Danny Scott Newton v Aces Group
[2023] FWC 3470
•22 DECEMBER 2023
| [2023] FWC 3470 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Danny Scott Newton
v
Aces Group
(U2023/6877)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy
Introduction and outcome
On 27 July 2023, Mr Danny Newton made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Australian Concert and Entertainment Security Pty Ltd (ACES).
In his application, Mr Newton stated that his employment ended on 7 July 2023. Therefore, the application has been made within the 21-day period prescribed by s.394(2) of the FW Act.
On 10 August 2023, ACES filed a Form F3 – Employer response to unfair dismissal application (response). The response claimed that Mr Newton was not dismissed. I am required to determine this matter before considering the merits of the application according to s.396(b) of the FW Act.
Mr Newton alleges that he was dismissed when his employment changed from a permanent full-time role to a casual role on 7 July 2023 following a meeting between Mr Newton and Ms Emma Hunter, Human Resources Coordinator, and Mr James Kostas, Services Manager on 6 July 2023.
For the reasons set out below I have found that Mr Newton was not dismissed, and I have dismissed the application.
Hearing
The matter was listed for directions on 8 September 2023.
On 15 September and 2 October 2023 Mr Newton filed material that he relied upon at the hearing.
On 29 September 2023, ACES filed submissions and evidence.
The matter was listed for hearing on 3 October 2023.
Mr Newton represented himself at the hearing and gave evidence on his own behalf. I granted permission for Mr Haddrick of Counsel to appear for ACES at the hearing.
The following witnesses gave evidence on behalf of ACES:
a. Ms Emma Hunter, Human Resources Coordinator
b. Mr James Kostas, Services Manager
Background facts
Mr Newton commenced employment with Aces Group on 5 October 2020. His employment was covered by the ACESGroup Enterprise Agreement 2020 and a contract of employment dated 24 September 2020.[1] Mr Newton has worked in the security industry for 35 years.
Mr Newton worked as a Security Ranger on a permanent full-time basis at the Barangaroo Visitor Services Security site pursuant to a roster which provided for two night shifts of twelve hours each, and two day shifts of twelve hours each, followed by four days off.
Mr Newtown experienced numerous health issues and personal difficulties while working for ACES. On 2 July 2022, he left work suddenly because his mother passed away and his daughter had a break down.[2] On 4 January 2023, Mr Newton’s daughter went missing and was not found until 13 January 2023.[3] On 26 February 2023, Mr Newton was taken to hospital after feeling unwell on shift and stayed there for two days.[4] On 4 April 2023, he had a seizure on shift and was admitted to hospital.[5] On these occasions, Ms Hunter was in contact with Mr Newton and through phone calls and text messages and offered support.[6] Mr Newton produced a letter from Justine Finlay, Liver Clinic Social Worker, St George Hospital dated 13 September 2023 advising that he has liver cirrhosis with liver nodules, that this causes him to experience abdominal pain, fatigue and decreased appetite. In the hearing, he advised that he had been diagnosed with this condition as well as hemochromatosis, pancreatitis and emphysema in 2021. These issues caused him to take time off work. Mr Newton said he had exhausted his personal leave entitlement and that he had taken unpaid leave on at least thirty occasions to deal with these issues. ACES’ evidence was that these absences often occurred when Mr Newton was rostered on night shift.[7]
Mr Newton enquired about flexible working arrangements on three occasions in connection with managing his health and carers responsibilities.
On or about 30 September 2022, Mr Newton sent an email to ACES applying for flexible working arrangements.[8] Mr Newton explained that he was over 55, the full‐time carer of his daughter who resides with him, and that flexible working arrangements would be of great benefit in his role as a carer. Mr Newton also referred to a letter from his specialist Dr John Negrine dated 9 March 2022 who requested consideration be given to amending his roster to assist with avoiding surgery for a degenerative change in his midfoot. Dr Negrine advised that the time on his feet was not helping Mr Newton’s condition and that if his employer could excuse him from night duty and give him regular breaks during the day it would certainly help his foot and help him to last longer in the job.[9]
This request was discussed at a meeting between Ms Hunter, Mr Adam King, Chief Operations Officer and Mr Newton on 7 October 2022. At the meeting, Mr Newton explained that it was sometimes hard to balance work and his personal health and caring for his daughter who is living with mental health issues. Mr Newton said he was worried about leaving his daughter at home overnight because she gets up to trouble at night.[10]
Ms Hunter advised Mr Newton about options at other sites which would involve a lower rate of pay and that there was a part time role at Barangaroo involving night shifts. They also discussed the process of converting to a casual contract. At the conclusion of the meeting, Mr Newtown indicated that he wanted to remain at Barangaroo as a full-time worker and that he would try to come to an arrangement with friends to care for his daughter.[11]
On 31 March 2023, Mr Newton sent an email Ms Hunter in which he asked her the process of going from permanent employment to casual employment and the terms and conditions.[12]
On 7 June 2023, Mr Newton wrote to Ms Hunter in relation to the process of becoming a permanent part time employee and the conditions. He sent a follow up email a few minutes later indicating that he has cancer and was finding things difficult but needed to work. Ms Hunter replied the same day advising that she would get back to Mr Newton as soon as possible. On 8 June 2023, Ms Hunter advised Mr Newton that there was a part-time option at Barangaroo, involving night shifts Thursday, Friday and Saturday each week.[13]
Ms Hunter decided that she would discuss this request with Mr Newton[14] at a meeting which she organised in relation to the following email[15] she received from Andrew Pentespitis, ACES Security Manager, on 3 July 2023:
Hi Emma,
I have to request if Danny Newton can be priorised [sic] into finding a solution as on Saturday the 1st of July the following occurred:
A report of a lost person at our South Precinct at Barangaroo came through at 17:30,so the Rangers were Informed. When the person was found later on, and the CRO INFORMED the Rangers, Danny Newtown called out Over the Radio “WHO CARES “!!!! The Controller (Jasper) turned around to me and asked me if I had heard what Danny had said?
As previously mentioned I am concerned about Danny’s Health and Safety and I am raising my concerns as his health is getting worse, therefore not been able to perform to the company’s expectations.
Now we have reached the stage, that he is not engaging with fellow employees (at night, I have had reports of walking away from his fellow partner) and this non-professional or offensive manner is not in line with companys policies and does not meet the clients requirements for the role.[sic]
Also other signs are:
·Poor work quality
·Not following rules/policy/procedures
·Not cooperative
·Excuse -making
·Dissatisfaction among employees
On Saturday I was the Supervisor at an Event (NAIDOC UP LATE),here at Barangaroo, and as he finished at 19:00, I did not have a chance to talk to him.
If you have any queries please do not hesitate to contact me on [redacted] or alternatively via return email.
Kind Regards,
Andrew Pentespitis | ACES Security Manager
On 3 July 2023, Ms Hunter sent the following reply:[16]
Hi Andrew,
James and I will meet with Danny, he will need to either go casual and work casual events or leave ACESGroup.
Can you please provide a statement from Jasper, and details notes on the dot points you provided as Danny with argue against what is presented to him so we need clear examples.
Please do not hesitate to contact me if you require any further information.
Best Regards
Emma Hunter I ACES HR Coordinator
A meeting was then organised by Mr Hunter who sent Mr Newton the following email on 5 July 2023:[17]
Hi Danny,
I attempted to contact you via phone this morning but was unfortunately unable to reach you.
We have scheduled a Management Meeting for 1pm tomorrow, Thursday 6th July, at our Redfern Head Office (79 – 81 Regent Street Redfern NSW 2016). The purpose of the meeting is to discuss the ongoing performance and attendance issues.
You will be meeting with myself and James Kostas. You are welcome to bring a support person with you. The Management Meeting is compulsorily for you to attend, and you will be paid 2hrs for the meeting.
Please do not hesitate to contact me if you require any further information.
Best Regards
Emma Hunter I ACES HR Coordinator
According to Ms Hunter, she decided to discuss both the performance issues and flexible working arrangement request at the meeting scheduled for 6 July 2023 so that Mr Newton could avoid multiple trips to head office for meetings.[18] However, there is no indication that Mr Newton was aware that his employment status was to be discussed at the meeting.
At that meeting, Mr Hunter raised with Mr Newton an allegation that he had said ‘who cares’ when a missing person’s report was made over the radio. Mr Newton denied making the comment.[19]
Ms Hunter then raised with Mr Newton his inconsistent shift pattern over the past 12 months and acknowledged that Mr Newton had experienced some family and health issues.[20]
During the conversation that followed, Mr Newton asked if he was ‘getting the sack’. Ms Hunter said, ‘No, not at all, we are just mindful of how your personal issues affect your attendance at work and we want to give you a few options’. Mr Hunter then advised Mr Newton about a Monday to Friday concierge role at a University with no night shifts and a lower pay rate. Mr Newton declined this role.[21]
Ms Hunter then said to Mr Newton that if he is unable to commit to his core hours, going casual will give him the flexibility to accept or decline shifts based on his circumstances. According to Ms Hunter, Mr Newton advised that this was probably the best solution for him given his circumstances. Ms Hunter said she told Mr Newton that usually he would be required to work the two week notice period but that this would be waived by ACES.[22]
According to Mr Newton, he was very sick the day before the meeting and had the day off. He felt like he was ambushed by ACES in relation to the proposal that he convert to casual employment and that he had no choice but to accept. He said that he was promised a lot of hours of work as a casual employee which did not eventuate. He felt like he was dismissed by ACES without ACES using the term ‘dismissed’. As the meeting went on, Mr Newton felt that he had no choice but to convert to casual employment as he still must pay rent and that if he did not agree, he would be made to leave ACES.
At the conclusion of the meeting, Mr Newton signed an employee performance report which noted that there were ongoing performance issues related to unprofessional behaviour, that Mr Newton would be removed from the Barangaroo site and that he would be converted to casual employment.[23] As part of the evidence filed, ACES provided copies of two previous employee performance reports in relation to Mr Newton which were signed on 6 July 2022[24] and 20 February 2023.[25]
At 8:16pm on 7 July 2023, Ms Hunter sent Mr Newton the following email:[26]
Hi Danny,
Thank you for reaching out to me earlier today.
Attached is your Certificate of Employment and a copy of the Employee Performance Report detailing the conversion to casual.
Your casual contract has been issued to you via our HR platform Expedo.
Please do not hesitate to contact me if you require any further information.
Best RegardsEmma Hunter I ACES HR Coordinator
ACES produced to the Commission a contract of employment in relation to the causal role which appeared to be signed by Mr Newton and was dated 7 July 2023.[27] Mr Newton said he may have signed the contract at the meeting on 6 July 2023, or he might have signed it at another time.
Clause 2 of the contract provided:
Casual Employment
As a casual employee:
(a) this Employment Agreement will apply for any period of casual employment with the Company;
(b) there is no guarantee that you will be offered any pattern or number of casual shifts, or that you will be offered any shifts at all. If we offer you work as a casual employee you are not obliged to accept it, but if you do then you agree to attend and perform the shift; and
(c) you have no expectation that you will be offered ongoing work, or you will continue to work based on any incidence of casual work you are offered and work according to the terms of the Employment Agreement;
(d) the Company is under no obligation to offer you any shifts; and
(e) your hours of work may be published on a roster in advance or may be offered to you by phone, email or otherwise. You acknowledge that if you are advised of a roster with hours of work allocated to you, then that roster is for planning purposes only and your shift(s) may be changed or cancelled according to operational requirements with or without notice. As a casual employee you should not regard a roster to mean you have any expectation of ongoing employment.[28]
The contract also provided at clause 5 that the work location was the rostered worksite or event and any location that ACES may require Mr Newton to work at any time. Further that ACES may change Mr Newton’s location of work at any time.[29]
On 11 July 2023, Mr Newton sent Ms Hunter an email in which he stated that his removal as a permanent employee and from Barangaroo was done with no consultation from his supervisor or manager.[30] Ms Hunter replied by email in the following terms:[31]
Hi Danny,
James Kostas and I met with you and discussed the performance failures, we discussed converting to casual. I am confused as to why you think there was not consultation regarding this?
We previously met regarding unprofessional behaviour and attendance issues, you were given a Performance Improvement Plan and final warning back in February. Unfortunately there was not an improvement particularly with your attendance to shifts.
Please do not hesitate to contact me if you require any further information.
Best RegardsEmma Hunter I ACES HR Coordinator
On 12 July 2023, Mr Newton sent the following reply to Ms Hunter by email:[32]
Hi Emma,
I'm not entering an argument.
I accept attendance issues but I always done my job professionally.
My health issues and daughter mental issues probably took more out of me than I realized.
I did enjoy working at Barangaroo.
You take care.
Regards,
Danny Newton
On 20 July 2023 and 25 July 2023, Mr Newton worked casual shifts for ACES. Since that time, ACES has offered other shifts to Mr Newton which Mr Newton has ether rejected or not responded to.[33]
On 28 July 2023 Mr Newton contacted ACES Human Resources in relation to the hours that were offered to him. Ms Hunter responded to the email advising that the rostering team allocate shifts based on availability, qualifications and client requests, that she had asked the team to allocate shifts to Mr Newton as soon as possible and that he should keep an eye on his rostering app.[34]
Legislation
The issue between the parties which the Commission has been asked to determine is whether Mr Newton was dismissed by ACES.
Section 386 of the FW Act provides:
386 Meaning of dismissed
(1) 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.
(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 her remuneration or duties; and
(ii) he or she 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.
Submissions
Mr Newton
The effect of Mr Newton’s submissions is that he was dismissed within the meaning of s.386(1)(b) as he resigned from his permanent employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer at the meeting on 6 July 2023.
ACES
ACES submitted that as a consequence of the meeting on 6 July 2023, Mr Newton’s employment was varied from one of permanent full-time employment to casual employment. Therefore, Mr Newton’s contract was not terminated; or, put more precisely, Mr Newton’s employment contract was not discharged, it was varied consistent with the intention of the parties.
Dismissal of an employee brings that employee’s employment contract to an end. If it is at the election of the employer, or it is a case of constructive dismissal, then this is a dismissal for the purposes of s 385 of the FW Act. A variation is not a dismissal, as ‘the person’s employment … has [not] been terminated …’, nor has the person ‘resigned from his or her employment …’.
This is not a case of a novation – where the parties have discharged the first contract by consent and replaced it with another, new, contract between them. What was offered by ACES and accepted by Mr Newton in signing the document on 7 July 2023, was a continuation of his existing employment. That offer came about after the meeting on 6 July 2023.
Notwithstanding the first and second points made above, neither the first limb, nor the second limb, of s.386 of the FW Act is engaged. As the documentary evidence demonstrates, it was Mr Newton who first approached his employer seeking to vary his employment arrangements to facilitate a greater degree of flexibility to allow him to respond to both his medical issues, as well as medical issues that his daughter was suffering from.
ACES did not instigate the process of change to Mr Newton’s employment status. Nor did the ACES or any of its agents, apply any threat or force upon Mr Newton to require him to agree to the variation to his existing employment contract.
Sometime after agreeing to vary his employment contract, Mr Newton had second thoughts about the desirability of that change, and has sought to, after the fact, characterise the process of varying his employment contract as one of him being deceived.
It was clearly communicated to Mr Newton that:
There is also no guarantee of shifts being offered and no guarantee of minimum hours of work offered.
Mr Newton agreed to the variation in full knowledge of what agreeing to the variation would mean. He has already attested to this in writing. On the final page of the letter of 7 July 2023 Mr Newton attested that: ‘I have fully read, understand and agree to: (a) this Agreement; and (b) Position Description’.
Mr Newton was not dismissed within the meaning of either the first or second limbs of s.386 of the FW Act. Therefore, the jurisdictional requirement that Mr Newton be dismissed is absent. There is no basis for the application for an unfair dismissal remedy.
Consideration
Was there a termination of the permanent role?
The conversion of Mr Newton’s employment from permanent to casual could occur in one of two ways. Firstly, Mr Newton could terminate the permanent contract by resigning and then entering into a new contract providing for casual employment. Secondly, Mr Newton and ACES could agree to vary the contract dated 24 September 2020 to provide that from 7 July 2023 Mr Newton’s employment was converted from permanent to casual.
There are a number of matters which point to a new contract being entered into, rather than a variation of the original contract. Instead of ACES and Mr Newton signing a document confirming that there was a variation of the contract dated 24 September 2020, the parties signed a completely new contract on 7 July 2023. Further, the casual contract dated 7 July 2023 has many terms which are different compared to the contract dated 24 September 2020. Finally, Ms Hunter claims that she advised Mr Newton that ordinarily a two week notice period would be required to convert from full time to causal employment. This is consistent with the requirement in the contract of 24 September 2020 that Mr Newton provide notice of his intention to terminate. Notice is not a requirement if parties are agreeing to vary a contract.
The fact that the casual contract referred to continuing employment is not inconsistent with the contract dated 24 September 2020 being terminated. This is because the plain and ordinary meaning of the words ‘continuing employment’ is not limited to a continuing contract of employment. The phrase could also refer to a continuing employment relationship comprised of two or more contracts of employment.
In the circumstances, I find that the contract between Mr Newton and ACES dated 24 September 2020 was terminated when the parties signed a new contract on 7 July 2023 notwithstanding the fact that the employment relationship continued. This in effect resulted in Mr Newton resigning from his permanent position effective from that date.
Was there a dismissal?
After reviewing the relevant authorities, the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[35]stated the following in relation to the proper construction of s.386(1) of the FW Act with respect to resignation:
There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[36]
Mr Newton did not articulate whether he was relying on s.386(1)(a) or s.386(1)(b) of the FW Act in claiming that he was dismissed. Given that the resignation involved the signing of the casual contract and did not take effect until the day after the meeting on 6 July 2023, I believe that it is unlikely that Mr Newton is alleging that his resignation from his permanent position was expressed in the ‘heat of the moment’. Mr Newton’s contention that he was ‘ambushed’ into agreeing to relinquish his permanent position appears to be a submission that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by ACES. I have therefore applied s.386(1)(b), and not s.386(1)(a), when determining this matter.
The onus is on Mr Newton to establish that he did not resign voluntarily and that the conduct of ACES forced him to resign.[37]
The evidence established that during the twelve-month period prior to 6 July 2023, Mr Newton signed two employee performance reports and made three inquiries about changing his employment status from permanent full time to part time or casual. These events coincided with some very difficult and distressing events in Mr Newton’s personal life, including the death of his mother, his daughter experiencing a break down and going missing, and Mr Newton experiencing his own serious health issues which required hospitalisation on at least two occasions.
Mr Newton accepted that these issues were affecting his attendance and proactively sought to engage with employer about changing his working arrangements to accommodate his health issues and carers responsibilities. The first two occasions that Mr Newton raised flexible working arrangements did not result in any changes to his work arrangements either because Mr Newton did not progress his inquiries, or because the proposals that ACES made were not acceptable to Mr Newton.
The third time that Mr Newton raised flexible working arrangements was on 7 June 2023, in relation to the process of going permanent part time and the conditions. Although Ms Hunter responded to this request the following day, she decided to also discuss this at the meeting organised with Mr Newton on 6 July 2023 in relation to performance and attendance issues. The reason that Ms Hunter raised Mr Newton’s working arrangements in the meeting was because of her view, expressed in her email dated 3 July 2023 to Mr Pentespitis, that Mr Newton would either need to convert to casual employment or leave ACES.
I believe that it was inappropriate for Ms Hunter to combine the issues of performance management and employment status in the same meeting, particularly when Mr Newton had no notice that his working arrangements or employment status were to be discussed. This may have given Mr Newton the impression that the only way to avoid being penalised in relation to the performance issues was to relinquish his permanent position. However, it was also the case that Mr Newton’s full time working pattern, which included two twelve-hour night shifts per roster cycle, was becoming increasingly unsustainable because of his carers responsibilities and the parties had been unable to agree on alternative working arrangements. This was partly because the working arrangements which best suited Mr Newton’s personal circumstances did not include night shifts and therefore attracted a lower rate of pay.
I accept that Mr Newton is deeply unhappy about converting to causal employment and being removed from the Barangaroo site. I also accept that this is likely to cause him financial hardship given the irregular nature of casual work. I accept that Mr Newton was in a very difficult situation at the meeting on 6 July 2023, having been unwell the day before and being unaware that he would be requested by Ms Hunter to consider relinquishing his permanent position.
In my view, it is unlikely that Mr Newton would have agreed to convert to causal employment on 7 July 2023 if he had not attended the meeting with Ms Hunter and Mr Kostas the previous day. Ms Hunter initiated the conversation about Mr Newton converting to casual employment, consistent with her email to Mr Pentespitis three days earlier that Mr Newton would need to convert casual employment or leave ACES. I accept that Mr Newton genuinely felt, when Ms Hunter initiated this conversation, that he had no choice but to resign from his permanent role.
However, my acceptance of Mr Newton’s evidence with respect to feelings at the time of the meeting with Ms Hunter and Mr Kostas is not sufficient to establish that Mr Newton was dismissed. This is because I must find that Mr Newton was forced to resign because of conduct engaged by Ms Hunter, Mr Kostas or another person on behalf of ACES to find that that Mr Newton was dismissed within the meaning of s.386(1)(b) of the FW Act. In my view, the evidence does not support such a finding. Although Mr Newton says that during the meeting, he felt that he would have to leave ACES if he did not agree to become a casual employee, he does not allege that Ms Hunter or Mr Kostas said his employment would be terminated.
Further, Mr Newton’s decision to relinquish his permanent position did not take effect until the following day when he signed the casual contract of employment. There is no evidence that establishes that any representative from ACES put any pressure on, or otherwise forced, Mr Newton to sign the casual contract. Although Mr Newton’s evidence was that it was possible that he signed the casual contract at the meeting on 6 July 2023, I find that it was more likely than not that he signed the contract on 7 July 2023 given the evidence that it was issued electronically and that this is the date that appears next to his signature on the contract. It appears from an email that Ms Hunter sent to Mr Newton at 8:16pm on 7 July 2023 that Mr Newton had contacted her earlier that day to request a Certificate of Employment and a copy of the Employee Performance Report, and that the casual contract had been issued to Mr Newton electronically that day.
If Mr Newton was concerned about converting to a casual position after the meeting on 6 July 2023, it was open to him to not sign the contract the following day. Mr Newton signed the contract on 7 July 2023 and did not raise any concerns about converting to the casual position until 11 July 2023.
Emails produced during the hearing between Mr Newton and ACES showed that when Mr Newton disagreed with proposals made by ACES, he would communicate this to ACES. For example, on 30 September 2022, in response to a request by Mr Newton to work day shifts only, Ms Hunter explained to Mr Newton that his hourly rate would reduce from $31.97 to $24.59. Mr Newton expressed concern about the reduced pay rate when responding by email the same day and ultimately decided at a meeting on 7 October 2022 not to change his working arrangements. Based upon Mr Newton’s previous communications with ACES, I find that if he was concerned about converting to casual employment, he would have raised this with ACES before signing the contract and would not have signed the contract on 7 July 2023.
I believe that the reason that Mr Newton signed the contract and agreed to become a casual employee was because he was increasingly unable to meet the requirements of the role in relation to working regular night shifts because of his responsibilities towards his daughter and his own health issues. These were very unfortunate circumstances and beyond Mr Newton’s control. They were evidenced by his regular absences on unpaid leave and his three requests for flexible working hours. Although Ms Hunter initiated the discussion about casual employment with Mr Newton on 6 July 2023, I find that Ms Hunter’s conduct did not force Mr Newton to relinquish his permanent position. Rather, it was Mr Newton’s personal circumstances which resulted in Mr Newton signing the casual contract on 7 July 2023.
Conclusion
Based on my consideration of all of the evidence before me and the parties’ submissions, I do not accept that Mr Newton was forced to resign because of conduct engaged by Ms Hunter, Mr Kostas or another person on behalf of ACES. I therefore find that that Mr Newton was not dismissed within the meaning of s.386(1)(b) of the FW Act. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
D Newton, the Applicant.
R Haddrick of Counsel, on behalf of the Respondent.
Hearing details:
2023
July 3
Sydney
[1] Statement of Emma Hunter dated 29 September 2023, 4, EH-1.
[2] Ibid, 16.
[3] Ibid, 24-25.
[4] Ibid, 29.
[5] Ibid, 31.
[6] Ibid, EH-15; EH-19; EH-20.
[7] Ibid, EH-7.
[8] Ibid, 17, EH-7.
[9] Ibid, EH-7.
[10] Ibid, 23.
[11] Ibid, 23; EH-13.
[12] Ibid, 30; EH-20.
[13] Ibid, 5; EH-2.
[14] Ibid, 6-7.
[15] Ibid, 33; EH-23.
[16] Ibid, EH-23.
[17] Ibid, 34; EH-24.
[18] Ibid, 6-7.
[19] Ibid, 36.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid, EH-25.
[24] Ibid, EH-5.
[25] Ibid, EH-18.
[26] Ibid.
[27] EH-3.
[28] Ibid.
[29] Ibid.
[30] Ibid, 43; EH-26.
[31] Ibid.
[32] Ibid.
[33] Ibid, 51.
[34] Ibid, 47; EH-30.
[35] [2017] FWCFB 3941.
[36] Ibid, [47].
[37]Australian Hearing v Peary (2009) 185 IR 359 [23].
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