John Berns v Kinetic Group Services Pty Ltd and U-Go Mobility Pty Ltd

[2024] FWC 3229

[2024] FWC 3229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

John Berns
v

Kinetic Group Services Pty Ltd and U-Go Mobility Pty Ltd

(C2024/7791)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 NOVEMBER 2024

Application under s 365 – no dismissal – application dismissed

1. The following is an edited version of a decision given on transcript earlier today. John Berns has made an application under s 365 of the Fair Work Act 2009 (Act). The respondents, Kinetic Group Services Pty Ltd (Kinetic) and U-Go Mobility Pty Ltd (U-Go), object to the application on the ground that Mr Berns was not dismissed.

1. Kinetic contends that Mr Berns freely resigned from his employment with the company, and that he was therefore ineligible to make an application under s 365. In a letter to Kinetic dated 25 October 2024, Mr Berns stated that he was retiring and that his last day would be Friday 22 November 2024. In a reply dated 30 October 2024, Kinetic told Mr Berns that he was not required to work out his notice period, and that he would be paid up to 22 November 2024. His last day at work would be 29 October 2024. Mr Berns said that Kinetic had thereby terminated his employment early, however this is not the case. He remained employed until 22 November 2024. Even if Kinetic’s decision not to require Mr Berns to work during the notice period entailed some breach of contract (there is no evidence of this), that decision did not end the employment relationship (see s 386 and Khayam v Navitas English Pty Ltd[2017] FWCFB 5162). The relationship ended because Mr Berns resigned. This is not a case where the employer terminated the employment during the employee’s notice period. I find that Kinetic did not dismiss Mr Berns.

1. What of U-Go? Mr Berns contended that on 24 August 2024 he had reached an agreement with U-Go’s general manager to commence employment with U-Go after his retirement from Kinetic, but that on 29 October 2024 the general manager told him that, because of certain views Mr Berns had expressed in his resignation letter, Kinetic, which has a substantial interest in U-Go, directed it to withdraw the offer of employment. In his resignation letter, Mr Berns had requested Kinetic to send his final pay advice to a new email address, ‘[email protected]’. At the base of the letter the following statement appeared in bold: ‘I acknowledge and pay my respects to the British and European elders, past and present, who introduced civil society and prosperity to Australia, and to our Australian born forebears who fought and died to preserve it’. Mr Berns said that he was deprived of the opportunity of employment with U-Go because of the political views that he expressed in his resignation letter to Kinetic. U-Go denied that there was ever any agreement to employ Mr Berns but acknowledged that there had been discussions about employing him and that a recruitment process was underway, which was subject to board approval. U-Go said in its F8A document that it was considering employing Mr Berns but decided to withdraw from the process when it became aware of his inappropriate conduct, by which it meant the content of the resignation letter. U-Go said that this content was not political opinion and should instead be characterised as ‘transphobic, racist and not conducive to valuing diversity’.

1. It is not the role of the Commission to assess the merit of Mr Berns’s claim that he was the victim of discrimination based on his political opinions. The Commission’s task is to determine the jurisdictional objection to this particular application. Mr Berns stated at the hearing that he did not claim to have been dismissed by U-Go. In my view this concession is properly made. It has not been substantiated that any contract was formed between those parties, and in any event the proposed employment never commenced and therefore could not have been terminated. I find that Mr Berns was not dismissed by U-Go.

1. A person may make an application under s 365 of the Act only if he or she has been dismissed. Mr Berns was not dismissed by either of the respondents and therefore had no standing to make his application. For this reason, the jurisdictional objection must be upheld. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne (by telephone)
22 November

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