Daryl Bird v Lloyds Auctioneers and Valuers
[2022] FWC 318
| [2022] FWC 318 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 – General protections
Daryl Bird
v
Lloyds Auctioneers and Valuers
(C2021/4901)
| Commissioner matheson | Sydney, 15 february 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – Respondent contends Applicant not dismissed – jurisdictional objection dismissed.
On 19 August 2021, Mr Daryl Bird (Applicant) filed a general protections application involving dismissal (Application) alleging that he was dismissed by Lloyds Auctioneers and Valuers (Respondent) in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (Act).
On 10 September 2021, the Respondent filed a response to the Application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed.
The matter was scheduled for a conciliation conference before a member of the Commission’s staff on 21 September 2021.
On 14 September 2021, the Commission wrote to the Respondent requesting that it confirm by 16 September 2021 whether it wanted to attend the conciliation conference or have the case referred to a Commission Member for the hearing of the jurisdictional objection. No response was received from the Respondent by 21 September 2021 and, as such, the conciliation conference did not proceed.
Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal 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.”
This matter has been allocated to me to determine whether or not there has been a dismissal.
On 27 September 2021, directions were issued by the Commission for the filing of submissions and the matter was listed for hearing on 8 November 2021. The Respondent did not file its submissions by 25 October 2021 as required by the directions. On 26 October 2021, the Commission wrote to the Respondent directing it to advise the Commission whether it intended to pursue its jurisdictional objection and, if so, the reasons for non-compliance with the Commission’s directions. The Respondent did not respond as directed.
The Commission continued to follow up with the Respondent via telephone and mail and, on 2 November 2021, the Respondent emailed the Commission, attributing the delay in the filing of submissions to extreme weather events and indicating that it would be in a position to file its submissions by 3 November 2021. The original date set down for hearing was vacated and the Respondent was granted an extension for the filing of submissions until 3 November 2021. A new date was set for hearing, being 16 November 2021.
On 15 November 2021, the Respondent contacted the Commission seeking that the hearing be postponed, providing evidence that Mr Hames of the Respondent was required as a witness in criminal proceedings in the District Court. The hearing date was again vacated and the matter relisted for hearing on 22 November 2021.
The hearing proceeded on 22 November 2021 with both parties in attendance. The Applicant represented himself and Mr Marc ‘Lee’ Hames, Chief Operating Officer of the Respondent, appeared for the Respondent.
The matter was also listed for further hearing on 22 December 2021 to deal with text messages between the Respondent and Applicant between 30 July 2021 and 2 August 2021. The Applicant filed submissions in relation to the text messages on 23 November 2021 and requested to be heard in relation to the significance of the text messages. The Respondent did not attend the hearing on 22 December 2021 to deal with this issue and did not file reply submissions in relation to the text messages.
Non-dismissal contention – the submissions
The Respondent’s submissions
The Respondent has raised a jurisdictional objection to the application on the basis that it did not dismiss the Applicant. In its response to the Application, the Respondent stated:
“After lengthy discussions, it was eventually agreed that the applicant would resign, which the applicant did.”
The Respondent filed submissions in support of its jurisdictional objection on 3 November 2021 and, by way of summary, provides the following account of events which it says occurred within those submissions:
· On Friday 23 July 2021, Mr Hames reached out to the Applicant via text message to advise that he had a 15 minute opening should the Applicant be free for a call. The Applicant phoned moments later and a conversation proceeded for more than 90 minutes. During that conversation:
oMr Hames and the Applicant discussed a number of things including the Applicant’s role, things he did and didn’t enjoy, things they would like to improve, third party property valuations, the team and family matters.
oThe Applicant raised concerns about not being a part of conversations regarding how third party valuations may be introduced into the business. In response, Mr Hames explained that his team leader (Tania Austin) and manager (Scott Webber) were in discussions and once they had narrowed down options would no doubt involve the Applicant. Mr Hames perceived the Applicant as frustrated and that he felt he had been left out of the conversation on purpose. Mr Hames assured him that this was not the case.
· Over the coming days, Mr Hames made casual calls to the Applicant’s team leader and manager to discuss, among other things, the Applicant’s integration into the team. Both described the Applicant as a very capable operator but raised concerns about him pushing back on instructions, complaining to team members instead of raising concerns with management and speaking aggressively to a junior team member.
· On Friday 30 July 2021, Mr Hames called the Applicant to discuss the call that had occurred the prior week, his “findings during the week” and a “reasonable outcome”. During the conversation:
oMr Hames and the Applicant “agreed early that both stakeholders had little options”.
oMr Hames asked the Applicant if he could foresee any future where the team (including the Applicant) might work cohesively together and the Applicant confirmed that he couldn’t.
oMr Hames and the Applicant began discussing his options and the Applicant asked if he could have some time to consider his options.
· After the discussion on 30 July 2021, Mr Hames verbally instructed IT to freeze the Applicant’s access to servers until an outcome was reached.
· On Friday 30 July 2021, Mr Hames received an email and a text message from the Applicant expressing his disappointment and outlining two specific options.
· On Monday 2 August 2021, Mr Hames received a text message confirming the Applicant’s resignation with instructions.
· The Respondent accepted the resignation in writing and agreed to the terms.
In support of its submissions the Respondent filed an employment separation certificate which:
· states that the employment end date was 31 July 2021; and
· states the reason for separation was the Applicant “ceasing work voluntarily” and that it received a resignation letter; and
· indicates that on termination the Applicant was paid 20 days in lieu of notice and seven days’ annual leave.
The Respondent also filed:
· payslips, one of which shows payment of annual leave and payments in lieu of notice; and
· a copy of a text message from the Applicant dated Monday 2 August which appears to have been sent at 3.15pm. The text message states:
“I have sent you an email confirming my resignation under these circumstances, Centreline (sic) is awaiting on my employment separation certificate and final payment.”
The Applicant’s submissions
The Applicant filed submissions on 8 October 2021 and in response to the Respondent’s submissions on 3 November 2021 and, by way of summary, provides an account of events which he says occurred within those submissions.
The Applicant agreed that a conversation with Mr Hames took place on 23 July 2021 and indicated that this conversation left him feeling pleased to be part of the team and supported.
However, a number of facts are not agreed. In particular, the Applicant says in his submissions that:
· The Respondent is not being clear about the concerns the Applicant raised in relation to third party valuations and this issue was discussed in great detail on 23 July 2021. During that discussion, Mr Hames suggested that the Applicant raise the issue with his manager, Mr Webber, in the Applicant’s upcoming performance review. The Applicant perceived Mr Hames to be concerned as to how the Applicant’s team leader, Ms Austin, and Mr Webber would respond.
· In the discussion of 30 July 2021, Mr Hames opened the discussion by saying “Lloyds will not be continuing employment arrangement based on recent discussions, not being a good cultural fit to Lloyds and that it’s a matter of circumstance and not the only person at fault by any means…”.
· The Applicant understands the “recent discussions” referred to above to be the casual calls made by Mr Hames to Ms Austin and Mr Webber.
· There was a change in the demeanour of Mr Hames between the conversations on 23 July 2021 and 30 July 2021.
· During the discussion on 30 July 2021, Mr Hames provided the Applicant with an ultimatum to “either accept 2 weeks’ notice period on the basis of termination or 4 weeks paid notice period” if the Applicant resigned. The Applicant was of the understanding that neither option would alter the fact that he had been dismissed by the Respondent on its initiative.
· The Respondent terminated his employment and was clear about this in its intentions and in the process it executed. The Respondent withdrew the ability for the Applicant to continue to fulfil his obligations as an employee.
· Concerns raised by the Respondent in its submissions were never raised with him during his employment.
· On Monday 2 August 2021, after considering the circumstances, the Applicant emailed Mr Hames of the Respondent.
· The ultimatum put to the Applicant by Mr Hames was put to the Applicant after his termination had been put into effect. In making a decision about the ultimatum, the Applicant was concerned about when he might secure alternative employment as it had taken him 12 months to secure his employment with the Respondent. The Applicant also considered that having the reason for termination reflected as a “resignation” may look better to a prospective employer. The Applicant submitted that he was forced to accept the option of four weeks pay because of the Respondent’s conduct.
The Applicant provided a copy of an email to Mr Hames dated Monday 2 August 2021 which appears to have been sent at 3.10pm. The contents of that email were:
“Hi Lee,
Following on from our phone conversation ~9am Friday 31/07/2021 regarding the immediate termination of my employment due to me “not being a good cultural fit to Lloyds and that it’s a matter of circumstance” and that as we spoke my access (to servers) in order to continue my role was denied.
I reiterate that you offered me a choice “2 weeks notice period on the basis of termination or 4 weeks paid notice period if I resign”, I asked I have some time to compute this, given the shock/surprise of the circumstances, I therefore offer my resignation as Senior Property, Plant and Equipment Valuer of Lloyds Auctioneers and Valuers Pty Ltd.
Furthermore, I have contacted Centrelink and have been instructed to request that I be provided with employment separation certificate and final payment.”
At that hearing on 22 November 2021, the Respondent agreed to provide a copy of text messages between the Applicant and Mr Hames between 30 July 2021 and 2 August 2021 that the Applicant suggested may be of relevance in the matter. On 23 November 2021, in addition to those text messages already provided, the Respondent provided a text message from the Applicant to Mr Hames which appears to have been sent on 30 July 2021 at 5.40pm and which concludes:
“….
I am aware of my obligations (as was always the case), I had your back and protected Lloyds but I do sincerely hope that you have the capacity to formally confirm the termination of my employment and make good of your obligations without further demands and conditions (as prior).”
In the email in which this text message was provided, Mr Hames of the Respondent stated:
“I found the text confrontational and intentionally elusive of fact, asking for details or confirmation of a termination that did not take place, therefore I did not respond to it.”
The text messages
On 23 November 2021, the Applicant filed further submissions regarding the significance of the text messages between the Applicant and Mr Hames between 30 July 2021 and 2 August 2021 and submitted that the Respondent omitted to provide all of the text messages in this period. The Applicant provided further text messages that appear to have been sent between Mr Hames and the Applicant on the morning of Friday 30 July 2021. In particular, the Applicant provided:
· A copy of a text that appears to have been sent on Friday 30 July 2021 from Mr Hames to the Applicant at 9.27am and which states:
“You missed a call, but the caller didn’t leave a message.”
· A copy of a text that appears to have been sent on Friday 30 July 2021 from Mr Hames to the Applicant at 9.28am and which states:
“Please call when free”.
· A copy of a text that appears to have been sent on Friday 30 July 2021 from the Applicant to Mr Hames at 9.28am and which states:
“Please call me back.”
· A copy of a text that appears to have been sent on Friday 30 July 2021 from the Applicant to Mr Hames at 9.30am and which states:
“Was on the phone. I am free”.
· A copy of a text that appears to have been sent on Friday 30 July 2021 from Mr Hames to the Applicant at 9.53am and which states:
“I am sorry Daryl, For your convenience will send you a prepaid australia post slip to assist with returning Lloyd’s property. Upon receipt we will release all accrued entitlements. Lee.”
The Applicant submitted that the text messages establish that the Respondent called him after 9.30am on 30 July 2021 and during that call the Respondent terminated the Applicant’s employment on the Respondent’s initiative. The Applicant submitted that his response via text message at 5.40pm on 30 July 2021 outlined his disappointment in these circumstances.
As noted above, the matter was listed for hearing on 22 December 2021. The Respondent did not attend the hearing on 22 December 2021 to deal with this issue and did not file reply submissions in relation to the text messages.
Non-dismissal contention – the evidence at hearing
At the hearing on 22 November 2021. Mr Hames gave evidence for the Respondent and the Applicant gave evidence on his own behalf.
Mr Hames provided evidence that:
· Mr Hames had a good relationship with the Applicant.
· Mr Hames spoke to the Applicant on 23 July 2021 after the Applicant had reached out for a discussion and to have a probation meeting. This discussion was approximately 90 minutes in duration and during that discussion:
oMr Hames and the Applicant spoke about “all things particularly the market, his role, his family, things he enjoyed, things he didn’t enjoy, things that were working and things that we needed to improve, third party valuations” and bringing in a third-party valuations company.
oThe Applicant raised concerns regarding the way in which valuations could be introduced to the business. Mr Hames explained that his team leader and manager were in discussions about this and would involve the Applicant when they had narrowed options. Mr Hames said he made this statement to put the Applicant’s “mind at ease” and wanted to give him “confidence that he was ok” but he did acknowledge that he needed to understand more about “where they were at” in relation to third party valuations.
oMr Hames explored whether the Applicant would be interested in leading the third party valuations team.
· Over the coming days, Mr Hames made casual calls to the Applicant’s team leader and manager to discuss valuations, new systems and the Applicant’s integration, being one of the newest senior team members.
· Both described the Applicant as a very capable operator but gave separate versions of trying to find the “correct way to deal with the Applicant without frustrating, disturbing or upsetting him”. The feedback included that the Applicant would push back on simple instructions and would complain to fellow team members instead of raising concerns with management and on one occasion spoke aggressively to a team member.
· On Friday 30 July 2021, Mr Hames called the Applicant to discuss the week prior, including his discussions with the Applicant’s team leader and manager and to arrive at a “reasonable outcome”. During that conversation:
oIt was “agreed early that both stakeholders had little options” and, when he asked the Applicant if he could see a future with a team including himself working cohesively together, the Applicant confirmed that he couldn’t.
oFrom that point, Mr Hames began discussing options with the Applicant and the only reference made about termination in the call was that if no improvements were able to be made and a solution could not be found termination “may be on the table”.
oAs Mr Hames was talking to the Applicant about possible termination, “improvement and the opportunity to resign”, the Applicant asked if he could have some time to think about it.
oWhen Mr Hames provided the feedback from the Applicant’s team leader and manager, the Applicant became “very defensive” and “very short” and the conversation became more direct when the feedback was given. Mr Hames described this as a “difficult situation” and indicated that he quickly realised that the situation was not likely to be resolved by a “meeting of team leaders” even though they were open to this or “any version of sitting around a round table to work through it”. Mr Hames stated that he felt offering the opportunity to resign would enable the Applicant to “save face” and “save reputation” but that he was open to be convinced that things could change moving forward.
oMr Hames stated that after the Applicant acknowledged that he could not see a way of moving forward where the team could work cohesively, both he and the Applicant acknowledged there were not many options available. Mr Hames acknowledged saying “we don’t want termination as an outcome we are looking for here” and offered resignation as an option which he considered to be the best option for the Applicant.
· On Monday 2 August 2021, Mr Hames received a text message confirming an email, which Mr Hames then read. Mr Hames understood this to be a resignation and “executed the agreed terms which included four weeks and all entitlements” which he hoped helped the Applicant during a difficult time. Mr Hames clarified that this was a reference to the option put to the Applicant to resign and be paid four weeks, which was put to the Applicant verbally during the conversation on 30 July 2021 and referred to in the email received from the Applicant on 2 August 2021, which he considered to be acceptance of these terms. Following this, Mr Hames sent an email to the finance team to action the termination on that basis.
The Applicant provided evidence that during the conversation on 30 July 2021:
· Mr Hames opened with words to the effect that the Respondent was ceasing the Applicant’s employment based on recent discussions, that the Applicant was not a good cultural fit for the Respondent and based on circumstances.
· He perceived that there was “no going back” after the discussion was opened in that way and he felt there was nothing he could do because his employment had been terminated.
· Mr Hames gave him an ultimatum to either resign with four weeks pay or be dismissed anyway with two weeks pay.
The Applicant also gave evidence that:
· A year prior to his employment with the Respondent, he had been made redundant after incurring debt to purchase a property and he was very happy to be employed by the Respondent.
· The Applicant did say he resigned but had no choice because of the conduct of the Respondent.
Disputes as to dismissal in s.365 applications
In Coles Supply Chain v Milford[1] the Full Court of the Federal Court stated:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[2]
Consideration
I need make findings of fact in determining whether the Applicant has been dismissed.
The term ‘dismissed’ is defined in s.386(1) of the Act as a situation where:
(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.
However s.386(2) of the Act provides that 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 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 significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
It is not disputed and I find that none of the circumstances referred to in s.386(2) of the Act are relevant to the present case.
“Termination at the initiative of the employer” refers to a termination brought about by an employer which is not agreed to by the employee.[3]
The Applicant and Respondent provide differing versions of a critical conversation that took place on 30 July 2021 in which the Applicant says he was dismissed. I have considered the submissions and evidence in this matter and, for the reasons that follow, I find that during the course of that conversation the Applicant’s employment was terminated at the initiative of the Respondent.
In its own submissions, the Respondent states that, after the discussion on 30 July 2021, Mr Hames verbally instructed IT to freeze the Applicant’s access to the Respondent’s servers. While the Respondent submitted that this was to occur “until an outcome was reached”, in the circumstances of this matter, it is a peculiar course of action to embark on if it was seriously contemplated that the employment relationship was continuing. I find that this action was taken because it had already been decided by the Respondent that the employment relationship had come to an end and the only matter for further determination was the final payment to be made to the Applicant and what the Respondent would ultimately record as being the reason for the dismissal in its records. I find that the Respondent provided the additional payment by way of notice in order to mitigate the effects of the dismissal upon the Applicant.
The Respondent did not respond to the contentions put by the Applicant in his text message of 30 July 2021 at 5.40pm in which he seeks for the Respondent to “formally confirm” the termination of his employment. Mr Hames explained via email that this was because he found the text “confrontational and intentionally elusive of fact, asking for details or confirmation of a termination that did not take place”. However, there is no evidence that the Respondent sought to correct the Applicant’s perception that he had been dismissed by the Respondent at this time, which I consider would be unusual in circumstances where it was seriously contemplated that the employment relationship was continuing. These factors in themselves have persuaded me that the termination of the employment relationship occurred during a conversation that took place at approximately 9.30am on 30 July 2021. In particular, I find that Mr Hames told the Applicant the Respondent was ceasing the Applicant’s employment based on recent discussions with his team leader and manager and that the Applicant was not a good cultural fit for the Respondent.
I further note that the chain of text messages provided by the Applicant on 23 November 2021, which appear to have been sent between Mr Hames and the Applicant on the morning of Friday 30 July 2021, include a text that appears to have been sent to Mr Hames from the Applicant at 9.53 am and which states:
“I am sorry Daryl, For your convenience will send you a prepaid australia post slip to assist with returning Lloyd’s property. Upon receipt we will release all accrued entitlements. Lee.”
The Applicant submitted that the text messages establish that the Respondent called him after 9.30am on 30 July 2021 and during that call the Respondent terminated the Applicant’s employment on the Respondent’s initiative. The Applicant submitted that his response via text message at 5.40pm on 30 July 2021 outlined his disappointment in these circumstances. The Respondent did not file submissions in reply to the submissions of the Applicant and did not attend the further hearing on 22 December 2021 to contest the Applicant’s submissions regarding the significance of these text messages. The text message that was produced by the Applicant indicates that the Applicant was required to return the Respondent’s belongings and this text message was sent in close proximity to the conversation that occurred on the morning of Friday 30 July 2021 in which I have found the Applicant was dismissed. Seeking the return of the Respondent’s property is, in my view, an action consistent with the Respondent’s decision to terminate the employment relationship during the conversation on 30 July 2021.
While the Applicant emailed the Respondent on 2 August 2021 indicating that he “resigned”, I find that that this act occurred after the termination of his employment had taken place on 30 July 2021. Even if I am wrong about that and it is found that the Applicant resigned when he emailed the Respondent on 2 August 2021, I find that this was because of the conduct of the Respondent on 30 July 2021 in which it was made clear to him that his employment with the Respondent had become untenable and would not be continuing.
In Bupa Aged Care Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (BUPA v Tavassoli),[4] the Full Bench stated:
“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 probably (sic) 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.”[5]
I accept the Applicant’s account of the conversation that occurred on 30 July 2021 and find that the Respondent’s conduct during that conversation would, on any reasonable view, be likely to bring the employment relationship to an end. In other words, the Respondent’s conduct in providing the ultimatum had the probable result of bringing about an end to the Applicant’s employment or leaving the Applicant with no effective or real choice but to resign. I find that, if the Respondent had not taken the action that it did during the call on 30 July 2021, the Applicant would have remained in the employment relationship.
Accordingly, I find that there was a dismissal. The Respondent’s jurisdictional objection is dismissed.
Next steps
Having determined that the Applicant was dismissed, he is entitled to apply under s.365 of the Act for the Commission to deal with the dismissal dispute.
Section 370 of the Act sets out the pre-requisites for the making of a general protections court application:
“370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections application in relation to the dispute unless:
(a)both of the following apply:
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.”
In order to issue a certificate pursuant to s.368(3)(a) of the Act, the Commission must be satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.
For present purposes and as a result of this decision, the matter will now be listed for conference in order to explore the possibility of resolution.
COMMISSIONER
Appearances:
Mr D Bird on his own behalf.
Mr M Hames for the Respondent.
Hearing details:
2021.
Sydney (by Video using Microsoft Teams).
22 November and 22 December.
[1] [2020] FCAFC 152.
[2] Ibid, [67].
[3] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162, [75].
[4] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[5] Ibid, [47].
Printed by authority of the Commonwealth Government Printer
<PR738401>
0