Hristos (Kris) Marinis v EWP Transport Pty Ltd

[2024] FWC 1182

[2024] FWC 1182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Hristos (Kris) Marinis
v

EWP Transport Pty Ltd

(C2023/7177)

COMMISSIONER DURHAM BRISBANE, 7 MAY 2024

Application to deal with contraventions involving dismissal – meaning of dismissed – no dismissal – no jurisdiction to hear dismissal under section 365 – jurisdictional issue

1. On 18 November 2023, Mr Hristos Marinis (Mr Marinis/the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Marinis alleges that he was dismissed by EWP Transport Pty Ltd (the Respondent) in contravention of the General Protections provisions in Part 3-1 of the Act.

1. Section 366(1) of the Act states that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows, pursuant to section 366(2).

1. However, a person may only apply to the Commission for the Commission to deal with the dispute under section 365 of the Act if the person has been dismissed. The phrase ‘after the dismissal took effect’ within section 366(1)(a) is indicative that dismissal must take effect for a General Protections application to be heard under this section.

1. The Full Court of the Federal Court of Australia has decided that the Commissions conciliatory powers conferred under section 368 of the Act cannot be exercised unless the two initial issues listed in paragraphs 2 and 3 above (whether Mr Marinis was dismissed and whether an Application was made within 21 days of dismissal) are addressed first.[1] The decision by the Full Court in Coles Supply Chain v Milford will be referred to in this decision before the Commission.

Background

1. Before addressing the initial matters described above, it is appropriate to briefly summarise the background of this case. The background is largely informed by the Applicants evidence, as the Respondent has failed to file their F8A response in compliance with Directions I made on 28 December 2023 and 18 January 2024.

1. Mr Marinis commenced full-time employment with the Respondent on 2 October 2023.

1. On 12 October 2023, Mr Marinis received his first pay, which he alleges was underpaid by 3 hours.

1. On 13 October 2023, Mr Marinis verbally informed the Respondent about maintenance issues with the work truck. Ms Kristy Marinis, the Applicant’s partner, subsequently provided these concerns to the Respondent via email, as well as concerns regarding excessive working hours and Mr Marinis not being paid for time worked performing administrative and maintenance duties.

1. As of this date, Mr Marinis was not allocated further work by the Respondent. On 16 October 2023, Mr Marinis contacted the Respondent and was informed that there was no further work now as ‘business is a bit quiet’. However, the Respondent indicated he would continue to employ Mr Marinis due to his experience.

1. On 17 October 2023, Mr Marinis contacted the Respondent by SMS looking for further work and was told ‘no, it’s a bit quiet’.

1. On 18 October 2023, a position substantially similar to the Applicant’s was advertised on the website seek.com.au.

1. On 19 October 2023, Mr Marinis received his final pay, allegedly underpaid a further 2.5 hours. Mr Marinis then emailed the Respondent expressing his concerns about the alleged underpayment. This is the last form of correspondence Mr Marinis received from the Respondent.

1. On 21 October 2023, Mr Marinis emailed the Respondent again expressing concern about the lack of work, the lack of communication, underpayment, payment in lieu of notice if his position had been terminated and the role being readvertised on seek.com.au.

1. On 25 October 2023 Mr Marinis emailed the Respondent with further concerns about underpayment, a complaint about work health and safety in relation to the trucks he was driving, the lack of work and similar issues also previously raised. Importantly, Mr Marinis states that as of this date, he is still legally employed by the Respondent.

1. I have no reason not to believe the Applicants version of events provided in their evidence as summarised above. However, for present purposes, I only make findings of fact in relation to whether Mr Marinis was dismissed or not.

Was Mr Marinis Dismissed

1. The term ‘dismissed’ is defined under section 386(1) of the Fair Work Act:

(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.

1. On the evidence before the Commission, Mr Marinis has not been dismissed, since there is no evidence put forward by either party that the employer terminated on their own initiative.

1. Furthermore, there is no evidence from either party that Mr Marinis has resigned from his employment. In fact, Mr Marinis evidence is to the contrary. In the Applicant’s outline of argument, Mr Marinis annexes an email dated 25 October 2023 in which he states twice that he is still legally employed by the Respondent. The witness statement of the Applicant’s partner, Ms Marinis, states that “he has never been dismissed by EWP Transport, so [he] is technically still employed by them”.

1. If the Applicant had in fact resigned from their employment with the Respondent, it may have been open to me to consider that their resignation was a ‘constructive dismissal’ under section 386(1)(b) of the Act.[2]

1. It is important to note that even though it would appear that the Respondent may have repudiated the Applicant’s contract by way of not providing his contracted full-time hours, a repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract.[3] If the affected party accepts the repudiation the contract will end.[4] Where an employer has repudiated the contract, and an employee accepts the repudiation and an employee exercises their right to terminate the contract, this will amount to a termination at the employer’s initiative. That is not the case for this matter.

1. The Full Court in Coles Supply Chain v Milford does suggest that in some cases, the Commission can do the following:

“In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not Mr Marinis was “dismissed” with the meaning of s 386 of the FW Act.”[5]

1. However, from the context of the Full Courts decision in Coles Supply Chain v Milford, it is evident that the current case before me is not an appropriate one to determine when the employment came to an end without deciding whether or not Mr Marinis was dismissed. I say this for the following reasons:

·Firstly, the facts in Coles Supply Chain v Milford are that there was a definitive dismissal, whether by termination at the employer’s initiative or by the operation of a policy. The nature of the dispute in that matter revolved around when exactly that dismissal had occurred. In contrast to this current case, there is no evidence indicating that Mr Marinis has been dismissed at all according to section 386(1) of the Act; and

·Secondly, section 372 of the Act provides a mechanism whereby Applicants can make a General Protections application if they have not been dismissed. In this context, the intention of Parliament is clear that Applications which do not involve dismissal are precluded by being heard under section 365 of the Act.

Conclusion

1. In determining General Protections applications under s 365 of the Act, I am bound by the authority set by the Full Court of the Federal Court of Australia in Coles Supply Chain v Milford to determine whether dismissal has occurred as an antecedent issue. All other issues fall away if this threshold primary question cannot be satisfied.

1. For the reasons above, I am not satisfied that Mr Marinis has been dismissed within the meaning of s 386(1) of the Act. As such, the Commission does not have the jurisdiction to hear the matter under section 365 of the Act. Therefore, I am left no other choice but to dismiss the Application.

1. I note that it is currently open to Mr Marinis to lodge a general protections application not involving dismissal under section 372 of the Act.

COMMISSIONER

[1] Coles Supply Chain v Milford [2020] FCAFC 152 at [65].

[2] See generally, Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

[3] Visscher v Giudice (2009) 239 CLR 361, 388 [81].

[4] ibid.; see also Dover-Ray v Real Insurance Pty Ltd (2010) 194 IR 22 [23].

[5] Coles Supply Chain v Milford [2020] FCAFC 152 at [59], [86].

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