Hector Rosales v The Bench Top Factory
[2022] FWC 2731
•19 OCTOBER 2022
| [2022] FWC 2731 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Hector Rosales
v
The Bench Top Factory
(C2022/3743)
| COMMISSIONER WILSON | MELBOURNE, 19 OCTOBER 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection upheld – resignation – no dismissal
BACKGROUND
On 27 June 2022, Mr Hector Rosales (the Applicant) lodged a general protections application against The Bench Top Factory (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 20 June 2022 he was dismissed in contravention of the general protections provision of the Act. In his written submissions and oral evidence, the Applicant revised this date and stated that his dismissal occurred on 2 May 2022.
On 19 July 2022 the Respondent filed an F8A Employer response and raised a jurisdictional objection that the Applicant had resigned from his employment and was not dismissed.
As a result of the Full Court’s judgement in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On the basis of its jurisdictional objection, the Respondent declined to participate in a conference before a staff conciliator.
On 29 July 2022 the matter was allocated to me and on 23 August and 1 September 2022 conferences were held by me in order to determine if a common ground could be reached between the parties. As a settlement could not be reached, on 2 September 2022 directions were issued for the filing of material and the matter was listed for determinative conference on 6 October 2022.
At the determinative conference Mr Hector Rosales represented himself and gave evidence on his own behalf and Mr Victor Rosales, the site and project manager for the Respondent, represented and gave evidence for The Bench Top Factory.
The Applicant, Mr Hector Rosales and the Respondent’s owner, Mr Victor Rosales are brothers with the Applicant having been employed in The Bench Top Factory for some years, since 2019. Necessarily this decision deals with the single issue of whether the Applicant was dismissed within the meaning of the Act. A consequence of that situation is that the Applicant’s contentions about the merits of his claim will not be tested within this decision.
LEGISLATION
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 (other than arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate under s.368(3). Section 370 imposes a substantial restriction[2] 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.
The Commission cannot issue a certificate pursuant to s.368(3) of the Act unless “an application is made under s 365.”[3] An application cannot be considered to have been properly made unless the criteria outlined in s.365 have been properly addressed.[4]
Section 365 of the Act relevantly states:
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.
The Full Court in Coles Supply Chain v Milford[5] made the following relevant observations about the Commission’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
a)The Commission’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the Commission’s authority to perform its functions under s.368 (at [51]).
b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the Commission’s authority to compel an employer to participate in its conciliation processes (at [65]).
c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
d)that dispute must be resolved before the Commission’s powers under s.368 can be exercised at all (at [67]).
e)the Commission is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
f)in so determining the limits of its authority the Commission may determine matters of fact (at [71]).
g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the Commission (at [74]). The Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the Act (at [75]); and
h)the determination by the Commission is not authoritative in the sense of being final. If the Commission errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the Act (at [79]).
“A person who has been dismissed”
The pertinent question for the Commission is whether the Applicant was forced to resign, in circumstances that constituted constructive dismissal.
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[6] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[7]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[8] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[9] Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?[10] It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.[11] All the circumstances – including the conduct of both the employer and employee – must be examined.[12] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[13]
CONSIDERATION
Each party provided submissions and evidence in writing and orally at the determinative conference.
The facts of the matter are summarised as follows. The Applicant began working at The Bench Top Factory on 18 March 2019.[14] The Applicant states that while working at The Bench Top Factory he incurred a hernia, for which he is currently awaiting surgery. He notes a workers compensation claim has not been lodged in relation to the hernia.[15]
In his outline of argument, the Applicant states that on 2 May 2022 he was called into the office by Mr Javier Luis, the Respondent’s Manager, who verbally informed the Applicant that Respondent would be letting him go due to the fact he had not yet had his hernia operation and was unable to lift stone and help the installers, and that his salary was too high for the duties he was doing which could be carried out by other employees.[16] The Applicant reports that Mr Luis then told him that he would work out the week and finish work on 6 May 2022. Following this, the Applicant states that he understood that he would be paid any unused annual leave on a weekly basis and then, after this, would be paid for a two week notice period.[17]
Following this meeting, the Applicant states that on 2 May 2022 the floor manager was informed that the Applicant had been let go from the Respondent.[18]
On 6 May 2022, the Applicant states he handed Javier Luis back the company fuel card, the Bunnings trade card, and the key which he had been given to access the upstairs of the premises. He also states that all of the factory workers had been informed that he had been let go from his position by this time.[19]
On 9 May 2022, the Applicant states that he contacted the Fair Work Commission and the Fair Work Ombudsman to ensure that the termination payments he would be receiving were correct. He reports that both bodies notified him the process being undertaken by the Respondent was incorrect.[20]
Following these conversations, the Applicant reports that he contacted Samara Dixon, the accountant for the Respondent, to ask if she was aware of his termination and to advise her of the payments which Javier had informed him he would be paid following the termination. The Applicant states that Ms Dixon told him “she was unable to process the payment Javier had promised… because what they were doing was not legal.”[21]
Following this, the Applicant states that he wrote a letter to Javier confirming his termination, the reasons for his termination, and that the expected payments were to occur as previously outlined.[22]
At 7:48PM on 9 May 2022 Mr Luis responded to the Applicant’s letters stating, “content on this letter is not correct or accurate, I will see you tomorrow at the office to discuss it.”[23] The Applicant reports that following this email on the same evening Mr Luis called him and “was angry about the letter and asked what I wanted out of this.”[24]
The Applicant then reports that on 10 May 2022 he attended the office to read and sign a ‘redundancy letter.’[25] He also notes that Ms Dixon, the accountant for the employer, confirmed to him that redundancy calculations had been sent to Mr Luis, at his request, that morning.[26]
At the meeting, the Applicant was given a warning letter. This letter outlined a number of concerns regarding the Applicant’s performance, and actions which the Applicant was instructed to implement in order to resolve the concerns as follows:
“Improved arrival time to site; improved accuracy on the material you pick up and the information entered on the system; Take more care checking the deliveries you do to site and do not forget any items; Supply the right paperwork after pick ups to the office; Put the right information in the slabs as the job number and supply this information to the office; Help the installers on site if needed.”[27]
Following the meeting, the Applicant attended the doctor due to anxiety related mental health concerns and provided the Respondent with a medical certificate stating he would be unfit for work from 9 May 2022 to 23 May 2022 inclusive.[28] The Applicant also provided three other medical certificates with his materials, which certified him unfit for work from 23 May 2022 to 6 June 2022, from 6 June 2022 to 13 June 2022, and from 14 June 2022 to 28 June 2022 respectively. He notes that he agreed to his annual leave and sick leave being paid out by the employer while he was managing this condition.
The Applicant notes that he received correspondence from the employer on 10 June stating that his medical certificate was due to expire on 13 June.[29]
Based on the materials filed, the next communication between the Applicant and the employer appears to have occurred on 20 June 2022 (the 20 June Letter). This is a letter from the Applicant to the Respondent which, while undated, states the following:
“I am writing this letter because I am notifying you of my resignation from my position at The Bench Top Factory. This resignation will come into effect immediately (20/06/2022) and I will not be returning to the office/warehouse.
Due to the unforeseen circumstances that occurred back in May 2022, management have made it clear that my role at TBF would end, whether that be now or in the near future. The outcome of all these events have caused me great stress and anxiety.
As you know I finished all my tasks on the 06th of May 2022. On that same day (6th May 2022) at Javier’s request, I handed back the office inventory key, the company bunnings trade card and company fuel card [sic].”[30]
Victor Rosales responded to the 20 June Letter on 21 June stating:
“Sorry To hear this although we do not agree with everything stated in the letter we accept your resignation and wish you great success in your future endeavors. Thanks for letting us know so we can hire someone in your position Straight away as this has also caused us lots of stress not knowing what you were planning to do [sic].”[31]
The Applicant further notes in his submissions that he is of the belief that no one has been hired to replace his position with the employer, and that his old role has since been reoffered to him, with conditions he was unable to meet.[32]
In the Applicant’s written submissions, he characterises the events of 2 May 2022 as a termination and the 20 June letter as a forced resignation.[33] In his oral evidence, the Applicant reiterated his position that he was dismissed by Javier Luis on 2 May 2022.[34]
In his oral testimony, the Applicant confirmed that following what he understood to be his dismissal on 2 May 2022, in a meeting on 10 May 2022 he was issued with a warning by the employer. However, he maintained his belief that he was dismissed on 2 May. He noted that he had not performed work for Respondent after that date but had been paid sick leave after that date.[35]
In the oral testimony of Mr Victor Rosales, on behalf of the Respondent, he submitted that no dismissal had occurred on 2 May 2022 during Mr Luis’ conversation with the Applicant, stating that:
“I know that they spoke and he spoke to him about, you know, what could possibly, what he was looking to do, but it's not a dismissal. A dismissal is proper on paper, both of our signatures, I have to be present. So, to me it's not a dismissal.”[36]
Mr Victor Rosales further stated that it was his understanding that the 20 June letter effected the resignation of Mr Hector Rosales, which he accepted.[37] Both Mr Victor Rosales and Mr Hector Rosales confirmed that following the 20 June letter no efforts were made by Mr Hector Rosales to withdraw his resignation.[38]
If the Applicant were correct that a termination occurred on 2 May 2022 which was not withdrawn, his submission that he was subject to a forced resignation on 20 June would be untenable, as there would at that time have been no role from which the Applicant would have been able to resign. Based on the materials before me, it appears that the employment relationship continued up until the date of the Applicant’s 20 June letter, with the Applicant being paid a combination of personal leave and annual leave during his non-attendance at the workplace up until 8 June 2022 when those leave balances were exhausted.[39] Payslips submitted by the Respondent confirm that Mr Hector Rosales was paid until 8 June 2022.
If what occurred on 2 May 2022 is understood as a dismissal, it would appear based on the materials before me and the submissions of the parties that it was withdrawn with a warning on 10 May 2022.
The Applicant characterises the combination of the alleged 2 May termination and the 10 May warning as placing him in a position where he had “no real option” of returning to work.[40] If this is correct, the Applicants 20 June letter would be correctly understood as a forced resignation. However, it does not appear based on the materials provided that this was truly the case.
To determine if a forced resignation occurred, it is necessary to look at the employer’s conduct from the point of view of a reasonable third party and consider whether, from this party’s point of view, the employer’s conduct could have been said to have left the employee no option other than to resign. [41] Here, it does not appear as though there was any significant engagement by the Applicant with the concerns raised by the employer in the warning letter. It is my opinion that a reasonable third party reviewing the conduct of the employer would conclude that, apart from resigning, the Applicant was able to return to his employment with a view to resolving the issues raised by the employer in the warning letter.
CONCLUSION
I am not satisfied that the Respondent’s actions left the Applicant no option but to resign. In these circumstances it is clear to me that the Applicant freely made his choice to resign and the Respondent’s actions preceding the resignation did not leave resignation as the only option for the Applicant. I find that there was no dismissal pursuant to s.386(1)(b).
The application is therefore dismissed. I Order accordingly.
Before leaving the decision, I wish to make some observations about the situation in which the parties find themselves. As mentioned at the start of the decision, Mr Hector Rosales and Mr Victor Rosales are brothers, with the Applicant, Mr Hector Rosales, having worked in The Benchtop Factory since March 2019. The dispute that is the subject of this application appears to have arisen as a result of the Applicant’s medical condition, which is not the subject of a workers’ compensation claim. His condition limits his ability to perform manual work and surgery for the condition will be many months away.
Without making any decision about the contentions that are part of this application, it appears to me, having conducted two conciliations in the matter, that a way through the Rosales’ dispute can and should be found, notwithstanding my conclusion that Hector has not been dismissed within the meaning of the Act. I suggest to the two that it would be in their interests to find an accommodation. If they consider the Commission could help with the achievement of a mediated outcome, I would be willing to assist.
COMMISSIONER
Appearances:
Mr H Rosales for himself, the Applicant
Mr V Rosales for the Respondent
Hearing details:
2022
Melbourne (by video using Microsoft Teams)
6 October.
[1] [2020] FCAFC 152, [51].
[2] Ward v St Catherine’s School [2016] FCA 790 at [3].
[3] Fair Work Act 2009 (Cth) s 368(1).
[4] Coles v Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [64], [67].
[5] (2020) 300 IR 146; [2020] FCAFC 152.
[6] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[7] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[8] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[9] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
[10] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006) at [23].
[11] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[12] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[13] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].
[14] F8, DHB 6.
[15] Ibid, DHB 8.
[16] Applicant Outline of Argument, DHB 42.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Letter from Applicant to Respondent Regarding Termination, DHB 45; Applicant Outline of Argument, DHB 42.
[23] Applicant Outline of Argument, DHB 42.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Formal Warning Letter 10/05/22, DHB 20.
[28] Four Medical Certificates, DHB 46; Applicant Outline of Argument, DHB 44.
[29] Applicant Outline of Argument, DHB 44.
[30] Applicant Outline of Argument, DHB 44; Letter of Resignation from Applicant, DHB 28.
[31] Applicant Outline of Argument, DHB 44.
[32] Ibid.
[33] Ibid.
[34] Transcript, PN54 – PN66.
[35] Transcript, PN75 – PN82.
[36] Transcript, PN156.
[37] Transcript, PN159 – PN162.
[38] Transcript, PN163 – PN164; PN173 – PN174.
[39] Payslips Filed Post-Determinative Conference; Transcript PN128 – PN134.
[40] Transcript, PN54.
[41] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006) at [23].
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