David Webster v Carolyn Elizabeth Moule ATF Summerpearl Family Trust T/A Just Better Meat
[2024] FWC 3283
•29 NOVEMBER 2024
| [2024] FWC 3283 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Webster
v
Carolyn Elizabeth Moule ATF Summerpearl Family Trust T/A Just Better Meat
(U2024/9751)
| DEPUTY PRESIDENT BELL | MELBOURNE, 29 NOVEMBER 2024 |
Application for an unfair dismissal remedy – dismissal unfair – reinstatement inappropriate – compensation ordered.
The respondent conducts a business as a wholesale meat processor, located in Truck City Drive, Cambellfield, Victoria, trading under the name Just Better Meat. Mr Webster was employed as a boner. On 22 August 2024, Mr Webster made an application under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.
In his Form F2 application form, Mr Webster says he was dismissed on 16 August 2024 by a text message. In the employer’s Form F3 response filed on 8 October 2024, the employer says Mr Webster was not dismissed but was simply not working and was on Workcover payments due to an injury.
For the reasons that follow, I find that Mr Webster was dismissed and that the dismissal was unfair. I make an order for compensation of $491.
Upon the matter being allocated to me, I issued directions for a mention hearing and for the filing of evidence. During the mention hearing, guidance was given as to the preparation of witness statements and other evidentiary material. In response to the directions, Mr Webster filed a short statutory declaration made by his brother, Mr Sean Webster (whom I will refer to as Mr Sean Webster to distinguish him from the applicant). The applicant did not file a statement for himself, although did file some documents. The employer filed a statement from Mr Scott Allan, together with some documents. Mr Sean Webster was cross-examined. Mr Allan was not required for cross-examination.
As a preliminary matter, and subject to one item, the applicant was an employee protected from unfair dismissal: s 382. It was not in contention that he had made an application within time (on the assumption he was dismissed as alleged), or his salary was below the high income threshold. For the purposes of s 396 of the Act, it was not put in issue that the Small Business Fair Dismissal Code applied or that the putative dismissal was a genuine redundancy.
The one issue was whether the applicant had completed the minimum employment period of employment.
To describe the evidence filed by the parties as brief would be a significant overstatement of what was actually presented, not just on period of employment but on all issues. Based on the material before me, and with some hesitation, I am satisfied that the applicant met the minimum employment period. First, the applicant’s Form F2 states he commenced employment in 2018. While the respondent’s Form F3 states the applicant’s employment commenced on 1 July 2024, no jurisdictional objection was raised on the basis that the minimum employment period was not met. The absence of any objection would be quite proper if, for example, there was a corporate restructure and the applicant’s employment continued within a different entity of the group, for example.
The employer’s evidence says the applicant was only employed from 1 July 2024 with the respondent but not otherwise before, albeit in oral submission the employer acknowledged that the applicant and owner of the business were very good friends before then. The applicant paints a different picture and says he was employed for at least seven years. The applicant points to a letter dated February 2023 marked “To whom it might concern” indicating the applicant was employed by Just Better Meat (a trading name, not a legal name) and had an income of $130,000. Mr Webster indicated that letter was prepared to assist the applicant purchase a property. I have doubts that letter is representative of the true state of affairs regarding the applicant’s salary but the evidence before me shows the applicant has persistently asserted he has been employed for 7 years. Neither party produced any bank statement showing transfers, payslip or any other probative document that could shed light on that issue. The most that can be said is that it was uncontroversial that the applicant was employed from 1 July 2024 pursuant to the current corporate structure but that is about the extent of matters. A worker’s compensation injury form prepared by the applicant states his employment began in 2018. That form was subsequently signed by the employer, although it may well be the case the person who signed it paid no attention to that part of the form.
In oral submission, the employer stated that the current employer is a new entity as a result of a restructure. I have no reason to doubt that submission. It is also quite clear that the business of the respondent has existed long before the legal ownership to its current form. While the historical details of the applicant’s involvement with the business are a long way from being clear, I am ultimately satisfied that the applicant met the minimum employment period and, as a result, was protected from unfair dismissal.
The remaining issues were whether the applicant was “dismissed” and, if so, whether his dismissal was unfair and what, if any, relief would flow from that finding.
Factual findings
On 31 July 2024, the applicant was at work. Based on a Worker’s Injury Claim form, at about 5.30am that morning, the applicant injured his left shoulder whilst boning. On about 2 August 2024, the applicant completed a Worker’s Injury Claim form. That form also indicates that he provided a medical certificate to the employer on that date. In a letter from a worker’s compensation claims manager dated 18 September 2024, there is reference to the applicant seeing a doctor at Roxburgh Park Medical Select on 31 July 2024, which I infer was about the injury.
On 5 August 2024, Mr Scott Webster deposes to two conversations he overheard between Mr Allan and the applicant. The conversations involved two telephone calls from Mr Allan to the applicant, the first at about 1.30pm and the second at 1.32pm. Mr Scott Webster overheard them because his brother put his telephone on ‘speaker’, which allowed him to hear the call. Putting aside the language used in that call – allegedly involving Mr Allan calling the applicant a “c—t” and “dog’ - Mr Allan offered the applicant four weeks’ pay to leave and then, in the second call, apparently saying he would “bleed you dry”. The offer wasn’t accepted. Mr Scott Webster was challenged about various aspects of the two telephone calls. While there were some unsatisfactory aspects of his evidence, such as the fact that he did not produce contemporaneous notes he made shortly after the call, I broadly accept that a call along the lines he deposed to occurred, albeit perhaps not on 5 August 2024 but perhaps some days earlier (and neither party suggested that timing was significant.) I note Mr Allan did not give evidence denying the conversation, albeit the applicant did not give evidence in support. Mr Scott Webster says he was “laughing in disgust” at the call and, curiously, otherwise never spoke with his brother about it again (presumably until these proceedings), which also indicates the call may not have been as dramatic as the applicant portrays.
The worker’s compensation claim form was forwarded to the employer’s claims agent, later identified as DXC Claims Management Services, on 6 August 2024.
On the scant evidence before me, it is sufficiently clear that the applicant remained off work throughout this time. It was not in dispute that, during this period, the applicant was not paid sick leave.
On 16 August 2024 at 2.43pm, the applicant sent a text message to Mr Allan. A complete copy of that message was not in evidence but the part that was in evidence refers to allegations from the applicant that the respondent had breached various employment obligations and the applicant was demanding rectification. It is tolerably clear that the employer denies those allegations and, for avoidance of doubt, I make no findings about them. The part of the message in evidence read:
“… [not] providing this is a breach under the fair work act, if not resolved I will be sending that matter straight to the fair work ombudsman which they will investigate your breaches. Pay? Payslips? super? Ive been advised I can use my sick or annual leave, which I have acquired over the last 7 years. Thanks David”
The response from Mr Allan 3.03pm to that message was:
“I can not stop you from what ever your intention are
Just to remind you that you have filed a work cover application
I am also requesting that you are not to communicate with me as it will be deemed stalking and harassment”
The applicant appears to have sent an identical copy of the text message to Mr Allan to another employee called ‘Jill’. Jill’s role wasn’t entirely clear but she looked after the books and payroll. In oral submissions, the employer says she worked one day a week. Jill signed the applicant’s worker’s compensation form for the company on 6 August 2024 and listed her title as “Office Manager”.
The response from Jill at 2.50pm was (emphasis added):
“We have been advised that you have formally made an application to work cover for an alleged work injury
We are here by advising you, until your work cover application is legitimised
We are not going to make any payments to you as a former employee
Please refer all your inquiries to work cover authority.”
The applicant replied to Jill at 2.59pm asking:
“What was the date my employment ended??”
At 3.17pm, Jill replied:
“David, our workday has now ended and I am at home with my family. Continuing to contact me after hours will be deemed stalking and harassment”
I infer that, given the near identical wording that the applicant’s messages were “deemed stalking and harassment”, that Mr Allan contacted Jill during the above exchange and suggested to her how to respond at least in that respect. At the very least, I infer Mr Allan became aware of the applicant’s demands to Jill, and most likely became aware of it in the days following.
Between the messages on 16 August 2024 and 22 August 2024, there were no communications in evidence before me. There was certainly no further response to the applicant’s query about when his employment “ended”.
On 22 August 2024, the applicant made an application in the Commission for an unfair dismissal remedy. In the applicant’s Form F2 application, he lists his date of dismissal as 16 August 2024 on the basis of being referred to as a “former employee”. He attached the text message referred to above.
Throughout this period, the applicant’s worker’s compensation was evidently being assessed. The claim was initially rejected on 4 September 2024. On 6 September 2024, an Independent Medical Examination Report was delivered to the claims assessor.
By a letter dated 18 September 2024, DXC Claims Management Services advised that the applicant’s worker’s compensation was now approved, based on the new information available to it. Among other matters, the letter stated that the employee would be entitled to weekly payments, and requested various payroll documents from the employer in support. The letter also stated that payments were conditional on the applicant providing ongoing valid ‘Certificates of Capacity’.
Mr Allan states that between 22 - 24 September 2024, he received text messages from the applicant demanding that the employer provide him with a group certificate stating he earned $150,000 for the 2023-2024 financial year. The employer did not provide that certificate and Mr Allan says the figure of $150,000 is an ‘arbitrary’ figure. The employer’s Form F3 response states the figure is $65,000, although I have no direct evidence from either party in support of their positions. Nonetheless, the figure of $150,000 does appear to be somewhat arbitrary and was not explained by the applicant.
On 30 September 2024, DXC Claims Management Services sent a further letter to the employer setting out payment obligations. The letter stated that the employer was required to pay to the applicant:
· For the first 13 weeks after injury, 95% of the ‘Pre-Injury Average Weekly Earnings’ figure. The ‘Pre-Injury Average Weekly Earnings’ figure was specified as $1,250 (I infer based on the employer’s information), meaning 95% was $1,188 gross per week.
· For the period after 13 weeks, 80% of the ‘Pre-Injury Average Weekly Earnings’ figure.
There does not appear to be any dispute that, on or about this time and following, the applicant received and continued to receive weekly worker’s compensation payments, which I infer also indicates that Certificates of Capacity were provided.
On 8 October 2024, the employer filed a Form F3 response to the unfair dismissal claim. Among other matters, the employer response stated that the applicant was never dismissed but was presently injured and in receipt of worker’s compensation payments.
At the mention hearing before me on 10 October 2024, I also asked the applicant what relief he was seeking, as a number of matters listed in his Form F2 sought matters that could not be obtained in an unfair dismissal application (such as alleged underpayments). In relation to the employer’s position that there was no dismissal, I indicated that might suggest that there was some sort of mistake and essentially the doors remain open for the applicant to come back to work. I asked the employer if that was its position and was told “he can come back”. When I asked the applicant, he told me he “definitely can’t go back there”. At the determinative conference before me on 26 November 2024, the applicant gave an initial response from the bar table that he would have stayed in employment but for receiving the 16 August 2024 text messages, above. When I queried that, he then explained that due to the conversation on 5 August 2024, he felt “unsafe” and that it was “very clear” he didn’t have a job to go back to. I do not accept the applicant’s assertion that he felt unsafe or didn’t have a job to go back to on 5 August 2024 or later and note that the applicant gave no evidence of his own, even though it was his unfair dismissal application.
I find that, but for the text messages on 16 August 2024, Mr Webster would not have remained in the employment for any longer than 22 August 2024 (being the time he made his unfair dismissal application) and by the mention hearing on 10 October 2024 at the latest, where he indicated he would not be working with the employer again despite being positively told “he can come back”.
Consideration
The question of whether Mr Webster was dismissed is finely balanced. The employer asserts that the text message describing Mr Webster as a “former employee” was only “intended” to be used in the context of him being unable to return to work due to injury and his Workcover application. I do not find the employer’s position persuasive, firstly because the employee who sent the message did not give evidence of her intention but, more importantly, the issue is to be assessed objectively, not based upon the subjective view of either party.
The objective position is that Mr Webster had sent a demanding text message, whereupon he received a response referring to him as a “former employee”. If that was the end of it, I would be inclined to treat that as loose language but, in this case, Mr Webster immediately and specifically sought clarification about when his employment had “ended”. Rather than getting a simple reply to the effect the reference to a “former employee” was a mistake or was simply a reference to him being off work while injured, he was told not to contact Jill again outside of ordinary hours and any contact was “deemed” harassment. I have considered whether a communication from an Office Manager, engaged one a day a week, leads to a view that she had no objective authority but there is no evidence before me that satisfies me she was unable to send such messages and I note she signed the Worker’s Injury Claim form for the employer and was evidently apprised of the matter. There was also no contact from the company – by Jill or anyone else – in the days that followed.
In short, the employer’s loose language raised a real question that Mr Webster was treated as a “former” employee and, rather than clarifying the position to the contrary, the employer shut down communications. Objectively speaking, I consider Mr Webster was entitled to treat his employment at an end, even if the employer had subjectively intended otherwise. I am fortified with that conclusion given the discussion two weeks earlier in which Mr Allan offered Mr Webster four weeks’ pay to end their relations.
Having found that Mr Webster was dismissed, it remains to be determined if he was unfairly dismissed, having regard to the matters in s 387 of the Act. This answer can be stated shortly: I am satisfied that the dismissal was unfair. There was no ‘valid reason’ to speak of, and the procedural requirements for notification of dismissal were not met. Some latitude can be granted to the employer, which is evidently not a sophisticated employer, but that does not alter the overall balance. There was no other factor or matter I consider relevant to the overall question of whether the dismissal was harsh, unjust or unreasonable.
For completeness, while there was no evidence before me to suggest that the Small Business Fair Dismissal Code applied, if it did apply I would have found it was not complied with. This was not a case of summary dismissal and the ‘Other Dismissal’ provisions of that code could not have been met, as no reason for dismissal was given nor, it follows, any opportunity to respond to that reason.
Remedy
By section 390(1), the Commission may (not must) make an order for reinstatement or compensation if, as is the case here, a person was protected from unfair dismissal and they were unfairly dismissed. I am readily satisfied that an order for reinstatement is inappropriate: s 390(3). The only remedy Mr Webster might obtain is an order for compensation in lieu of reinstatement.
As with much of the evidence in this matter, the applicant’s pay rate during the relevant period was also unclear. A Worker’s Injury Claim form refers to a weekly figure of $2,500 gross, albeit that form appears to have been completed by the applicant’s brother. Correspondence from the worker’s compensation claims agent on 30 September 2024 indicates the ‘Pre-Injury Average Weekly Earnings’ figure was $1,250 gross (noting this would be $2,500 per fortnight). Given the greater formality of that document, which contains advice from the claims agent to the employer that was intended to be relied upon and complied with, I take the view it is the more accurate figure and that that Worker’s Injury Claim form inadvertently listed a fortnightly pay. This was also the figure paid. In oral submission to the Commission from the applicant himself, he acknowledged that the first 13 weeks of pay under the workers’ compensation regime was close to his full earnings, which would be incongruous if the correct amount was in fact double what he was being paid.
Section 392(2) sets out the statutory criteria that I must take into account. In the present case, it is convenient to state my finding that Mr Webster would not have remained in employment for any period longer than 10 October 2024, being the time that he was explicitly aware of the employer’s position that he was not dismissed, he was aware the employer said openly to the Commission that Mr Webster could “come back”, but Mr Webster decided not to do so.
The period of time from 16 August 2024 to 10 October 2024 is 55 days or 7 weeks and 6 days. The best information available to me is that Mr Webster’s weekly salary was $1,250 gross. That equates to $9,822 gross for that 55 day period. For that period, the evidence before me shows Mr Webster received 95% of this figure as worker’s compensation payments. It is well established that worker’s compensation payments are remuneration for the purposes of that assessment.[1]
Mr Webster led no evidence at all of any attempts to mitigate his losses, although given the relatively short period involved and that he was in receipt of worker’s compensation payments for that period due to injury, I make no deduction on this account.
I noted above that one issue in dispute is what date the applicant started work for the business (or any predecessor business for whom a transmission of business to the current respondent might have occurred). While this issue is not directly relevant to whether the applicant was dismissed, it is loosely connected to a collateral issue regarding what entitlements the applicant had to various forms of leave at the time, an issue which arises in the context of compensation.
I find that the maximum amount of remuneration Mr Webster might have earned if not dismissed was therefore the balance of 5% of his pay of the gross expected remuneration for the 55 day period, being $491. I observe that the only basis Mr Webster could have earnt that amount, if not dismissed, was if he had sufficient sick leave to allow him to claim for the period. I have some doubts that this is the case but no evidence was led by the employer to the contrary and, given it was in the best position to do so, I make no deduction on that account.
I also make no deduction for misconduct (there was no evidence of such) or general contingencies or vicissitudes that might otherwise reduce the sum. There was no other material drawn to my attention that I consider relevant.
Order
I will order that Mr Webster be paid $491.00 gross, less applicable taxes, within 14 days of this decision. An order[2] will issue concurrently with this decision.
DEPUTY PRESIDENT
Appearances:
D. Webster on his own behalf.
M. Karafili, CPA Accountant, for the Respondent.
Determinative conference details:
2024.
Melbourne:
November 26.
[1] Sprigg v Paul's Licensed Festival Supermarket, Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) (1998) 88 IR 21 at p. 29
[2] PR781695
Printed by authority of the Commonwealth Government Printer
<PR781694>
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