Grant Cresswell v Rebound Academy Pty Ltd
[2024] FWC 788
•27 MARCH 2024
| [2024] FWC 788 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Grant Cresswell
v
Rebound Academy Pty Ltd
(C2023/8211)
| DEPUTY PRESIDENT EASTON | SYDNEY, 27 MARCH 2024 |
Applicant a person who has been dismissed – casual employment – employee asked to “pause doing [his] regular shifts – employee told by email “We do not wish to have any further communication with you. We wish you nothing but the best in your future endeavours” – whether employment the employment at the employer’s initiative – employee was dismissed.
On 27 December 2023 Mr Grant Cresswell made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Mr Cresswell claims that he was dismissed from his employment with Rebound Nutrition Pty Ltd and that the dismissal contravened the general protection provisions of the Act.
The Commission’s Jurisdiction
Rebound maintains that Mr Cresswell was not ever dismissed and that Rebound stopped offering Mr Cresswell work at his request.
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine’s School [2016] FCA 790 at [3]).
The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [51], (2020) 300 IR 146 found that the Commission’s power to deal with a dispute under s.368 is only enlivened if an application is properly made under s.365. When a jurisdictional objection is raised the Commission must determine whether the application was properly made, which might include determining whether an applicant was actually dismissed from their employment.
“A person who has been dismissed”
Mr Cresswell only has capacity to make a claim if he is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:
“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.
The Evidence
I issued directions for the filing of evidence and submissions ahead of a contested hearing regarding the specific issue of whether Mr Cresswell was dismissed. Unfortunately, a significant number of uninvited and unhelpful emails were sent to the Commission between the time that the Directions were issued and the hearing of the matter. In these emails the parties, predominantly Rebound, strongly criticised each other, presumably with the intention of advancing or defending their position in the litigation. I have not taken the content of any of these email into account in making my decision.
In most litigation there is a degree of tension and aggravation. In this matter the tension and aggravation were significantly heightened. Both parties described Mr Cresswell’s employment and Mr Cresswell’s working relationship with Mr Tim Coenraad in positive terms. Both parties thought that Rebound’s business was doing good things for basketball and for the community in the Illawarra region. Both parties also thought that Mr Cresswell made a positive contribution to that business. The tension and the aggravation in the litigation stems from Mr Cresswell’s frustration in not being able to resolve his concerns about his pay, Mrs Nelly Coenraad becoming defensive and then offensive when Mr Cresswell asked about his pay, and the fact that Mr Cresswell’s employment ended after he raised a query about his wages.
Despite the difficulties at the hearing, there was not actually any material dispute about the relevant facts. All the communications between Mr Cresswell and Rebound that are relevant to how Mr Cresswell’s employment ended were sent by email over a period of two days in December 2023. There was disagreement at the hearing about how some of the words used in these emails should be understood, but there was no disagreement about what was said.
Mr Cresswell was first employed by Rebound in December 2022. He worked as a basketball coach on a casual basis, working between 5 and 25 hours each week.
Mr Cresswell had concerns about his rate of pay ($25 per hour with no casual loading). Mr Cresswell asked about his pay in March and June 2023. When Mr Cresswell raised concerns with Mr Coenraad, Mr Coenraad essentially referred Mr Cresswell on to Mrs Coenraad, who administered the wages on behalf of Rebound. In October 2023 Mr Cresswell asked Mrs Coenraad about his entitlements by reference to the Sporting Organisations Award 2020 but was advised by Mrs Coenraad that the Award did not apply because an enterprise agreement applied to Mr Cresswell’s employment. As will become apparent, this advice to Mr Cresswell was wrong.
Mr Cresswell asked in November 2023 for a meeting to discuss his pay, but no meeting took place.
In December 2023 Mr Cresswell was still concerned that he was not being paid correctly, which seems to me to be a reasonable concern, and so he spoke again to Mr Coenraad who again referred him to Mrs Coenraad.
On 14 and 15 December 2023 nine emails were exchanged between Mr Cresswell and Mrs Coenraad that culminated with Mrs Coenraad stating “we do not wish to have any further communication with you. We wish you nothing but the best in your future endeavours.”
Some parts of the earlier emails give context to this final email and how these words by Mrs Coenraad are to be objectively understood. The details of Mr Cresswell’s queries about his pay and Rebound’s responses are not relevant to the matter I must decide. I have extracted the relevant parts of the email exchange in the following paragraphs.
Email 1: On 14 December 2023 at 11:04am Mr Cresswell asked about his pay, stating:
“Dear Nelly and Tim,
Thank you for the opportunity to work at Rebound. I enjoy my role and would like to continue to grow within the organisation. As you are aware, I have raised concerns relating to my employment and would like these answered so that I can continue doing what I love at Rebound.
…
In light of the above, I would like to request the following:
1. Copy of my employment contract - If one does not exist, please prepare a contract setting out my terms of employment, including my pay rates, award/enterprise agreement)
2. Copy of the Rebound Enterprise Agreement - Showing how I am better off under the Enterprise Agreement vs Sporting Organisations Award
Once I receive the above, I am happy to meet with you to discuss the concerns I have raised. I look forward to your response within 10 business days by 28 December 2023.
I am hopeful we can reach a resolution so that I can continue working at Rebound.
If we are unable to resolve this, I am happy to raise the matter with Fair Work who can assist us.”
Email 2: Mrs Coenraad sent her first response a few minutes later at 11:20am, immediately raising the possibility of “parting ways” and stating:
“… I appreciate where you’re coming from; however, I do not agree with you with things being denied. I have not been asked for a contract, if you asked Tim- I’ve said on countless occasions that Tim he is not the person to ask regarding paperwork and admin and quite frankly, it’s frustrating him that you continue to do so. Furthermore as a casual worker, you do not require a contract. So your claim of denial of this is a non Issue.
Rebound does operate with the understanding that we are not the same as other companies; we are well aware of legislation around working hours etc and I have provided you with the title of the agreement you’re under. Furthermore, as I’ve said, we operate with the common understanding that we are not like other organisations.
…
This is a family business who needs help from time to time and we pay those who help us out. If this isn’t for you, pls let us know and we will part ways.”
[Emphasis added]
Email 3: Before Mr Cresswell could respond Mrs Coenraad sent a more expansive email providing a paragraph-by-paragraph response to Mr Cresswell’s first email, predominantly dealing with the details of the pay arrangements. In her email sent at 12:50pm Mrs Coenraad relevantly said:
“… Tim and I have asked you on repeated occasions not to address Tim with administrative concerns and to send those to me via email. You’ve continued to bombard Tim with these requests within work hours in spite of whats been asked of you and what youve been directed to do.
…
You do not require a contract when working casually.
…
Its not your choice as to which Award you’re paid under.”
Email 4: Much of the information in Email 3 about Mr Cresswell’s legal entitlements was wrong. Unfortunately, 35 minutes after sending Email 3 Mrs Coenraad sent a further email dialing up the earlier assertions that Mr Cresswell was ungrateful about his pay into an attack on his performance and conduct:
“Hi again Grant,
In light of your recent email, I’d like to raise concerns of our own.
Please see below a few, but are not limited to as I believe a multitude of other concerns we too share, were raised in our response to you previously today.
[your late confirmation of availability] leaves us little to no time to forward plan …
We are lenient.
… You’ve called in sick or cancelled a scheduled on two occasions from recent memory within the last 30 days.
You’re a casual employee, this occurrence would be one of concern to a typical employer.
You’ve arrived late to shifts …
…
All of these things have been ignored over the months and we have chosen to focus on the positives of having you as part of the Rebound family instead of fixating on these few issues...
However, given your subtle threats of involving fair work and quoting what you believe to be, relevant legislation; as well as, making demands of us, after we have been extremely
Gracious to you on both a professional and personal level (IE you doing us a personal favour with an errand and us gifting you $100 cash for this) we really feel taken aback and hurt by your claims and actions.”
Email 5: Mrs Coenraad sent a further email at 3:00pm regarding Mr Cresswell’s rate of pay:
“Hi again Grant,
Regarding your pay being $25 per hour, you’re not paid via the hour you’re paid via the 45min shift.
This in the puts you at $31.25 per hour which of your so very adamant about getting casual loading which you were never promised, this would more than suffice as loading as loading is .25% per hour so it actually adds up exactly.”
Email 6: Mr Cresswell’s reply to Mrs Coenraad’s four emails was short, polite and appropriate. At 5:25pm Mr Cresswell said:
“Hi Tim and Nelly
Thank you for your emails, this response is to confirm I have received them.
I believe it would be best for me to pause doing my regular shifts until we come to a resolution.
I would still like to see the Business Enterprise Agreement so that I can better understand my employment with Rebound.
My previous email was a request for information about my employment and I am seeking to clarify these employment terms.
I have very much appreciated working for you, and I hope we can clear this up so we can move forward.”
[Emphasis added]
Email 7: In her email reply sent at 7:28pm Mrs Coenraad said:
“Good evening Grant,
Glad you have received the responses to your concerns.
As your employment is casual, there’s no need to do anything definite regarding your shifts.
I will reallocate all of your future shifts.
Can you please let us know when is the best time within the next week that Tim can collect Rebound’s gear.
Please ensure this is packed accordingly, accounted for and clean.
…”
Email 8: Mr Cresswell replied the next day in a lengthy but conciliatory email that included the following:
“… I would like to clarify that I have only wanted to have a conversation and get more information about my work as I care about my work at Rebound.
I do apologise if it came off as threatening to mention Fair Work, however, I found it has been almost impossible to have a proper conversation about our terms in the workplace.
…
I agree that I can be better. However, that is a performance matter and not about my Award/ enterprise agreement. Saying these things to me now feels manipulative and controlling. Especially about doing a favour where I did not expect $100. All of these things should not exclude the fact that we have not been paid the proper amount according to Fair Work. If it is different I have not seen any evidence. Just words saying it is.
I do apologise if I have bothered Tim too much. It was my understanding that he told me if I had a question about my work conditions I would talk to you. After I texted Nelly about my work conditions, he said just speak to me as Nelly would feel it was an attack instead. Which is why I would talk to Tim in the carpark after work. I’m upset that trying to talk about my work conditions is seen as an attack and not seen as a normal right of my employment.
…
By me returning the gear etc it seems as though you have fired me already which makes me gutted as this was the last thing I wanted.
I know how much gear is needed and I know mine isn’t a priority, based on the last camps when Lavhys is available. I am happy to drop it off, even though I believe it’s just because you would like to dismiss me. If that is the case it is the last thing I want as I love being a part of Rebound.
I highly respect both you and Tim. I spoke about this issue because I saw a future with Rebound. However, seeing the change in response when I have asked for information and proper pay ( to Fair Works standards) I am incredibly sad. I haven’t answered Tim’s call because there has been a trend of information going askew between myself, Tim and yourself. I believe writing has been the best to make sure we’re all on the same page.
…
I love your family and your business. Please don’t get that twisted. I am only trying to get to the bottom of this. I have reached out multiple times to talk about my terms but it is still very unclear. I do apologise for any stress I have I am looking for a calm and peaceful resolution.”
Email 9: Later that night, at 9:46pm on 15 December 2023, Mrs Coenraad provided a paragraph-by-paragraph response to Mr Cresswell’s email. In Mrs Coenraad’s email she said:
“Thank you for your apology.
We agree, conversations in the work place are impossible as previously explained in our prior email…
Yes, you have caused a lot of stress to us and our business. It’s not something we would like to continue dealing with considering treat each of our employees with an immense amount of respect, grace, privilege and more.
[in relation to feeling manipulated] I apologise if you feel that way; however, given your stance in attacking us both personally and professionally, it’s within reason that we respond with what it is you, as our employee, with what you are doing inappropriately.
…
These things we did for you out of the kindness of our hearts and to show you how much we appreciated you and your efforts, to help you in turn, you’re now trying to do what?
Threaten us with some sort of malpractice?
Demanding things of us?
So yes, we are hurt.
We have done right by you and Email, helping you to build your 3x3 portfolio and so much more.
…
… seeing as your concerns have been addressed on so many occasions yet you continue to bring the same ones up again even after confirming all was resolved – to put simply, is exhausting, and I don’t know of any other employer who would continually entertain such behaviour.
…
We haven’t fired you.
You asked to be removed from shifts until this issue is resolved.
The issue is not resolved and we are a business that must go on.
Furthermore, you’re a casual employee. We do not need to fire you, you get shifts when you do and you don’t when you don’t.
That’s the fundamental of a casual employee.
I’ll say it again, we did not take any shifts from you which were already allocated, you asked to be taken off. This is your choice, Your doing. I do agree, what you are choosing to do here, you’re losing a lot more than you’re gaining.
…
… at this point I don’t feel safe communicating with you in any other manner than via writing.
…
From my research as an employer since 2016, from what I’ve been advised, the [enterprise agreement referred to in earlier emails by Mrs Coenraad] is a conversation between business and employee. To which, we have made and you have agreed to upon being hired and upon accepting shift after shift after shift.
…
We will not be paying any of [Mr Cresswell’s claimed underpayments]
…
We do not wish to have any further communication with you. We wish you nothing but the best in your future endeavours.”
[Emphasis added]
There was no further correspondence or communication between Mr Cresswell and Rebound before Mr Cresswell made his general protections claim.
Consideration
Mr Cresswell argued that he was dismissed by email.
Rebound submitted that Mr Cresswell was not dismissed at all. Rebound said that Mr Cresswell was employed on a casual basis and had asked to be taken off future shifts – specifically when he used the words “I believe it would be best for me to pause doing my regular shifts until we come to a resolution” in Email 6 above.
In my view Mr Cresswell was dismissed by email at 9:46pm on 15 December 2023.
The last email sent by Rebound (Email 9) ended the casual employment relationship by advising Mr Cresswell that “We do not wish to have any further communication with you.” To remove any doubt about the effect of those words, Rebound’s further statement that “We wish you nothing but the best in your future endeavours” was a clear final statement that Mr Cresswell would not be offered any further work by Rebound.
The test is whether a reasonable person in Mr Cresswell’s position would have understood that their employment was dismissed. The test is not whether Mr Cresswell subjectively believed that he was dismissed or whether Rebound subjectively intended to dismiss Mr Cresswell.
These words used by Rebound in the final email must be understood in the context of the earlier emails between Mr Cresswell and Mrs Coenraad:
(a) Mr Cresswell raised a query about his pay and expressed concerns that his earlier queries about his pay had not drawn satisfactory responses from Rebound;
(b) In its first response (Email 2) Rebound was defensive about Mr Cresswell’s pay and invited Mr Cresswell to leave his employment if he was not satisfied with the pay arrangements;
(c) In its third response (Email 4), sent before Mr Cresswell could respond to the earlier invitation to quit, Rebound doubled down on Mr Cresswell and made irrelevant and unrelated criticisms of Mr Cresswell’s conduct and performance in his work. Rebound claimed to have been “taken aback and hurt by [Mr Cresswell’s] claims and actions.” That is, immediately after he raised legitimate queries about his pay, Rebound offensively criticised his work and then further blamed him for causing hurt and upset;
(d) In this context, Mr Cresswell understandably decided it would be best to pause doing his regular shifts because he hoped that “we can clear this up so we can move forward” (Email 6);
(e) After he asked to pause his regular shifts, Rebound took steps consistent with the employment ending (Email 7) including asking Mr Cresswell to return equipment and cancelling all of Mr Cresswell’s shifts scheduled over the next five months;
(f) In reply, Mr Cresswell expressed concern and fear that Rebound was terminating his employment, saying for example that “By me returning the gear etc it seems as though you have fired me already which makes me gutted as this was the last thing I wanted” and so on (Email 8). In this email he expressed his hope that there be a “calm and peaceful resolution” to bring it back to good; and
(g) Instead of assuring Mr Cresswell that his employment was not ending, and instead of moving towards a calm and peaceful solution, Rebound said that the matter was not resolved, that Rebound does not “feel safe” communicating with Mr Cresswell, that Rebound did not wish to have any further communication with Mr Cresswell and then wished him well in his future endeavours.
In this final email Rebound did say “We haven’t fired you” but this statement was shortly followed by an assertion that “we do not need to fire you, you get shifts when you do and you don’t when you don’t” and then of course by statements consistent with Mr Cresswell not working for Rebound ever again. That is, the words “we haven’t fired you” were not a statement of Rebound’s understanding that Mr Cresswell remained an employee, but an assertion that Mr Cresswell had ended the employment by his own conduct.
Mr Cresswell’s employment was casual. His hours varied from week to week and there was no regular pattern to the hours worked. Mr Cresswell could necessarily change his availability and Rebound could necessarily change the hours of work offered to Mr Cresswell from time to time.
As the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224 observed:
“[20] A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment.”
[Footnotes omitted]
As a casual employee Mr Cresswell was able to declare himself unavailable for a period of time – which is what he did as an attempt to de-escalate the rapidly escalating email exchange with Mrs Coenraad. Similarly Rebound was able to apply a pause or decrease the hours offered to Mr Cresswell from time to time.
While Mr Cresswell’s request to be removed from the roster is clearly couched in language demonstrating it was intended as a temporary arrangement, Rebound’s emails, understood cumulatively, brought the employment relationship to a permanent end.
Rebound’s attacks upon Mr Cresswell and his work performance, Rebound’s criticism of Mr Cresswell for raising concerns about his pay, Mr Cresswell’s attempts to resolve his concerns, Rebound’s unambiguous statement that it would not be paying any of Mr Cresswell’s claimed underpayments, and then Rebound’s statement that it will not correspond any further with Mr Cresswell, all establish that Rebound was not prepared to resolve the dispute about Mr Cresswell’s pay and that it was not prepared to have any further dealings with Mr Cresswell.
Because of the words used by Rebound in its emails, an objective person in Mr Cresswell’s shoes would reasonably have understood that no further work would be offered to him and therefore that the employment relationship with Rebound was terminated.
For the avoidance of doubt, the dismissal was at the initiative of the employer by its actions in the final email and was not at Mr Cresswell’s initiative.
As such Mr Cresswell was “an employee who was dismissed” at the time he made his general protections application, and the Commission has jurisdiction to deal with his application under s.368 of the Act. A conference will shortly be convened to deal with Mr Cresswell’s general protections claim.
DEPUTY PRESIDENT
Appearances:
G Cresswell, Applicant
N Coenraad, for Rebound Nutrition Pty Ltd
T Coenraad, for Rebound Nutrition Pty Ltd
Hearing details:
2024.
Sydney (By Video using Microsoft teams)
21 February.
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