Jon Sarellis v First Nations Employment Group Pty Ltd
[2023] FWC 3092
•24 NOVEMBER 2023
| [2023] FWC 3092 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jon Sarellis
v
First Nations Employment Group Pty Ltd
(C2023/4660)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 24 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was dismissed – casual employee not allocated shifts – objection upheld - no dismissal.
On 2 August 2023, Mr Jon Sarellis (the Applicant) made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (Cth) (the Act). First Nations Employment Group Pty Ltd (the Respondent) has raised a jurisdictional objection that the Applicant was not dismissed. This decision concerns whether Mr Sarellis was dismissed by the Respondent.
The matter was dealt with at a hearing on 12 October 2023, at which both parties were granted permission to be represented. The witnesses were:
· Mr Jon Sarellis, the Applicant;
· Ms Joanne Cachia, Project Administrator for the Respondent;
· Mr Fraser Werner, Operations Manager for the Respondent; and
· Mr Peter O'Brien, Managing Director for the Respondent.
For the reasons below, I have found that the Applicant was not dismissed.
Factual findings and Submissions
The Applicant commenced employment with the Respondent as a casual traffic controller on 10 January 2022. Mr Sarellis contends that he was dismissed at the conclusion of a telephone call with Mr O’Brien on 12 July 2023 (the Dismissal).[1] He contends that the dismissal decision was subsequently implemented by the Respondent’s actions in removing itself as the primary employer on the RWI System and by removing the Applicant’s access to Assignar.
To work on rail sites, employees are required to have a Rail Industry Worker (RIW) card. The RIW system records a primary employer, and Mr Sarellis’ card identified the Respondent as the primary employer. References to ‘employer’ and the like are used in a generic sense rather than their legal meaning.[2]
The Respondent allocates work using a system called Assignar, where employees input their availability, check shift details and accept or decline shifts they have been offered.[3]
Mr Sarellis’ written contract of employment states that he is employed on a casual basis with no right to a minimum or maximum amount of work.[4]
Except for when he made himself unavailable for work, the Applicant worked 1-2 shifts per week, averaging around 15-25 hours per week.[5]
Prior to the Dismissal, the Applicant had been allocated work at various sites as part of the Gippsland Line Upgrade Project (GLUP), including Traralgon, Morwell, Moe, Longwarry and Bunyip. From November 2022, the Applicant worked at the Traralgon and Morwell sites. He then made himself unavailable for work between 16 February and 28 April 2023 during which time he assisted with a family business and also worked for another company.[6] After he returned to work with the Respondent, he initially received 4-6 shifts per week until June 2023, when his shifts were reduced to 2 per week. He was offered no shifts from 5 July 2023.[7]
On 11 July 2023 the Applicant sent a text message to the operations team and did not receive a response that day. The next day, after the applicant telephoned the office, Mr O’Brien called him. What occurred during this telephone call on 12 July 2023 is disputed but significant as the Applicant contends that he was dismissed by the Respondent at the end of the call.
Mr O’Brien’s evidence is that over the course of the Applicant’s employment, he had about 10 or 11 conversations with him. Mr Sarellis’ evidence was that there had only been 3 conversations between the two men. Mr O’Brien recounted details of all the conversations. This included that at least 6 of the conversations, concerned verbal warnings to the Applicant following complaints by female employees about his inappropriate behaviour towards them. Mr O’Brien said that on each occasion the Applicant denied the conduct, and following legal advice, he considered that the Applicant could not be issued with a written warning and that the only solution was to not allocate shifts to him on sites where female staff were working. Mr O’Brien said that:
“My role, as a director, I protect my staff, especially our female staff. I am known for addressing any issues with our staff. I go to bat for our female staff and the last thing I’m going to do is [to make them] feel uncomfortable. My daughter, my neighbour’s daughter, my nieces all work in the company. I want the females in our company to be protected and feel safe at work. When someone’s … I address it. [The applicant] knows right and well I’ve addressed it with him on numerous occasions. He has been inappropriate and not just once, but on five occasions and now, with the 6th occasion that he was inappropriate. That was brought to his attention”.[8]
Mr O’Brien said that the Applicant had been ‘warned and warned’ about his inappropriate behaviour towards female employees and that this reduced the sites that Mr Sarellis could be allocated to work at.
Mr O’Brien’s evidence is that the main purpose of his call to the Applicant on 12 July 2023 was to tell him that more complaints had been received from female employees about his conduct. He conceded that he was annoyed with the Applicant and that in light of the complaints, he did not know what work would be able to be allocated to him. That was because work on the GLUP made up about 70-80% of the Respondent’s workload at the time. Mr O’Brien denies saying that Mr Sarellis should go somewhere else, that he does not have any further work for him or that he said Mr Sarellis did not have a job or was dismissed. Rather, Mr O’Brien’s evidence is that before the call, he had been told by 4 people (that he named) that the Applicant had told them he had a job with another employer (BK), that he could not wait to start and that he hated working for the Respondent. Mr O’Brien’s evidence is that during the call Mr Sarellis told him that he was going to work for BK. Mr O’Brien asked him if it was true that he hated working for the Respondent, to which the Applicant said that it was. Mr O’Brien conceded that in the call he said that the Applicant was a ‘creep’. He says that when Mr Sarellis said that he had another job, Mr O’Brien said words to the effect “the sooner you go there the better for everybody”.[9] He denies hanging up on the applicant and says the call ended with both men saying “fine”.
Mr Sarellis evidence about the call was that the call lasted about 53 seconds and Mr O’Brien angrily said that he had “been hearing you’re going to BK go to them, we don’t want you, so just go to them!” and then hung up on him.[10] In cross-examination, Mr Sarellis acknowledged that Mr O’Brien never said that he was dismissed or that he would not be offered any further shifts. In cross-examination, Mr Sarellis denied that Mr O’Brien had raised any issues of complaints from female employees. Mr Sarellis’ evidence was that he “was shocked and upset at having been dismissed”, that he was “intimidated by [Mr O’Brien’s] tone and words towards [him], and certain that [he] would not receive any further shifts from the Respondent”.[11] His evidence at the hearing was that he was ‘under the impression’ that he was dismissed.
The Applicant submits that he was dismissed at the end of this call, and that the decision was subsequently implemented by the Respondent’s actions in removing itself as the Applicant’s primary employer on the RWI System on 31 July 2023,[12] and further by removing his access to Assignor.
I accept Mr O’Brien’s evidence over the Applicant’s concerning the telephone call where there is a conflict. Mr O’Brien presented as a highly credible witness who made significant concessions, such as that he was annoyed and called the Applicant a ‘creep’. His evidence was detailed and precise but also very passionate. He provided details of his interactions with the Applicant, and significant details about the complaints that had been received about the Applicant’s conduct, along with the names and identity of the four individuals who had told him the Applicant had obtained another job with BK. His evidence was also consistent with both Ms Caccia’s and Mr Werner’s evidence in relation to the multiple complaints about the Applicant’s behaviour, which included that Mr O’Brien directed that the Applicant was not to be allocated shifts on the GLUP project but that there was no direction that he be dismissed or allocated no shifts, and the issue concerning the removal of the Respondent as the primary employer on the RWI system. Conversely, Mr Sarellis’ evidence was very limited, and I consider that in the context of all the evidence, his account of the call, and his denial that the issue of complaints from female employees was raised during the call, is implausible, and I do not find his account to be accurate.
I find that during the telephone call on 12 July 2023, Mr O’Brien told the Applicant that further complaints had been received about his conduct and referred to him as a ‘creep’, that Mr Sarellis said that he had another job, was going to work for BK, and he hated working for the Respondent. Further, that when the Applicant said that, Mr O’Brien said words to the effect of “the sooner you go and work somewhere else, the better” and that the call ended with both men saying “fine.” I find that Mr O’Brien did not say, as the Applicant contended, “been hearing you’re going to BK, go to them, we don’t want you, so just go to them!” and then hung up on him.
Mr Sarellis’ evidence was that after the call, he kept checking Assignar for shift assignments every day and was able to log in up until 30 July 2023 when he could no longer do so. Instead, he received a message that his credentials were invalid.[13] Mr Sarellis chose, based on legal advice, not to raise with the Respondent that he was unable to access Assignor. He also did not make any other enquiries to confirm that he had been dismissed.
Mr O’Brien denies that the Applicant has been dismissed. His evidence is that because of the multiple complaints from female employees he directed Mr Werner that the applicant not be offered any work on either the Morwell or Traralgon GLUP sites. He says that July and August were particularly quiet months which, added to the problem of finding a place the applicant could work where there were no female staff and not on the GLUP (which was their main project at the time), meant that there were limited opportunities for work.
In relation to the Assignar system, Mr O’Brien’s evidence is that the Applicant remains on the system. He said that the Respondent maintains a pool of employees that can be drawn on depending on the workload on a day-by-day basis. At the date of the hearing, the Respondent had about 239 active employees on Assignar, and at the date of the hearing 65 employees were out on jobs, and 27 employees the previous week.[14]
As to the RWI system, the evidence of Mr O’Brien, corroborated by Ms Caccia and Mr Werner was that employees are regularly removed from the RWI system to save fees which are charged based on the number of employees registered. Ms Caccia says that she removes employees from the system on an ad hoc basis when she has time. She says that she removed Mr Sarellis from the system because Mr O’Brien had told her that he would not be working on the GLUP project and there were no other rail projects at the time. Mr O’Brien had told her that other traffic controllers had verbally complained about the Applicant. Mr Werner also confirmed this practice of clearing up the RWI system.
Mr Werner also gave evidence that he had not been directed by Mr O’Brien not to assign the Applicant any work; the direction was to not allocate him work on the GLUP. His evidence was that the Respondent has various processes in place to deal with when someone is dismissed, to ensure, for example, they are provided with a separation certificate. None were invoked in relation to the Applicant. In relation to the Applicant’s difficulties accessing Assignar, he said that to the best of his knowledge the Applicant remains active on it. However, the system ‘glitches out’ frequently, resulting in people getting logged out and unable to log back in.[15] When this happens, the employee contacts the office and are sent login details. However, the Respondent has no visibility of such problems unless an employee contacts them and advises that they cannot log in. At no time did Mr Sarellis make contact with the Respondent to advise that he could not log in to Assignar.
I found Ms Caccia and Mr Werner to be credible witnesses and I accept their evidence.
It is not disputed that Mr Sarellis never received a letter of termination or any other documentation indicating that his employment had been terminated.
Was the Applicant dismissed by the Respondent?
The meaning of dismissed is set out at s.386 of the Act. 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.
A person’s employment with their employer has been terminated on the employer’s initiative where the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[16] The assessment is an objective test of what a reasonable person would have understood was the position, based on the actions of the parties, in all the circumstances. Put another way, the question is whether, had the employer not taken the action it did, would the employee have remained in the employment relationship.
The Applicant contends that he was dismissed, and that the relevant actions of the employer were that firstly, he was not allocated shifts after 4 July 2023, and that although there was work on the GLUP that he could have been allocated to, Mr O’Brien directed Mr Werner not to allocate him work on this project. Secondly, the phone call on 12 July 2023, where Mr Sarellis formed the view that he had been dispensed with, and thirdly that he was removed from Assignor and the RWI system.
In the Applicant’s written submissions, in the alternative, it was submitted that it was a forced resignation. This was neither elaborated on nor pressed at the hearing. In any event, although I find that he said that he had found another job, Mr Sarellis did not contend that either during the call on 12 July 2023 or otherwise, he actually resigned from his employment, voluntarily or otherwise.
Mr Sarellis may have subjectively believed that he had been dismissed by the Respondent. However, my conclusion is that based on the facts and circumstances, he was not dismissed within the meaning of the Act. I am not satisfied that the Respondent has taken any action to terminate the Applicant’s employment.
I consider that a reasonable person, in light of the telephone call with Mr O’Brien, would not understand that they had been dismissed although they would likely consider that they may not have a long term and happy future with the Respondent. I consider that the direction to not allocate the Applicant any work on the GLUP following multiple complaints of female staff about his conduct towards them, did not constitute a dismissal of his employment. There was no direction to cease allocating him work, and although the GLUP happened to be the major project at the time, it was not the only work the Respondent provided labour to, and the work fluctuated from month to month.
Whilst I accept that a casual employee who has their hours permanently reduced to zero is likely to have been dismissed, that is not what I have found occurred here. Mr Sarellis’ contention is that he was dismissed on 12 July 2023, which was just over one week from when he was last offered work. In my view, in circumstances where I am satisfied that it was his own conduct that limited the type of work the Respondent was prepared to offer the Applicant, such a short period of time where he was not offered shifts, does not constitute a termination of employment at the initiative of the employer.
Further, if he had been dismissed on 12 July 2023, his access to the Respondent’s systems to allocate work would be expected to be closed off straight away. However, on his own evidence, Mr Sarellis only encountered problems accessing the system on or about 30 July 2023. I accept that the Respondent has no visibility over employees accessing the system and relies on employees to raise any issues with it. Mr Sarellis never did so. Similarly, the removal of the Respondent as a primary employer on the RWI system is not evidence of the Applicant being dismissed, as I accept the evidence that this was a standard administrative process to save costs.
Mr Sarellis was never told he was dismissed and was issued no documentation associated with termination, such as a separation certificate.
While I accept Mr Sarellis’ evidence that during his absence between February and April 2023, he was not removed from the RWI system, that is readily explained by the evidence which I accept, that Ms Cacchia ‘cleans up’ the system on an ad hoc basis, when she has time. It is not action of the Respondent that ‘implements’ an earlier decision of the 12th July 2023 to terminate his employment.
I am satisfied on the evidence that the Respondent did not engage in any conduct with the intention of bringing Mr Sarellis’ employment to an end, nor was termination of his employment the probable result of any conduct by the Respondent, such that Mr Sarellis had no effective or real choice but to resign.
Conclusion
As I have not found that Mr Sarellis was dismissed within the meaning of the Act, the application is not within jurisdiction. The application is dismissed. An order giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
Appearances:
P. Ronfeldt of Thomson Geer, with permission on behalf of Mr Jon Sarellis, the Applicant.
R. Aravanis of Employsure Law, with permission on behalf of First Nations Employment Group Pty Ltd, the Respondent.
Hearing details:
2023
October 12, 23
Video Hearing.
[1] Applicant’s Outline of Submissions at [8], Digital Hearing Book (DHB) p.23; Transcript PN77 and PN537-538.
[2] DHB p.33.
[3] Witness Statement of Jon Sarellis, DHB p.41.
[4] DHB p.76.
[5] Witness Statement of Jon Sarellis, DHB p.41.
[6] Witness Statement of Jon Sarellis at [24], DHB p.42.
[7] Witness Statement of Jon Sarellis, DHB p.42-43.
[8] Oral evidence of Peter O’Brien at Transcript PN339.
[9] Transcript, PN357.
[10] Witness Statement of Jon Sarellis at [35], DHB p.43.
[11] Witness Statement of Jon Sarellis at [36-37], DHB p.43.
[12] DHB p.33.
[13] Witness Statement of Jon Sarellis at [38], DHB p.43; Exhibit B, DHB p.32.
[14] Transcript, PN447-448.
[15] Transcript at PN238-PN239.
[16] Bupa Aged Care v Tavassoli[2017] FWC 3200.
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