Christopher Shirreff v AUS Traffic Management Pty Ltd
[2020] FWC 3337
•3 JULY 2020
| [2020] FWC 3337 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Shirreff
v
AUS Traffic Management Pty Ltd
(U2020/1937)
| DEPUTY PRESIDENT BINET | PERTH, 3 JULY 2020 |
Application for an unfair dismissal remedy.
On 20 February 2020, Mr Christopher Shirreff (Mr Shirreff) filed an application (Application) to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with AUS Traffic Management Pty Ltd (AUSTM). Mr Shirreff seeks reinstatement or compensation.
On 3 March 2020 AUSTM filed a response to the Application raising jurisdictional objections.
On 20 March 2020 and 14 April 2020 the Application was listed for conciliation but the Application could not be resolved.
Taking into account the parties wishes and circumstances I determined that a determinative conference rather than a hearing would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for determinative conference in Perth on 25 June 2020 (Conference).
Directions for the filing of materials in advance of the Conference were first issued to the parties on 24 April 2020. Amended directions were issued on 7 May 2020 (Directions).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Conference is conducted is fair and just.[1]
AUSTM sought permission to be represented by a lawyer at the Conference, this was opposed by Mr Shirreff who was unrepresented.
Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent only with the permission of the FWC.
Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[2]
AUSTM submitted that granting leave would enable the matter to be dealt with more efficiently given the factual matrix and because the purpose of the Conference was to determine a jurisdictional objection requiring familiarity with the relevant case law. AUSTM pointed to the narrowing of the jurisdictional objections following the engagement of its lawyers as evidence that the involvement of its legal representatives had already assisted the more efficient determination of the Application. AUSTM also submitted that it would be unfair to deny it leave to be represented as there was no person within the organisation able to represent it effectively.
Mr Shirreff submitted that, not withstanding that the purpose of the Conference is to determine a jurisdictional objection, the matter is not complex. He also submitted that AUSTM had employees with the necessary educational qualifications and experience to represent it namely Mr Steven Dhu, an AUSTM Director (Mr Dhu) because he holds a law degree and Ms Milica Jukic, the AUSTM Recruitment Manager because she attended Curtin University.
AUSTM disputed that either Mr Dhu or Ms Jukic were capable of effectively representing it. AUSTM explained that Mr Dhu practised only in the areas of commercial, mining and native title law, has no advocacy experience and has not held a practise certificate since 2015. With respect to Ms Jukic they say that she holds only a Bachelor of Arts and has no other relevant tertiary qualifications. AUSTM say that neither have any employment law or industrial experience or qualifications and are unfamiliar with the FW Act and FWC processes.
Having considered the submissions of the parties I exercised my discretion to grant leave to AUSTM to be represented by a lawyer because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
At the Conference Mr Shirreff represented himself and provided written and oral evidence on his own behalf
At the Conference AUSTM was represented by Mr Steven Stiller a lawyer with MKI Legal. The following witnesses gave written and oral evidence on behalf of AUSTM:
a. Mr Enzo Duca – Pilbara Manager
b. Ms Milica Jukic – Recruitment Manager
c. Ms Diana Campbell – Payroll and Accounts Administrator.
d. Mr Jae Man Shin – Chief Financial Officer
Background
AUSTM is a traffic management company which provides traffic management services in Western Australia and the Northern Territory.
In order to meet the fluctuating demand for the traffic controllers AUSTM maintain a ‘pool’ of casual traffic controllers to whom it offers work on an ‘as needed’ basis. [3]
To facilitate the rostering of these employees AUSTM provided employees with access to a software program called Traffio. Via Traffio employees indicate their availability and are rostered shifts.[4]
Mr Shirreff commenced employment on or around 28 May 2018 as a casual traffic controller reporting directly to Mr Duca.[5]
Mr Shirreff says that between May 2018 and November 2019 he was rostered to work eight weeks on and two weeks off on a fly in fly out basis. The evidence of Mr Duca is that the practise of the business is that employees are flown at the company expense to the Pilbara for the period for which they are available. Once in the Pilbara employees are offered shifts and rostered to work as needed by clients. Employees are not engaged nor paid on days during that period which they do not work.
Mr Shirreff agreed that he was a casual employee, that he was not guaranteed any particular hours of work per week and that his hours of work during his employment varied depending on client needs and his availability.
There is no evidence before me that AUSTM had any concerns in relation to Mr Shirreff’s performance or any reason why it might wish to bring Mr Shirreff’s employment with it to an end. Mr Shirreff says that while there were tensions in his relationship with the Assistant Manager he says he had a positive relationship with Mr Duca the manager and was in fact appointed a relief manager for a period of time.[6]
On 3 November 2019, Mr Shirreff submitted a leave request through Traffio for the period of 21 November 2019 until 1 February 2020.[7] The leave request records Mr Shirreff’s employment status as casual and his anticipated return to work date as 2 February 2020.[8] The leave request is for unpaid leave.
On 14 November 2019, Mr Shirreff sent a text message to Mr Duca stating: “I will be unavailable for work until the 20th November. I shall provide medical certificate through the appropriate forum (Traffio) when possible”. On that same day, Mr Shirreff lodged via Traffio a leave request form which attached his medical certificate.[9] The leave request records Mr Shirreff’s status as casual and the leave type as sick leave. The leave request seeks leave from 13 November 2019 until 20 November.[10]
During his absence, work which would have otherwise been allocated to Mr Shirreff was allocated to other casual employees.
Mr Duca says that during Mr Shirreff’s absence AUSTM experienced a decline in volume of work due to a variety of factors including the evolving COVID-19 pandemic and as a consequence currently have less work to offer their casual traffic controllers.[11] Notwithstanding the decline in work Ms Jukic says that the company has continued to recruit traffic controllers to its pool of casual employees to ensure that it has sufficient labour available when required.
Mr Shirreff says that on 1 February 2020 he endeavoured to access Traffio and was unable to do so.[12]
On 5 February 2020 at 9:08 AM, Mr Shirreff sent an email to Mr Duca asking about his employment status given that he was unable to access Traffio. [13]
“Hi Enzo Can u please advise of my employment status within the company? Although I am not looking to come back to work just yet, the lack of contact from AUS and the removal of my traffio credentials leads me to believe my services are no longer required? If this is the case I have to advise that I have not resigned as per Fair Work guidelines and AUS must fulfill [sic] its legal obligations and either sack me or provide notice of retrenchment if my services are not required…”.
Ms Jukic says that Mr Duca indicated to her that he did not have any shifts to offer Mr Shirreff and asked how he should respond. Ms Jukic says that she told Mr Duca to inform Mr Shirreff that AUSTM does not currently have any shifts available but will let him know as soon as shifts become available.[14] Mr Duca consequently replied to Mr Shirreff’s email at 1:53 PM the same day as follows: [15]
“Hi Chris Great to hear from you! Unfortunately, we do not have any further vacancies for Traffic Controllers at this point of time and your position had to be filled during your extended time away. We have kept your details on record if any opportunities arise in the future…”.
Mr Duca asserts that he did not remove Mr Shirreff’s access to Traffio and that Mr Shirreff remains in the Traffio system.
On 18 February 2020, Mr Shirreff sent an email to Mr Duca as follows[16]:
“I am not applying for work I am an existing employee! I will do not [sic] accept this matter to be a genuine retrenchment.”
On 20 February 2020 Mr Shirreff filed the Application with the FWC.
On 24 February 2020 Mr Shirreff contacted AUSTM by email and requested that a separation certificate be provided to him. [17]
On 3 March 2020 AUSTM filed its response to the Application.
On 4 March 2020 and 9 March 2020 Mr Shirreff again contacted AUSTM by email and requested that a separation certificate be provided to him. [18]
On 10 March 2020, Ms Jukic replied to Mr Shirreff by email informing him that she was waiting for management to sign the certificate. [19]
On 12 March 2020, Ms Jukic provided Mr Shirreff with the completed separation certificate. The certificate indicates that a separation occurred on 5 February 2020 because of a shortage of work. Ms Jukic says she issued the certificate only because Mr Shirreff’s requested that it be provided. Ms Jukic says that she understood the certificate to be necessary for Mr Shirreff to access Centrelink benefits. She says that she took no steps then or subsequently to finalise Mr Shirreff’s employment and that he remains in the AUSTM database as an employee. Ms Jukic says that subject to Mr Shirreff indicating that he is ready to return to work Mr Duca is authorised to offer Mr Shirreff further shifts.[20]
Mr Duca is adamant that it was and has remained his intention to offer Mr Shirreff further work in the future when Mr Shirreff confirms he is ready to work and a shift becomes available.[21]
Ms Campbell’s evidence is that the normal practise of the business is only to issue separation certificates in circumstances where an employee has resigned and not where an employee has been dismissed. She also says that in her role as Payroll and Accounts Administrator she is informed by the relevant manager when an employee is dismissed so that she can attend to various tasks such as informing the Australian Taxation Office. She says that she has never been informed that Mr Shirreff was dismissed and that he remains an active employee on the payroll database.[22]
Mr Shirreff submits he was unfairly dismissed and seeks an Order that he be reinstated or provided compensation for lost expenses, abandoned property and wages.
Was Mr Shirreff Dismissed?
In order to be eligible to make an application for a remedy for unfair dismissal an applicant must have been dismissed for the purposes of section 386 of the FW Act.
Section 386(1) of the FW Act provides that a person has been dismissed if:
a. the persons employment with their employer has been terminated at the employer’s initiative; or
b. the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
A termination is at the employer’s initiative when the employer’s action ‘directly and consequentially’ results in the termination of employment and had the employer not taken this action, the employee would have remained employed.[23]
In determining whether a termination is at the employer initiative it is necessary to examine all the circumstances including the conduct of the employer and the employee.[24]
The parties agree that Mr Shirreff was employed on a casual basis. There is no evidence that he was paid leave entitlements. Mr Shirreff conceded that he was not guaranteed any particular hours of work per week and that his hours of work during his employment varied depending on client needs and his availability.
It is clear that the parties both believed that he was entitled to refuse offers of work. On AUSTM’s part they permitted him to be absent from work for more than two months without pay and did not immediately require him to work when that period expired. On Mr Shirreff’s part even once his agreed period of absence had expired he indicated that he did not intend to immediately return to work and did not seek the approval of AUSTM for his further absence from work.
When he inquired about his employment status, Mr Duca informed Mr Shirreff that there were no available shifts for casual employees at the present time but that he would be considered for future work.
AUSTM did not initiate any steps typically associated with termination such as providing notice of termination or issuing a separation certificate. A separation certificate was only issued at the insistence of Mr Shirreff and only after he had filed the Application.
It is unclear why Mr Shirreff was unable to access Traffio. AUSTM assert that they took no steps to restrict his access and report that he remains in the Traffio database. The evidence that he tendered to demonstrate he could not access Traffio includes an instruction to contact his employer for assistance in regaining access. There is no evidence that he did this.
There is no evidence that Mr Shirreff has indicated that he is ready, willing and able to return to work and that AUSTM have refused to provide him with work.
There is evidence that Mr Shirreff remains “on the books” and in AUSTMs pool of casual employees to be called upon when required.
I am not satisfied that AUSTM took actions with the intent to either terminate Mr Shirreff’s employment or with the probable result of bringing the employment relationship to an end.[25]
In support of his submission that he was dismissed for the purposes of the FW Act Mr Shirreff’s cited the decision of Commissioner Cambridge in Arpita Das v Prestigious Services (Aust) Pty Ltd.[26] In that case the evidence of the employer was that they believed that the employee’s employment had come to an end as a matter of law when the employee took leave without approval. In Mr Shirreff’s case the employer indicated that they intended to consider Mr Shirreff for further casual shifts and the evidence is that Mr Shirreff remains ‘on their books’.
I am therefore not satisfied that Mr Shirreff has been dismissed within the meaning of section 385 of the FW Act.
The Application is therefore dismissed.
An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr C. Shirreff on his own behalf
Mr S. Stiller of MKI Legal for the Respondent
Hearing details:
Perth
2020
25 June
<PR720264>
[1] Warrell v Fair Work Australia [2013] FCA 291.
[2] Ibid.
[3] Statement of Ms Milica Jukic dated 11 May 2020.
[4] Ibid.
[5] Statement of Agreed Facts dated 8 June 2020.
[6] Statement of Mr Christopher Shirreff filed 28 May 2020.
[7] Statement of Agreed Facts dated 8 June 2020.
[8] Statement of Mr Enzo Duca dated 11 May 2020 at ED1
[9] Statement of Agreed Facts dated 8 June 2020.
[10] Statement of Mr Enzo Duca dated 11 May 2020 at [ED2]
[11] Ibid at [8].
[12] Statement of Mr Christopher Shirreff filed 28 May 2020.
[13] Statement of Agreed Facts dated 8 June 2020.
[14] Statement of Ms Milica Jukic dated 11 May 2020.
[15] Statement of Agreed Facts dated 8 June 2020.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Statement of Ms Milica Jukic dated 11 May 2020.
[21] Statement of Mr Enzo Duca dated 3 June 2020 at [6].
[22] Statement of Ms Diana Campbell dated 11 May 2020.
[23] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.
[24] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100.
[25] Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769.
[26] [2019] FWC 7628.
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