Dwayne Anthony Brunné v David Mansart
[2024] FWC 579
•4 MARCH 2024
| [2024] FWC 579 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dwayne Anthony Brunné
v
David Mansart
(C2023/6292)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 4 MARCH 2024 |
Application to deal with contraventions involving dismissal – whether applicant dismissed or resigned – applicant dismissed
Mr Dwayne Anthony Brunné has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that he has been dismissed from his employment with David Mansart in contravention of Part 3-1 of the FW Act.
Mr Brunné’s final day of work was 9 September 2023, and he claimed in his application that he was notified of his dismissal on 22 September 2023.
Mr Mansart has objected to the application on the ground that Mr Brunné was not dismissed from his employment.
Before dealing with the dispute under s.368, I must be satisfied that Mr Brunné was dismissed.
In summary, I have found that Mr Brunné was dismissed on 22 September 2023 within the meaning of s.365 of the FW Act.
Directions and submissions
The matter was listed for directions on 9 November 2023. Directions were made for the filing and serving of evidence and submissions.
On 21 November 2023, Mr Brunné filed submissions and a witness statement on his own behalf.
On 7 December 2023, Mr Mansart filed submissions and a Statutory Declaration from Mr Brendan Butler, apprentice baker, Ginger Jar Bakehouse dated 23 November 2023.
The matter was listed for hearing on 11 December 2023. At the hearing, Mr Brunné represented himself and Mr Mansart was represented by an unpaid agent, Mr John Macdonald.
Factual background
Mr Mansart owns and operates a bakery in Nowra, New South Wales called the Ginger Jar Bakehouse (the Bakehouse). The Bakehouse is comprised of a bakery at the back of the premises and a retail shop at the front.
Mr Brunné was employed by Mr Mansart on a full-time basis as the Manager of the Bakehouse on 6 September 2021. In this role, Mr Brunné was responsible for managing the retail section of the Bakehouse. Mr Brunné’s duties including serving coffee and pastries, preparing food and clearing tables.
The business is open to customers Monday to Saturday each week. Mr Brunné usually worked 4 to 5 shifts per week of between 8 and 10 hours duration. Mr Brunné was sometimes assisted by casual employees during busy periods from 10:00am to 2:00pm but was often the only employee who was working the retail section of the Bakehouse.
On 9 September 2023 Mr Brunné was at work and it was very busy. He asked Mr Mansart, who was at the back of the premises, for assistance. Mr Mansart came out and helped with a customer then left and returned to the back of the premises.
Mr Brunné says that customers were walking out and that he was frustrated. Mr Brunné called Mr Mansart again and asked him to stay and help. According to Mr Brunné, Mr Mansart started yelling at him. At about 10:00am, Mr Brunné grabbed his bag and told Mr Mansart that he was sick of everything and that he was leaving.
The following day on 10 September 2023 at 7:35pm, Mr Brunné sent the following text message to Mr Mansart:
Saturday was Saturday, tomorrow is a new day, see you in the morning.
Mr Brunné says that on Monday 11 September 2023, he could not bring himself to go to work. His wife encouraged him to go to talk to Mr Mansart. Mr Brunné went to work and told Mr Mansart that he needed time off to sort his head out and for Mr Mansart to take this out of his sick or annual leave. Mr Brunné then went to his doctor on 13 September 2023 and obtained a medical certificate which he provided to Mr Mansart. The medical certificate certified Mr Brunné as unfit for work from 13 September to 25 September 2023.
Mr Mansart’s version of this conversation is that on Monday 11 September 2023 at 6.52am, Mr Brunné attended the Bakehouse in casual attire (rather than work clothing) and stated that he is resigning, and he had come to return the key to the premises. Mr Mansart queried this with Mr Brunné as Mr Brunné’s text message the night before implied that he was returning to work that morning. Mr Brunné stated ‘No, I am over it’ and that he is quitting. Mr Mansart asked Mr Brunné to give him some notice so Mr Mansart could find a replacement. Mr Brunné stated again that he is finished, and he is quitting. Mr Brunné handed Mr Mansart the key to the premises, shook Mr Mansart’s hand and exited.
Mr Mansart produced a text message exchanged during the afternoon of 11 September 2023 between Mr Brunné and Ms Su Lim, a friend and former colleague. Mr Brunné explained that Ms Lim is the partner of Mr Macdonald who represented Mr Mansart at the hearing. The text message provided as follows:
Ms Lim: Ms Lim: Heyyy been a long day at 91 cafe
Tried out today. Claustrophobic big time. Will have to think about it and how to work around building deadline. Super busy now pushing to put on market end Oct. I popped into the bakery during my break. Heard you quit. Finally! Thought day would never come for you. Dave said you came to hand in keys?? That should tell him you’re well and truly through for sure. Take care ok x
Mr Brunné: G’day Sue, yeah finally got out. I walked out mid morning last Saturday. Long story short he basically stood there talking to a French couple while I got flogged and customers were walking out and when I told him he started yelling at me, icing on the cake.
I heard you had started at 91. It is a lot smaller inside. Don’t push yourself too hard. I will let you know what I end up doing with myself, all kind of happened really fast that I didn’t plan my exit properly. Talk soon xx
Mr Mansart did not attend the hearing so his evidence could not be tested in cross-examination. Mr Mansart referred to CCTV footage in his submission which he said supported his version of events. Still photographs from the CCTV footage were attached to Mr Mansart’s submission but the CCTV footage was not provided to the Commission.
Mr Brendan Butler who is employed by Mr Mansart attended the hearing and gave evidence that he walked past Mr Brunné and Mr Mansart while they were talking and he overheard Mr Brunné saying ‘I’m resigning’ and ‘that’s it, I am leaving as I have had enough’ on the morning of 11 September 2023.
On Sunday 17 September 2023, Mr Brunné was expecting his pay as he always got paid on a Sunday. Mr Brunné asked Mr Mansart when he would get paid and was told he would receive it on 20 September 2023 however this did not occur.
On Friday 22 September 2023, Mr Brunné received an email from Mr Mansart which alleged that Mr Brunné had terminated his own employment by ‘self-action’. According to Mr Brunné, this was the first time that he became aware that his employment had ceased. The letter advised that Mr Mansart had deducted one weeks wages from Mr Brunné’s annual leave entitlement due to Mr Brunné resigning without notice.
In his application, Mr Brunné claimed that Mr Mansart has never paid superannuation even after several conversations which commenced in December 2022. Mr Brunné also stated that his payslips have never been correct and that when they were finally corrected there were months of entitlements not calculated.
Mr Mansart denied that there were any entitlements owing to Mr Brunné. Mr Mansart said there was an issue with the payroll where it did not reflect Mr Brunné’s leave entitlements which has been subsequently corrected. However, Mr Brunné’s leave entitlements were being accrued even though they were was not reported on his pay slip and this was explained to Mr Brunné.
Mr Mansart did not deny that he owed superannuation to Mr Brunné but claimed that he paid it before Mr Brunné walked out on 9 September 2023. Mr Mansart’s claims were not supported by evidence he relied on at the hearing which showed that he owed an overdue amount of $17,567.45 in superannuation guarantee payments to the Australian Taxation Office as at 24 October 2023.
At the time of the hearing, Mr Brunné said he was unfit for work. Further, Mr Brunné had lodged a workers compensation claim and been prescribed antidepressants to help relieve his anxiety.
Legislation
The application has been brought under s.365 of the FW Act which provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The issue between the parties which the Commission has been asked to determine is whether Mr Brunné was dismissed by Mr Mansart. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of “dismissed”.
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.
Consideration
I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached.
Mr Brunné alleged that he was terminated by Mr Mansart because he was unwell and because he made enquiries about his employment. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.
If there is a dispute as to whether the alleged dismissal the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[1] “must be resolved before the powers conferred by s 368 can be exercised at all”.[2]
In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[3] stated,
Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.[4]
As Mr Mansart has claimed that Mr Brunné was not dismissed, I must find that a dismissal occurred before conducting a conciliation conference or otherwise dealing with this matter under s.368.
The expression ‘terminated on the employer’s initiative’ in s.386(1)(a) is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[5]
Mr Brunné’s primary contention is that he did not resign on 9 or 11 September 2023 and that Mr Mansart’s actions in purporting to accept the alleged resignation and confirming the end of his employment on 22 September 2023 resulted, directly or consequentially, in the termination of his employment.
There is no dispute between the parties about the following matters:
· Mr Brunné left work during his shift at 10am on Saturday 9 September 2023,
· Mr Brunné did not contact Mr Mansart until 7:35pm the following day,
· Mr Brunné attended the Bakehouse on 11 September 2023 in casual clothes and returned his key to the premises.
The parties are in dispute about what Mr Brunné said when attending the Bakehouse on 11 September 2023. Mr Brunné says that he told Mr Mansart that he needed time off to sort his head out and Mr Mansart claimed that Mr Brunné said he was resigning. Mr Mansart did not attend the hearing, however his employee Mr Butler did and gave evidence that he overheard Mr Brunné saying that he resigned. I found both Mr Mr Brunné and Mr Butler to be genuine and credible witnesses. Given that I find the evidence provided by both witnesses believable, I need to examine the surrounding circumstances and other evidence to establish what occurred on 11 September 2023.
Mr Mansart’s letter to Mr Brunné dated 22 September 2023 refers to Mr Brunné terminating his employment by his own self action by walking out of his shift on 9 September 2023. It appears that Mr Mansart was claiming Mr Brunné had either repudiated the employment contract or resigned when walking out. However this contradicts Mr Mansart’s submission which states that during his conversation with Mr Brunné on 11 September 2023 he referred to Mr Brunné’s text message which implied that Mr Brunné was returning to work that morning. As Mr Mansart was expecting Mr Brunné to attend work, this suggests that Mr Mansart did not accept Mr Brunné’s purported repudiation and regarded the employment relationship as still being on foot when Mr Brunné arrived at the workplace on 11 September 2023. In the circumstances, I do not accept Mr Mansart’s assertion that Mr Brunné initiated the termination of his employment on 9 September 2023.
In relation to whether Mr Brunné told Mr Mansart he was resigning on 11 September 2023, Mr Butler’s account is supported by the following:
· Mr Brunné returning his keys to the premises; and
· Mr Brunné’s text message to Ms Lim later that day in which he said he ‘finally got out’ in response to Ms Lim’s query that she ‘heard [Mr Brunné] quit’.
Mr Brunné’s contention that he did not resign is supported by the following:
· Mr Brunné returned to the workplace on 13 September 2023 with a medical certificate which suggests that he believed that he was on leave;
· Mr Brunné queried why he did not receive his regular pay on 17 September 2023 which suggests that he believed that he was still employed by Mr Mansart; and
· Mr Mansart did not confirm Mr Brunné’s purported resignation and pay outstanding leave immediately but delayed doing this until 22 September 2023.
During the hearing, Mr Brunné said that he understood why Mr Mansart might have thought that he resigned when he left his shift on 9 September 2023 and that he was not intending to pursue an ‘unfair dismissal’ case until he received Mr Mansart’s letter of 22 September 2023 which confirmed his employment had ended.
Taking all of the surrounding circumstances into account, I find on the balance of probabilities that Mr Brunné resigned from his employment on 11 September 2023. In reaching this conclusion, I have placed significant weight on the text exchange between Mr Brunné and Ms Lim. Mr Brunné’s statement that he ‘finally got out’ is indicative of the employment relationship ending, rather than Mr Brunné being temporarily absent from the workplace.
There are circumstances in which a resignation may be regarded as a dismissal for the purposes of s.386. The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[6] 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.[7]
Mr Brunné produced a medical certificate that stated he was unfit for work from 13 September to 25 September 2023. He also provided unchallenged evidence that at the time of the hearing, he was unfit for work, had lodged a workers compensation claim and been prescribed antidepressants to help relieve his anxiety. Mr Brunné explained at the hearing that when he walked out on 9 September 2023, there had been a build up of issues at work and he ‘switched’. Despite informing Mr Mansart by text on 10 September 2023 that he would attend work the following day, Mr Brunné said he could not bring himself to go to work and only did so because his wife encouraged him to go to talk to Mr Mansart. In my view, all of this evidence points to Mr Brunné being in a state of emotional stress or mental confusion during the period which commenced when he walked out on 9 September 2023 such that he could not reasonably be understood to be conveying a real intention to resign on 11 September 2023. This is consistent with Mr Brunné informing Ms Lim by text on 11 September 2023 that it ‘all kind of happened really fast that I didn’t plan my exit properly’.
When Mr Brunné provided the medical certificate to Mr Mansart on 13 September 2023, this should have alerted Mr Mansart to the possibility that Mr Brunné did not intend to resign on 11 September 2023. Mr Mansart was further alerted to this possibility when Mr Brunné queried why he had not been paid on 17 September 2023. On both occasions Mr Mansart did nothing to clarify with Mr Brunné whether he intended to resign or take steps to confirm the purported resignation and pay Mr Brunné’s entitlements. In the circumstances, I find that the Mr Brunné’s resignation on 11 September 2023 was not legally effective and that Mr Mansart terminated Mr Brunné’s employment within the meaning of s.386(1)(a) when he issued the letter to Mr Brunné on 22 September 2023.
There are aspects of the evidence which potentially lead to a conclusion that Mr Brunné was forced to resign within the meaning of s.386(1)(b). These include the events which preceded Mr Brunné leaving the workplace on 9 September 2023 and that Mr Mansart continued to owe Mr Brunné superannuation contributions over an extended period. However I do not need to determine whether Mr Brunné was forced to resign within the meaning of s.386(1)(b) given my finding that he was dismissed by Mr Mansart pursuant to s.386(1)(a) on 22 September 2023.
The application was filed on 12 October 2023 and as such is within the timeframe required by s.366(1)(a) of the FW Act.
Conclusion
Taking into account the parties’ submissions and the evidence before me, I find that Mr Brunné resigned on 11 September 2023 but that the resignation was not legally effective because it was provided when Mr Brunné was in a state of emotional stress or mental confusion. Further, I find that Mr Mansart’s actions in confirming the cessation of Mr Brunné’s employment by letter dated 22 September 2023, was the principal contributing factor which resulted directly or consequentially in the termination of Mr Brunné’s employment. Therefore, Mr Brunné’s employment was terminated on the initiative of Mr Mansart on 22 September 2023.
There is no evidence that establishes, and the parties have not submitted, that the exemptions in s.386(2)(a)-(c) apply. Accordingly, I find that Mr Brunné has been dismissed within the meaning of s.365 of the FW Act.
The jurisdictional objection raised by Mr Mansart is dismissed and I order accordingly.
The matter will shortly be listed for Conference so that the Fair Work Commission can deal with the matter as required by s.368 of the FW Act.
DEPUTY PRESIDENT
Appearances:
Mr D. Brunné for the Applicant.
Mr J. Macdonald for the Respondent.
Hearing details:
2023
December 11
Sydney
[1] [2020] FCAFC 152.
[2] Ibid, [67].
[3] [2023] FWCFB 101.
[4] Ibid, [23].
[5] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200.
[6] [2017] FWCFB 3941.
[7] Ibid, [47].
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