Daniel Martin v G & P Martin Family Trust T/A Martin Brothers House Removers
[2012] FWA 8516
•4 OCTOBER 2012
Note: An appeal pursuant to s.604 (C2012/5841) was lodged against this decision - refer to Full Bench decision dated 8 March 2013 [[2013] FWCFB 1073] for result of appeal.
[2012] FWA 8516 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Martin
v
G & P Martin Family Trust T/A Martin Brothers House Removers
(U2012/7653)
Russell Martin
v
G & P Martin Family Trust T/A Martin Brothers House Removers
(U2012/7682)
DEPUTY PRESIDENT SMITH | MELBOURNE, 4 OCTOBER 2012 |
Termination of employment - arbitration - whether termination was at the initiative of the employer - harsh, unjust or unreasonable.
Introduction
[1] These are applications by Mr Russell Martin and Mr Daniel Martin in relation to what they say was their termination of employment by G & P Martin Family Trust T/A Martin Brothers House Removers (Martin Brothers).
[2] When the matter was called on I directed the attention of the parties to ss.398 and 399 of the Fair Work Act 2009 (the Act) and provided an adjournment to consider:
- in light of the nature of the matter, whether or not agreement could be reached, and
- how the matter should proceed, given that evidence would be called.
[3] After a brief adjournment, I was advised that the matter had not settled. Given the nature of the matter I considered that a hearing was the most efficient and effective way of resolving the matter.
Background
[4] Martin Brothers is a house removal company owned and operated by Mr Geoffrey Martin with his wife Mrs Pennette Martin. Whilst there is a trust arrangement, no issue is taken with the authority of either Mr or Mrs Martin in relation to the business. There are many matters raised in the submissions and witness statements which relate to the interaction between family members and allegations of underpayments which are not before me for resolution. I shall concentrate on the narrow question as to whether or not there was a termination at the initiative of the employer, and if so, whether that termination was harsh, unjust or unreasonable.
[5] Martin Brothers has two employees - Mr Russell Martin (the brother of Mr Geoffrey Martin) and Mr Daniel Martin (the son of Mr Russell Martin). Only Mr Russell Martin and Mr Daniel Martin were called to give evidence.
[6] What seems uncontroversial is that both Mr Russell Martin and Mr Daniel Martin were concerned about their terms and conditions of employment and raised this with Mr Geoffrey Martin on 17 April 2012. What is also uncontested is that Mr Geoffrey Martin responded to the concern expressed by stating that he was too busy to look at the matters raised then and would not be in a position to do so for a couple of weeks. Both Mr Russell Martin and Mr Daniel Martin were not satisfied with this response and went home. The next day, both attended a doctor and received a medical certificate for 18, 19, and 20 April.
[7] On 20 April 2012 a letter was sent to Martin Brothers from a solicitor representing both Mr Russell Martin and Mr Daniel Martin advising that his clients were concerned to resolve matters in relations to their terms and conditions of employment so they could both return to work.
The Evidence
[8] It was the evidence of Mr Daniel Martin that he commenced employment with Martin Brothers in January 2005. As to whether or not he resigned or was terminated, Mr Daniel Martin stated that he rang Mrs Pennette Martin on Sunday 24 April after Mr Russell Martin told him that Mrs Martin said that he was not welcome on their property or on site. When Mr Daniel Martin rang Mrs Martin, it was his evidence that he asked if they had been dismissed. It was his evidence that Mrs Martin did not answer and when he asked if he could pick up his tools he was advised yes and he was also asked to drop off other company property (keys/remotes).
[9] On 25 April he received a demand from a solicitor, on behalf of Martin Brothers, for $50,757.24 said to be for work undertaken.
[10] The evidence of Mr Russell Martin was in similar terms to that of Mr Daniel Martin although there was some confusion over the dates. In particular, Mr Russell Martin’s evidence was that in his telephone conversation with Mrs Martin he asked if he had been dismissed and he was told that he was not welcome on site or on the property.
[11] Mr Russell Martin also received a demand for $11,710 dated 25 April 2012 for the hire of machinery and vehicles.
[12] Evidence was not called to rebut any of the evidence of the two witnesses notwithstanding that it appeared that Mr Geoffrey and Mrs Pennette Martin attended the hearing of the matter. This in itself is telling and leaves me with the position that there is no contradictory evidence to that given by Mr Russell Martin and Mr Daniel Martin.
The Submissions and Conclusion
[13] The case advanced by Martin Brothers was that both Mr Russell Martin and Mr Daniel Martin resigned their employment by refusing to stay at work on 17 April and after that, to come to work. Further, the email from Mrs Martin sent on 27 April 2012 is relied uponin that it states “you have not been dismissed from your jobs, not sure where that information is coming from”.
[14] It is argued that this cannot constitute a termination of employment at the initiative of the employer.
[15] For Mr Russell Martin and Mr Daniel Martin it is argued that it was termination of employment given the fact that they:
- made a complaint in relation to terms and conditions of employment where some resolution was being sought,
- were on sick leave until Friday 22 April,
- contacted Mrs Martin on 24 April about starting work on 25 April and were told that they were not welcome on the property and not welcome on site, and
- collected their tools and returned keys etc on 27 April.
[16] Having considered the evidence of both Mr Russell Martin and Mr Daniel Martin, I have reached the conclusion that it was a termination at the initiative of the employer. Notwithstanding the absence from work, there was no intention by either Mr Russell Martin or Mr Daniel Martin to end the employment relationship. The approach could have been better but all that was being sought was a clarification on their terms and conditions of employment.
[17] The existence of the medical certificates is indicative that both men wanted to retain the employment relationship so that it fell to Martin Brothers to make a decision.
[18] On their evidence there was an intention to return to work after a period of sick leave but the employer refused entry into the workplace. Notwithstanding the email from Mrs Martin, it was clear that the relationships had so deteriorated that neither Mr Russell Martin nor Mr Daniel Martin would remain employed.
[19] I find that both Mr Russell Martin and Mr Daniel Martin were terminated in their employment by Martin Brothers on Sunday 24 April.
[20] It now falls to determine if both Mr Russell Martin and Mr Daniel Martin are persons protected from unfair dismissal (s.382). Given their length of service and their earnings I find that both Mr Russell Martin and Mr Daniel Martin are persons protected from unfair dismissal. It may well be that the work they perform is also covered by a modern award.
[21] The next matter which requires consideration is the small business fair dismissal code (s.388) as there were only two or four employees of the business. This is not a summary dismissal and it is conceded that there were no warnings or notifications of the reasons for dismissal. This, of course, follows from the argument advanced that there was no termination at the initiative of the employer. I find that the employer has not complied with the Small Business Fair Dismissal Code.
[22] In determining whether or not the termination was harsh, unjust or unreasonable it is appropriate to now turn to s.387 of the Act. Section 387(a), (b) and (c) were not applied. Section 387(d) and (e) do not arise. Section 387(f), (g) and (h) are relevant. This is a very small business which involves family in a stained relationship. There is no ready advice that was received by the employer and both Mr Russell Martin and Mr Daniel Martin quickly availed themselves of external advice which then appeared to condition their responses. The employer also subsequently resorted to legal advice in relation to the matter.
[23] Against that background I find that the termination of employment of both Mr Russell Martin and Mr Daniel Martin was harsh, unjust and unreasonable.
[24] Having made that finding I now turn to remedy, Both Mr Russell and Mr Daniel Martin sought six months compensation in lieu of reinstatement. No submissions were made by Martin Brothers. I will provide both Mr Russell Martin and Mr Daniel Martin until close of business on 12 October 2012 and a reply from Martin Brothers by close of business 19 October 2012.
[25] At the commencement of the proceedings on 1 October I stated that the matter cried out for resolution between the parties. I maintain that view.
DEPUTY PRESIDENT
Appearances:
M Addison, solicitor,for the Applicants.
B Cook, solicitor,for the Respondent.
Hearing details:
2012.
Melbourne:
October 1.
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