Joel Amey v Organic Life Distribution Pty Ltd

[2023] FWC 2892

[2023] FWC 2892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Joel Amey
v

Organic Life Distribution Pty Ltd

(C2023/2157)

DEPUTY PRESIDENT LAKE BRISBANE, 13 NOVEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – authority to act – out of hours conduct – jurisdictional objection dismissed.

1. Mr Joel Amey (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 17 April 2023. The Applicant claimed that adverse action was taken against him by Organic Life Distribution Pty Ltd (the Respondent) under ss.340 and 344 of the Fair Work Act 2009 (Cth) (the Act).

1. The Respondent raised a jurisdictional objection that the Applicant was not dismissed. The Applicant submitted that the Applicant was dismissed because of the General Manager’s behaviour.

1. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

1. The matter was heard by Microsoft Teams on 24 August 2023.

Background

1. The Applicant commenced employment with the Respondent on 12 December 2022 as a warehouse manager on a part-time business. On 3 January 2023, the Applicant commenced in the role of delivery driver on a full-time basis.

1. On 14 February 2023, the Applicant sustained a workplace injury while making a delivery. The Applicant made a workers compensation claim. The Respondent was not insured in Queensland where the Applicant resides and stated that they were not aware that the company required coverage in Queensland as they predominantly operate in New South Wales.

1. On 16 March 2023, Mr Byron Scott (General Manager of the Respondent) had requested to attend the Applicant’s GP appointment, to which the Applicant consented.

1. On 20 March 2023, the Applicant returned to work on light duties as per his doctor certificate. However, the Applicant reported experiencing pain while undertaking light duties.

1. On 21 March 2023, the Applicant went to his GP. Mr Scott asked to be present for this appointment. The Applicant stated that he was uncomfortable with the request.

1. On 27 March 2023, the Applicant corresponded with Mr Yarrington (Director of the Respondent) and Mr Scott regarding the Applicant’s ability to return to work and his WorkCover claim. The Applicant requested all correspondence to be in writing to avoid miscommunication.

1. On the same day, the Applicant received two calls from Mr Scott during out of work hours at 7:40pm and 8:11pm, which he did not pick up. Mr Scott then started sending text messages regarding the Applicant’s workers compensation claim and stated that he would be ‘sending your last mail’.

1. Furthermore, the Applicant received multiple messages from Mr Scott via Facebook Messenger out of work hours, between 9:42pm to 1:07am on 28 March 2023, with a picture of the Applicant, a link to a Spotify song ‘Liar Liar (Burn in Hell), an Instagram picture of the Applicant holding his child and another link to a song titled ‘Bullshit’ by the Dune Rats.

1. The Applicant submitted that he was dismissed from the Respondent on 27 March 2023 by Mr Scott and informed Workcover regarding the on 28 March 2023.

1. On 28 March 2023, during work hours, Mr Scott sent a document to the Applicant regarding suitable duties:

‘Good Morning Joel!

Please see attached suitable duties document. Please review and sign ASAP so we can have this sent to the doctor and get you back to work’.

1. The Applicant did not respond to this email and ignored Mr Scott’s calls on 31 March 2023 and 5 April 2023.

1. On 6 April 2023, Mr Yarrington tried to contact the Applicant by phone. The Applicant did not pick up.

1. On 8 April 2023 at 9.38pm, Mr Scott sent the Applicant over 200 messages via Facebook messenger which appeared to be spam minus a message such as ‘lawyer up’. Mr Scott also sent long text messages regarding the Applicant’s lack of communication and WorkCover claim from 10:52pm to 2:01am the next day, with concerning content involving self-harm.

1. On 10 April 2023, the Applicant and his wife Mrs Amey reached out to Mr Yarrington regarding Mr Scott’s messages on 27 March 2023 and 8 April 2023. On 11 April 2023, Mr Yarrington replied to the email apologising for Mr Scott’s behaviour and stated that he did not know about the behaviour. Mr Yarrington further noted that the Applicant was not dismissed.

Consideration

1. Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.

1. 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.

1. 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 to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2]

1. 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.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4]

1. All the circumstances – including the conduct of both the employer and employee – must be examined.[5] 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.”[6]

1. In the matter before me, the preliminary question is whether Mr Scott had the actual or apparent authority to terminate the Applicant’s employment, and secondly whether his actions constituted a dismissal due to their out of hours nature.

1. In assessing out of hours conduct, the conduct must have a relevant connection to the employment relationship.[7] The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or the conduct damages the employer's interests; or the conduct is incompatible with the employee's duty as an employee.

1. In the case of Muga v BIC Services Pty Ltd regarding apparent authority, Deputy President Anderson found:

“BIC submit that [the Applicant’s supervisor] did not have authority to dismiss without reference to others. This was a proposition advanced by submission, not evidence. In any event, this does not mean that [the Applicant’s supervisor] did not have ostensible authority to dismiss if in fact, as I have found, he was [the Applicant]'s immediate report and had told [the Applicant] that his employment was terminated.” [8]

1. This case and others that examined the same question and all refer to the Applicants acceptance of the authority of their managers dismissing them based on workplace factors such as the Applicant’s interactions with the manager day-to-day in decision making and if they were a part of the Applicant’s hiring process. This can be seen in Cooper v East Coaster Tasmania where Commissioner Lee found:

“There was a contest as to whether or not [the Applicant’s supervisor] had the authority to dismiss the Applicant in the event that the Applicant was dismissed. The Respondent claimed that [the Applicant’s supervisor] did not have the requisite authority to dismiss the Applicant. I do not accept that to be the case. The Applicant was referred to [the Applicant’s supervisor] when she queried her allocation of shifts and was the Applicant's direct supervisor. If it were the case that [the Applicant’s supervisor] had terminated the Applicant, it is apparent she would have had the authority to do so. [9]
(Emphasis added)

1. Several cases also examine how the actions of the Respondent employer after the alleged dismissal action affect the validity of the decision, and whether it confirmed, clarify or counter the decision. In Papadopoulos v Automate Car Care Pty Ltd, Commissioner McKinnon found:

“Finally, I do not accept that [the Applicant’s supervisor] had no authority to dismiss Mr Papadopoulos. At the very least, he had apparent authority in his dual roles of Workshop Supervisor and father of the owner of the business. Just as Automate Car Care did not seek to clarify the status of his employment with Mr Papadopoulos on or after 22 August 2022, it made no attempt to counter the actions of [the Applicant’s supervisor] when put on notice of the allegation that he had dismissed Mr Papadopoulos.  Automate Car Care never asserted that the actions of [the Applicant’s supervisor] were unauthorised or that Mr Papadopoulos remained employed. I accept that Mr Jonathan Kritikos did not want to escalate things further. However, by this inaction, the actions of [the Applicant’s supervisor] were confirmed.” [10]
(emphasis added)

1. In this case, it was identified in Mr Yarrington’s own submissions that he was not responsible for the day-to-day activities of the Respondent. Mr Scott was entrusted with the apparent authority to act on behalf of the employer. This was indicative when Mr Scott provides the rostered tasks, conducted the hiring interview and offered the letter of employment to the Applicant. It was clear through the engagement letter that the Mr Scott had the apparent authority to act.

1. I do not accept that termination was at the initiative of the employer on 27 March 2023, but instead was effective on 8 April 2023. Regarding the 27 March 2023 messages, although Mr Scott has sent inappropriate text messages to the Applicant during his out of office hours, there was no indication that the Applicant’s employment would be terminated at the initiative of the employer. The conduct and behaviours of Mr Scott were ambiguous and inferential at best. Mr Scott sent an email on the following day about getting the Applicant back to work, indicating a continuing employment relationship.

1. Without communication from the Applicant, it was assumed by the Respondent that the Applicant was still employed. There were calls made by Mr Scott on 31 March 2023 at 11.57am and 5 April 2023 at 4.06pm. On 6 April 2023, Mr Yarrington attempted to contact the Applicant. Despite the Applicant asserting that he would not contact the Respondent unless it was in writing, it was also acknowledged that the Applicant did not have an intention to contact the employer.

1. Although Mr Yarrington may not have been made aware of Mr Scott’s conduct until it was raised to him on 10 April 2023, Mr Yarrington would have been aware that Mr Scott was unable to reach the Applicant, with Mr Yarrington getting involved and making a call on 6 April 2023. At this stage, the Respondent could have followed up with the Applicant via email at any stage regarding the Applicant and his suitable duties documents. If the Applicant had still refused to respond, I could have possibly considered that the Applicant had abandoned his duties.

1. On 8 April 2023, the numerous messages of concern including a reference to self-harm would have resulted in bringing the employment relationship to an end. His out of work hours conduct had a significant enough connection to his work by virtue of that being the only link between him and the Applicant, and his reference to work related content like the Applicant’s WorkCover claim. It was clear that Mr Scott’s actions resulted in the Applicant’s continuing employment being untenable. The employment relationship appeared to have been seriously damaged resulting from the conduct of Mr Scott.

1. Mr Scott had been stood down after the General Protections application was lodged. Mr Yarrington had confirmed that the Applicant was not dismissed in an email response on 11 April 2023. However, it is noted that a dismissal takes effect when the employment relationship has ended by the employer, rather than the termination of the employment contract.[11] As a result, even though Mr Yarrington may have had no intention to dismiss the Applicant, the employment relationship had already ended through the conduct of Mr Scott.

Conclusion

1. The Applicant was therefore dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.

DEPUTY PRESIDENT

Appearances:

K. Amey on behalf of the Applicant
J. Catchpole on behalf of the Respondent from Edge Legal.

Hearing details:

24 August 2023.
Hearing via Microsoft Teams
Brisbane.

[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[2] Ibid.

[3] Ibid; 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.

[4] 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 at [31].

[5] Whirisky v DivaT Home Care[2021] FWC 650at [77].

[6] 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 at [28].

[7] Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); see also Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining[2016] FWC 6018 (Saunders C, 9 September 2016) at para. 104.

[8] [2022] FWC 1708 at [74].

[9] [2019] FWC 8592 at [66].

[10] [2022] FWC 2888 at [19].

[11] Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 at [33].

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