D Booth v Organic Formulations Pty Ltd

[2014] FWC 7629

[2014] FWC 7629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

D Booth
v
Organic Formulations Pty Ltd
(U2014/8883)

C Booth
v
Organic Formulations Pty Ltd
(U2014/11906)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 5 NOVEMBER 2014

Application for relief from unfair dismissal – application dismissed.

[1] Mr D Booth and Mr C Booth (jointly, the Applicants) were employed as casual employees by Organic Formulations Pty Ltd (the Respondent), from 11 September 2013 and 22 January 2014 respectively. The Applicants were last offered work and last attended for work on Thursday, 24 July 2014.

[2] On or around Friday, 15 August 2014 the Applicants formed a view that the Respondent had terminated their employment as casual employees. On 20 August and 21 August 2014 the Applicants made application under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the alleged termination of their employment by the Respondent.

[3] On 1 September 2014, the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application – in relation to each application. In each case, the Respondent raised three jurisdiction objections against the applications:

● the Applicants were not dismissed (requirement for a person having been unfairly dismissed in ss.385(a) and 386 of the Act);

● the Applicants’ employment did not meet the minimum employment period (requirement for protection from unfair dismissal in ss.382(a) and 383 of the Act); and

● the Respondent’s business is a small, business and the dismissal was consistent with the Small Business Fair Dismissal Code (requirement for a person having been unfairly dismissed in ss.385(c) and 388 of the Act).

Decision

[4] For the reasons stated below, I have determined that the Applicants were not dismissed by the Respondent. Each was engaged as a casual, subject to the discretion of the employer to offer and the employees to accept work, and remained casual employees subject to the availability of work. In that circumstance, it is unnecessary to determine the minimum period of employment objection, which the Respondent pressed only in relation to C Booth. Nor is it necessary to determine the small business point which was not, in any case, pressed by the Respondent in relation to either Applicant.

[5] Section 385 of the Act provides that 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.”

[6] The necessary jurisdictional basis for finding that the Applicants were unfairly dismissed within s.385(a) of the Act – that the Applicants were not dismissed by the Respondent – has not been established. Accordingly, the applications by the Applicants for relief in respect of the termination of their employments are dismissed.

Reasons for finding that the Applicants were not dismissed

Statutory provisions in relation to whether a person has been dismissed

[7] Section 386(1) of the Act provides that 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.”

[8] Section 386(2) of the Act sets out some circumstances in which a person has not been dismissed, as exceptions to s.386(1), which are not relevant in the circumstances of the current applications.

Submissions

[9] Neither Applicant contended that there was an express termination of their employment communicated to them by the Respondent.

[10] The Respondent submitted that the Applicants relied on advice to them by the Respondent from 24 July 2014 that there was no current work for them to perform to contend that their employment was terminated by the Respondent.

[11] The Respondent submitted that this contention is unsustainable in the circumstances in which:

● each Applicant was employed on a casual basis;

● the Respondent’s requirement for work to be performed fluctuated in accordance with demand for its products, with significant seasonal variation;

● from March to June 2014, casual employees were regularly engaged to build supply, following significant stock and raw material losses during the February 2014 bush fires;

● since that time, there has been a decreased demand for production and other factors such as equipment malfunctions, although it was hoped that there would be an increase in demand for the Respondent’s product over the summer period;

● the Applicants, and other casual employees, have not been rostered to undertake duties recently due to there being insufficient work to perform; and

● the first time the Respondent became aware of the alleged “termination of employment” was when the unfair termination applications were received by it.

[12] The Respondent relied on the approach of the Full Bench in Wayne Shortland v The Smiths Snackfood Co Ltd (Shortland) that:

“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.” 1

[13] The Respondent submitted that its failure to offer casual engagements beyond 24 July 2014 simply reflected its requirement for casual labour at that time, reflecting equipment malfunctions for a period of time and the reduced demand for its products. The advice by the Respondent to the Applicants that there was no current work for them to perform simply reflected the nature of casual employment and did not constitute words or actions on the part of the Respondent that there would be no further engagements.

[14] The Applicants submitted that the failure to offer work beyond 24 July 2014, when considered in all of the circumstances of the matters, 2 including the communications between the parties beyond that date, constituted action by the employer intended to either bring the employment relationships to an end or having that probable result.3

[15] The Applicants submitted that when this approach is applied in the context of the evidence, it is clear that they were dismissed. They relied on:

● the working of a regular pattern of employment up until 24 July 2014, at which time they were advised that there was no work for specified periods due to a breakdown of machinery and the consequential impact of that breakdown;

● the advice to the Applicants on 6 August (D Booth) and 10 August (C Booth) 2014 that they were free to look for other employment. The Applicants submitted that this evinced a clear intention of the Respondent to terminate the employment or that the termination of the employment was the probable result of the communications;

● upon receiving advice that they were free to look for other employment, each Applicant attended the work-site and collected their personal belongings, a fact which was known to the Respondent;

● had the Respondent continued to offer shifts to the Applicants or indicated the possibility of the resumption of the offer of shifts, the Applicants would have remained employed by the Respondent; and

● the Applicants sought further clarification from the Respondent regarding their employment status. By emails from C Booth (11 August 2014) and D Booth (13 August 2014), the Applicants sought confirmation that they were still employed by the Respondent, indicating that in the absence of such confirmation by 15 August 2014, they would assume that they were no longer employed by the Respondent. The Respondent did not reply to the emails.

Relevant findings on the evidence

[16] I find that each of the Applicants were employed by the Respondent as a casual employee. This finding it not contested by the Applicants 4 and is supported by:

● the communications between the Applicants and the Respondent prior to employment in which it was made clear that the employment was casual and, although “there was a lot of work” available at the time, the availability of work was dependent on orders; 5

● the basis of employment reflected in taxation documentation; 6

● whilst the Respondent accepted that the Applicants’ employment was regular and systematic, there was a variation in the number of hours worked; 7

● the freedom of the Applicants to decline offers of engagement 8 and the Respondent to offer work depending on operational circumstances;9 and

● the absences occasioned by illness, family responsibilities or the undertaking of holiday travel by the Applicants without payment. 10

[17] The Applicants’ case that the actions of the Respondent either intended to bring the employment relationship to an end or having that probable result relied on in the circumstances of the failure by the Respondent to offer work beyond 24 July 2014 and communications between the Applicants and the Respondent after that time, including emails from the Applicants to the Respondent on 11 and 13 August 2014.

[18] I find that the Respondent did not offer any casual engagements to the Applicants beyond 24 July 2014. So much so that it is not in dispute and is supported by the evidence of “equipment malfunctions” 11 and weak demand for its product.12

[19] The communications between the Applicants and the Respondent after 24 July 2014 was, except in limited cases, in written form, contained in exhibits in the proceedings. In referring to the communications, references to dates are dates in 2014 in all cases. The communications occurred predominantly between the Applicants and Mr K Moody, the Respondent’s Production Manager, who was responsible for “rostering casual employees”. 13

[20] The sequence of events is as follows:

● On Thursday, 24 July Mr Moody sent a text message to the Applicants, advising that there was no work on Friday 25 and Monday 28 July due to issues with the production equipment. 14

● Later on Thursday, 24 July and on Friday, 25 July C Booth exchanged voice and text messages with Mr Moody regarding the signing of his last time sheet. He also asked that he be advised “if anything changes for monday (sic) as im (sic) pretty strapped for money at the moment”. 15

● On Monday, 28 July Mr Moody sent a text message to the Applicants, advising that “I have no work for the rest of this week” due to further problems with the production equipment. 16

● C Booth responded on that day stating that he was “not happy” and advised that this was “our only income” and he could not “survive like this”. 17

● On Sunday, 3 August Mr Moody sent a text message to the Applicants, advising that there was “still not enough work” because of the lack of work required to be done. 18

● On Monday, 4 August D Booth sent a text message to Mr Moody asking if another employee could give up work so that either he or C Booth “could earn some money”. 19

● On Tuesday, 5 August D Booth made unsuccessful attempts to contact Mrs D Tarantello, the Director of the Respondent and Mr M Tarantello, a formulator (and the son of Mrs Tarantello) and Mr Moody by telephone and sent a text message to Mr Moody reiterating his 4 August request that another employee give up work so that one of the Applicants could work. 20

● Later on Tuesday, 5 August D Booth sent a text message to Mr Tarantello, stating that he had not received a reply from Mrs Tarantello or Mr Moody asking what was “going on with our jobs”. 21

● On Wednesday, 6 August 2014 D Booth “missed a phone call from Mr Moody” and found a “voice message saying words to the effect that there was ‘no work until further notice . . . I was free to look for other work . . . I would always have a casual position with the Respondent’”. 22

● D Booth responded by text to Mr Moody advising that he would attend the office immediately to “pick up his back brace so I could do some work around the house”. 23 D Booth did attend for that purpose but did not speak to anyone.24

● On Sunday, 10 August 2014 C Booth sent a text message to Mr Moody asking if he had “any work that week”. 25

● Mr Moody replied by text to C Booth on 10 August 2014 stating “[S]orry no change at this stage still not enough work, it is understandable if you need to move on to other employment as I have told Daniel and anybody else that are not getting enough hours, all staff are employed in a casual position and called upon depending on workload at the time, I believe Daniel already made contact with Dannie and Max but there is nothing I can do”. 26 C Booth understood the text message to mean that he had continuous casual employment.27

● C Booth responded on that day advising that he would attend work to pick up some personal effects – a radio and “DVD and the Valiant workshop manual”. 28 Mr Moody acknowledged the message and advised that they would be “ready for you to collect”.29

● C Booth then attended work, picking up his personal effects from the shed and the other personal effects from Mr Tarantello, but without any conversation occurring between them. 30

● On Monday, 11 August 2014 following legal advice, 31 C Booth sent an email to the general enquiry email of the Respondent “seeking confirmation” of whether he was “still employed by the Respondent”, indicating “that if I did not receive a response by 15 August 2014, I could only assume that I was unemployed”.32 No “bounce back” or response from the Respondent was received.33

● On Wednesday, 13 August 2014 D Booth sent a text message to Mr Moody asking “if there is any work in the foreseeable future” 34 and later that day, a text message to Mr Tarantello stating that he would “like to know what was going on”, advising that he had received a voice mail message from Mr Moody saying “that we have a casual position there but there is no work until further notice” and asking whether a story he had heard from C Booth that the Respondent was training replacement workers was true and asking, if he still had a job.35

● Almost immediately after sending the text message, D Booth sent an email to Mr Tarantello “seeking confirmation of whether I was still employed” by the Respondent, indicating “that if I did not receive a response by 15 August 2014, I could only assume that he was unemployed”. 36 No “bounce back” or response from the Respondent was received.37

● At the same time as the email was sent, as recorded on each document, D Booth received a text message from Mr Tarantello asking that he cease sending abusive messages and advising that “Kevin has already explained the situation”. He also noted that the “story” C Booth had passed on to D Booth involved Mr Tarantello’s brother-in-law helping “out for nothing” because the Respondent could not afford to pay due to the shortages of orders and the cost of refunding customers for spoilt batches. 38

● D Booth responded soon after denying his message was abusive and indicating that he guessed he had his answer and had been “strung along by you lot for the past three weeks”, being “fed half truths” because he was not “upfront” with him. D Booth ended the text with abusive and hurtful comments. 39

[21] I make a number of findings, arising out of the evidence.

[22] I find that the communication by the Respondent with the Applicants conveying to them the non-availability of work was clear in its terms and did not expressly or otherwise reflect an intention or have the probable result of bringing the causal employment of the Applicants to an end.

[23] I find that the reasons given for the non-availability of casual engagements – in the first instance equipment failures and later the limited requirement for production in light of demand for the Respondent’s product were genuine and were supported by the evidence. The absence of available work up until 1 August 2014 was due to problems with production equipment. 40 The absence of work thereafter was due to the lack of work required to be done in light of poor demand for its products being experienced by the Respondent at the time.41 This is supported by evidence as to a very limited call on casuals at the time42 and low levels of product demand from March to September 2014.43

[24] The Applicants relied specifically on the advice of Mr Moody, by voice mail to D Booth on 6 August 2014 and by text message to C Booth on 10 August 2014 that they were free to look for other work as an action intended to or having the likely effect of bringing the casual employment of the Applicants (and, by inference, other casual employees not being offered sufficient or any work at the time) to an end. The evidence in relation to those communications is to the same effect and is reproduced above. The 6 and 10 August 2014 communications advise that the Respondent is not offering casual work – there was no change from the position conveyed in respect of the week commencing 3 August 2014, there was still not enough work and would be “no work until further notice”. The 6 and 10 August 2014 communications reiterated the casual basis of the employment and specifically advised D Booth that he would always have a casual position with the Respondent. The advice to the Applicants (and other casual employees not being offered sufficient work) that they were free to seek out alternate employment which reaffirmed the basis of the casual employment is understandable in the context where the Respondent had been unable to offer work for some weeks, in the case of the Applicants at least, and the Respondent was uncertain as to when it might be able to offer them (or most other casual employees) future casual engagements, having regard to continuing weak levels of demand for its products.

[25] I find that the 6 and 10 August 2014 communications do not evince an intention by the Respondent to bring about, nor could be seen to have the probable effect of bringing about, an end to the casual employment of the Applicants. Far from indicating an intention to bring the casual employment to an end the Respondent reaffirmed the basis of the casual employment, subject to the availability of future work which would be advised when it arose, with the other communication, simply being a statement of the right of casual employees to seek alternative work.

[26] Some weight was also placed on the picking up of personal property by the Applicants on 6 August 2014 (D Booth) and 10 August 2014 (C Booth), following the communications to them by the Respondent on those days. I find that the actions of the Applicants to return to the work-site to pick up personal property does not in any way reflect an intention by the Respondent to bring about, nor could it be seen to have the probable effect of bringing about an end to the casual employment of the Applicants. Put shortly, the actions of the Applicants did not involve an action on the part of the Respondent. 44 The action involved D Booth picking up a “back brace” in order to undertake “work around the house”45 and C Booth picking up his radio, a DVD which someone had asked to borrow and his “Valiant workshop manual”.46 Whilst, the actions may have reflected a view of the Applicants that they would not be offered further casual engagements,47 such a view was not objectively supported by the 6 and 10 August 2014 communications which indicated that the Applicants would be notified when further work was available and reiterated the casual basis of the employment and specifically advised D Booth that he would always have a casual position with the Respondent.

[27] I note at this point that in the course of his oral evidence, C Booth gave evidence of a conversation he claimed to have with Mr Moody when picking up his radio on 10 August 2014. 48 This evidence was not in his witness statement nor was it put to Mr Moody during the course of his evidence. I do not accept the evidence of C Booth in that regard. It would be unfair to admit the evidence in circumstances where it was not put to Mr Moody. Indeed, I find that it is unusual that it occurred. In a case based on actions/statements of the Respondent said to support a finding of dismissal, it is improbable that the alleged conversation, if it occurred, was not recorded in C Booth’s witness statement, or conveyed to his solicitors for the purpose of cross-examining Mr Moody or otherwise conducting the case. In any case, C Booth’s account of the conversation, even if accepted, does not, in itself or in combination with other communications by the Respondent, support a finding that the actions of the Respondent reflect an intention by the Respondent to bring about, or could be seen to have the probable effect of bringing about an end to the casual employment of the Applicants.

[28] The Applicants also placed considerable weight on the failure of the Respondent to respond to the 11 and 13 August 2014 emails from the Applicants, seeking confirmation of their employment by “15 August 2104”. 49 I have found that the earlier communications do not support a finding that the Respondent dismissed the Applicants. I am not persuaded that if received by the Respondent, a failure to confirm the continuing casual employment, in circumstances where there was no prior indication other than the casual employment continued, subject to the availability of work which could be offered and specific advice to D Booth on 6 August 2014 that his casual employment continued, in itself provides a basis for finding that the Respondent intended to or took action which had the probable effect of ending the employment.

[29] In any case, the evidence of the Respondent’s witnesses is that, despite searches for the relevant emails, they could not be found and were not to the knowledge of Mrs Tarantello and Mr Moody ever received. 50 I have no reason to disbelieve that evidence. In those circumstances the failure to respond was due to the fact that the emails were not received or not brought to the attention to Mrs Tarantello and Mr Moody and cannot be found to be an action (or inaction) intended to terminate, directed to terminating, or having the probable effect of terminating the employment of the Applicants.

Conclusion as to whether the Applicants have been dismissed

[30] Neither Applicant contended that there was an express termination of their employment communicated to them by the Respondent. No express termination of the Applicants’ employment by the Respondent is found in the evidence.

[31] The Applicants’ case that their employment was terminated by the Respondent rests wholly on the proposition that their employment was terminated at the initiative of the Respondent through its actions (and/or inactions) in that those actions resulted directly or consequentially in the termination of the employment, being action either intended to bring the employment relationship to an end or having that probable result. Put another way, the Applicants rely on the proposition reflected in Shortland, as cited above, that the employment ended by actions of the Respondent which made it clear to the Applicants “that there would be no further engagements”.⁵¹

[32] Having regard to my findings in relation to the evidence above, I find that the Respondent did not dismiss the Applicants. The failure to offer casual engagements beyond 24 July 2014 is explained by operational circumstances which limited the level of casual work the Respondent was able to offer after 24 July 2014 and reflected the nature of casual employment. None of the actions of the Respondent relied upon by the Applicants in themselves or collectively established that the Respondent intended to or took action or actions which had the probable effect of ending the casual employment of the Applicants. I find that the Applicants were not dismissed by the Respondent.

SENIOR DEPUTY PRESIDENT

Appearances:

L Greg with D Fleeton for the Applicants.

R Millar of Counsel for the Respondent.

Hearing details:

2014.

Melbourne:

October 17.

 1   [2010] FWAFB 5709, at para 13.

 2   O’Meara v Stanley Works Pty Ltd, (2006) 58 AILR 100, at para 23 and Pawel and Advanced Precast Pty Ltd, Print S5904.

 3   Barkla and G4S Custodial Services Pty Ltd, (2012) 212 IR 248, at 256 and Mohazab v Dick Smith Electronics Pty Ltd, (1995) 62 IR 200, at 205.

 4   Transcript at paras 381 and 600–601.

 5   Exhibit B2, at para 3, Exhibit OF3, at para 7, Exhibit OF2, at paras 4 and 5 and Transcript at paras 258–259 and 384–385.

 6   Exhibit OF2, at paras 11–12.

 7   Exhibit B2, attachment DJB–1 and Exhibit B3, Attachment CLB–1.

 8   Exhibit OF2, at paras 10 and 17 and Exhibit B2, at para 6.

 9   Exhibit OF2, at para 17.

 10   Exhibit B2 at para 6 and Transcript at para 394.

 11   Exhibit OF2, at paras 18 and 23–27 and Exhibit OF1, at para 11.

 12   Exhibit OF2, at paras 22, 29 and 30 and Annexure 5.

 13   Exhibit OF1, at para 13 and Exhibit OF1, at para 1.

 14   Exhibit B2, Attachment DJB–2 and Exhibit B3, Attachment CLB–2.

 15   Exhibit B3, Attachment CLB–4.

 16   Exhibit B2, Attachment DJB–3 and Exhibit B3, Attachment CLB–5.

 17   Exhibit B3, Attachment CLB–6.

 18   Exhibit B2, Attachment DJB–4 and Exhibit B3, Attachment CLB–7.

 19   Exhibit B2, Attachment DJB–5.

 20   Exhibit B2, Attachment DJB–6.

 21   Exhibit B2, Attachment DJB–7.

 22   Exhibit B2, para 15 and Transcript at paras 475–479.

 23   Exhibit B2, para 16.

 24   Exhibit B2, at para 17 and Transcript at para 496.

 25   Exhibit B3, Attachment CLB–8.

 26   Exhibit B3, Attachment CLB–9.

 27   Transcript at para 644.

 28   Exhibit B3, Attachment CLB–10.

 29   Exhibit B3, Attachment CLB–11.

 30   Exhibit B3, at paras 20–21 and Transcript at para 750.

 31   Transcript, at paras 514, 550, 691 and 697–698.

 32   Exhibit B3 at para 22–23 and Attachment CLB–12.

 33   Exhibit B3 at para 23.

 34   Exhibit B2, Attachment DJB–8.

 35   Exhibit B2, DJB–9.

 36   Exhibit B2 at para 20 and Attachment DJB–10.

 37   Exhibit B2 at para 20.

 38   Exhibit B2, Attachment DJB–12.

 39   Exhibit B2, Attachment DJB–13.

 40   Exhibit OF2, at paras 18 and 23–27 and Exhibit OF1, at para 11.

 41   Exhibit OF2, at paras 22, 29 and 30.

 42   Exhibit OF2 at para 16.

 43   Exhibit OF2, at paras 22, 29 and 30 and Annexure 5.

 44   Transcript at paras 492 and 662–664.

 45   Exhibit B2, para 16.

 46   Transcript at para 670.

 47   Transcript at paras 495, 671–672 and 733.

 48   Transcript at paras 739–749.

 49   Exhibit B2, Attachment DJB–10 and Exhibit B2, Attachment DJB–13.

 50   Exhibit OF1, at paras 18–23 and OF3, at para 19.

51 [2010] FWAFB 5709, at para 13.

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