Daniel Aik v Healthy Cooking Company Pty Ltd

[2021] FWC 2746

[2021] FWC 2746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Daniel Aik
v
Healthy Cooking Company Pty Ltd
(C2021/100)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 MAY 2021

Application for the Commission to deal with a dismissal dispute under s 365 of the Act –jurisdictional objection that there was no dismissal

1 Introduction

[1] Mr Daniel Aik has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Healthy Cooking Company Pty Ltd (the Respondent).

[2] The Respondent objects to Mr Aik’s application on the basis that Mr Aik resigned from his position and was therefore not dismissed.

[3] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. It requires that the person has been dismissed and that the dismissal was in contravention of the general protections part of the Act (Part 3-1).

[4] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 1 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.2 However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.3

[5] The issue to be determined is whether Mr Aik was dismissed notwithstanding having resigned from his employment on 18 December 2020.

[6] The term ‘dismissed’ is defined by reference to ss 12 and 386 of the Act. 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 as forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. 4

[7] The above provision operates subject to certain exceptions in s 386(2), which are not presently relevant. While Mr Aik did not elect that his purported dismissal fell under s 386(1)(a) or (b), it is apparent from his narrative that he sought to rely upon s 386(1)(b) of the Act.

[8] In short, it was Mr Aik’s submission that he had been dismissed for the purposes of s 386(1)(b) because:

a) his hours of work had been progressively reduced over the November, December and January period after he had complained in October about being underpaid;

b) by January he was rostered on to work 6 hours in the roster, and given he was an adult with living expenses it came to the point where he could not cover rent and he made an on the spot decision to resign; and

c) while it was technically possible for him to continue working for the Respondent it would have been detrimental to himself, and as he wanted to enrol in university, and the hours at the Respondent were not flexible enough to work around that, he decided to resign after having been forced out of his employment.

2 Background

[9] Mr Aik accepted a job offer for the position of casual storeman with the Respondent in December 2017.

[10] He said that the position was created to assist the existing Storeman in his daily tasks. Mr Griffith of the Respondent said Mr Aik was employed as a kitchen hand to wipe out delivery tubs and put incoming goods away. The job title of ‘storeman’ had been included in his title to indicate that he was the kitchen hand responsible for attending to the pantry.

[11] Mr Aik said that within a few months of accepting his position, the existing storeman’s employment was terminated, and he stepped in to fill the role in full.

[12] In October 2020, it came to his attention that he had been receiving a kitchen hand salary, as opposed to storeman salary, despite primarily filling the storeman position for almost three years.

[13] Mr Griffith noted that unpacking the stock was a kitchen hand duty years before Mr Aik worked for the Respondent.

[14] Mr Aik raised the issue with a representative of the Respondent who initially attempted to have him drop the matter, he said. However, after a lengthy series of meetings and multiple calls to the Fair Work Ombudsman for advice, Mr Aik said that the Respondent eventually admitted he was entitled to backpay and agreed to provide it in the form of a lump sum of approximately $1000.00.

[15] According to Mr Griffith, Mr Aik was informed that he had been paid incorrectly on advice received from the Fair Work Ombudsman. Mr Griffith said that the Respondent offered Mr Aik a goodwill payment to finalise the matter, and while Mr Aik declined the first proposed payment, he accepted the second more generous offer.

[16] Mr Aik said that within a week of the backpay being provided, his allocated hours almost halved on the very next roster cycle, without warning.

[17] Over the following two rosters, the Respondent succeeded in effectively nullifying the backpay, said Mr Aik, by cutting the equivalent number of hours from his roster.

[18] During the final week of the 2020 work year, Mr Aik said that he received his roster for the first portion of January, and it showed that his hours had been cut in half again to six hours per week.

3 Respondent’s submissions

[19] The Respondent submitted that Mr Aik was informed of his hours every second Friday by a roster that was published. As December 2020 and January 2021 were quiet periods for the Respondent business, combined with staff returning from JobKeeper leave, all casual kitchen hand shifts had been reduced, said Mr Griffith. Mr Griffith submitted that Mr Aik’s rostered shifts in December 2020 and January 2021 were very similar to those that he was rostered in the similar period for 2018 and 2019.

[20] It was submitted that at no stage did Mr Aik request extra shifts or indicate that he had any issue with the roster.

4 Mr Aik’s submissions

[21] It was Mr Aik’s view that it would have been unreasonable to expect him to continue working two days per week for a wage that was insufficient to even cover basic housing, food, and water. He continued that to do so would have been to sacrifice his own future for the sake of a company that treated him in such an unfair way.

[22] In response to the Respondent’s submissions that the reduction of hours was normal because it was the end of the year, and Jobkeeper had ended, Mr Aik said that this did not hold true. Mr Aik remarked that the end of the year was an extremely busy time for the Respondent. Furthermore, despite Jobkeeper ending in September 2020, Mr Aik said he maintained approximately 24 hours per week for a month after it ended.

[23] Mr Aik referred to the Respondent’s contention that Mr Aik had been allocated a similar number of shifts during the December and January period in previous years. Mr Aik said that ‘while this may be somewhat true’, there had still been a significant and unexplained reduction in his hours which only occurred after the Respondent agreed to backpay him.

[24] Further, and to the extent that the Respondent defended its actions by asserting it simply did not have available shifts, Mr Aik observed that the Respondent allocated the shifts that were taken from him to another staff member; particularly an eight hour shift that he worked every Wednesday. This shift, said Mr Aik, was when the Respondent’s weekly stock would be delivered. Mr Aik said that as the storeman, he would be responsible for the stock arrival on that day. He continued, that the fact that this shift, along with his storeman responsibilities, were allocated to a staff member from a different department indicated that it was not his position the Respondent saw no need for, it was him personally.

[25] Insofar as the Respondent contended it was quiet at that time of year, Mr Aik noted that the statement could not hold true under close examination as every other kitchen hand was allocated significantly more hours than him.

5 Consideration

[26] In my view, the Respondent did not dismiss Mr Aik.

[27] To recap, s 386 of the Act provides that a person has been dismissed if the person’s employment has been terminated at the employer’s initiative or the person has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by the employer. 5

[28] The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. 6

[29] A termination is at the employer’s initiative when:

a) the employer’s action ‘directly and consequentially’ results in the termination of employment; and

b) had the employer not taken this action, the employee would have remained employed. 7

[30] There must be action by the employer that either intends to bring the relationship to an end or has that probable result. 8 The question of whether the act of an employer results ‘directly or consequentially’ in the termination of employment is an important consideration but it is not the only consideration.9 It is important to examine all of the circumstances including the conduct of the employer and the employee.10

[31] In the decision of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli 11(Bupa), the Full Bench considered s 386(1) of the Act and sought to clarify the operation of the two elements.

[32] Regarding the first, the Full Bench explained that it can operate in the context of those circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative because it cannot reasonably be regarded as voluntary. 12 Reference to ‘context’ and ‘circumstances’ extends to the concept of ‘special circumstances’, which are such that they render an apparent indication of resignation on the part of the employee ineffective unless perhaps confirmation is obtained by the employer of the intent to resign after a reasonable period.13

[33] However, while it was the case that Mr Aik purported to be ‘quite frankly angry’ about the reduction of his hours and therefore ‘quit’, it is not apparent that his resignation was involuntary because, for example, he was suffering from an extremely stressed state. It was clear from his submissions that he considered he was forced to resign due to the Respondent's conduct.

[34] According to the Full Bench in Bupa, in the context of a resignation, s 386(1)(b) required conduct, or a course of conduct, on the part of the employer. It is not the case that the conduct, which must be a principal contributing factor, resulted directly or consequentially in the termination of employment. The question is whether, on an objective analysis of the employer’s conduct, the employee’s effective or real choice was so negated that resignation was inevitably the only recourse. 14

[35] Often it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation. 15 The Full Bench of the Australian Industrial Relations Commission cautioned, ‘but narrow though it be, it is important that the line be closely drawn and rigorously observed’, it continued:

Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination… 16

[36] Mr Aik was aggrieved about the reduction of his hours. However, there were some notable concessions in his evidence. First, Mr Aik conceded that he quit because he was angry. Second, in response to the Respondent’s contention that Mr Aik had been allocated a similar number of shifts during the December and January period in previous years, he expressed ‘while this may be somewhat true’. Third, Mr Aik conceded that he did not raise with the Respondent his dissatisfaction about the reduction of his hours. Fourth, Mr Aik submitted that as he saw it, it would be unreasonable for him to continue spending his time in a job that could not even guarantee a stable income that could cover rent, and because of this, he decided he would seek more flexible work and enrol in a university in order to give himself a fair chance at a decent life.

[37] On the evidence before the Commission, it is plain that Mr Aik’s choice was not so negated that resignation was inevitably the only recourse. He made a choice to resign from his employment because he perceived the reduction of his hours to be unreasonable and that it was unsustainable to support himself on those hours. He made a choice to pursue a tertiary education with a view to attaining a better life for himself. He assumed that the Respondent had taken the course that it had to punish him for seeking backpay that he said he was fairly entitled to under the Act. However, at no point did Mr Aik raise his concerns with the Respondent so that they might be responded to. As was expressed by Mr Griffith, the Respondent was unaware of Mr Aik’s concerns and had they been raised, they would have been addressed.

6 Conclusion

[38] On all of the facts and evidence before the Commission, I have concluded that it was quite clearly the discretion of the resigning employee, Mr Aik, which gave rise to the termination of employment. The conduct of the Respondent was not such that there was an intention of bringing the employment to an end or that termination of the employment was the probable result of its conduct such that Mr Aik had no effective or real choice but to resign.

[39] The application is therefore dismissed. An Order 17 is issued to this effect.

DEPUTY PRESIDENT

Appearances:

Mr Daniel Aik, the Applicant;
Mr Shannon Griffith, for the Respondent.

Hearing details:

Perth (telephone);
May 14;
2021.

Printed by authority of the Commonwealth Government Printer

<PR729827>

 1   Fair Work Act 2009 (Cth) s 368.

 2   Ibid.

 3   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67].

 4   Fair Work Act 2009 (Cth) s 386.

 5   Ibid.

 6   Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

 7   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

 8   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 [24]; citing O'Meara v Stanley Works Pty Ltd, PR973462 [23].

 9   Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

 10   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd(No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

 11   [2017] FWCFB 3941.

 12 Ibid [35].

 13  Ibid.

 14   Ibid.

 15   ABB Engineering Construction Pty Ltd v Doumit (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

 16   Ibid, cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.

 17   PR730102.