Dean Fairchild v Debco Pty Ltd
[2011] FWA 336
•18 JANUARY 2011
[2011] FWA 336 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dean Fairchild
v
Debco Pty Ltd
(U2010/915)
COMMISSIONER GOOLEY | MELBOURNE, 18 JANUARY 2011 |
[1] Mr Dean Fairchild was employed by Debco Pty Ltd (“Debco”) from 18 July 2009 until his employment was terminated on 1 June 2010.
[2] Mr Fairchild lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (“FW Act”) alleging that he was unfairly dismissed. Debco raised two jurisdictional objections to the application namely:
- Mr Fairchild had not completed a minimum of six months service;
- Mr Fairchild’s position was redundant.
[3] Mr Fairchild appeared for himself and Mr Andrews appeared for Debco.
[4] By agreement a conference was conducted on 28 September 2010 and where necessary evidence was taken under oath. Mr Kikos, who was the Production Manager with Debco until 31 March 2010, gave evidence for Debco and Mr Fairchild gave evidence on his own behalf.
[5] Evidence was given and submissions made on the first ground of objection. I advised the parties that I had formed the view that Mr Fairchild had resigned. I asked Debco if it wished to put evidence and submissions on its second ground and Debco indicated that they would not put evidence and submissions on their second ground at this time.
[6] At the conclusion of the conference I determined that Mr Fairchild had not served the minimum period of employment. 1 I indicated that I would publish my reasons.
The evidence
[7] Mr Fairchild was employed a casual maintenance fitter from 18 July 2009. Mr Fairchild was due to take three weeks unpaid leave from 8 January 2010 until 1 February 2010.
[8] Mr Kikos gave evidence that on 8 January 2010 he told Mr Fairchild that Mr Barnfield had been appointed maintenance supervisor and that in response Mr Fairchild said “That’s it. I’ve had a gutful. I’m resigning. I’m leaving. I can’t work for him. I’m going to work for a labour hire company.” 2 Mr Kikos said he tried to talk Mr Fairchild out of leaving.
[9] In late January 2010 Mr Kikos telephoned Mr Fairchild to see if he was interested in returning to work for Debco. Mr Fairchild agreed to return to work as a casual and he did so on 1 February 2010.
[10] It was not disputed that after he returned to work Mr Fairchild signed a contract on 23 February 2010 which stated that “[t]his letter sets out the terms and conditions of [his] employment with Debco effective February 1st 2010.” 3
[11] Mr Fairchild denied that he resigned his employment. However the following interchange occurred between Mr Fairchild and myself: 4
“THE COMMISSIONER: Again Mr Fairchild, the only reason he would say, “Don’t leave”, it would appear to me, is if you had told him you were leaving.
MR FAIRCHILD: Well that was part of the conversation.
THE COMMISSIONER: So you admit that you had a conversation in which you told him you were leaving?
MR FAIRCHILD: Yes, absolutely.
THE COMMISSIONER: On that Friday.
MR FAIRCHILD: On that Friday, yes, because he brought it up. I went in there to discuss these issues and he said to me, “Don’t leave.” So he actually was the one that instigated it and then it sort of went into a discussion from there. Now, if he remembers that particular point, well, then I believe him to be true when he says that. I don’t want to call him a liar. So I can’t clarify everything that was said because of the situation at the time. However what I can clarify is that when I left that meeting, right, I had no intention of leaving at all and, if I remember correctly – and not to embarrass Bill, not intentionally, but he said to me, “Dean, please give me another chance,” and I said, “Bill.” So it was a bit strange and I didn’t - - -
THE COMMISSIONER: But again, Mr Fairchild, all that sounds to me like you were telling him you were leaving. Why would he say to you, “Give me another chance,” if you hadn’t said to him, “I’m leaving.”
MR FAIRCHILD: No, I understand your point. Well, let’s just say that he was making a rod for his own back and I was trying to use it as leverage, I guess, to be completely honest and hopefully correct what was going on there, because safety was paramount for me at the time. So if I believe that the production manager, that I had leverage with him to sort this out, then that’s great. I’m trying to think of exactly what was said on the day. I don’t want to lie under oath. So I’m not going to tell you something that will loosen my statement by - I don’t know but I can’t say categorically exactly what was said, no. If I tried to I’d be lying under oath.”
[12] I prefer Mr Kikos’s evidence about what occurred on 8 January 2010. I find that Mr Fairchild resigned his employment.
[13] Section 382 of the FW Act provides that a person is protected from unfair dismissal if at that time the person has completed a period of employment with his or her employer that is at least the minimum period of employment.
[14] Section 383 of the FW Act defines the minimum period of employment; in this case it is six months.
[15] Section 384 defines “period of employment” and sets out when casual employment counts towards a period of employment.
[16] The Full Bench in Shortland v The Smiths Snackfood Co Ltd held as follows:
“Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or employee makes it clear to the other party, by words or actions that there will be no further engagements.” 5
[17] Here Mr Fairchild’s continuous service was broken when he resigned his employment on 8 January 2010. A new contract of employment was entered into from 1 February 2010.
[18] Mr Fairchild was then employed from 1 February 2010 until 1 June 2010. At that date he had not served the minimum period of employment and therefore he was not protected from unfair dismissal.
[19] The application is dismissed.
COMMISSIONER
Appearances:
D Fairchild on his own behalf.
J Andrews for the Respondent.
Hearing details:
2010.
Melbourne:
September 28.
1 Transcript PN 279
2 Ibid PN 72
3 Ibid PN 97
4 Ibid PN 255-262
5 [2010] FWAFB at [13]
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