Daniel O'Hurley v Cornerstone Legal Wa Pty Ltd
[2024] FWC 1776
•13 JULY 2024
| [2024] FWC 1776 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Daniel O’Hurley
v
Cornerstone Legal Wa Pty Ltd
(C2024/2007)
| COMMISSIONER SCHNEIDER | PERTH, 13 JULY 2024 |
Application to deal with contraventions involving dismissal
Mr Daniel O’Hurley (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving his alleged dismissal by Cornerstone Legal WA Pty Ltd (the Respondent).
The Respondent has raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed as defined in the Act. The Applicant insists that the employment was terminated at the Respondent’s initiative on 7 March 2024.
Accordingly, the Commission must determine if the Applicant was dismissed before the matter may proceed.
Background
The Applicant commenced employment with the Respondent on 16 January 2023.
The Applicant was employed on a permanent full-time basis as a legal assistant at the Respondent’s practice in South Perth, Western Australia.
It is apparent from the material that the Applicant’s performance and attendance at work had been a concern for the Respondent for an extended period, prior to the ending of the employment relationship.
The Applicant’s employment came to an end in March 2024.
The date upon which the Applicant’s employment ended is heavily contested.
The legal conclusions to be drawn from the events surrounding the collapse of the working relationship are also heavily disputed by the parties.
The Applicant contends that he was dismissed within the meaning of the Act, at the initiative of the Respondent, on 7 March 2024.
The Applicant’s position arises from a text sent by Mr Tim Houweling (Mr Houweling) on 7 March 2024 titled "Subject: Notice of Employment Termination Due to Abandonment”.
There was an in-person discussion between the Applicant and Mr Houweling the following day, on 8 March 2024.
The conclusions drawn from the happenings on the two aforementioned days, in early March 2024, form the bulk of the dispute concerning the objection raised.
The Respondent refutes that the Applicant was terminated at its initiative on 7 March 2024, asserting that the employment remained on foot thereafter.
Subsequent to the disputed events and conclusions of the incidents in early March 2024, the Respondent notes it later terminated the Applicant’s employment effective 20 March 2024, having formed the view that the Applicant had abandoned his employment.
The parties were sent a Notice of Listing with Directions on 30 April 2024 for a Hearing to determine the objection. The parties filed their respective materials prior to the Hearing.
Alongside written submissions and a statement of evidence, the Applicant filed an audio recording. The audio recording was that of the discussion between the Applicant and Mr Houweling on 8 March 2024. The Respondent promptly raised objection to the recording, questioning its lawfulness. Although it considered the recording to be unlawfully obtained, the Respondent did not object to its use by the parties at the Hearing and noted it would be seeking an order under section 594 of the Act to prevent any publication. The issue of the audio recording was dealt with on the record at the Hearing,[1] it was confirmed that the audio recording would be allowed into evidence and that no orders under section 594 of the Act would be issued.
The Hearing to deal with the objection took place on 17 May 2024, with both parties being represented for its duration. At the Hearing, the Applicant gave evidence on his own behalf and Mr Houweling, Director of Cornerstone Legal, gave evidence on behalf of the Respondent.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or his remuneration or duties; and
(ii) he or he remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence
Respondent
The Respondent submits that the Applicant was not dismissed for the purposes of section 365 of the Act.
The Respondent relies primarily on the evidence of Mr Houweling, Director of the Respondent, to support its contention that it did not terminate the Applicant’s employment on 7 March 2024, as is claimed by the Applicant.
The Respondent submits that the conduct of the Applicant following the alleged date of dismissal (7 March 2024) demonstrates that he did not consider that his employment had been terminated.
The Respondent submits the following examples of the Applicant’s conduct to support the position that the Applicant was not dismissed by Mr Houweling:
· Friday 8 March 2024: the Applicant attends the Respondent’s office to meet with Mr Houweling, the Respondent submits that the Applicant was presented with a promotion to the position of paralegal.
· The Applicant provided the Respondent two further medical certificates, dated 11-12 March and 13-15 March 2024.
· The Applicant also accessed the Respondent’s payroll system to receive an advance on his wages.
The Respondent submits that the Applicant did not provide any further information concerning his absence after 15 March 2024.
The Respondent submits that, as the Applicant failed to provide any further information or reason in relation to his on-going absence, the Applicant’s employment was terminated on 20 March 2024.
The Respondent submits that the Applicant does not question the cessation of his employment as outlined in the Respondent’s letters of 19 and 25 March 2024.
The Respondent submits that the Applicant was not dismissed at its initiative on 7 March 2024 as the Applicant claims and the application should be dismissed accordingly.
Evidence of Tim Houweling
It was the evidence of Mr Houweling that the Applicant commenced employment on 16 January 2024 and that the Applicant’s employment ended on 20 March 2024.
It was the evidence of Mr Houweling that the Applicant’s performance had been an ongoing concern for the Respondent for approximately 6 months prior to the Applicant’s employment ending.
Mr Houweling notes the following absences and attendance issues of the Applicant occurring between 29 January 2024 and 20 March 2024:
· Monday 29 January to Friday 2 February 2024 – absent on personal leave.
· 7 February 2024 – unexplained absence for the afternoon, not taken from any form of leave, later informed he was at the physio.
· 12 February 2024 – late to the office.
· 16 February 2024 – annual leave as unfit for work.
· 19 February 2024 – left more than an hour early for a GP appointment, with less than an hours’ notice given by text message.
· 21 February 2024 – absent from the office from lunch time without prior notice.
· 27 February 2024 – 1 hour late to the office.
· 6-7 March 2024 – absent on personal leave, taken as annual leave.
· 11-15 March 2024 – absent on personal leave, taken as various forms of leave to the extent of all his leave entitlements, including personal leave, annual leave, and unpaid leave.
It was the evidence of Mr Houweling that the Applicant’s last day in the office was 5 March 2024 and the Applicant was absent from work on 6 March 2024.
It was the evidence of Mr Houweling that on 7 March 2024 the Applicant did not attend work.
Mr Houweling states that he was advised by Ms Bronwyn Waugh (Ms Waugh), fellow Director of the Respondent, that the Applicant had applied for annual leave on 6 and 7 March 2024.
Mr Houweling states that he did not terminate the Applicant’s employment on 7 March 2024 as is claimed by the Applicant.
When giving evidence before the Commission, Mr Houweling accepted that he “reacted” when the Applicant had failed to attend work on 7 March 2024.
Mr Houweling admits that later in the day, of 7 March 2024, is when he became aware that the Applicant had contacted Ms Waugh and advised that he was unwell, and that the Applicant provided a medical certificate.
It was also evidence of Mr Houweling that Ms Waugh generally manages the matters pertaining to “employment as well as the general running of the practice”.[2]
When giving evidence before the Commission, Mr Houweling confirmed that “I came to a view that he was not sticking to his end of the bargain, and he was just so unreliable that it frustrated me, that I was telling him he was abandoning his employment.”.[3]
From the cross examination of Mr Houweling, it is evident that, on 7 March 2024, Mr Houweling was upset and frustrated with the Applicant and did not believe that the Applicant was committed to the business.
I note the following from the transcript:
“Frustrated because of the irregular attendance?
Yes.
Lack of commitment to the practice?
That wasn't something that occurred to me at that time. If I now reflect, I would say 'Yes', but, at that particular point in time, I was particularly frustrated that he had again taken what I understood to be unapproved sick leave without notice. That's where I was. You're asking my evidence about at the time. That's why I paused, and I carefully reflected on what it was at that time.
'He's not performing' - that's what you're thinking on 7 March, aren't you?
Yes.
All those things are what you consider to be abandonment of employment at the time?
No.
All those things were in your head when you sent the notice of the termination, weren't they?
Yes.
In that notice, you refer to 'due to abandonment'?
Yes.
You would agree with me that, at the time, you considered abandonment to include taking annual leave without prior notification?
Yes.
That was unacceptable to your practice, wasn't it?
Yes.
And you decided on 7 March that the employment had to end?
No.
You say 'No', but you agree with me that you then sent, on 7 March, the notice of termination?
Mr Commissioner, I have clearly stated that it's due to abandonment. What I have endeavoured to do within the SMS itself is explain that. I accept that it was as a long result of a lot of lead up to that particular point in time that I just found that he wasn't sticking to his end of the bargain, and that's where I came to. Now I don't understand the question entirely, and I'm trying to answer as best as I can. If you rephrase it and ask it again, I may be able to assist more.
In your view, at the time of drafting and sending this SMS, he's not performing in accordance with the contract of employment?
He's not attending at the office, as required in his hours, to perform the task that was expected of him within the hours. Other staff were frustrated because they were covering for him and they were expressing those frustrations. They thought that I was looking after him and, to an extent, I had.
You made this decision that the status quo couldn't keep going on?
Without a change by Daniel to stick to what his end of the bargain was, the situation could not continue.” [4]
Mr Houweling had formed the view that the Applicant had abandoned his employment with the Respondent on 7 March 2024 and sent the text message, which is quoted in full at paragraph 65.
Mr Houweling also confirms that he used ChatGPT, an artificial intelligence (AI) application, to generate the text message, this point will be discussed further later in this decision.
Mr Houweling confirmed that he attempted to rescind the notice sent to the Applicant terminating the Applicant’s employment for abandonment of employment.
Applicant
The Applicant submits that the text message, as quoted in paragraph 65, received by him and sent from the Respondent, at 9:26AM on 7 March 2024, was a valid notice of termination.
The Applicant submits that the Respondent initiated the termination by sending the text message to the Applicant and that employment then came to an end by this act.
The Applicant submits that the evidence of Mr Houweling is inconsistent and confusing. Specifically, the Applicant notes that Mr Houweling stated, in his witness statement, “I said well in so far as you believe it to be a termination I withdraw it...”. The Applicant questions what else could the text message of 7 March 2024 be other than a notice of termination.
The Applicant submits that, once the Respondent had terminated the Applicant’s employment on 7 March 2024, the Respondent could not unilaterally rescind the termination without the agreement of the Applicant. The Applicant submits that “a valid notice, on given, cannot be withdrawn without the consent of the party to whom it has been given”.[5]
The Applicant submits that the above is consistent with Riordan v War Office,[6] in which it was said that:
“… the giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent.” [7]
The Applicant also refers to Birrell v Australian National Airlines Commission,[8] in which the Federal Court observed that:
“The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.” [9]
The Applicant submits that effect of the text sent on 7 March 2024 is that the Respondent terminated the Applicant’s employment relationship.
Thereafter, in the Applicant’s submission, it was not possible for the Respondent to say the Applicant subsequently terminated the employment by way of abandonment. That is because, as the Applicant contends, a contract cannot not be terminated twice, as found in Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2).[10]
The Applicant submits that abandonment of employment occurs when an employee ceases to attend his or her place of employment, without proper excuse or explanation, or has failed to communicate with the employer to provide an excuse for being absent.[11]
The Applicant highlights the similarities between the Applicant’s situation and those in Sharpe v MCG Group Pty Ltd (Sharpe),[12] in which an employee, who had notified her employer that she would be unable to attend work due to medical reasons, was terminated due to alleged abandonment.
In Sharpe, Commission held that the employee had been terminated at the initiative of the employer. The argument that the employee had abandoned her employment by not attending for work, as directed, was rejected. Instead, it was held that the action of the employer had terminated the employment.
The Applicant submits that he notified the Respondent he was unwell on 6 and 7 March 2024 and could not attend work.
The Applicant submits that, as he did not have sufficient personal leave, he sought to use annual leave for this period while also providing medical certificates.
The Applicant submits that it was very clear during the meeting on 8 March 2024 that he held the belief that the Respondent had terminated his employment on 7 March 2024 and that his employment had come to end.
The Applicant submits that, after 8 March 2024, he did not attend work because of his belief that he had been terminated.
The Applicant asserts that this belief was repeatedly made clear to the Respondent in his communications.
On 12 March 2024, the Applicant sent a text message to Ms Waugh, stating:
“Bronwyn,
I was notified of my termination on Thursday 7 March following my notifying you by sms that I was sick with a migraine and will be providing a medical certificate.
On Friday 8 March I met with Tim who told me that he was rescinding the termination, which I refused to accept, as it requires my consent.
Tim then suggested he would offer me in writing a new position of employment in the firm, with a clear role and title. I agreed that I would consider this offer upon receipt. Tim also asked if I would be available to chat over the phone on the weekend, I agreed.
On Sunday 10 March I received a sms from Tim stating that he never terminated me and that I am expected to return to work on Monday and that my “employment will continue as normal”.
This was surprising to me as it was not in line with our previous discussion.
I advised Tim that as I was formally terminated last week, I did not accept his rescinding of the termination and I will not be returning to work as normal.
I also stated that i am available to discuss these matters to come to some sort of amicable agreement.
I then asked him for a copy of several documents and I have since not heard back from him.
The point is now that I have been terminated, but I now also being demanded to return to work. My understanding is that I have been terminated and so will not be returning to work, nor can I be expected to return to work.”
Ultimately, the Applicant submits that, even if the employment relationship had continued past 8 March 2024, the Respondent still concedes it eventually dismissed the Applicant on 25 March 2024.
Evidence of Daniel O’Hurley
It was the evidence of the Applicant that, on 6 and 7 March 2024, he was unwell with a migraine, and, on each morning, he sent a text message to Ms Waugh stating that he was unwell and would not be able to attend work for that day.
The Applicant provided a medical certificate for his absence from the workplace on both days in question.
The Applicant provided copies of the text messages sent to Ms Waugh on 6 and 7 March 2024, which state:
· 6 March 2024 at 8.12am: “Hi Bron, I have a migraine and won’t be in today. I will lodge leave with a certificate. Apologies”
· 7 March 2024 at 8.15am: “I have a migraine and won’t be in today. I will lodge certificate with leave”
The Applicant also provided copies of the medical certificates uploaded to the Respondent’s payroll system.
The Applicant gave evidence that, at 9:26AM on Thursday 7 March 2024 he received the following text message from Mr Houweling:
“Subject: Notice of Employment Termination Due to Abandonment
Dear Daniel,
I am writing to address a serious regarding your attendance at work. Despite previous discussions and efforts to support you, included a work improvement plan and the opportunity to lead the probate hub project, there has been no significant improvement in your attendance. Your pattern of non-attendance, including taking annual leave without prior arrangement, attempting to take carer’s leave where it is not applicable, arriving late, taking extended lunch breaks, and frequently leaving for personal matters, has disrupted our workflow and team dynamics significantly.
Your recent action of taking annual leave without prior notification on a critical workday is seen as an abandonment of your employment with us. We have communicated our expectations regarding work attendance clearly, emphasising that it is not discretionary but essential for the operation and growth of our practice area. Unfortunately, it appears that our view on this matter differ significantly.
Given these circumstances, we regretfully accept what we consider to be your abandonment of employment by your advice today that you are taking annual leave without prior agreement. We will process the payout of any leave entitlements you have. Arrangements will be made for you to collect your personal belongings and to return any company property including your office key.
Please understand that this decision was not made lightly. We provided multiple opportunities and support to help align your work habits with our organizational expectations. However, the consistent pattern of your attendance decisions has made it clear that we cannot depend on you to contribute to the probate hub as required.
We regret that our professional relationship has come to an end under these circumstances. Should you wish to discuss the collection of your personal effects or have any questions regarding the termination process.
It is regrettable that our professional relationship is at an end because we appreciated you personally. We have an obligation to other staff members and to the company for that reason have needed to accept your abandonment of employment.”
It was the consistent evidence of the Applicant that, after receiving the text message from Mr Houweling at 9:26AM on Thursday 7 March 2024, he understood and accepted that his employment had been terminated at the initiative of the Respondent.
The Applicant was also consistent in his assertion that he did not accept or agree to the rescinding of his termination by the Respondent.
Instead, the Applicant gave evidence that any discussions the Applicant had with the Respondent concerning his employment after 7 March 2024 fell within the context that he was entertaining the possibility of a new contract, with a clear job title and expectations, before any agreement was reached to possibly recommence some form of employment relationship with the Respondent.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act.
The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
This definition contains two elements.
The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[13]
In determining whether there has been a termination at the Respondent’s initiative, the reference to termination is in reference to that of the employment relationship, not the contract.[14]
In regard to abandonment of employment, the concept was examined by the Full Bench in Abandonment of Employment (4 yearly review of modern awards)[15] noting the following:
““Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”[16]
Whether a person has abandoned their employment is to be considered objectively, in light of all the circumstances.[17]
In Sharpe, Asbury C summarised the concept and relevant findings as follows:
“The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment.” [18] (emphasis added)
On assessment of the matter before me, it is plainly clear that the Applicant’s conduct did not constitute abandonment of employment. Further, I am not satisfied that the Applicant’s conduct amounted to repudiation which was accepted by the Respondent and then resulted in either the end of the employment contract but not the relationship nor the end of the employment relationship not at the initiative of the Respondent.
As the Applicant submits, his action of notifying the Respondent and taking leave, on 6 and 7 March 2024, shows an intention to continue employment.
Despite what appears to be a history of attendance issues, at the point in time the termination text was issued the Applicant had only been absent from the workplace for a short period of time and had communicated his absence with excuse and supporting documentation.
Having considered the testimony given, it is reasonable to conclude that, on the morning of 7 March 2024, Mr Houweling was upset and frustrated with the Applicant and let his emotions get the better of him.
Mr Houweling, being frustrated with the Applicant, used ChatGPT to draft what was, effectively, a letter of termination, citing abandonment of employment as the reason, which was then issued to the Applicant by text message.
The message, generated with the assistance of AI and then sent by Mr Houweling, clearly articulates to the Applicant that his employment was at an end.
Notably, I highlight the below passages of that message that reflect the intention of the Respondent (emphasis added):
“Subject: Notice of Employment Termination Due to Abandonment”
“Given these circumstances, we regretfully accept what we consider to be your abandonment of employment by your advice today that you are taking annual leave without prior agreement. We will process the payout of any leave entitlements you have. Arrangements will be made for you to collect your personal belongings and to return any company property including your office key.”
“We regret that our professional relationship has come to an end under these circumstances. Should you wish to discuss the collection of your personal effects or have any questions regarding the termination process.”
“It is regrettable that our professional relationship is at an end because we appreciated you personally. We have an obligation to other staff members and to the company for that reason have needed to accept your abandonment of employment.”
Mr Houweling was steadfast in his assertion that the text message he sent to the Applicant, in early March 2024, was not a genuine termination at the Respondent’s initiative.
In consideration of all that is before me, I am satisfied that this text message was the action that directly resulted in the termination of the employment relationship.
It is evident from the text message in question that it was the intention of the Respondent to bring the employment relationship to an end.
The Respondent states that the termination is for the reason of abandonment. From the submissions and evidence submitted, I am not satisfied that the Applicant had abandoned his employment.
The Applicant had sought to access personal leave, due to illness, on 6 March 2024 and later, when he was still unwell on 7 March 2024, the Applicant sought to access annual leave as he did not have sufficient personal leave. The Applicant provided medical certificates in support of the assertion that he was unwell.
It would appear that a lack of effective communication between Ms Waugh and Mr Houweling, both being Directors of the Respondent, was in part to blame for to the action taken by Mr Houweling to terminate the Applicant’s employment. Although present at the Hearing, no testimony was provided by Ms Waugh, and so the precise reasons for this breakdown in communication are unclear.
Prior to the text being sent, the Applicant had clearly communicated to Ms Waugh that he was unwell and unable to attend work.
However, despite notifying Ms Waugh, a Director of the Respondent and seemingly the usual and appropriate contact for such communication, Mr Houweling was erroneous in his conclusion that the Applicant had “abandoned” his employment.
I agree with the submissions of the Applicant and find that consistent with Riordan and Birrell,[19] despite the attempts of Mr Houweling to rescind the termination, a revocation of the termination could not be done without the mutual consent of the Applicant.
It is clear from the texts and discussions that followed the termination text that the Applicant accepted the action of the Respondent.
From the evidence and submissions of the parties, I have formed the view that the Applicant did not consent to or agree with the rescinding of his termination.
Rather, the Applicant entered into discussions with the Respondent over what an appropriate offer could be prior to any agreement in returning to employment with the Respondent would be made.
Despite the discussions held between the Applicant and the Respondent on 8 March 2024 and in the days following, it does not change that the Applicant was dismissed by the Respondent on 7 March 2024.
In regard to the Applicant’s conduct following the termination text, I am not satisfied that such conduct indicates he believed there was still an employment relationship, nor did he wish to immediately return to some form of employment with the Respondent.
On assessment of the recording of the conversation between the Applicant and Mr Houweling, it is clear that the Applicant considered himself terminated and that he was under the assumption that Mr Houweling may follow up with a clear and defined offer of further employment.
The recording and other evidence at Hearing clearly reflect that the Applicant held concern, throughout his employment, over the ambiguity surrounding his role within the Respondent.
It follows, and is consistent with the evidence before me, that the Applicant considered himself terminated and, due to previous issues regarding the uncertainty of his position, would not consider subsequent employment with the Respondent until it had clearly outlined the terms and conditions of such further role.
The Respondent referenced the Applicant sending in medical certificates after the date of termination as support for the position that the employment relationship was still on foot.
I do not accept the above submission, I am satisfied with the Applicant’s testimony regarding this point – being that he did so due to uncertainty in the face of repeated insistence from the Respondent to return, the potential that he could be sent a satisfactory offer of further employment leading him to return, and maintenance of his position that he was too unwell for work rather than having abandoning employment as was alleged.
In the event that I have erred, and the termination text sent by the Respondent was not an effective termination, I would entertain the possibility that the Applicant was dismissed consistent with the manner described in section 386(1)(b) of the Act.
The events leading up to the sending of the text, the text itself, and the discussions following the text, clearly led to a breakdown in the employment relationship to the extent that the Applicant lost significant trust.
In such circumstances, I could be satisfied that the conduct of the Respondent amounted to that which would reasonably have the effect of bringing the employment relationship to an end.
In the absence of a satisfactory and clear offer of employment, alongside the appearance of rehabilitation on the part of the Respondent in light of its previous poor conduct, it is clear that the employment relationship would not continue.
Conclusion
Having determined that the Applicant was dismissed at the initiative of the Respondent, the jurisdictional objection is dismissed.
The parties will be contacted regarding the future programming of the matter in due course.
COMMISSIONER
Appearances:
J Raftos of Argos Legal, for the Applicant.
M Saraceni, Counsel for the Respondent.
Hearing details:
2024.
Perth:
May 17.
[1] Transcript, PN1 – PN26.
[2] Transcript, PN104.
[3] Ibid, PN106.
[4] Transcript, PN122 – PN133.
[5] Macken’s Law of Employment 9th Edition (2002) Sappideen, O’Grady, Riley, 405.
[6] [1959] 1 WLR 1046.
[7] Ibid, 1054; affirmed in [1961] 1 WLR 210.
[8] (1984) 5 FCR 447.
[9] (1984) 5 FCR 447, 458.
[10] [2023] FedCFamC2G 593, [54].
[11] [2010] FWA 2357, [29]; [2018] FWCFB 139, [21]; [2023] FWC1006.
[12] [2010] FWA 2357.
[13] [2017] FWCFB 3941.
[14] [2023] FWC 1352, [44].
[15] [2018] FWCFB 139.
[16] Ibid, [21].
[17] [2022] FWC 972, [66].
[18] [2010] FWA 2357, [29].
[19] [1959] 1 WLR 1046, 1054; (1984) 5 FCR 447.
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