Fuller, Bradley James v Yates, David Bruce and Anor t/as Beaufort Firewood Supplies

[1997] FCA 1236

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION

FULLER v YATES and WALDRON t/as BEAUFORT FIREWOOD SUPPLIES

VI 2386 OF 1996

JUDGE:         NORTH J
PLACE:         MELBOURNE
DATE:           3 JULY 1997 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2386  of   1996

BETWEEN:	BRADLEY JAMES FULLER APPLICANT
AND:	DAVID BRUCE YATES AND ALAN EDWARD WALDRON TRADING AS BEAUFORT FIREWOOD SUPPLIES RESPONDENTS
JUDGE(S):		NORTH J
DATE OF ORDER:		3 JULY 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The orders of Judicial Registrar Millane made on 27 March 1997 are set aside.

1. In lieu of the said orders, the application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2386 of 1996

BETWEEN:	BRADLEY JAMES FULLER APPLICANT
AND:	DAVID BRUCE YATES AND ALAN EDWARD WALDRON TRADING AS BEAUFORT FIREWOOD SUPPLIES RESPONDENTS

JUDGE(S):	NORTH J
DATE:	3 JULY 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is a review of the determination by Judicial Registrar Millane that the termination of employment of Bradley James Fuller, the applicant, was in contravention of the Workplace Relations Act 1966 (Cth).  The central issue is whether Mr Fuller's employers, the respondents, Mr Yates and Mr Waldron, trading as Beaufort Firewood Supplies, terminated his employment or whether Mr Fuller abandoned his employment.  The parties all represented themselves.

Mr Fuller was employed on 5 February 1996 for six months under a Job Start Program. He worked cutting and delivering firewood.  Under the program the government provided a subsidy of $220 per week towards the wages of Mr Fuller.

Mr Fuller gave evidence that he had been paid $350 per week and that Mr Yates had agreed to pay the tax on his wages.  On Friday, 5 July 1996, Mr Yates came to collect Mr Fuller for work.  Mr Fuller was having a problem paying his power bill and asked for Mr Yates to pay $8 for each of the 22 weeks already worked, to make up the $358 due as Mr Fuller's weekly wage under the applicable award. Mr Yates said that he did not owe Mr Fuller the money.  Mr Fuller gave evidence that Mr Yates then said something like:

“I am sick of the shit of you [Mr Fuller] getting injured”,

and thereupon gave Mr Fuller seven days notice.  Mr Yates returned shortly afterwards and asked Mr Fuller whether he was coming to work.  Mr Fuller refused because he regarded himself as having been dismissed.  On the following Monday, Mr Fuller went for a job at Lovell's Timber Mills and started work on a part time basis about three weeks later. 

Ms McDonald, Mr Fuller’s fiance, also gave evidence.  She was out of court during Mr Fuller’s evidence.  She gave evidence of the alleged dismissal conversation with Mr Yates in similar terms to the evidence of Mr Fuller, albeit that she said it occurred on Thursday, 4 July not on Friday, 5 July.  She said that Mr Yates returned on the following Sunday but, although she was at home, she was not present during the conversation between Mr Yates and Mr Fuller. 

Mr Yates gave evidence that he dropped Mr Fuller home after work on Thursday, 4 July 1996.  Ms McDonald screamed at Mr Fuller that the power and phone were about to be cut off.  He left them alone and returned the next morning to collect Mr Fuller for work.  Mr Fuller said to him that he could not come to work because he had to sort out his money matters.  Mr Yates accepted this.  He returned a few days later, on the following Sunday, to inquire whether Mr Fuller intended to work on Monday. In response, Mr Fuller said he had, or was seeking, other employment.  Mr Waldron also gave evidence but was not present at the events leading to the alleged termination. 

Mr Fuller obviously had enormous financial pressures on him at the time of these events.  He had a pressing reason to leave the respondents’ employment in order to try and earn more money elsewhere.  The evidence is that he was dissatisfied with the amount of his pay and I find that he thought he could do better elsewhere.  On the other hand, Mr Yates had little reason to dismiss Mr Fuller.  Mr Fuller was a good worker and his wages were subsidised.  It was in the respondents’ interest to keep Mr Fuller on.

I formed a favourable view of Mr Yates in the witness box.  I accept his evidence where it conflicts with the evidence of Mr Fuller and Ms McDonald.  There were a number of inconsistencies between the evidence of Mr Fuller and Ms McDonald.  For instance, Ms McDonald gave evidence that Mr Yates returned to visit Mr Fuller on the following Sunday.  This accords with the evidence of Mr Yates.  Mr Fuller denied that Mr Yates came over on that Sunday. There were also inconsistencies between the evidence of both Mr Fuller and Ms McDonald, and the evidence of Mr Yates. Mr Fuller and Ms McDonald linked the alleged dismissal with Mr Yates' reference to frustration about the injuries suffered by Mr Fuller at work.  This was denied by Mr Yates. It is clear to me from the evidence that the injury was minor and occurred in early May, considerably before the events here in question.  It is therefore unlikely to have been a basis for frustration. 

Hence, on balance, I do not accept that Mr Yates terminated the employment of Mr Fuller.  Rather, I find that Mr Fuller decided to give up his employment with the respondents.  I reach this conclusion with some regret.  It is clear to me that Mr Fuller was in a very dire financial situation.  It may not be overstating it to say that he was desperate.  He was forced into taking a desperate step to improve his financial position.  It would be a humane solution for me to award Mr Fuller some compensation.  However, I am bound to apply the law and, as I am not satisfied that there was a termination by the respondents, I must dismiss the application. 

The orders of the court will be:

1. That the orders of Judicial Registrar Millane made on 27 March 1997 are set aside.

1. In lieu of the said orders, I order that the application is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:             20 October 1997

The applicant appeared in person.
The respondents appeared in person.
Date of Hearing:	3 July 1997
Date of Judgment:	3 July 1997