John Bernardi v Andrew a and Tracy L Hall T/A a & T H Services

[2015] FWC 3928

[2015] FWC 3928 [Note: An appeal pursuant to s.604 (C2015/3293) was lodged against this decision- refer to Full Bench decision dated 13 October 2015 [[2015] FWCFB 6717] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Bernardi
v
Andrew A and Tracy L Hall T/A A & T H Services
(U2014/8860)

COMMISSIONER MCKENNA SYDNEY, 19 JUNE 2015

Application for relief from unfair dismissal.

[1] On 20 August 2014, John Bernardi (“the applicant”) lodged an application, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy. In that application, the applicant alleged he had been dismissed by Mr A Hall and Mrs T Hall trading as A & T H Services (“the respondents”), and that such dismissal was harsh, unjust or unreasonable. The respondents are spouses and A & T H Services is their small air conditioning business.

[2] The respondents have raised a threshold jurisdictional objection to the application, contending the termination of the employment relationship came about by the applicant’s abandonment of employment on a date which is not entirely clear, but as early as 2 June 2014.

[3] The applicant contends the effective date of termination of employment was 20 August 2014, namely, the date this application was lodged. Among other matters, the applicant submitted in this regard:

“3. That by withholding work direction, the misleading statements to State Training Services, and unilateral, backdated cancellation of the apprenticeship, judged objectively show a clear intention to not be bound by a contract. The Respondents’ action terminated the employment relationship.”

[4] The applicant elaborated matters by contending, for example, that the respondents have no evidentiary basis for the jurisdictional objection; that the actions of the respondents constituted a “deliberate constructive dismissal”; and that the applicant had continually challenged a cancellation and termination of an apprenticeship with the respondents. The applicant further submitted as follows:

“7. I submit that the Respondents repudiated the employment at their own initiative by:

(a) breaching the employment contract, the training contract and relevant award;

(b) refusing to provide and withholding work direction; and

(c) unilaterally varied the employment agreement, without consent and in breach of the Apprenticeship and Traineeship Act using false or deliberately misleading statements.

And as a consequence of making the application for unfair dismissal I demonstrated eventual acceptance of this constructive dismissal by the Respondents.”

Preliminary observations

[5] I propose to make some preliminary observations about the application.

[6] After the usual processes of administration by the Commission’s Unfair Dismissals Case Management Team, directions for hearing and listing details were issued. The application has formerly been allocated to two other members of the Commission before its more recent reallocation to me. In connection with listing the application following the reallocation, I learned there were irreconcilable views as between the applicant and the respondents as to whether the matter had earlier been the subject of resolution before the former presiding member. The respondents submitted there had been resolution before the Commission on 23 December 2014 associated with the applicant’s endeavours to obtain certain licensing - and the applicant had since obtained such licensing. The applicant declined to discontinue the application, submitting the matter had not been resolved, and he pressed for a hearing.

[7] I observe the documents on the file are strongly suggestive that a resolution was reached in proceedings on 23 December 2014 associated with the applicant obtaining his trades certification. For example, there was file correspondence that followed the proceedings on 23 December 2014 including:

• correspondence from the applicant to the former presiding member dated 10 February 2015 “regarding matter U2014/8860 and the pathways to my licensing ...”;



• correspondence from the applicant dated 10 April 2015 advising the former presiding member’s associate about the status of matters concerning his licensing and confirming that by 6 May 2015 his licence should be issued - albeit also making a relisting request “to determine if the dismissal was fair or unfair”; and



• correspondence from the respondents dated 14 April 2015 to the former presiding member’s associate which read in part: “Now that Mr Bernardi will be issued his trade certificate, we wish this matter to be closed as this was the remedy as agreed to at the tribunal.”

[8] It seems unlikely there would have been such communications about licensing but for a resolution of matters on 23 December 2014 as described by the respondents - more particularly with the respondents writing to the former presiding member’s associate specifically referring to what had been agreed at the Commission. In any event, given the dispute between the parties - and in the absence of any independent verification available from the file record itself or the recording of the earlier conference proceedings on 23 December 2014 as to whether the matter had resolved on a basis described by the respondents associated with the applicant obtaining his licensing - the application proceeded before me on 25 May 2015.

[9] As another preliminary observation, the applicant’s materials and case presentation focussed in considerable detail on contentions about, and seeking determination by the Commission concerning, apprenticeship-related issues and a range of other matters which were plainly beyond the proper jurisdictional scope of this type of application or which were otherwise not relevant to the matters properly arising for determination in an application under s.394 of the Act. A substantial part of the applicant’s case focussed on matters specific to the Apprenticeship and Traineeship Act 2001 (NSW) and the role of the relevant State authority, namely, State Training Services - which is an arm of a New South Wales government department. Indeed, part of the applicant’s case and documents before the Commission seemed to concern his many grievances about State Training Services itself - being matters set out, for example, in his correspondence of 10 February 2015 to the former presiding member where he wrote about “... State Training Services acknowledging and making right numerous bureaucratic errors that they are simply refusing to do” and describing what he considered was “a significant lack of respect in the State Training Services office regarding the Act they work under, department procedure and due process. It is particularly concerning when matched with the attempts to then hide behind section 77 of the [Apprenticeship and Traineeship Act] ‘in good faith’.” As to matters concerning State Training Services, I also note the applicant’s submissions read in part: “63. I note State Training Services at Chatswood is inexplicably awaiting the outcome of this hearing before escalating matters to the relevant jurisdiction. The delay is being investigated by the NSW Ombudsman”.

[10] Despite my repeated advice to the applicant during proceedings that the purpose of an application under s.394 of the Act is not to determine matters between parties concerning State Training Services and the processes under the Apprenticeship and Traineeship Act, the applicant persisted in presenting such matters. The applicant had also earlier lodged an application in these proceedings on 2 December 2014 seeking that the Commission as then constituted make inquiries pursuant to s.590(2)(f) of the Act (powers of the Commission to inform itself, by conducting inquiries) regarding, in particular, correspondence between State Training Services and the respondents. It is not entirely clear, but it seems the applicant was dissatisfied at the materials State Training Services provided further to a notice to produce. With respect to the applicant, he fundamentally misunderstood the nature of the application before the Commission or, if he did understand the nature of an application under s.394 of the Act, he seemed to wish to use it for some ulterior purpose or purposes.

[11] As a further preliminary observation, a significant amount of material had been filed prior to the reallocation of the application both as to substantive and procedural issues. Moreover, a significant amount of material had also been the subject of notices to produce albeit it seems some notices to produce had been set aside (and other process had been filed, such as an application by the applicant for an order for security for costs). Much of the material before the Commission is either irrelevant or has little or no discernible relevance to the question of whether there was a dismissal at the initiative of the respondents and, if so, whether such dismissal was harsh, unjust or unreasonable. Materials, submissions and evidence in the file as reallocated, and later addressed in the proceedings before me, dealt with, in varying degrees of detail, matters including, but not limited to (in no particular order):

• matters concerning the formation of the employment relationship;



• matters concerning the formation of a subsequent apprenticeship;



• the date the apprenticeship commenced;



• the date the apprenticeship terminated;



• issues about what type of apprenticeship was in place (indentured or trainee);



• dispute as to the number of employees employed by the respondents, albeit it is otherwise common ground the respondents’ business is a small business;



• issues about alleged underpayments, including dispute as to the appropriate rate of pay for the applicant;



• issues about an alleged failure by the applicant to provide documentation concerning work he had undertaken;



• issues associated with accommodation, board and lodging;



• issues about taxation, including the tax treatment of what the applicant contends was agreed to be a living away from home allowance;



• issues about insurance arrangements;



• issues about claimed reimbursements;



• issues concerning the operation of the Apprenticeship and Traineeship Act as it concerns matters associated with apprenticeships and the role of State Training Services;



• issues about alleged falsification of an employment agreement;



• issues about alleged falsification concerning the electronic sign-off of the applicant’s practical work in relation to the apprenticeship (i.e. the validity of entries in what is titled “e-Profiling”);



• alleged occupational health and safety, and licensing, breaches;



• assertions about alleged approvals for annual leave;



• issues about allegedly incomplete records of documents held by State Training Services or documents that may have been destroyed, deleted or lost by that organisation;



• issues about the parties’ respective interactions with State Training Services;



• issues disputing the acceptance by State Training Services of certain matters put to them by the respondents in connection with the cancellation of the apprenticeship;



• issues about the type and extent of work the applicant performed for the respondents;



• issues about the supervision provided to the applicant as an apprentice;



• issues about the amount of domestic work Mrs Hall undertook for the applicant over the period of time he lived with them in their home;



• issues about arrangements and payments concerning caravan accommodation for the applicant;



• issues about advice provided by State Training Services, and when such communications occurred;



• issues about what had, or had not, been conveyed to or from State Training Services in the content of that advice - and the accuracy or correctness of the advice provided;



• issues about attendance at meetings with State Training Services representatives; and



• issues alleged by the applicant about “numerous bureaucratic errors” by State Training Services.

[12] The preceding list is not exhaustive. Nearly all these matters were raised in the applicant’s case. To the extent the respondents’ evidence or materials dealt with such matters it was because they were raised by the applicant. As the outline of submissions for the respondents otherwise accurately noted, the breaches variously alleged by the applicant fall outside the Commission’s jurisdiction in dealing with unfair dismissal applications and should not be considered or determined in assessing this application.

Consideration

[13] I turn to the matters which I consider to be of relevance to first consider the threshold issue, by attempting to distil a short background to matters pertinent to the application before the Commission.

[14] In April 2013, the applicant commenced studies at a Sydney TAFE, where Mr Hall worked. Before attending the TAFE in Sydney, the applicant had, as indicated by an academic history in evidence, undertaken training through TAFE Queensland. In May 2013, following an offer of employment from Mr Hall, the applicant commenced employment with the respondents as a casual labourer. In December 2013, documentation was signed to establish an apprenticeship which was submitted to State Training Services. The apprenticeship was an adult apprenticeship, with the applicant being in his mid-to-late twenties. Although the apprenticeship was with a New South Wales-based business and the applicant presumptively would have had to reside principally in New South Wales to work for the respondents, an application was made to State Training Services for approval for training to be conducted in Queensland. The application for approval to State Training Services relevantly indicated the applicant lived in Queensland with his wife, but worked in New South Wales; and further indicated that undertaking training in Queensland would save on accommodation/travel costs and time. The respondents periodically allowed the applicant time off work to travel to Queensland. In early-March 2014, the applicant took a number of days away from his work with the respondents to attend for Queensland-based training in periods of one to three days’ duration.

[15] Unbeknownst to the respondents and without any actual or ostensible authority from them by way of discussions with them, the applicant unilaterally determined to compress his Queensland-based studies. It seems the applicant made arrangements with Queensland TAFE such that short blocks of apprenticeship-related training that ordinarily would have been disaggregated over a number of years were to be undertaken in a long block of time in a discrete period in mid-2014. There had been a lack of formal processes concerning the applicant’s prior absences to travel to Queensland to undertake studies, with the applicant apparently giving the respondents only short notice of his departures from work. Nonetheless, it seemed to be common ground the absences from work were of comparatively short duration and agreed to by the respondents, at least to the time the applicant unilaterally arranged a lengthy period of Queensland-based studies. There was disagreement from Mr Hall that the applicant should absent himself from work for the period the applicant advised he would be away in Queensland.

[16] It was open to the applicant to raise any concerns he had about any apprenticeship-related training release issues with the authority concerned with such matters, State Training Services. The applicant did not do so. While it is a self-evident proposition that an apprenticeship involves mutual rights and obligations concerning releases for off-the-job training at facilities such as TAFE, I do not accept the applicant’s contentions he was entitled to absent himself from work to undertake Queensland-based training for so long as he pleased and unilaterally determined under atypical, compressed training arrangements which the applicant, for his own reasons, made with Queensland TAFE.

[17] I conclude the applicant wilfully and unilaterally determined not to return to work on or about the day the respondents had initially expected him to return to work, namely, on or about 2 June 2014. I conclude also that the applicant wilfully avoided certain attempts by the respondents to contact him or, alternatively, was unacceptably derelict in responding to the respondent’s attempts to ascertain when he would return to work, or both. I am satisfied the applicant failed to return to work on or about the expected date of return because, I am further satisfied, he unilaterally determined to remain in Queensland regardless of what his employer had stated to him prior to departure and regardless of the subsequent endeavours made by Mr Hall or Mrs Hall, or both, seeking to ascertain if and when the applicant would return to work and on what date. I accept that any absence from work by the applicant from on or after 2 June 2014 was not authorised by respondents.

[18] I am satisfied Mrs Hall, in particular, made various endeavours to contact the applicant - including telephoning Queensland TAFE and the applicant’s wife in an endeavour to ascertain the applicant’s whereabouts and date of return to work - and her endeavours in such respects were in response to the applicant’s failure to return to work on or around the expected date of return and/or to confirm when he would return to work. Upon having raised concern with State Training Services about the applicant, I accept the respondents acted on advice from State Training Services concerning the applicant at least as best Mrs Hall understood the advice provided to her by that organisation.

[19] It may be noted the applicant did not perform work of any description for the respondents from on or from 27 May 2014. The applicant attended Queensland for apprenticeship-related training with approval for absence from 27 May 2014, but was expected to return to work in the week commencing 2 June 2014 - which he did not, and without approval. The applicant did, however, apparently have some communications with and attend a handful of meetings with or involving the respondents in June and July 2014. These communications and attendance by the parties at those meetings does not mean the employment relationship was then still on foot. Despite the applicant’s contention, I do not accept that around this time he received approval for annual leave to be taken in July 2014; given the communications with State Training Services in relation to concern about the applicant and his absence, there would have been no cause for an annual leave approval to be provided by the respondents.

[20] It may also be noted that the applicant sent a number of somewhat high-handed communications to the respondents. These communications specified to the respondent employers the means by which the applicant employee wanted them to communicate with him - a somewhat odd proposition, I would have thought, in an employment relationship. Another communication, on one view of it, seemed to be seeking to dictate to the respondents the basis on which the applicant would be prepared to work for them in the future (and that communication perhaps also serves to reinforce that the applicant had abandoned his employment but would be prepared to return to work if the respondents agreed to the terms the applicant specified). That communication read:

“Hi Andrew

Apologies if you have tried to call since thursday, changing providers was a bad idea as now I can't call and have probably lost my number.

After consideration, there are some things that will need to be different if I am to continue employment:

- I will work a maximum of 38 hours over 4 days per week without prior agreement.

- Every monday morning you must provide a written practical plan with job scope for the week. Things change etc, but it can be changed too. This will need to be in better detail than previous task lists you have given.

- Need a clear job sheet template that I can record exactly what you need from jobs for billing and records.

- If the apprenticeship is not being signed off I will not be doing any tasks considered "electrical work" under the Act without licensed supervision.

I will be available to work from the 16th and you can make plans to that effect. Have a think and let me know by the 14th if I will be needed.

Regards,
John”

[21] I note also that the applicant’s advice to the respondents “I will be available to work from the 16th and you can make plans to that effect. Have a think and let me know by the 14th if I will be needed.” militates against the applicant’s proposition he had been granted approval for annual leave. Rather, it strongly suggests that the applicant was effectively self-determining the date upon which he was prepared to return to perform work for the respondents - assuming they would agree to the terms he specified.

[22] There was much evidence in the proceedings about matters related to communications, or lack thereto, between the applicant and the respondents in the time after he absented himself from work to undertake this atypically-long period of Queensland-based study he had determined unilaterally to arrange and then, on the applicant’s case, purportedly on pre-approved annual leave. In the end, nothing much turned on the evidence of mobile telephone records, text messages and emailed communications. For example, there was unchallenged evidence of telephone calls having been made by Mrs Hall on a “land line” telephone, records of which were not in evidence. The applicant’s evidence as to his own telephone records was that the records were prepared by him personally based on what he said was his practice of noting the details of every telephone call (including the timing to the minutes and seconds), rather than having any objectively-reliable records created by his telecommunications service provider. The applicant indicated in these proceedings there were no service provider records available, but I note, nonetheless, that in his correspondence to State Training Services dated 22 October 2014 the applicant referred to him having reviewed certain of his telephone records, so it seems improbable such records were not available for these proceedings. The applicant had also issued various notices to produce, but, given he stated he did not have any such records, it may also be noted none was sought by him for his own service provider’s records. I expect that may be because the applicant’s own service provider records would not have assisted his case.

[23] The applicant contends a dismissal was effected without payment to him of notice to which he asserts he was entitled under an employment agreement signed by Mr Hall (but not by the applicant himself) that he adduced into evidence. I accept the evidence of Mrs Hall, who looked after the paperwork for the business, that she did not prepare the employment agreement adduced in the applicant’s evidence. I also accept Mr Hall’s evidence he did not sign any such employment agreement. How this document was created was unresolved on the evidence, but I am bound to observe the applicant’s explanation of how he obtained an image of what he otherwise contended was an employment agreement, or why he should have felt the need to obtain an image of what was said to be agreed by Mr Hall, was odd - involving him, on one characterisation of it, (presumptively) going about a part of the respondents’ residential property, (presumptively) rifling through papers stored or filed there, and (presumptively) secretly obtaining the image.

[24] Contested cases concerning abandonment of employment typically raise issues about what date the employment was abandoned and whether, for example, an employer who treats any given absence from work as terminating the employment is the effective initiator of the termination of employment. On the facts of this matter, I conclude the applicant abandoned his employment. I do not accept the applicant’s contention the employment relationship was on foot until 20 August 2014, and that was the date the termination of employment came about by the causes described by the applicant, namely, by constructive dismissal or acceptance by the applicant of the respondents’ repudiation.

[25] Apprenticeship-related matters have their own legislative framework. The respondents held concerns about the applicant and, quite appropriately, contacted State Training Services - which, in due course, cancelled the apprenticeship on the application of the respondents. If the applicant had or has concerns about apprenticeship-specific matters in relation to what he considered to be training rights and obligations, suspension, cancellation and the like, this is not a jurisdictionally appropriate application for the determination of such matters. I might add that if some of the matters the applicant alleges concerning the respondents were accepted as being correct, then it follows there may well be issues about whether the applicant has indeed been properly trained such as to be in a position to claim he was entitled to obtain his relevant licensing and, on what was before me, it otherwise appears there may be a serious issue about the e-Profiling for the applicant. But, as I have noted, these are not matters for determination in these proceedings and the applicant has otherwise now obtained that licensing.

[26] So far as the application for an unfair dismissal application is concerned, s.385 of the Act specifies that a person has been unfairly dismissed if, among other matters, the Commission is satisfied the person has been dismissed; and s.386(1) of the Act relevantly provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative. I have not been satisfied the applicant was, within the meaning of the Act, dismissed. I accept the submissions that the termination of employment was brought about by the applicant’s abandonment of his employment and that the termination did not occur on the date for which the applicant otherwise contended.

[27] On a final note, on my assessment of the matters before the Commission, and whilst acknowledging the respondents may have dealt with some matters imperfectly - although perhaps on the basis of advice which was itself imperfect - I consider they nonetheless tried to deal with matters as best they could given the circumstances in which they found themselves concerning the applicant. I accept the overall thrust of respondents’ evidence and submissions describing what they considered had occurred and, more particularly, I specifically reject the applicant’s vituperative descriptions of the respondents and their conduct.

[28] The application is dismissed and an order to that effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

J. Bernardi on his own behalf.

A. Hall and T. Hall on their own behalf.

Hearing details:

2015

Sydney

May, 25.

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