G and P Martin Family Trust T/A Martin Brothers House Removalist Pty Ltd v Daniel Martin
[2013] FWCFB 1073
•8 MARCH 2013
[2013] FWCFB 1073 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Daniel Martin and Another
(C2012/5841)
SENIOR DEPUTY PRESIDENT ACTON |
|
Appeal against decision [[2012] FWA 8516] of Deputy President Smith in matter number U2012/7682 and U2012/7653 - application for unfair dismissal remedy - abandonment of employment - resignation - dismissal at initiative of employer.
Introduction
[1] This matter concerns an appeal by G & P Martin Family Trust T/A Martin Brothers House Removalist Pty Ltd (Martin Brothers) against a decision 1 of Deputy President Smith of 4 October 2012 in respect of applications for an unfair dismissal remedy made by Mr Daniel Martin2 and Mr Russell Martin3. On 1 January 2013 Fair Work Australia (FWA) was renamed the Fair Work Commission.
[2] Before the Deputy President, Martin Brothers submitted that Mr Daniel Martin and Mr Russell Martin were not dismissed by Martin Brothers, either because they resigned from their employment or because their employment with Martin Brothers was not terminated on the employer’s initiative. In the decision, the Deputy President concluded that Mr Daniel Martin and Mr Russell Martin had been dismissed by Martin Brothers.
[3] The Deputy President went on to conclude that Mr Daniel Martin and Mr Russell Martin were protected from unfair dismissal, their dismissal was not consistent with the Small Business Fair Dismissal Code and their dismissal was harsh, unjust or unreasonable. The Deputy President said he would deal with the issue of remedy separately.
[4] Martin Brothers has appealed the Deputy President’s decision that Mr Daniel Martin and Mr Russell Martin were dismissed.
Decision at first instance and the grounds of appeal
[5] In his reasons for concluding Mr Daniel Martin and Mr Russell Martin were dismissed by Martin Brothers, the Deputy President said:
“[5] Martin Brothers has two employees - Mr Russell Martin (the brother of Mr Geoffrey Martin) and Mr Daniel Martin (the son of Mr Russell Martin). Only Mr Russell Martin and Mr Daniel Martin were called to give evidence.
[6] What seems uncontroversial is that both Mr Russell Martin and Mr Daniel Martin were concerned about their terms and conditions of employment and raised this with Mr Geoffrey Martin on 17 April 2012. What is also uncontested is that Mr Geoffrey Martin responded to the concern expressed by stating that he was too busy to look at the matters raised then and would not be in a position to do so for a couple of weeks. Both Mr Russell Martin and Mr Daniel Martin were not satisfied with this response and went home. The next day, both attended a doctor and received a medical certificate for 18, 19, and 20 April.
[7] On 20 April 2012 a letter was sent to Martin Brothers from a solicitor representing both Mr Russell Martin and Mr Daniel Martin advising that his clients were concerned to resolve matters in relations to their terms and conditions of employment so they could both return to work.
The Evidence
[8] It was the evidence of Mr Daniel Martin that he commenced employment with Martin Brothers in January 2005. As to whether or not he resigned or was terminated, Mr Daniel Martin stated that he rang Mrs Pennette Martin on Sunday 24 April after Mr Russell Martin told him that Mrs Martin said that he was not welcome on their property or on site. When Mr Daniel Martin rang Mrs Martin, it was his evidence that he asked if they had been dismissed. It was his evidence that Mrs Martin did not answer and when he asked if he could pick up his tools he was advised yes and he was also asked to drop off other company property (keys/remotes).
[9] On 25 April he received a demand from a solicitor, on behalf of Martin Brothers, for $50,757.24 said to be for work undertaken.
[10] The evidence of Mr Russell Martin was in similar terms to that of Mr Daniel Martin although there was some confusion over the dates. In particular, Mr Russell Martin’s evidence was that in his telephone conversation with Mrs Martin he asked if he had been dismissed and he was told that he was not welcome on site or on the property.
[11] Mr Russell Martin also received a demand for $11,710 dated 25 April 2012 for the hire of machinery and vehicles.
[12] Evidence was not called to rebut any of the evidence of the two witnesses notwithstanding that it appeared that Mr Geoffrey and Mrs Pennette Martin attended the hearing of the matter. This in itself is telling and leaves me with the position that there is no contradictory evidence to that given by Mr Russell Martin and Mr Daniel Martin.
The Submissions and Conclusion
[13] The case advanced by Martin Brothers was that both Mr Russell Martin and Mr Daniel Martin resigned their employment by refusing to stay at work on 17 April and after that, to come to work. Further, the email from Mrs Martin sent on 27 April 2012 is relied uponin that it states ‘you have not been dismissed from your jobs, not sure where that information is coming from’.
[14] It is argued that this cannot constitute a termination of employment at the initiative of the employer.
[15] For Mr Russell Martin and Mr Daniel Martin it is argued that it was termination of employment given the fact that they:
- made a complaint in relation to terms and conditions of employment where some resolution was being sought,
- were on sick leave until Friday 22 April,
- contacted Mrs Martin on 24 April about starting work on 25 April and were told that they were not welcome on the property and not welcome on site, and
- collected their tools and returned keys etc on 27 April.
[16] Having considered the evidence of both Mr Russell Martin and Mr Daniel Martin, I have reached the conclusion that it was a termination at the initiative of the employer. Notwithstanding the absence from work, there was no intention by either Mr Russell Martin or Mr Daniel Martin to end the employment relationship. The approach could have been better but all that was being sought was a clarification on their terms and conditions of employment.
[17] The existence of the medical certificates is indicative that both men wanted to retain the employment relationship so that it fell to Martin Brothers to make a decision.
[18] On their evidence there was an intention to return to work after a period of sick leave but the employer refused entry into the workplace. Notwithstanding the email from Mrs Martin, it was clear that the relationships had so deteriorated that neither Mr Russell Martin nor Mr Daniel Martin would remain employed.
[19] I find that both Mr Russell Martin and Mr Daniel Martin were terminated in their employment by Martin Brothers on Sunday 24 April.” 4
[6] In their written grounds of appeal, Martin Brothers submit that the Deputy President erred in that:
● Mr Daniel Martin gave evidence to the effect that he knew Ms Pennette Martin, rather than Mr Geoffrey Martin, was the Martin Brothers point of contact for pay related issues.
● Mr Daniel Martin gave evidence that he withdrew his labour from Martin Brothers on 17 April 2012 “to go home, ring Fair Work Australia to find out exactly where we stand and how do we go about getting this information”. 5 There were also written submissions from Martin Brothers before the Deputy President. Contrary to the finding of the Deputy President therefore, there was contradictory evidence to that given by Mr Daniel Martin and Mr Russell Martin.
● There was no notice to Martin Brothers of the medical certificates referred to by the Deputy President and they were not received by Martin Brothers until 16 July 2012.
● Mr Daniel Martin and Mr Russell Martin did not advise Martin Brothers they were on sick leave until 16 July 2012.
● In the circumstances, Martin Brothers did not know of the reason why Mr Daniel Martin and Mr Russell Martin left work on 17 April 2012 other than because of pay related issues and it was reasonable for Martin Brothers to assume Mr Daniel Martin and Mr Russell Martin would remain at work on 17 April 2012 and to assume that their withdrawing of their labour on 17 April 2012 was an effective decision to permanently cease work for Martin Brothers.
[7] Before the Full Bench, Martin Brothers emphasised that the Deputy President erred in concluding Mr Daniel Martin and Mr Russell Martin were dismissed by Martin Brothers in that he failed to have regard to the whole of the circumstances surrounding the termination of the employment of Mr Daniel Martin and Mr Russell Martin, which circumstances indicated there was no intention on the part of Martin Brothers to dismiss Mr Daniel Martin and Mr Russell Martin.
[8] Mr Daniel Martin and Mr Russell Martin opposed the granting of permission to appeal.
Consideration of the grounds of appeal
[9] We grant Martin Brothers an extension of time within which to institute their appeal to the date it was instituted.
[10] Section 386(1) of the Fair Work Act 2009 (Cth) (FW Act) provides that:
“(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.”
[11] Before the Deputy President, there was some confusion over the dates of occurrence of incidents relevant to whether or not Mr Daniel Martin and Mr Russell Martin were dismissed. Nonetheless, from the evidence, including the witness statements of Mr Daniel Martin and Mr Russell Martin, it is apparent that:
(i) Martin Brothers’ practice was to contact Mr Daniel Martin and Mr Russell Martin and/or advise them as to where and at what time they needed to be at work. Some weeks prior to Easter 2012, Mr Geoffrey Martin of Martin Brothers advised Mr Daniel Martin and Mr Russell Martin that he was taking time off from 6-9 April 2012 and 11-15 April 2012, but that they would be working on 10 April 2012 and from 16 April 2012. On 4 April 2012, Mr Geoffrey Martin advised Mr Daniel Martin and Mr Russell Martin that they were finishing work early that day as he was taking time off from that afternoon. In the event, Mr Daniel Martin and Mr Russell Martin were not contacted by Martin Brothers about work on 10 April 2012. Further, a representative for Martin Brothers contacted Mr Russell Martin on 15 April 2012 to advise him that Mr Daniel Martin and Mr Russell Martin would not be working on 16 April 2012. On 16 April 2012, however, Mr Geoffrey Martin of Martin Brothers did contact Mr Daniel Martin and Mr Russell Martin to advise them that they would be working on 17 April 2012. Mr Daniel Martin and Mr Russell Martin were only paid by Martin Brothers for some of the days in the intervening period.
(ii) On Tuesday, 17 April 2012 Mr Daniel Martin and Mr Russell Martin jointly raised with Martin Brothers issues concerning their remuneration, including alleged underpayments, and were told by Mr Geoffrey Martin of Martin Brothers that they would get back to them on the matter. Mr Daniel Martin advised Martin Brothers that before he returned to work he wanted to contact an industrial authority to verify his entitlements and was happy to wait until Friday, 20 April 2012 so that he would know on what conditions he was to return to work.
(iii) Mr Daniel Martin and Mr Russell Martin then left work and Mr Daniel Martin contacted an industrial authority in respect of the matter. Ms Pennette Martin of Martin Brothers telephoned Mr Daniel Martin later on 17 April 2012 about what had happened earlier that day and to ask him what he and Mr Russell Martin wanted from Martin Brothers. Mr Daniel Martin advised Ms Pennette Martin of what he and Mr Russell Martin were seeking by way of entitlements.
(iv) Mr Daniel Martin and Mr Russell Martin obtained medical certificates dated 18 April 2012 in respect of their inability to work. The medical certificate for Mr Daniel Martin said he was unfit for work from 18 April 2012 to 20 April 2012 inclusive. The medical certificate for Mr Russell Martin said he was unfit for work from 17 April 2012 to 20 April 2012. However, it is not apparent that Martin Brothers was advised of these medical certificates until well after the termination of the employment of Mr Daniel Martin and Mr Russell Martin.
(v) At 6.47 am on Friday, 20 April 2012, Ms Pennette Martin of Martin Brothers sent an email to Mr Daniel Martin, via an email address relevant to him, stating:
“After discussions with yourself and Russell please advise in writing your requests and we can sort this matter out and you can both return to work.”
(vi) A lawyer for Mr Daniel Martin and Mr Russell Martin subsequently faxed a letter dated 20 April 2012 to Ms Pennette Martin of Martin Brothers setting out what Mr Daniel Martin and Mr Russell Martin were seeking by way of entitlements and that Mr Daniel Martin and Mr Russell Martin wanted the matters resolved as soon as possible so that they could return to work.
(vii) There was then an exchange of telephone calls and emails between the parties.
(viii) At 9.21 am on Monday, 23 April, 2012, Mr Daniel Martin and Mr Russell Martin sent an email to Ms Pennette Martin of Martin Brothers as follows:
“Thank you for offering both Russell and I subcontracting wages in order for us to return to work.
Unfortunately, we are not in the position to accept your offer as subcontractors and both Russell and myself believe that there has been a misunderstanding between us.
As mentioned and explained to both yourself and Geoff, we requested the following:
For the past 6 years please:
1. reinstate all sick leave. Russell and I have been using these days when Geoff and yourself choose to take time off work over the past 6 years.
2. all travel time between job sites and the base (your property) to be reimbursed.
3. a minimum of 38 hours is a requirement of an employer, we expect to be reimbursed the difference.
We can provide you with the relevant information/hours for your convenience for the past 6 years.
In addition to this, going forwards we would expect the following:
1. being full time employees, a working week constitutes a minimum 38 hours, we would expect this to continue
2. all travel between base, job site and base to be paid for as this time is on your time not ours
3. sick days to continue as per Fair Work Australia ruling, this means they accrue
4. a minimum of 1 week’s notice given to us ahead of going away from ‘home’ for any extended period of time
5. advised on Friday’s, of the time we are to start work on the Monday.
What we are requesting is not unreasonable and is in line with Fair Work Australia Laws which regulate all employers. As we have been in regular contact with Fair Work Australia, we have and can provide you with copies of the award rates and allowances for the above requests.
Once all the above issues have been rectified and we have, in writing, employment contracts outlining the allowances, sick days and hours going forwards and these contracts are signed by both yourselves and us then both Russell and I are happy to return to work. We trust that these issues will be rectified and all outstanding monies will be brought up to date. Please advise us by close of business, Thursday 26th April 2012 on your position. We will assume that if we don’t hear from you by then, that you do not agree we will then lodge an “official” complaint with Fair Work Australia in order to bring these payments up to date.
We look forwards to hearing from you in due course.”
(ix) On Thursday, 26 April 2012, Mr Russell Martin telephoned Ms Pennette Martin of Martin Brothers about both he and Mr Daniel Martin resuming work and Ms Pennette Martin advised Mr Russell Martin that he was no longer allowed on their work site or their property, being where Martin Brothers kept relevant vehicles and tools. Mr Russell Martin asked Ms Pennette Martin if he had been dismissed and Ms Pennette Martin repeated that he was not welcome back on their work site or their property. Mr Russell Martin asked Ms Pennette Martin if he could come and collect his tools and belongings and Ms Pennette Martin replied that he could. Ms Pennette Martin also asked Mr Russell Martin to return the keypad for the gate to the property. Mr Daniel Martin had a similar conversation with Ms Pennette Martin and she advised him that he could drop off his keypad and collect his belongings the next day when Mr Russell Martin was coming to do so.
(x) At 7.38 pm on 26 April 2012, Mr Daniel Martin and Mr Russell Martin sent an email to Ms Pennette Martin of Martin Brothers as follows:
“Regarding our earlier conversation via the phone at 5.30 pm today, 26th April 2012 you advised me that both Russell and I are not welcome back on site. You also advised us to come up tomorrow morning, 27th April 2012 and pick up our belongings and return you property, which includes remotes to gates, as we have been dismissed from our jobs. You requested that you would like us to bring all documentation regarding our pay dispute, which I believe to date, I have supplied. It is your responsibility an an employer, to obtain the necessary documentation from Fair Work Australia and ensure all our entitlements are up to date and current.
As we have been terminated from our employment, please ensure that all our long service leave, outstanding wages and entitlements are ready for us to be collected tomorrow morning, 27th April 2012 when we arrive.
Please note, as per our email to you Monday, 23rd April 2012, requesting a resolution of our pay dispute, we have not had a reply from you. Due to that we have not received anything from you bar a dismissal from our employment, we will be lodging an official investigation/complaint with Fair Work Australia tomorrow morning.”
(xi) On Friday, 27 April 2012, Mr Daniel Martin and Mr Russell Martin returned their keypads to and collected their belongings from Martin Brothers.
(xii) At 1.42 pm on 27 April 2012, Mr Daniel Martin and Mr Russell Martin sent the following email to Ms Pennette Martin of Martin Brothers:
“Can you please advise us on our current employment status. You advised us that we are suspended from our jobs currently. Please confirm this with us by responding to this email as per your verbal communication this morning. Please also advise us of when we are expected to return to fulltime employment and resume our work.”
(xiii) At 3.07 pm on Friday, 27 April 2012, Ms Pennette Martin of Martin Brothers sent the following email to Mr Daniel Martin and Mr Russell Martin:
“Thanks for your email as of today.
I would like to confirm my current position regarding your issues in the email below, as follows:
1. You requested to come and collect your belongings today, which you both have done so.
2. You have not been dismissed from your jobs, not sure where that information is coming from.
3. You requested I pay you both 319 hours in back pay, I requested information as to how you came to this figure, only half of this information was presented to me. Without your information I was unable to understand just how you came to this figure. As stated I was not able to resolve this matter for you as you requested, when this information was not provided to me. If I had this information, as requested by myself several times to you both, I am sure this matter would have been settled in a timely manner as I told you it would, by yesterday afternoon, and not come to this point where trying to have a normal conversation with both of you seems impossible.
4. I also confirm that 2 remotes to our security gates have been returned.
I await your earliest reply to this matter.”
(xiv) At 4.36 pm on 27 April 2012, Ms Pennette Martin of Martin Brothers sent the following email to Mr Daniel Martin:
“Danny I did not advise that you were suspended or terminated, as per yourself you advised that you would not return to work until this dispute was settled.
Please provide me with the missing information as requested to settle this matter asap.”
(xv) At 5.53 pm on 27 April 2012, Mr Daniel Martin sent the following email to Ms Pennette Martin of Martin Brothers:
“Yesterday afternoon, you advised both Russell and I that you wanted us to come and return the gate remotes, which we did and you have confirmed so, you also advised us that we are ‘not welcome on site’ again.
We are not certain of what ‘missing’ information you have requested from us. As we have explained to you in our previous emails, it is the employers responsibility to ensure that all entitlements are paid and that we are paid as full time employees as we are/were employed as such.
We have advised you that we request all sick days, travel allowance and the difference between a 38 hour week we should have been paid for, when we only did in some cases 26 hours. These are standard, employee allowances and employer obligations as full time staff.
If you are unsure of what you owe us, please speak to the relevant governing department as we have. We would expect that you have copies of all our pay slips for the last 6 years which you can reference. These pay slips show all information you require in order to bring everything up to date.
Please, once again advise us on our employment situation and when you expect us to return to work. We have ‘clearly’ communicated our concerns with you from the first day and have patiently awaited your responce to these issues. We look forward to knowing where we currently stand with our employment, as yesterday we were advised that we are no longer employed, today we still dont know our position regarding this.”
(xvi) Mr Daniel Martin and Mr Russell Martin made their unfair dismissal remedy applications to FWA on 2 May 2012.
[12] In the circumstances we do not think it can be maintained that Mr Daniel Martin and Mr Russell Martin resigned or abandoned their employment. It is reasonable to accept that at relevant times Mr Geoffrey Martin and/or Ms Pennette Martin were representing Martin Brothers. The discussions and/or emails between Mr Daniel Martin and Mr Russell Martin on the one part and Martin Brothers on the other part from 17 April 2012, when Mr Daniel Martin and Mr Russell Martin raised with Martin Brothers their remuneration and alleged underpayments, up to immediately before Martin Brothers told Mr Daniel Martin and Mr Russell Martin on 26 April 2012 that they were no longer allowed or welcome back on Martin Brothers’ work site or property, revolved around settling Mr Daniel Martin’s and Mr Russell Martin’s remuneration issues so that they could return to work with Martin Brothers. Thereafter, Mr Daniel Martin and Mr Russell Martin repeatedly asked Martin Brothers about when they were expected to return to work with Martin Brothers. Such continual reference by the parties to Mr Daniel Martin and Mr Russell Martin returning to work with Martin Brothers is not consistent with Mr Daniel Martin and Mr Russell Martin having resigned or abandoned their employment with Martin Brothers.
[13] We think the circumstances in this matter also indicate that Mr Daniel Martin and Mr Russell Martin were dismissed by Martin Brothers. Notwithstanding the abovementioned discussions and/or emails, suddenly on 26 April 2012 Martin Brothers told Mr Daniel Martin and Mr Russell Martin they were no longer allowed or welcome back on Martin Brothers’ work site or property and asked them to return relevant keypads, which Mr Daniel Martin and Mr Russell Martin did the next day. Further, notwithstanding Martin Brothers subsequently advising Mr Daniel Martin and Mr Russell Martin on 27 April 2012 that they had not been dismissed and Mr Daniel Martin and Mr Russell Martin then asking Martin Brothers about when they were expected to return to work, there is no evidence that Martin Brothers advised Mr Daniel Martin or Mr Russell Martin as to when they were expected to return to work or that Martin Brothers offered them work. These circumstances indicate an intention and action on the part of Martin Brothers to dismiss Mr Daniel Martin and Mr Russell Martin and that Mr Daniel Martin’s and Mr Russell Martin’s employment with Martin Brothers was terminated on Martin Brothers’ initiative.
[14] We are not persuaded the Deputy President erred as submitted by Martin Brothers. In his decision, the Deputy President set out the case advanced before him by Martin Brothers. There is no error in the Deputy President preferring the evidence given under oath by Mr Daniel Martin and Mr Russell Martin over contradictory written submissions for Martin Brothers. In the circumstances, we conclude the Deputy President did not fail to relevantly consider the submissions made to him by Martin Brothers.
[15] We have also intimated that the fact that Martin Brothers did not know until mid July 2012 about Mr Daniel Martin’s and Mr Russell Martin’s medical certificates, or that they were sick or on sick leave over relevant periods, was not relevant to a finding that Mr Daniel Martin and Mr Russell Martin were dismissed by Martin Brothers. Further, we have intimated that it was not reasonable for Martin Brothers to assume that Mr Daniel Martin and Mr Russell Martin had decided to permanently cease work for Martin Brothers. As a result, we do not think the Deputy President can be regarded as having erred by failing to refer to or give weight to Martin Brothers’ lack of knowledge of the medical certificates, sickness or sick leave or to any assumption made by Martin Brothers that Mr Daniel Martin and Mr Russell Martin had decided to permanently cease work for Martin Brothers. Given Mr Daniel Martin’s and Mr Russell Martin’s extensive dealing with Ms Pennette Martin of Martin Brothers over the relevant period, the fact they initially raised their remuneration concerns with Mr Geoffrey Martin is, in our view, of no consequence.
Conclusion
[16] For the foregoing reasons, we do not consider it is in the public interest to grant permission to appeal from the decision 6 made by Deputy President Smith. The decision did not involve a significant error of fact or other relevant error. We refuse Martin Brothers permission to appeal.
[17] Mr Daniel Martin’s and Mr Russell Martin’s unfair dismissal remedy applications will be referred for further processing by the FWC.
SENIOR DEPUTY PRESIDENT
Appearances:
M. McKenney, of counsel, with B. Cook, solicitor, for G & P Martin Family Trust T/A Martin Brothers House Removalist Pty Ltd.M. Addison, solicitor, for Daniel Martin and Russell Martin.
Hearing details:
2012.
Melbourne:
December 18.
1 Daniel Martin and Another v G & P Martin Family Trust T/A Martin Brothers House Removers, [2012] FWA 8516.
2 U2012/7653.
3 U2012/7682.
4 Daniel Martin and Another v G & P Martin Family Trust T/A Martin Brothers House Removers, [2012] FWA 8516.
5 Transcript in U2012/7653 and U2012/7682 at PN132.
6 Daniel Martin and Another v G & P Martin Family Trust T/A Martin Brothers House Removers, [2012] FWA 8516.
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