Karl Guild v Safe & Sound Electronics Pty Ltd

[2021] FWC 1093

[2021] FWC 1093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Karl Guild
v
Safe & Sound Electronics Pty Ltd
(C2021/20)

COMMISSIONER PLATT ADELAIDE, 2 MARCH 2021

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal.

[1] On 4 January 2021, Mr Karl Guild (the Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been dismissed from his employment with Safe & Sound Electronics Pty Ltd (Safe and Sound) in circumstances which represented a breach of the General Protections provision of the Act.

[2] On 29 January 2021, Ms Poppy Prezios, on behalf of Safe and Sound, filed a Form F8A Employer Response, which denied the allegations and raised a jurisdictional objection that Mr Guild was not dismissed.

[3] Section 368 of the Act requires the Commission to try and resolve the dispute (other than by arbitration) and if the matter cannot be resolved a certificate will be issued. The recent decision in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal prior to the issuing of a certificate.

[4] Directions were issued on 9 February 2021 for the filing of material and an arbitration was conducted on 25 February 2021 by teleconference. A Court Book of the material lodged was created and distributed to the parties prior to the hearing. The Court Book contained some material that was not relevant to the jurisdictional objection. I have received all of the material and given it due weight in accordance with the rules of evidence. All of the witnesses were subject to cross-examination.

[5] Mr Guild represented himself and Ms Poppy Prezios represented Safe and Sound. As both parties were not represented by a paid agent or lawyer and were unfamiliar with Commission processes a Determinative Conference was conducted.

[6] Safe and Sound contend that on 24 December 2020, Mr Guild resigned from his employment by advising Mr George Prezios (Director and Head Security Technician) at about 9.24am on the telephone “I cannot take this shit anymore. I am dropping Blair [the Apprentice] off,” and “I am sick of it, cannot handle this shit no more.” Mr George Prezios met Mr Guild at the ‘Office’ at about 10.30am and asserts that Mr Guild handed him the keys to the company vehicle and company phone and removed his property from the van. There was a further altercation between Mr Guild and Mr Prezios and others but, in my view, it is not relevant to the direct question in issue.

[7] Mr Guild contends that on 24 December 2020 he was expecting payment for work performed prior to that date. Those funds were needed to cover Christmas related expenses, and not having received funds in his bank account that morning, he needed to physically attend his bank to withdraw cash. Mr Guild contended he advised Mr George Prezios at about 9.30am by telephone that he needed to go to the bank and that he would finish his current task (there being two remaining) and return when finished at the bank. Mr George Prezios then requested Mr Guild to attend at the Office for a meeting. Mr Guild attended the Office and asserts that Mr George Prezios demanded the Company phone and the vehicle keys and told him he would be stood down until further notice. Mr Guild then sought to remove his personal property from the vehicle (during which process an altercation occurred).

[8] There was CCTV footage of the events at the Office, however it was not shown to Mr Guild, despite his request, or produced to the Commission. The only evidence of the content of the CCTV footage was Ms Poppy Prezios’ account. Ms Prezios advised that the CCTV did not record what was said by the persons involved.

[9] The only other person present at the Office at the critical time was Mr Damian Prezios, who said he was present during the initial conversation and was 10-15 metres away and thus could not hear what was said between Mr Guild and Mr George Prezios.

[10] Ultimately the determination of this matter is reliant on the assessment of the credibility of the evidence of Mr Guild and Mr George Prezios and, to a lesser extent, Mr Damian Prezios.

[11] Mr George Prezios’ recollection of the events seemed to vary depending on his perception of the importance of the topic and the line of questioning. He advised that he was not concerned about the decision by Mr Guild that he would not work for the balance of the day, despite having two jobs outstanding, and simply said he would do the work himself. I was perplexed by Mr Prezios’ apparent acceptance of Mr Guilds refusal to undertake further work.

[12] Mr Damian Prezios was unable or unwilling to express a view on how Mr George Prezios reacted to being advised of Mr Guild’s position.

[13] Mr George Prezios contended that issues or concerns expressed by Mr Guild over his wages were given to other employees or external accountants and that he had little knowledge of them. This appears to support Mr Guild’s version of the events, however this uninterested approach is not something I would expect from a Director of the Respondent.

[14] Mr Damian Prezios was a poor witness – his relevant evidence, however, was largely confined to the telephone conversation that occurred at 9.30am.

[15] Overall, I found Mr Guild to be a more reliable witness. His account was detailed and plausible. It was not seriously disputed that Mr Guild had financial challenges hence his desire to be paid in a timely fashion by the Respondent, and his need to attend a bank to withdraw funds to secure his needs over the Christmas break. Mr Guild’s alleged resignation is inconsistent with his need for income at the time. I prefer his version of the events over that of Mr George and Damian Prezios.

[16] Ms Poppy Prezios’ account of what she saw on the CCTV footage must be taken with caution in light of the failure of the footage to be produced but, in any event, it did not assist me as to the competing accounts of the words exchanged.

[17] The Respondent took no action to confirm the alleged ‘resignation.’ The reference to Mr Guild having abandoned his employment in the Employer Response is not consistent with the facts elicited during the hearing.

[18] On the information before me, I prefer the evidence of Mr Guild as to the events at 9.30am and 10.30am and, as a result, I find that the Respondent by its conduct dismissed Mr Guild. The jurisdictional objection is accordingly dismissed.

[19] I have conducted a further conciliation with the parties which was unsuccessful in resolving the matter and a Certificate will be issued in accordance with s.368 of the Act.

COMMISSIONER

Appearances:

K Guild the Applicant.

P Prezios on behalf of the Respondent.

Hearing details:

2021.
Adelaide:
February 25.

Printed by authority of the Commonwealth Government Printer

<PR727377>

 1 [2020] FCAFC 152.