Gary Alchin v Pilbara Iron Company (Services) Pty Ltd
[2021] FWC 3868
•18 AUGUST 2021
| [2021] FWC 3868 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Gary Alchin
v
Pilbara Iron Company (Services) Pty Ltd
(C2021/1176)
DEPUTY PRESIDENT BINET | PERTH, 18 AUGUST 2021 |
Application to deal with contraventions involving dismissal.
[1] On 2 March 2021 Mr Gary Alchin (Mr Alchin) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Pilbara Iron Company (Services) Pty Ltd (PICS) contravened the general protection provisions of the FW Act and forced him to resign.
[2] On 18 March 2021, PICSfiled a Form F8A asserting that Mr Alchin was not dismissed by PICS (Jurisdictional Objection).
[3] On 3 May 2021, the parties participated in a conciliation conference, at which the parties agreed terms to resolve the matter. The Terms of Settlement were to be drafted by PICS and provided to Mr Alchin. Mr Alchin has since declined to execute the Terms of Settlement or discontinue the Application.
[4] In Coles Supply Chain Pty Ltd v Milford1 (Coles Decision) the Full Court of the Federal Court held that where an employer submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
[5] In light of this, the Application was listed for a Hearing of the Jurisdictional Objection in Perth at 1pm on Friday 9 July 2021 (Hearing). Due to restrictions arising from the COVID-19 pandemic the Hearing was held by Microsoft Teams.
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 11 May 2021 (Directions).
Permission to be represented
[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.2
[8] Neither Mr Alchin or PICS sought permission to be represented at the Hearing.
Evidence
[9] The Directions required Mr Alchin to file an outline of submissions, a signed and dated witness statement from any witness he intended to call, a copy of any authorities on which he relied and a copy of any document on which he relied by 4pm on 20 May 2021.
[10] On 13 May 2021 Mr Alchin filed a Form F51 – Application for an order requiring a person to attend before the Commission (Form F51). The Form F51 sought orders for the attendance of five PICS employees at the Hearing.
[11] On 19 May 2021 Chambers informed Mr Alchin the Form F51 was incomplete, in parts illegible and provided insufficient grounds for such orders. He was provided with guidance as to how to correct these defects and informed that any amended application would be considered once his materials had been filed in accordance with the Directions and the relevance of the evidence of these individuals could be ascertained.
[12] Mr Alchin failed to file his materials in accordance with the Directions. On 21 May 2021 Chambers reminded Mr Alchin that his materials were overdue. On 26 May 2021 he was directed to file his materials by 2 June 2021 and provide reasons why he had failed to file his materials on time.
[13] On 27 May 2021 in response to an email from Mr Alchin, which appeared to indicate that Mr Alchin was confused about the materials he was required to file, Chambers provided Mr Alchin with further detailed instructions about what he was required to file and templates to assist him to do so.
[14] Later the same day Mr Alchin replied explaining that his son was unwell.
[15] In light of his personal circumstances Mr Alchin was provided with a further extension to file his materials until 3 June 2021.
[16] On 7 June 2021 Mr Alchin emailed Chambers asserting that he had been treated unfairly but did not file any materials in support of his Application.
[17] On 11 June 2021 Chambers again invited Mr Alchin to file materials in support of his Application.
[18] On 18 June 2021 Mr Alchin was provided with one further opportunity to file materials in support of his Application or in response to the materials filed by PICS. He did not file any materials in accordance with this direction.
[19] On 6 July 2021 Mr Alchin forward a statement to the FWC which appeared to set out his evidence in relation to the Application. The statement was undated, unsigned and not supported by any corroborative evidence. The statement was tendered as Mr Alchin’s evidence at the Hearing and marked A1.
[20] In accordance with the Directions a Digital Court Book containing the submissions, evidence and authorities relied upon by PICS was prepared by PICS. The Digital Court Book was tendered by PICS and marked as exhibit R1 at the Hearing.
[21] The Digital Court Book contained a witness statement by Ms Vanessa Forster – Manager Operations Cape Lambert Port Operation. Ms Forster gave oral evidence at the Hearing and was cross examined by Mr Alchin. Ms Forster is Mr Alchin’s ‘manager once removed’ (MOR).
[22] An employee of PICS Ms Larna Comenos (Ms Comenos) represented PICS at the Hearing.
[23] Mr Alchin filed no submissions, evidence or authorities in advance of the Hearing. He represented himself at the Hearing. He gave oral evidence at the Hearing and was cross examined by Ms Comenos.
[24] In reaching my decision, I have considered all the submissions made, and the evidence tendered, by the parties even if not expressly referred to in these reasons for decision.
Background
[25] PICS's operations at Cape Lambert in Western Australia receives iron ore railed from Rio Tinto owned and operated mines, and outloads blended products from its shiploaders to bulk ore carriers. Cape Lambert has two terminals: Cape Lambert A (CLA) and Cape Lambert B (CLB); this includes a rail network, five rail car dumping facilities, screening plant, delivery system, stockyards, conveyors, stackers, reclaimers, two wharfs with total eight births to support four ship loaders. CLA has an additional crushing and screening circuit. 3
[26] Ms Forster is PICS’s Manager Operations at its Cape Lambert Port Operation. She is responsible for safe and efficient transfer of iron ore from car dumper to vessel at both CLA and CLB. She has a total of six superintendents and one secretary who directly report to her and approximately 200 indirect reports. 4
[27] Mr Alchin commenced employment with PICS at Cape Lambert as a Production Supervisor on or about 29 September 2014. 5 He was engaged as a residential employee living in Wickham. His employment was governed by a contract of employment dated 18 August 2014.6
[28] At the time of his separation from the business, Mr Alchin was the Team 1 CLA Outload Production Supervisor and reported to Mr Matthew Powell (Mr Powell), one of the superintendents who reported directly to Ms Forster. 7
[29] In his role as Outload Production Supervisor, Mr Alchin was responsible for the safe birthing / release of vessels into port (mooring), transfer of iron ore from stockpile to vessel, and team management of a crew of 9 operators (leave, training pathways, performance optimisation). 8
[30] In her capacity as Mr Alchin’s MOR Ms Foster holds regular meetings with the supervisors for whom she is MOR on an individual basis for the purpose of discussing personal career aspirations, barriers to role and general site performance. 9
[31] Ms Forster has been Mr Alchin’s MOR for over 2 years. During that time, she says she regarded him as a solid performer and a valued employee of the business. In his 2020 performance review, that she endorsed, he was rated better than the team average supervisor score. 10
[32] On or about May 2020, Mr Alchin advised Ms Forster that he would like support to change roles. He advised her that he had not applied for any roles, however he was considering Perth-based roles and Rail team roles and his preference was a Port Operations Integrated Operations Supervisor. Mr Alchin and Ms Forster committed to catchup and have further discussions if any roles became available. 11
[33] On or about late October 2020, Ms Forster received a telephone call from Mr Rodney Fisher (Mr Fisher), Rail Operations Manager - Cape Lambert, who advised her that he was recruiting for a supervisor in his team. Ms Forster advised Mr Fisher that Mr Alchin may be interested in the role and that she would discuss the opportunity with Mr Alchin at her next opportunity. 12
[34] On or about early November 2020, Ms Forster had a conversation with Mr Alchin and discussed the opportunity in Rail. Mr Alchin agrees that he indicated to her that he was interested in the role. Subsequently an interview with Mr Fisher was arranged for Mr Alchin.13
[35] On or about late November 2020, Ms Forster asked Mr Alchin if he had heard anything further about the opportunity in Rail. He advised her that he was having an interview later that day.14
[36] Approximately two weeks later, in around early December 2020, Ms Forster asked Mr Alchin if he had heard anything further about the role in Rail. He advised her that he had not heard anything, so she contacted Mr Fisher and advised him he should move more quickly to appoint Mr Alchin otherwise he may lose interest in the role. Mr Fisher advised her that he was working through getting a contract for Mr Alchin and that he wanted Mr Alchin as a supervisor. Mr Fisher committed to giving that feedback to Mr Alchin.15
[37] During that conversation with Mr Fisher, he asked Ms Forster if there was an opportunity for Mr Craig Newman (Mr Newman), then a superintendent in Mr Fisher’s team, to transfer to Cape Lambert Port Operations. Ms Forster advised Mr Fisher that if Mr Alchin moved to Rail it would open up a supervisor position in the Port for Mr Newman to move into.16
[38] Ultimately, Mr Newman’s transfer to Cape Lambert was endorsed by Mr Chris Osborn, General Manager Port Operations at Cape Lambert. It was decided that Mr Newman would commence in Mr Alchin's role in early February 2021 and that he would be trained by Mr Alchin for two or three swings, after which time Mr Alchin would transfer to the supervisor position in Rail.17
[39] Given Mr Alchin's initiation of his transfer to Rail Ms Forster says it did not occur to her that Mr Alchin would decline an offer of transfer to Rail once offered.18
[40] On 28 January 2021, Ms Forster received an email from Mr Alchin. In the email Mr Alchin indicated that he was stressed because he had been told Mr Newman was commencing in his role the following week but had received no written confirmation that he had secured a role in Rail. He informed her that he did not wish to progress to Rail as he did not “seem to be supported”. 19
[41] On 29 January 2021, Ms Forster met with Mr Alchin to understand his concerns and reassure him that his move to Rail was supported. During that meeting, she says that Mr Alchin appeared to be emotional and told her he was unsuccessful for a role he applied for at the company's Operations Centre (OC). He was disappointed because he had wanted a role in Perth and he was disappointed in the process. Prior to this conversation, Ms Forster was not aware that Mr Alchin had applied for roles in Perth. Mr Alchin advised her that he received feedback from the interview process for the role at the OC that he was argumentative, not focussed on the interview and had a skills gap for the role he applied for, and that he did not agree with the feedback provided. She encouraged Mr Alchin to seek further clarification in respect of the feedback provided to him. 20
[42] During this meeting Mr Alchin also informed her that he had received an offer of employment for the Rail role (First Offer) however the base salary was less than his current salary. Mr Alchin told her it felt like she was trying to manage him out of the Cape Lambert Port Operations team. Ms Forster advised Mr Alchin that she would not recommend somebody for a role within PICS if she thought they were underperforming because it reflected poorly on her team. 21
[43] Mr Alchin says that he did not find any comfort in this information and in fact concluded that he did not wish to pursue to position in rail. 22
[44] Ms Forster formed the view that Mr Alchin was only reluctant to move to the role in Rail because of the base salary reduction. She believed that the base salary offered to Mr Alchin was incorrect. She did not tell Mr Alchin that she thought there was an error but instead encouraged Mr Alchin to discuss his concern with the Rail team directly and committed to follow up with the Rail team herself. She says that Mr Alchin agreed that he would contact the Rail team directly and thanked her for her time.
[45] Ms Forster says that she presumed that Mr Alchin would move to the role in Rail as he had planned to, however, she says that she told Mr Alchin that if he did not wish to go to Rail there were other roles available at Cape Lambert in the Port Operations team and that it was ultimately up to him to decide if he wanted to move to Rail or remain at Cape Lambert. 23 Mr Alchin denies this. He says that Ms Forster told him that his position has been taken at Cape Lamber and that he would have to move to the rail department.24
[46] Later the same day Ms Forster phoned Mr Glenn Humphreys (Mr Humphreys), Rail Superintendent at Cape Lambert to discuss Mr Alchin's contract. Mr Humphreys acknowledged that the base salary which was offered was incorrect and committed to rectifying it. 25
[47] On 5 February 2021, Ms Forster was included on an email reply from Mr Alchin to Ms Neha Sachdeva (Ms Sachdeva), Checks and Offers Analyst for Rio Tinto. Ms Sachdeva’s original email to Mr Alchin had included a new offer of employment (Second Offer) for the Rail role which provided for a higher salary than previously offered to Mr Alchin on 28 January 2021, and also provided an increase on his proposed annual remuneration base salary. In that email, Mr Alchin rejected the Second Offer. 26
[48] Later that day, at approximately 4pm, Ms Forster tried to phone Mr Alchin to understand the reasons he declined the offer in Rail and to discuss some claims he had made about not receiving fair reviews (which she suspected Mr Alchin meant remuneration increases), however he did not take her call. At 10:45pm the same day, she emailed Mr Alchin and advised him that: 27
“As discussed with you previously, we do have other supervisor roles available however we (i.e. 3-2 group) has not put thought to alternatives.”
[49] On the same day, Ms Forster also phoned Mr Newman to let him know that the crew he was managing at that time may not be the crew he ends up supervising. She did this because it was in her mind that Mr Alchin may continue in his portfolio and Mr Newman would need to be allocated to a different crew. 28
[50] On 5 February 2021 Ms Forster sent an email to her direct reports advising them that there would be a need to shuffle supervisor portfolios now that Mr Alchin would not be moving to Rail. 29
[51] Mr Alchin says that he became depressed and emotional about PICS handling of his transfer to rail and its earlier management of his son’s bullying allegations (Mr Alchin had raised his concerns about his son with Ms Forster and had been disappointed with her response. His son later attempted suicide). On 6 February 2021 he says he decided that he had no option but to resign. 30
[52] On 6 February 2021, Ms Forster received a text message from Mr Alchin's direct line leader, Mr Powell, advising her that Mr Alchin had sent him an email resigning from his position at Cape Lambert. 31
[53] Ms Forster continued attempting to contact Mr Alchin on 6 and 7 February 2021 by mobile phone and text message, however Mr Alchin did not telephone or message her back. 32
[54] On 9 February 2021, Mr Alchin phoned her and advised that he was emotional about resigning from a company he enjoyed but he wanted to focus on night shift and his team's safety. She says that Mr Alchin advised her that he was moving to Perth and partnering with a friend in a business building water trucks, and he was also expecting an offer of employment to work on a FIFO basis for Roy Hill. 33
[55] During this conversation and previous conversations with Mr Alchin, Ms Forster says she felt the relationship was amicable and that Mr Alchin had made the decision to resign with his future goals in mind. She says that Mr Alchin expressed his excitement about the adventures ahead for him and his partner. Ms Forster is adamant that at that time Mr Alchin did not make any comment about feeling like he was managed out of the business or forced to resign in this conversation. 34
[56] On 2 March 2021, a communication to all employees at Cape Lambert was emailed announcing new appointments and departures from the team, including Mr Newman’s appointment as CLA Outload Supervisor and Mr Alchin’s departure. 35
[57] On the same day Mr Alchin filed this Application.
[58] Mr Alchin’s last day of employment with PICS was 6 March 2021. 36
Consideration
[59] The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“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.”
[60] The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“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.”
[61] While section 386 is found in Part 3-2 Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
[62] It is not contested, and I am satisfied that sub section 386(2) of the FW Act has no application in this case.
[63] According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[64] Mr Alchin submits that he was forced to leave his employment because of conduct engaged in by PCIS which left him with no reasonable choice but to resign.
Was Mr Alchin forced to resign his employment because of conduct, or a course of conduct, engaged in by PICS?
[65] Mr Alchin alleges that Ms Forster told him that he “did not have a position to go to anymore” after he elected not to take up the offer of employment in Rail.
[66] Ms Forster denies making the comments alleged by Mr Alchin. PICS denies Mr Alchin was forced to resign from his position rather it asserts that he resigned from his position voluntarily to pursue other employment opportunities. Consequently, PICS submit that Mr Alchin is ineligible to make the Application because he was not dismissed.
[67] In circumstances where an employee alleges they were forced to resign, the employee bears the onus of proving that they did not resign voluntarily, and must prove that the employer forced their resignation. 37
[68] Mr Alchin did not provide any evidence in accordance with the Directions or any relevant particulars in respect of the allegation that he was forced to resign until the two days before the Hearing. In an unsigned and undated letter he explained that his decision to resign was driven by:
a. His belief that Ms Foster had blocked his transfer to rail in October 2017 because of comments he made about a female subordinate which she considered discriminatory.
b. His belief that Ms Foster was pressuring to him to leave his current role because she didn’t want him at Cape Lambert.
c. His belief that no roles existed for him at Cape Lambert if he did not accept the rail role.
d. He was initially offered a lower wage for the role in the rail department.
e. His dissatisfaction with the company’s handling of his son’s bullying allegations.
[69] It is important to note that Mr Alchin’s consideration for a new role arose at Mr Alchin’s initiative. Neither PICS nor Ms Forster initiated this process. There is therefore no evidence to suggest a premediated plan to remove Mr Alchin from his position. Rather Ms Forster was quite reasonably proceeding on the assumption that Mr Alchin wished to move from his current role and was doing her best to assist him find a position he preferred.
[70] The evidence before me is that Ms Forster repeatedly reassured Mr Alchin that there was a role for him to perform at Cape Lambert if he decided not to accept a role in Rail. In particular:
a. On 29 January 2021, Ms Forster met with Mr Alchin to understand his concerns with the first offer. During that meeting, Ms Forster advised Mr Alchin that if he decided not to accept the role in Rail there were other roles available for him to perform at Cape Lambert. 38
b. Following Mr Alchin’s rejection of the second offer, Ms Forster separately emailed Mr Alchin on 5 February 2021 and stated that PICS “do have other supervisor roles available. 39
[71] Not only did she give him those reassurances she separately acted to make sure that those assurances could be met. For example:
a. Ms Forster phoned Mr Newman to let him know that the crew he was managing at that time may not be the crew he ends up supervising if Mr Alchin chose to stay in his current position. 40
b. Ms Forster emailed the superintendents in her team to advise them that Mr Alchin was no longer moving to Rail so there would be a shuffle of supervisor portfolios. 41
[72] Notwithstanding those reassurances and having turned down two separate offers for a different role in the business in which he had expressed interest Mr Alchin decided to resign. The evidence suggests that at the time he did so he had already made plans for alternative employment outside of PICS.
[73] I am not satisfied that Mr Alchin’s employment was terminated at PICS initiative or that he was forced to resign because of conduct or a course of conduct engaged in by PICS. Rather, quite understandably, Mr Alchin was distressed by his son’s attempted suicide, was disappointed in how his son was treated by PICS and wrongly attributed negative motivations to Ms Foster’s efforts to assist him relocate to another part of the business. It appears these matters caused him to become depressed and decide to pursue roles outside of PICS.
[74] I am not satisfied that Mr Alchin was dismissed for the purposes of section 365 of the FW Act.
[75] I therefore uphold the Jurisdictional Objection and dismiss the Application.
[76] An Order 42 to this effect will issue with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR731314>
1 [2020] FCAFC 152.
2 Warrell v Walton (2013) 233 IR 335, 341 [22].
3 Exhibit R1, 6.
4 Exhibit R1, 6.
5 Mr Alchin asserts that he has been employed by the Respondent since August 2004 but provided no evidence in support of this assertion.
6 Exhibit R1,7.
7 Exhibit R1, 7.
8 Exhibit R1, 7.
9 Exhibit R1, 7.
10 Exhibit R1, 7.
11 Exhibit R1, 6-7.
12 Exhibit R1, 8.
13 Exhibit R1, 8 and Exhibit A1.
14 Exhibit R1, 8.
15 Exhibit R1, 8.
16 Exhibit R1, 8.
17 Exhibit R1, 8.
18 Exhibit R1, 8.
19 Exhibit R1, 9.
20 Exhibit R1, 9.
21 Exhibit R1, 9 and.Exhibit A1.
22 Exhibit A1.
23 Exhibit R1, 9-10.
24 Exhibit A1.
25 Exhibit A1.
26 Exhibit R1, 10.
27 Exhibit R1, 10.
28 Exhibit R1, 10.
29 Exhibit R1, 10-11.
30 Exhibit A1.
31 Exhibit R1, 11.
32 Exhibit R1, 11.
33 Exhibit R1, 11.
34 Exhibit R1, 11.
35 Exhibit R1, 11.
36 Exhibit R1, 11.
37 Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
38 Exhibit R1, 9.
39 Exhibit R1, 10.
40 Exhibit R1, 10.
41 Exhibit R1, 10-11.
42 PR731315.
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