The Respondent further submitted that a failure to assign Mr Twigley work could not amount to a repudiation of his contract of employment, and hence a constructive dismissal, in circumstances where the express terms of the contract of employment contemplated that there was no obligation for work to be assigned. In support of that contention, the Respondent highlighted that Mr Twigley became aware of its position in this regard on 9 January 2017 yet he did not take steps to end the employment until 16 March 2017, adding that if there had been a repudiation by the Respondent that Mr Twigley had accepted that repudiation by not taking any action to conclude the employment relationship until over 2 months later.

[20] In support of its submissions, the Respondent relied on the decision in Shortland v The Smiths Snackfood Co Ltd 8 (Shortland).

[21] At the hearing, the Respondent submitted that both of its jurisdictional objections should be upheld, adding that Mr Twigley’s submissions misconstrued how the 6 month minimum employment period was calculated in view of s.384(2) of the Act. The Respondent also referred to Mr Twigley’s resignation email 9 in which he stated that he “worked on a regular and systematic basis from 1 September 2016 until 16 December 2016”. More specifically, the Respondent submitted that this was a moot point as there was no regular and systematic work performed by Mr Twigley after 16 December 2016, adding that it could not be said that after that date the requirements set out in s.384(2) of the Act had been met. Beyond this, the Respondent contended that it was Mr Twigley’s choice to resign and that under the contract of employment it was not obligated to offer work to Mr Twigley, adding that the decision not to offer Mr Twigley shifts after 16 December 2016 was not inconsistent with his contract of employment. The Respondent also relied on two further authorities – P. O’Meara v Stanley Works Pty Ltd10 and Geoff Barkla v G4S Custodial Services Pty Ltd11.

[22] Mr Fischer deposed in his witness statement 12 that Mr Twigley did not work any further shifts after 16 December 2016. Mr Fischer also deposed that:

• as a result of a change in client requirements, which reduced the window for meter reads from 5 to 2 days, from January 2017 onwards he had much greater predictability in the number of meter reading routes to be completed each day;



• this change meant that he was able to make more efficient use of the permanent meter readers to ensure their capacity was fully utilised and that he therefore had less need to allocate significant overflow work to casual employees;



• he contacted Mr Twigley on 9 January 2017 and asked him to return his handheld meter reading device and maintain contact with UASG Customer Care in case there was any change of work assignments as a result of illness or absenteeism;



• he told Mr Twigley that the schedule had an increase in workload in February 2017 and that he may be required then;



• Mr Twigley did not return the meter reading device as requested and he made no further contact with UASG Customer Care regarding work;



• he next spoke with Mr Twigley on 9 March 2017; and



• until Mr Twigley resigned on 16 March 2017 he considered that Mr Twigley continued to be a casual employee on the Respondent’s books who could be offered shifts from time to time should the need arise.

[23] In his oral evidence, Mr Fischer reiterated elements of his witness statement. Beyond that, key aspects of Mr Fischer’s oral evidence were that:

• he contacted Mr Twigley on 9 March 2017 as he had not heard from him since their conversation in January 2017, adding that the Respondent was in the process of doing a system upgrade of handheld meter reading devices which required all devices to be returned;



• when in that conversation Mr Twigley raised the issue of allocation of work he avoided the question, particularly as Mr Twigley was talking about being forced to resign and lodging an application with the Commission;



• Mr Twigley had pointed questions about whether he was going to allocate him any work, adding that he responded that Mr Twigley needed to maintain contact with the Customer Care Team to apprise them of his availability;



• he disagreed that he said to Mr Twigley that he would not be allocated any further work, though he attested that he may have said when asked by Mr Twigley if he had any work for him that he “didn’t think so”;



• the Customer Care Team dealt with staff after the change in work structure on 24 October 2016 and was responsible for work allocation from that date;



• where the Customer Care Team could not handle an issue they would consult with him as a result of his knowledge;



• he agreed that Mr Twigley was potentially employed as at 9 March 2017;



• he did not recall saying to Mr Twigley that there would be work if someone left; and



• over the period 9 January to 9 March 2017 the Respondent had approximately 27 casual employees on its books, with the majority of those employees offered work during this period.

The Applicant’s Case

[24] Mr Twigley submitted inter alia that between 16 December 2016 and 9 March 2017 the Respondent omitted to give him any work engagements and for the majority of that time did not give him any reason to believe that he was not going to be given further engagements. Mr Twigley further submitted that at no time prior to his resignation on 16 March 2017 did the Respondent ever indicate to him any intention to terminate his employment, adding that on 9 March 2017 Mr Fischer had informed him only that he would not give him any more work assignments and that that advice was the catalyst that brought about his resignation. In support of his submissions, Mr Twigley relied on several authorities, including Shortland, James McKinnon v Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania 13, Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic14 (Ponce) and Bridge v Amstel Golf Club Incorporated15.

[25] In his witness statement 16 Mr Twigley disputed aspects of Mr Fischer’s witness statement and deposed that his employment was regular and systematic. Mr Twigley also highlighted Mr Fischer’s evidence that he considered him to be on the books until 16 March 2017 which he considered to mean that he was still employed at that date.

[26] Key aspects of Mr Twigley’s oral evidence were that:

• the Respondent’s Customer Care Team was the point of contact regarding the allocation of work as of late 2016;



• he did not contact either the Respondent’s Customer Care Team, Mr Fischer or Mr Moore over the period 9 January to 9 March 2017 regarding the availability of work, adding that the Respondent had similarly not contacted him over that period;



• he performed no work for the Respondent after 16 December 2016;



• as at 9 January 2017 he thought he would get more work, adding that Mr Fischer had made it clear to him in their telephone conversation on that day that there was no work immediately available and that no work was likely to be available for a minimum of 2 weeks;



• as a result of that phone conversation he also formed the belief that Mr Fischer did not want anything to do with him and would not allocate him any further work;



• during his phone conversation with Mr Fischer on 9 March 2017, when he asked Mr Fischer about the allocation of work, Mr Fischer did try and avoid the issue but definitely said that he would not be offered any further work, adding that the latter comment caused him to resign;



• his phone conversation with Mr Fischer on 9 March 2017 commenced with Mr Fischer referring to a shortage of work; and



• he did not consider contacting Mr Cole or Mr Moore when he was not allocated work as it was his understanding that Mr Fischer was responsible for the allocation of work and there was no point going back to the Customer Care Team as Mr Fischer was controlling what was going on.

The statutory framework

[27] The relevant sections of the Act for the purposes of this matter are ss.382 to 386 which provide as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) …

385 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; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(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.

…”

Consideration of the issues

[28] The issue of regular and systematic casual employment was considered by Commissioner Roe in Ponce in which he observed as follows:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

…

[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and



• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.” (Footnotes not included, underlining added)

[29] The material before the Commission indicates that over the period 1 September until 16 December 2016 Mr Twigley worked between 3 days and 11 days per fortnight, working 10 days per fortnight for half of that period 17. That material supports a finding that Mr Twigley was engaged on a regular and systematic basis over that period which was just over 15 weeks.

[30] It is not disputed that Mr Twigley did not work again for the Respondent after 16 December 2016. In those circumstances there is no basis on which to find that he was engaged on a regular and systematic basis from that date until his resignation on 16 March 2017. Further, it was not disputed that Mr Fischer said to Mr Twigley on 9 January 2016 that the Respondent’s schedule indicated an increase in workload in February 2017 and that he may be required then. However there was no indication as to the duration or extent of any such work. Further, Mr Twigley’s evidence was that as a result of that phone conversation he formed the view that Mr Fischer did not want anything to do with him and would not allocate him any further work. This does not point to Mr Twigley having “a reasonable expectation of continuing employment by the employer on a regular and systematic basis” as required by s.384(2)(a)(ii) of the Act.

[31] Further, there is no material before the Commission which points to the existence of the circumstances set out at [76] in Ponce.

[32] In summary, the above analysis supports a finding that:

• Mr Twigley was employed on a regular and systematic basis for the period 1 September to 16 December 2016 – this period of just over 15 weeks does count towards Mr Twigley’s period of employment;



• Mr Twigley was not employed on a regular and systematic basis for the period 17 December 2016 to 16 March 2017 and had no reasonable expectation of continuing employment on a regular and systematic basis – accordingly, this period does not count towards Mr Twigley’s period of employment; and



• Mr Twigley’s period of employment with the Respondent was just over 15 weeks which is less than the 6 month qualifying period specified in s.383(a) of the Act.

[33] As Mr Twigley had not served the 6 month minimum employment period at the time he tendered his resignation he is not protected from unfair dismissal as per s.382(a) of the Act. Against that background, it is not necessary for me to consider the Respondent’s other jurisdictional objection, i.e. that Mr Twigley was not dismissed.

[34] As noted above, both Mr Twigley and the Respondent relied on the decision in Shortland. The Full Bench in Shortland stated as follows:

“[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” 18 (Underling added)

[35] In this case there was no service by Mr Twigley after 16 December 2016. As such, drawing on the language in Shortland, there were no individual engagements or sequence of engagements beyond that date. Accordingly, for the reasons outlined above, the period 17 December 2016 to 16 March 2017 does not count towards Mr Twigley’s period of employment with the Respondent.

Conclusion

[36] For all the above reasons, I find that Mr Twigley was not protected from unfair dismissal because he had not served the 6 month minimum employment period set out in the Act. Accordingly his application is not competent and must therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

C. Twigley on his own behalf.

C. Yuen for the Respondent.

Hearing details:

2017.

Canberra and Melbourne:

June 23.

 1   AE887335

 2   Exhibit 1 at Attachment AF- 1

 3   Attachment to Form F2 – Unfair Dismissal Application

 4   Ibid

 5   Ibid

 6   Ibid

 7   Ibid

 8   [2010] FWAFB 5709

 9   Exhibit 1 at Attachment AF-8

 10   PR973462

 11   [2011] FWAFB 3769

 12   Exhibit 1

 13   [2014] FWC 5053

 14   [2010] FWA 2078

 15   [2016] FWC 5205

 16   Exhibit 2

 17   Exhibit 1 at Attachment AF- 3

 18   [2010] FWAFB 5709

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