Kevin Mornard Gee v The Trustee for the Roverworth Trust
[2023] FWC 2627
•3 NOVEMBER 2023
| [2023] FWC 2627 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kevin Mornard Gee
v
The Trustee For The Roverworth Trust
(C2023/2584)
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 3 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection by Respondent – Applicant was not dismissed – Applicant resigned – jurisdictional objection upheld – application dismissed
On 8 May 2023, Mr Kevin Mornard Gee (the Applicant) made an application to the Fair Work Commission (Commission) under s. 365 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant claimed that the Trustee for the Roverworth Trust (the Respondent) dismissed him from his employment on 8 May 2023 and that this dismissal contravened the provisions of Part 3-1 of the FW Act.
The Respondent objects to the application on the basis that the Applicant was not dismissed on 8 May 2023, but rather resigned his employment on 4 April 2023, with his last day of employment being 13 April 2023 at the end of his notice period. The objection that the Applicant was not dismissed within the meaning of s. 365 and s. 386 of the FW Act was the subject of a hearing before me on 7 September 2023.
As the Full Bench of the Fair Work Commission stated in Lipa Pharmaceuticals v Mariam Jarouche:[1]
Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.
In those circumstances, the Commission must determine the Respondent’s jurisdictional objection that the Applicant was not dismissed within the meaning of s.365 and s.386 of the FW Act, before the Commission can proceed to ‘deal with’ the application.[2] Having considered all of the evidence and the submissions of the parties, I have concluded that the Applicant is not “a person who has been dismissed”[3] by the Respondent for the reasons that follow.
Witnesses
The Applicant filed the following material in the proceedings:
(a) Statement of Mr Kevin Mornard Gee dated 27 July 2023; and
(b) Statement in reply of Mr Kevin Mornard Gee dated 17 August 2023.
The Respondent filed the following material in the proceedings:
(a) Statement of Mr Dain Sundy dated 17 July 2023;
(b) Statement of Mr Samuel Sankey dated 7 August 2023; and
(c) Further statement of Mr Dain Sundy dated 7 August 2023.
The Applicant gave evidence on his own behalf. Mr Dain Sundy (Head Butcher for the Respondent) and Mr Samuel Sankey (HR Representative for the Respondent) gave evidence on behalf of the Respondent.
The Applicant cross-examined Mr Sundy regarding inconsistent statements made by the Respondent in its Form F8A and in Mr Sundy’s evidence. These inconsistent statements concerned a possible phone call between Mr Sundy and the Applicant, during which the Applicant’s availability to perform work was discussed. In doing so, the Applicant was seeking that the Commission draw an adverse inference regarding Mr Sundy’s credibility as a witness. Ultimately no evidence was led by the Respondent about the content of any such telephone conversation and, at hearing, Mr Sundy’s evidence in chief was that he could not be sure whether he had a discussion about the Applicant’s availability by telephone. The Applicant’s evidence was that his availability for shifts was not discussed with Mr Sundy, either over the phone or in person. In cross examination, Mr Sundy confirmed that he had not prepared the Form F8A.
A Form F8A does not constitute evidence and can only include the facts known prior to the taking of evidence. In these circumstances, I do not consider that the Form F8A could be said to constitute a prior inconsistent statement of Mr Sundy, or that his credibility as a witness was undermined by any statements made by the Respondent in the Form F8A. Further, in forming my conclusions in this matter I have had no regard to any purported phone conversation between the Applicant and Mr Sundy regarding the Applicant’s availability for shifts.
I find that all witnesses in this matter gave honest, forthright and credible evidence. The most significant factual contest revolved around the content of a conversation between the Applicant and Mr Sundy in the week leading up to 13 April 2023 in the New Farm premises of the Respondent.
In relation to that evidence, I consider that whilst the accounts of this meeting vary, including regarding whether the Applicant thanked Mr Sundy for the offer of a transfer and whether the Applicant provided Mr Sundy with his availability for possible future shifts, the accounts are broadly consistent. It is not surprising that witnesses’ recollections of these events will differ given the time that has passed since they occurred. I will return to this conversation further below.
The Evidence
On 17 January 2023, the Applicant commenced employment with the Respondent as a Counterhand at its New Farm location on a casual basis, pursuant to a contract of employment signed by Mr Gee on 18 January 2023. The Respondent operates butcher shops including at New Farm, Camp Hill and Pacific Fair in Queensland.
On 4 April 2023 at 4:42 PM, the Applicant resigned from his employment, giving the requisite notice under his contract of employment, by sending a text message to Mr Sundy which read as follows (reproduced as written):
“Hi Dain, i am sending you this message to submit my weeks notice as i will be ending my employment with the company. Best regards Kevin Gee.”
Subsequently, the Applicant sent a text message to Mr Sundy (reproduced as written):
“On the 13th my apologies”
On 5 April 2023 and commencing at 1:34 PM, Mr Sundy and the Applicant had the following text message exchange (reproduced as written):
| MR SUNDY | “no worries mate, thanks for all your help and time you have put into the business.” |
| APPLICANT | “I still need an answer about the lack of penalty rates in my pay, and i need to submit an official complaint against the store manager. For targeted harrasment in the workplace.” |
| MR SUNDY | Yeah ok, i will send Sam into see you.” |
On 8 April 2023, the Applicant and Mr Sundy had the following text message exchange (reproduced as written):
| MR SUNDY | “Hey mate would you be interested in working at Camphill instead of Newfarm? Just an option for you.” |
| APPLICANT | “That would be amazing, Dain. Yes please” |
| MR SUNDY | “Ok, obviously just have to work through a couple of things but it should be no problem.” |
| APPLICANT | “Thank you for thinking of me, Dain. i greatly appreciate it” |
The Applicant continued to present for work between 8 April 2023 and 13 April 2023. It was not contested between the parties that the Applicant did not perform work for the Respondent after 13 April 2023.
The Applicant and Mr Sundy gave evidence that they had a conversation during the Applicant’s last week of employment, during which both parties accept that the possibility for the Applicant to work at the Respondent’s Camp Hill location was discussed. The evidence between them was largely consistent but differs as to some elements of this conversation. I will return to this below, but Mr Sundy’s account and the Applicant’s account are at odds in that the Applicant denies the claims made by Mr Sundy that the Applicant’s availability to work was provided to Mr Sundy during this conversation.
The Applicant had no further conversations with Mr Sundy after 13 April 2023.
The Applicant gave evidence that, on the basis of the SMS messages and the conversation he had had with Mr Sundy in the last week of his employment, he understood that Mr Sundy had to make arrangements to effect the Applicant’s transfer to the Camp Hill location. To that end, he did not contact Mr Sundy again until 3 May 2023, by way of the following text message (reproduced as written):
“Hi dain it’s been a few weeks just checking in”
The Applicant also made a telephone call to Mr Sundy on or around 3 or 4 May 2023, but was unable to reach Mr Sundy. The Applicant gave evidence that, around this time, he also made a telephone call to the Respondent’s Head Office and spoke to Mr Sankey in order to get someone from the Respondent to contact him about the transfer. Mr Sankey did not recall this call. The Applicant was not contacted by anyone from the Respondent.
It was not disputed that, on 8 May 2023, the Applicant called and spoke to Mr Sankey. The Applicant gave evidence that the purpose of his telephone call was to both follow up on the arrangements for the transfer to Camp Hill, and to submit a complaint regarding Mr Sundy’s lack of contact with the Applicant and the detrimental financial effect that it had had on him. The Applicant advised Mr Sankey during this conversation that he considered that he had withdrawn his resignation. The Applicant gave evidence that Mr Sankey refused to accept the Applicant’s complaint and informed the Applicant that the Respondent had accepted the Applicant’s resignation and “gone in a different direction” and determined not to transfer the Applicant.
It was not contested between the parties that the Applicant retained access to the Respondent’s rostering and payroll application ‘Tanda’ until 8 May 2023, at which time the Applicant’s access was revoked. The evidence of Mr Sankey was that he had neglected to turn off the Applicant’s access and that this had nothing to do with the Applicant’s employment status.
On 8 May 2023, following the Applicant’s conversation with Mr Sankey, the Applicant filed an application to the Commission to deal with contraventions of the General Protections provisions at Part 3-1 of the FW Act.
Consideration
The FW Act at s.365 provides as follows:
365 Application for the FWC to deal with a dismissal dispute
If:
(a)a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The Applicant only has capacity to make a claim if he is “a person who has been dismissed”. The FW Act defines “dismissed” at s.12 by reference to s.386, which relevantly provides at s.386(1):
386 Meaning of dismissed
(1) A person has been dismissedif:
(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.
Section 386(2) of the Act contains a number of exceptions regarding when a person has been dismissed. I do not consider that these exceptions are relevant to this case.
The definition of dismissal in s.386(1) of the Act has two elements. The first element concerns a “termination on the employer’s initiative” and the second, “resignation in circumstances where the person was forced to do so because of conduct or a course of conduct by the Respondent”.
The Applicant gave evidence that he voluntarily resigned via text message on 4 April 2023. That resignation was in clear and unambiguous terms. He does not contend that he was forced to resign from his employment because of any conduct of the Respondent. Nor does he contend that his resignation was not legally effective because it was expressed in the heat of the moment or when the Applicant was in a state of emotional stress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign. Rather, he contends that he was offered and accepted a transfer after he resigned and that this kept the employment relationship on foot until he was notified of his dismissal on 8 May 2023. I apprehend that, in the alternative, he contends that he understood that he was being offered a transfer, and that upon that understanding, sought to or did withdraw his resignation, which was, in turn, accepted by the Respondent.
The Respondent’s case in support of its jurisdictional objection was that:[4]
(a) The Applicant had expressed his resignation on 4 April 2023:
(i) In clear and unambiguous words;
(ii) Absent circumstances akin to those of “the heat of the moment”;
(b) Accordingly, the Respondent had no duty to clarify the Applicant’s intention to resign;[5]
(c) The Respondent was entitled to, and did, accept the Applicant’s resignation on 5 April 2023; and
(d) Even if the Applicant withdrew or sought to withdraw his resignation on or after 5 April 2023, no such unilateral right to do so during a period of notice exists at law.[6]
The case before the Commission is whether the Applicant was terminated at the Respondent’s initiative on 8 May 2023, or whether his employment had come to an end on an earlier date as a result of his resignation. It therefore requires the determination of four questions:
(a)Did the Applicant resign on 4 April 2023?
(b)Did the Respondent offer a transfer to the Applicant on 8 April 2023 or thereafter?
(c)Did the Applicant withdraw his resignation on 8 April 2023 or thereafter and, if so, was this withdrawal accepted by the Respondent?
(d)Did the Respondent make an offer of new employment to the Applicant on 8 April 2023 or thereafter and, if it did, was a new employment relationship formed as a result?
Did the Applicant resign on 4 April 2023?
I find that the Applicant resigned on 4 April 2023 in clear and unambiguous terms. He does not allege, nor does the evidence before me suggest, that his resignation was anything other than freely given.
Did the Respondent offer a transfer to the Applicant on 8 April 2023 or thereafter?
After the Applicant resigned, he and Mr Sundy exchanged text messages as excerpted at [16] above. The Respondent submitted that the first text message sent to the Applicant by Mr Sundy on 8 April 2023 had the effect of seeking an expression of interest from the Applicant regarding a possible transfer to Camp Hill. The Respondent submitted that the transfer to the Camp Hill location was subject to the Applicant’s availability matching the Camp Hill location’s requirements, and that this was expressed by way of Mr Sundy’s subsequent text message to the Applicant on 8 April 2023 referring to Mr Sundy having to ‘work a few things out’.[7]
The Applicant contends that the first 8 April 2023 text constituted an offer to transfer the Applicant to the Camp Hill location. In response to this offer of transfer the Applicant then purported to accept that offer and/or withdraw his resignation by the sending of his text message on 8 April 2023. The Applicant submitted that his acceptance of the Respondent’s offer of a transfer effectively revoked his resignation.
I do not accept the Respondent’s submission that the first 8 April 2023 text message sent by Mr Sundy was capable of clearly expressing that any transfer to the Camp Hill store would be conditional on the Applicant’s availability and the Camp Hill store’s requirements. However, I find that the first 8 April 2023 text message did not constitute an offer of a transfer to the Camp Hill store. The 8 April 2023 text message self-evidently contained no specifics of any role, its commencement dates, nor any commitment to days of work or particular shifts. Mr Sundy’s evidence was that he had to see whether he could fit the Applicant into the Camp Hill roster without going over budget or putting other people out. Mr Sundy gave evidence that his discussions with the Applicant were for the purpose of gauging the Applicant’s interest in a potential transfer, and that he did not make an offer of a transfer. Whilst I accept that the message could have been more clearly worded and that the Applicant honestly interpreted it differently, I find that the text message is an offer for the Applicant to express interest in a transfer, as opposed to an offer of a transfer that was capable of acceptance. My view is reinforced by the subsequent text message after the Applicant expressed interest where Mr Sundy states “Ok, obviously just have to work through a couple of things but it should be no problem.”
It is then necessary to consider whether any subsequent communication between the Applicant and Respondent constituted an offer of a transfer. It is helpful here to set out the evidence of the conversation between Mr Sundy and the Applicant at the New Farm store during the week ending 13 April 2023.
Mr Sundy gave evidence that he had discussed a possible transfer to Camp Hill with the Applicant during a conversation at the New Farm store. Mr Sundy gave evidence that he had told the Applicant that any transfer would be conditional on making sure that it could work within the existing roster. Mr Sundy’s evidence was that he had not said that the Applicant had a position at Camp Hill, but that Mr Sundy would have a look and see if things fit. He then asked the Applicant to write the days of the week that the Applicant was available to work at the Camp Hill location on a discarded receipt or scrap of paper. Mr Sundy’s evidence was that the Applicant advised that he was only available to work one day per week, and Mr Sundy determined that the position to be filled at Camp Hill was for three to four days per week. Mr Sundy’s evidence was that he did not offer the Applicant any ‘days’ in this conversation. I understand from further evidence given by Mr Sundy that the reference to ‘days’ was intended to be a reference to future shifts.
The Applicant gave evidence that during the conversation in the week ending 13 April 2023, he shook hands with and thanked Mr Sundy, that he and Mr Sundy spoke about a transfer to Camp Hill in broad terms that indicated the Applicant’s employment was to be transferred there, and that this was consistent with the Applicant’s knowledge that other colleagues had had their employment transferred in a similar fashion. The Applicant’s evidence was that Mr Sundy indicated that he would contact the Applicant in one weeks’ time to discuss things.[8] The applicant apprehended that the matters that needed to be sorted out by Mr Sundy included matters such as rosters, the hours available at Camp Hill, and maybe a trial shift. The Applicant’s evidence was that no further particulars, such as the Applicant’s availability, any start date, or the Camp Hill location’s roster requirements were discussed. Rather, the Applicant emphatically denied providing his future availability to Mr Sundy, either verbally or on a scrap of paper, on this occasion, or indeed, on any other occasion.[9]
Other than the difference between the Applicant’s and Mr Sundy’s evidence regarding the Applicant’s expression of thanks for the offer of a transfer and a discussion regarding the Applicant’s availability, the Applicant and Mr Sundy’s accounts of this conversation and the events that followed were largely consistent. [10] The evidence was not contentious between the parties with respect to that the Applicant was not offered any particular shifts, and no start date was discussed. Both witnesses agreed that Mr Sundy had said that he would contact the Applicant in a week or so. The Applicant gave honest evidence that his recollection of some events leading up to his resignation (some days before the conversation at the New Farm premises) was imperfect given the effluxion of time and experiences that he had had since then. Where the Applicant’s recollection of events from around this time is unclear, and given the lack of detail in this conversation and the evidence of both the Applicant and Mr Sundy that no specific terms of any transfer were discussed, I prefer the evidence of Mr Sundy and find that the Respondent did not offer the Applicant a transfer to Camp Hill. In those circumstances, I do not consider that the Applicant was offered a transfer of employment in any terms that were capable of acceptance by him, because no clear offer or commitment to a transfer was made and no terms discussed or agreed. I consider, based on his evidence, that the Applicant had an honestly-held but mistaken belief arising from the initial text exchange between himself and Mr Sundy that he was being offered a transfer and that this coloured his understanding, recollection and evidence regarding the exchange with Mr Sundy that followed.
For the reasons set out above, I find that the Applicant was not offered a transfer by the Respondent following his resignation on 4 April 2023.
Did the Applicant withdraw his resignation on 8 April 2023 or thereafter and, if so, was this withdrawal accepted by the Respondent?
It is necessary to consider whether the Applicant withdrew his resignation on 8 April 2023 or thereafter and, if so, whether this withdrawal was accepted by the Respondent.
The Applicant did not contend that he had unilaterally withdrawn his resignation. Rather, the Applicant contended that he had withdrawn his resignation by virtue of his text messages on 8 April 2023, and that the withdrawal of his resignation had been accepted by the Respondent by:
(a)Mr Sundy’s text messages in reply to him on 8 April 2023; and/or
(b)The conversation with Mr Sundy during the Applicant’s last week of employment, where a transfer to New Farm was discussed.
The Applicant also relied on his continued access to the Respondent’s rostering application as supportive of his belief at the time that his employment with the Respondent continued following his last day of work on 13 April 2023.
I accept the Applicant’s evidence that he intended to withdraw his resignation by his text message sent to Mr Sundy on 8 April 2023. Mr Sundy gave evidence, which I also accept given the wording and content of the text message exchange, that he was not aware that the Applicant had withdrawn his resignation and did not understand the Applicant’s text message to be a revocation of resignation.
The position at law with respect to whether a resignation can be unilaterally revoked was considered at length in Birrell v Australian National Airlines Commission,[11] (Birrell), and summarised and applied by the Full Bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd:[12]
The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission... The conclusion to be drawn from that case is, we think, clear — a unilateral withdrawal of a notice of termination of a contract of employment is not possible (at 110). [citations omitted]
The approach in Birrell was described as ‘the current state of the law in Australia’ in Robinson v Pilbara Iron Co (Services) Pty Ltd (No 2),[13] having been applied consistently in both State and Federal Courts in the 40 years since it was delivered.
If the Applicant sought to withdraw his resignation in the text exchange where he responds to Mr Sundy’s offer to express interest in working at Camp Hill by stating “That would be amazing, Dain. Yes please” it is clear, based on the principle in Birrell, that the withdrawal had to be accepted by the Respondent in order for it to be effective. Put another way, if, as I have found, there was no agreement to transfer the Applicant then, absent a new contract of employment, in order for the Applicant to have remained an employee of the Respondent until 8 May 2023 as he alleges, then the Respondent must have agreed to accept the withdrawal of his resignation.
I find that that the wording of the Applicant’s text message did not make it clear that he was seeking to revoke his resignation. Based on the evidence before the Commission, only two exchanges occurred between the Applicant and the employee of the Respondent who could make decisions about such matters, Mr Sundy, following this text. One of these was the responsive text from Mr Sundy where he said “Ok, obviously just have to work through a couple of things but it should be no problem.” The words used by Mr Sundy do not clearly demonstrate an understanding that the Applicant intended to revoke his resignation and Mr Sundy gave evidence that he did not understand the Applicant’s text to be a withdrawal of resignation. Given this evidence, which I accept, the text message that Mr Sundy “needed to work through some things”, and his equivocal statement that it “should be no problem” (as opposed to the express statement in the alternative, “will be no problem”), I do not consider that Mr Sundy’s text message response constitutes an acceptance of any resignation withdrawal.
The second exchange was the meeting between the Applicant and Mr Sundy in the week ending 13 April 2023. I have previously recounted and considered this evidence. I do not consider anything said or done by the Applicant or Mr Sundy in this meeting to support a finding that they constituted steps on the Applicant’s part to revoke his resignation, nor the Respondent’s acceptance of any revocation.
Whilst the Applicant retained access to the rostering app until he brought this to the attention of Mr Sankey on or around 8 May 2023, he was not offered any shifts on the app following 13 April 2023. I accept the evidence of Mr Sundy that it is not unusual to have former employees on the app for extended periods of time,[14] and the evidence of Mr Sankey to the effect that the Applicant retaining access to the app was an administrative oversight.[15] I do not consider that this demonstrates that the employment of the Applicant was ongoing after 13 April 2023.
For the reasons set out above, I make the following findings:
(a)The Applicant purported to withdraw his resignation;
(b)If the Applicant’s conduct was capable of constituting a withdrawal of the Applicant’s resignation, such a contractual right does not exist unilaterally,[16] and
(c)The text messages, conversations, and continued application access between the Applicant and Mr Sundy following 8 April 2023 did not constitute acceptance by the Respondent of a withdrawal by the Applicant of his resignation; and,
(d)The Applicant’s employment came to an end on 13 April 2023 as a result of his resignation.
Did the Respondent make an offer of new employment to the Applicant on 8 April 2023 or thereafter and, if it did, was a new employment relationship formed as a result?
Having found that the Applicant’s employment came to an end on 13 April 2023 as a result of his resignation, it is necessary to consider whether, in the factual circumstances set out in [36] to [39] above, the Respondent made a new offer of employment to the Applicant to be employed at the Camp Hill location and therefore whether a new employment relationship was entered into commencing after 13 April 2023. If this was the case, then the 8 May 2023 conversation with Mr Sankey could have constituted a dismissal of the Applicant.
The Applicant submits that the Respondent either made this offer:
(a)By way of Mr Sundy’s text message to the Applicant on 8 April 2023 (subsequently being accepted by the Applicant by way of his text message in reply that same day) or,
(b)During the conversation between Mr Sundy and the Applicant at the New Farm location during the Applicant’s last week of employment (being accepted by the Applicant during that conversation).
The Respondent submits that the Applicant could never have accepted an offer of employment at the Camp Hill store, because such an offer was never made by the Respondent.[17]
In Sonia Argentier v City Perfume Retail Pty Ltd (‘Argentier’)[18] the Commission found that an employee had been dismissed by her employer before she had performed any work for the employer under her contract of employment:
The employment relationship is the relationship between an employer and an employee in those respective capacities. An employment contract and an employment relationship can come into existence at different times. Often, but not always, the contract precedes the employment relationship or the commencement of work.
In Argentier, the Commission found that an assessment of the surrounding circumstances contained a number of factors which pointed to the existence of an employment relationship:[19]
In this matter, it was not in dispute that the Applicant had not commenced her first shift with the Respondent and consequently had not received any wages. The performance of work and payment of wages would generally be relevant considerations in any determination as to the existence of an employment relationship. The absence of either could suggest that there was no such relationship. However, these are not the only factors that need to be considered. All of the surrounding circumstances should be taken into account. In this case there are other factors that point to the existence of an employment relationship.
The terms of the contract of employment are significant in this respect. It is the contract of employment which creates the basis of and underpins the employment relationship. In this case those terms do not just set out conditions of employment but also make express reference to an ‘employment relationship’ being established by the contract itself. The agreement was made on 6 April. On any view, by 18 April those terms, including this term that established an employment relationship, had come into effect. Unlike the situation in Kelly, the contract of employment had been finalised and there were no contractual pre-conditions or unresolved issues between the parties that prevented an employment relationship from coming into existence. The express terms of the agreement itself had brought an employment relationship into existence.
Given my findings above that the first employment relationship between the Applicant and Respondent had ended as a result of the Applicant’s resignation, it is necessary to assess the surrounding circumstances in order to establish whether a new employment relationship between the Applicant and the Respondent commenced following 13 April 2023. An important element in this consideration is whether a new contract of employment was entered into. In order to find that a new contract of employment was entered into it is necessary that I find that there was an offer by the Respondent, and an acceptance of that offer by the Applicant, that were:
(a)Sufficiently specific as to create the necessary certainty of a contract; and
(b)Capable of evincing an intention to create a legal relationship between the parties.[20]
The assessment of whether parties have demonstrated the requisite intention to create a legal relationship for the purposes of an employment contract is an objective one.[21] It may consider the subject of the agreement, the parties’ relationship to one another, and the surrounding circumstances of that agreement.[22] As stated by the High Court in Ermogenous v Greek Orthodox Community of SA Inc,[23] intention is:
… that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. [citations omitted, emphasis added]
The assessment of whether intention exists, in other words, asks whether the words and conduct of the parties would lead a reasonable person to believe intention exists.[24]
In undertaking that assessment, I return to the contact between the Applicant and Mr Sundy between 8 April 2023 and 13 April 2023. The Applicant and Mr Sundy do not dispute the nature of the text messages they exchanged during this time. As I have set out at [33] to [39] above, the Applicant and Mr Sundy’s evidence diverged as to the content of the conversation at the New Farm store.
The Applicant’s evidence was that he believed that he was employed by the Respondent subsequent to his resignation on 8 April 2023 and after his final shift in the New Farm store. I have already accepted that this was his honestly held belief. The Respondent’s evidence was that it did not intend to offer and did not offer a new contract of employment or a transfer to another store. No new written contract was offered to the Applicant and no written variation to his contract was reduced to writing and signed by the parties in accordance with the relevant terms of the Applicant’s contract of employment. The Applicant was not offered or rostered to perform work after 13 April 2023. I find that there were no specific terms of employment discussed between the Applicant and Mr Sundy either via text message or in person, including no start date, specific shifts or “days” being offered. Nor was any role title or classification, remuneration or type of employment discussed or agreed. Both Mr Sundy and the Applicant agree that Mr Sundy made it clear that he had to undertake further steps or “sort some things out”. Neither the Applicant’s evidence or Mr Sundy’s evidence, when taken at their respective high points, establish that there was an offer of employment by the Respondent via text message or in person- let alone one that was sufficiently specific so as to create either the necessary certainty of a contract or evince an objectively appreciable intention to create a new legal relationship. As such, I do not consider that the Respondent made an offer of new employment to the Applicant, that a new employment contract was entered into or that the parties created a new employment relationship following 13 April 2023. Accordingly, there was no dismissal at the initiative of the Respondent on 8 May 2023.
The Applicant gave evidence that, if not for the Respondent’s lack of communication with him, the Applicant would have moved on with his life and not sought to make this application. It is not contested by either party that the Respondent did not make any effort to advise the Applicant of its decision not to proceed to offer the Applicant a role at the Camp Hill store. The circumstances of this case emphasise the importance of clear, effective and transparent communication by an employer to an employee or prospective employee. The Respondent accepted that there was room for improvement in its internal practices and properly conceded, in my view, that it could have communicated in a more prompt and clear manner with the Applicant and that its conduct was unfortunate. I consider it appropriate that the Respondent acknowledged that it should have made that effort.
Conclusion and orders
Having considered the evidence before the Commission and the submissions made by the parties, as I have set out above, I have found that:
(a)The Applicant resigned his employment on 4 April 2023;
(b)The Respondent did not make an offer to transfer the Applicant between 8 April 2023 and 13 April 2023 or thereafter;
(c)Any withdrawal of the Applicant’s resignation was not effective as it was not accepted by the Respondent;
(d)The Respondent did not make an offer of new employment to the Applicant between 8 April 2023 and 13 April 2023 or thereafter and no new employment relationship commenced after 13 April 2023; and accordingly,
(e)The Applicant’s employment came to an end on 13 April 2023 as a result of his resignation.
I conclude that it was the decision of the resigning employee, the Applicant, that resulted in the end of the employment and there was no termination of employment at the initiative of the employer. The Applicant was not “a person who has been dismissed” within the meaning of ss.365 and 386 of the FW Act which has the effect that he was not entitled to make an application under s.365 and that the Commission has no jurisdiction to deal further with his application.
The Respondent’s jurisdictional objection is upheld, and the Applicant’s application is therefore dismissed. An order to this effect will issue separately.
| DEPUTY PRESIDENT |
Appearances:
K. Gee appearing on his own behalf.
E. Harvey of Thynne + Macartney for the Respondent.
Hearing details:
Via videoconference
7 September 2023
[1] Lipa Pharmaceuticals v Mariam Jarouche[2023] FWCFB 101 [23].
[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[3] Being the threshold to make an application under s.365 of the FW Act, and defined by s.386(1) of the FW Act.
[4] Respondent’s submissions dated 7 August 2023 (RS) [5], [7]-[8].
[5] Minato v Palmer Corporation Ltd (1995) IRCA 316, cited in Fato v La Sagra Pty Ltd [2017] FWC 4458 (Fato).
[6] Fato [37].
[7] RS [9].
[8] Statement of Mr Kevin Mornard Gee dated 27 July 2023 (‘S-KMG’) at p. 2; Statement in reply of Mr Kevin Mornard Gee dated 17 August 2023 (‘RS-KMG’) at p.1.
[9] RS-KMG at p.2.
[10] Further statement of Mr Dain Sundy dated 7 August 2023 (‘FS-DS’) [14], S-KMG at p.2, RS-KMG at p.1.
[11] [1984] FCA 378 (‘Birrell’) at 110.
[12] Ngo [16].
[13] [2023] FedCFamC2G 593 (‘Robinson’) [53].
[14] FS-DS [22].
[15] Statement of Mr Samuel Sankey dated 7 August 2023 [12].
[16] Ngo [16] and Robinson [53], citing Birrell at 110.
[17] RS [10].
[18] [2023] FWC 1819.
[19] Argentier [32]-[38].
[20] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 (‘Ermogenous’) [24]-[25].
[21]Masters v Cameron (1954) 91 CLR 353 at 362.
[22] South Australia v The Commonwealth (1962) 108 CLR 130 at 153.
[23] Ermogenous [25].
[24] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 [40].
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