Gregory Cooper v A and a Excavations & Landscapes Pty Ltd

[2017] FWC 3309

[2017] FWC 3309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Cooper
v
A and A Excavations & Landscapes Pty Ltd
(U2017/2629)

COMMISSIONER SAUNDERS NEWCASTLE, 21 JUNE 2017

Application for an unfair dismissal remedy – minimum employment period satisfied – jurisdictional objection dismissed

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 15 June 2017. It concerns a jurisdictional objection raised by the respondent as to whether the applicant, Mr Cooper, was employed for at least the minimum employment period before his employment with the respondent came to an end in late February 2017.

[2] Mr Cooper was employed by the respondent as a casual employee.  He says he commenced employment in about June 2013 and remained employed as a casual employee until late February 2017.  There is no dispute that Mr Cooper's employment eventually came to an end in late February 2017.  The respondent’s internal records state that Mr Cooper commenced employment in August 2014. I do not need to decide whether Mr Cooper commenced employment in June 2013, as Mr Cooper contends, or August 2014, as the respondent’s records state, because in either case the minimum employment period was satisfied, subject to the outcome of the contest as to whether Mr Cooper’s employment relationship with the respondent came to an end in November 2016.

[3] There is also no dispute and I am satisfied on the evidence that the respondent was at the time of Mr Cooper's cessation of employment a small business employer within the meaning of the Fair Work Act, with the result that the minimum employment period for him was 12 months. 

[4] There is no dispute and I am satisfied on the evidence that, in respect of Mr Cooper's entire period of casual employment with the respondent, the conditions set out in section 384(2)(a) of the Fair Work Act were met, namely, Mr Cooper's period of service as a casual employee with the respondent counted towards his period of employment with the respondent because his employment as a casual employee was on a regular and systematic basis, and during the period of his service as a casual employee with the respondent, Mr Cooper had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis. 

[5] The sole issue I need to decide in relation to the respondent’s jurisdictional objection is whether Mr Cooper remained in employment throughout November 2016, as he contends, and continued his employment with the respondent up until late February 2017.  If Mr Cooper is right about that, then he was employed for at least the minimum employment period.  The respondent's argument is that Mr Cooper's employment with the respondent came to an end in November 2016 and he was re-employed later in November 2016, with the result that there was a break in his employment and he was not employed for a continuous period of at least 12 months. 

[6] I make the following findings of fact in relation to what occurred in November 2016 and before that time. 

[7] There was a standard arrangement between Mr Cooper and the respondent whereby he would attend work each week day at 7am and work through until about 5pm or 5.30pm each afternoon, with an earlier finish on a Friday.  Mr Cooper was not ever provided with a work roster by the respondent. Sometimes Mr Cooper was not able to attend work for one reason or another and he would, the evidence shows, provide (when he could) some notification, even if it was only shortly before commencement time, of his inability to attend work on a particular day.

[8] I am satisfied on the evidence that on 4 November 2016 Mr Cooper did not attend work on that day, which was a Friday, and he did not provide any prior notification to the respondent of his absence.  I am satisfied on the evidence of Mr Cooper’s inability to attend work on that day.  The next occasion Mr Cooper performed work for the respondent was two weeks later, namely Friday, 18 November 2016.  It is clear on the evidence that Mr Cooper did not work for the respondent for a period of two weeks from 4 November 2016, when he was absent, until he resumed working on Friday, 18 November 2016.

[9] There were text messages communicated between Mr Cooper and Ms Antoinette Murphy, a director and secretary of the respondent, on 10 November 2016.  In particular, on 10 November 2016, Mr Cooper communicated to Ms Murphy in a text message the following words:

I've just left Centrelink now.  They gave me the separation papers that need to be filled out.  Did you want to meet me somewhere to get this done?

[10] Later that afternoon, Ms Murphy responded by sending the following text message to Mr Cooper:

Can you email them through?

[11] It is clear on the evidence that Mr Cooper and Ms Murphy did not meet anywhere and Mr Cooper did not email any documents through to Ms Murphy.  What then happened was that Ms Murphy downloaded the employment separation certificate from the relevant government website, filled in the relevant details, including stating that Mr Cooper's employment ceased on 4 November 2016, and the reason for separation was recorded as: "Employee ceasing work voluntarily."  The “other” box was also ticked on the employment separation certificate and there was an explanation given in the document that: "Mr Cooper neglected to return to his employment with no contact or reason for abandonment."  Ms Murphy signed the employment separation certificate on 10 November 2016, but, importantly, it was never sent or provided to Mr Cooper.  The employment separation certificate was kept in the employer's records but was not provided to Mr Cooper at any time.

[12] It is important then to analyse on the evidence what happened, apart from those text messages, in the period between 4 November 2016 and 18 November 2016.  Mr Cooper gave evidence that he attempted to contact Mr Francis Anthony Murphy (known as Tony), General Manager of the respondent, on his mobile telephone daily in that period of time to find out when he would return to work.  This was not the first occasion this had happened.  On other occasions when Mr Cooper had not been able to work on a day or more than one day, he would then contact Mr Tony Murphy when he could get through to him on Mr Tony Murphy’s mobile phone and they would discuss when he was to return to work in his capacity as a casual employee. 

[13] Mr Cooper gave evidence that he made attempts on a daily basis to try and contact Mr Tony Murphy after 4 November 2016 but was not able to get through to him until about 16 or 17 November 2016.  Mr Cooper gave evidence that he called Mr Tony Murphy’s mobile phone on a daily basis and left voicemail messages for Mr Tony Murphy during that period of time (between 4 and 16 or 17 November 2016) but they were not returned.

[14] Mr Tony Murphy gave evidence to the effect that he does not recall receiving any missed calls from Mr Cooper or any voicemail messages from him, or any text messages from him. However, Mr Tony Murphy also gave evidence that he could not be sure if he received any voicemail messages, text messages or missed calls from Mr Cooper in the two-week period in November 2016 when he was not at work. That is because he received a lot of calls from Mr Cooper and others on his mobile phone and he did not always check his messages.

[15] I accept as truthful the evidence given by both Mr Tony Murphy and Mr Cooper in relation to this issue.  I accept that Mr Cooper did attempt on a daily basis to contact Mr Tony Murphy to find out when he would be returning to work after his day off on 4 November 2016, and I also accept Mr Tony Murphy's evidence that he did not speak to Mr Cooper in that time (between 4 November and 16 or 17 November 2016) and does not recall receiving any missed calls, text messages, or voicemail messages from Mr Cooper in that time. However, the fact that Mr Cooper tried to contact Mr Tony Murphy each day is consistent with Mr Tony Murphy's evidence to the effect that he is not sure if he received any missed calls, text messages or voicemail messages from Mr Cooper in that period of time. 

[16] There was a discussion between Mr Tony Murphy and Mr Cooper on about 16 or 17 November 2016. There is not a great deal of debate on the evidence about what was said during that conversation.  There was a discussion in the conversation about Mr Cooper returning to work.  I find on the evidence that Mr Cooper asked in that conversation whether he still had a job, and Mr Tony Murphy agreed that Mr Cooper could return to work on certain conditions and those conditions included the fact that Mr Cooper would have to commit to turning up to work each day and being a reliable employee. It was arranged in that conversation that Mr Cooper would return to work on 18 November 2016, which he did, and he continued to work on a casual basis in much the same way as he had for many months prior to that date, that is, turning up to work pursuant to the standard arrangement where he would turn up at 7am each weekday morning and work through until 5pm or 5.30pm each afternoon, save for an early finish on Friday, and that continued all the way until late February 2017, at which time there was a dispute about what happened, but that is not relevant to the jurisdictional issue before me now.

[17] So what I need to decide is whether on those facts as I have found them there was any cessation of the employment relationship in November 2016. 

[18] Section 386(1) of the Fair Work Act governs when a person has been dismissed:

        “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.”

[19] I am satisfied that the employment relationship between Mr Cooper and the respondent did not cease in November 2016.  I am satisfied that there was no dismissal of Mr Cooper at that time, and the respondent has not contended that Mr Cooper’s employment was terminated at its initiative. 

[20] The respondent’s case is, first, that Mr Cooper abandoned his employment in November 2016.  I do not accept that argument.  I accept Mr Cooper's evidence that he was attempting to contact Mr Tony Murphy each day to find out when he would be returning to work after his absence on 4 November 2016.  Making daily calls and attempts to contact Mr Tony Murphy does not suggest or indicate an abandonment of employment.

[21] The next point to consider is whether, as the respondent contends, Mr Cooper resigned in that period of time in November 2016.  There was no written resignation.  There were no words said by Mr Cooper to anybody on behalf of the respondent to the effect that he had resigned or anything like that.  What the respondent relies upon is the fact that it says it did not receive any actual communications from Mr Cooper in that period of about two weeks from 4 November 2016 to 16 or 17 November 2016, together with the text messages sent between Mr Cooper and Ms Murphy on 10 November 2016.  There is no doubt in his text message Mr Cooper communicated to Ms Murphy that he had just left Centrelink and he had “separation papers that needed to be filled out”.  He gave evidence that the reason he had taken that course to attend Centrelink was that he was not able to contact anyone from the respondent and he had been out of work for more than a week; he needed some money to survive, and so his option was to go to Centrelink and to seek Centrelink benefits, but in order to get Centrelink benefits he needed a separation certificate from the respondent.  So Mr Cooper’s communication to the respondent that he had been given “separation papers that needed to be filled out” needs to be considered in that context. Having regard to that context and in the absence of any other communications between Mr Cooper and the respondent between 4 and 16 or 17 November 2016 (notwithstanding Mr Cooper’s daily attempts to contact Mr Tony Murphy), I am satisfied that the text message from Mr Cooper to Ms Murphy on 10 November 2016 did not amount to a resignation by him.  I am satisfied that, considered objectively, that communication ought not be taken by the respondent as a resignation by Mr Cooper, particularly in the absence of any other communications and in circumstances where Mr Cooper did not provide any “separation papers” to the respondent and the respondent did not send or provide Mr Cooper with the separation certificate which it downloaded, completed and kept in its records.  

[22] So having found that there was no resignation by Mr Cooper, there was no abandonment of his employment and he was not dismissed by the respondent, considered together with the consistent attempts made by Mr Cooper to contact the respondent during that period of time (after 4 November 2016) and his inability to do so until about 16 or 17 November 2016 and then his resumption of work on 18 November 2016, I find that the employment relationship between Mr Cooper, as a casual employee, and the respondent did not cease in November 2016.  There is no doubt that Mr Cooper was not at work for a period of about two weeks in November 2016, but that does not, in the context of this case for a casual employee, in the circumstances I have outlined, result in a finding that there was a cessation of the employment relationship.  I am satisfied there was no dismissal in November 2016 and the employment relationship continued throughout that period of time all the way through to February 2017.

[23] In light of the findings set out above, I am satisfied that Mr Cooper was employed for at least the minimum employment period (12 months), and therefore the respondent’s jurisdictional objection is dismissed.

[24] I will proceed (at another time) to consider the balance of the issues in the case.  I note from the employer's F3 Response that there are remaining issues to be considered at a different time, including whether or not Mr Cooper was ultimately dismissed in February 2017, and if so, whether the dismissal was harsh, unjust or unreasonable.  What I propose to do is to issue a timetable for material to be filed and served in relation to the remaining issues in this case and for a hearing date to be set for those matters.  The matter will be listed for a directions hearing by telephone to deal with those procedural directions.

COMMISSIONER

Appearances:

Murphy, A, on behalf of the Respondent

Waller, D, support person, on behalf of the Applicant

Hearing details:

2017

Newcastle

15 June

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<Price code C, PR593919>