Laurent Friederich v LCDF Trading Pty Ltd t/as La Casa del Formaggio
[2023] FWC 2963
•13 NOVEMBER 2023
| [2023] FWC 2963 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Laurent Friederich
v
LCDF Trading Pty Ltd t/as La Casa del Formaggio
(U2023/7137)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 13 NOVEMBER 2023 |
Application for an unfair dismissal remedy – food processing worker – regular casual employee (full-time hours) – factory relocation – removal from roster – failure to consult – resignation – whether dismissed at employer’s initiative – whether resignation forced – dismissal not found – jurisdictional objection upheld – application dismissed
Abstract
This decision brings into clear focus tension between a regularly employed casual worker’s decision to retain their casual status and a casual employee’s job security in the wake of changes to business operations, including whether a regular casual employee is or can be “dismissed” within the meaning of the Fair Work Act 2009 (Cth) (the FW Act).
Policy issues arising from the aforementioned are matters for the legislature, not the Commission. This decision is based on the current state of the law and the facts as found.
Background
On 3 August 2023 Laurent Friederich (Mr Friederich or the applicant) applied to the Commission under s 394 of the FW Act for an unfair dismissal remedy against LCDF Trading Pty Ltd trading as La Casa del Formaggio (La Casa, the respondent or the employer).
Mr Friederich claims to have been dismissed unfairly on 17 July 2023 effective that day. Alternatively, he claims that he was dismissed unfairly on 28 July 2023 by forced resignation. He seeks compensation.
La Casa oppose the application and raise a jurisdictional issue. It says that Mr Friederich was not dismissed on the day or days alleged. It says, in the alternative, that if dismissed, the dismissal was not unfair because it was a genuine redundancy and, further, not unfair because it was not harsh, unjust or unreasonable. In the further alternative, it says that no remedy of significance should be ordered.
Conciliation was conducted on 15 September 2023. The matter did not resolve.
I issued directions on 22 September 2023.
I heard the matter (jurisdiction, merit, remedy) by determinative conference on 31 October 2023.
Mr Friederich was self-represented. La Casa was represented (with permission) by a legal practitioner. In a manner consistent with my independent statutory role, I provided a measure of assistance to Mr Friederich to present his case and test that of the respondent, given his self-represented status.
Evidence
I received evidence (oral and written) from two persons:
· Laurent Friederich (applicant); and
· Elena Rorie (General Manager People and Safety).
Both witnesses gave evidence conscientiously. There are no factual differences of significance. The disputes largely concern conclusions to be drawn from the facts.
The proceeding was characterised by materials that were well prepared by both sides, and by a healthy degree of respect for the other. This was a credit to Mr Friederich, Ms Rorie and the respondent’s representative.
Facts
I make the following findings.
La Casa
La Casa is a food manufacturing business including of specialty cheeses and related products. The owner and Managing Director is Mr Claude Cicciello.
At the relevant time it employed approximately one hundred and fifty persons at a factory in Glynde, in Adelaide’s north eastern suburbs.
At Glynde, the factory operated twenty-four hours a day, six days per week across three shifts, day, afternoon and night.
Relevant to this matter, from 31 July 2023 it relocated production to a new factory at Edinburgh twenty four kilometres north of Adelaide.
Mr Friederich
Mr Friederich is a resident of Adelaide. He moved to Australia from Switzerland some fifteen years ago.
He first worked with La Casa as a casual food process worker from 2009 to 2012.
Between 2012 and 2014 Mr Friederich worked for a different employer.
Mr Friederich returned to La Casa in February 2015 where he was again employed as a casual food process worker. He holds a Certificate 3 in food processing. He was employed as a Level 5 adult casual employee under the Food, Beverage and Tobacco Manufacturing Award (the Award). Other terms and conditions of employment were set out in a letter of offer sent by the respondent in January 2015.[1]
At the time of alleged dismissal, Mr Friederich was married with teenage children. His wife worked as an accountant. To a material extent, the family relied on Mr Friederich’s earnings. Mr Friederich had no other income generating work other than his employment at La Casa.
Regular casual employment
Mr Friederich remained continuously employed throughout the eight and a half year period from February 2015 to July 2023.
The letter of offer which set out certain employment terms provided that Mr Friederich was employed “on a casual basis” and that “as a casual employee, there is no guarantee of ongoing or regular work”.[2]
Despite this, in fact Mr Friederich’s employment was regular, substantial, and ongoing.
With the exception of the very occasional week when Mr Friederich was told to leave early because of a lack of work, Mr Friederich was rostered to work 37.5 hours per week, being hours equivalent to a full-time employee. Almost without exception these were the hours Mr Friederich worked (and was paid) except when he sought unpaid leave or was absent for sickness and the like.
Mr Friederich worked night shift on the same five days and times each week:
· Sunday 10pm to Monday 6am;
· Monday 10pm to Tuesday 6am;
· Tuesday 10pm to Wednesday 6am;
· Wednesday 10pm to Thursday 6am; and
· Thursday 10pm to Friday 6am.
Mr Friederich was provided a roster in advance via a company online communication system (‘Deputy’).
Whilst from time-to-time Mr Friederich worked or assisted in different areas of production, at times relevant to this matter he was working on and around a ‘hot filler machine’ producing mascarpone and ricotta cheese. During night shift two other employees would generally be working alongside him in this area of production.
Decision to remain casual
When Mr Friederich commenced in February 2015, aside from managerial employees, most if not all production employees were casual.
Over the course of the eight years that followed, and in particular since about 2020, the profile of the production workforce changed. Almost all bar a handful of production employees became permanent (full-time or part-time). This was in part due to decisions by La Casa to engage new employees as permanent (full-time or part-time) rather than casual, and statutory rights provided to existing casual employees to convert to permanency.
On 24 September 2021 La Casa offered casuals, including Mr Friederich, permanency through the casual conversion provisions of the FW Act.
Mr Friederich declined for three reasons:
· he did not wish to lose income (the 25% casual loading);
· he wished to retain his right to choose to not be rostered on weekends; and
· he wished to retain flexibility over the timing of leave he sought.
On 6 October 2021 Mr Friederich advised La Casa that he had declined the conversion offer.[3]
The issue of casual conversation did not again arise between Mr Friederich and La Casa. However, at the time of relevant events, Mr Friederich continued to prefer to be employed as a regular casual on his established rostered pattern.
Relocation to new factory
During 2022 La Casa assessed that the business was constrained by the size of its Glynde site and decided to relocate to a new factory.
In January 2023 via a staff meeting addressed by the Managing Director, Mr Friederich was informed that a future relocation was planned to a site at Edinburgh in northern Adelaide.
At that time (January 2023) and in its early planning the business contemplated moving across all employees and retaining three production shifts at the new site.
In May 2023 Mr Rorie was informed by production and other managers that operating plans for production at the new site had changed and that production would likely be two shifts only, day and afternoon shift.
In June 2023 Ms Rorie instructed production team leaders to convene toolbox meetings (including of night shift employees) and inform employees that they would be asked to nominate whether they preferred to work day or afternoon shifts at the new site.
Mr Friederich attended a toolbox meeting of night shift workers in June 2023. He recalled being advised that employees would be invited to express a preference for day or afternoon shifts. His evidence was that he expected the business to then approach employees individually to secure their preference. He received no such approach, though he became aware in the weeks that followed that many employees including those he worked alongside had expressed a preference to the employer.
Mr Friederich took no action to express a preference. He preferred to wait for an advance from the employer. He also became aware that some employees including some regular casuals had chosen to leave the business and not relocate. He also surmised that as the total number of production hours per week were to be reduced (three shifts to two) and as some new and potentially more efficient technology at the new site may lift production, it was likely that the business would not have as much need for labour than it had at Glynde. As a casual he wanted to continue to work his 37.5 hours per week at the new site but he also felt that there was some risk that preference would be given to permanent employees and that he may miss out.
Despite these apprehensions, Mr Friederich waited for one-on-one communication by the employer. None was forthcoming.
In June and July 2023 a gradual transition to the new factory commenced. This involved progressively moving equipment to the new site and testing new and relocated machinery and systems.
In production and management meetings in June and July 2023 attended by Ms Rorie, it became evident to Ms Rorie that the amount of work required at the new site would not be sufficient for all employees to transfer over. Some redundancies would need to occur.
On 14 July 2023 Ms Rorie made ten employees redundant.
Notification to casuals 17 July
On 17 July 2023 the next stage in the transition occurred with the afternoon shift moving to the new site whilst the night shift and a skeleton day shift remained at Glynde.
On 17 July and prior Mr Friederich noticed some fellow (permanent) employees had been progressively rostered to the new site. He was not so rostered. Although concerned about what this meant for his position as a casual, he did not raise his concerns directly with his team leader or other managers.
Mr Friederich worked the Sunday/Monday night shift which concluded at 6am on 17 July. Upon attending that shift he was surprised that the hot filler machine he worked on had been removed from the Glynde site over the weekend (it has been transported to the Edinburgh site). Although not able to perform his regular production work that day, there was enough other related work and odd jobs available for Mr Friederich to complete a full shift.
Mr Friederich was scheduled to commence his next shift that evening, at 10pm.
At a production meeting that morning (17 July) Ms Rorie was advised that there was insufficient work at Glynde for all the remaining Glynde employees to do. In discussions shortly after with the Managing Director she was instructed to take measures to further reduce the Glynde workforce by taking the Glynde casuals off the roster and assessing whether any permanent employees still at Glynde wished to take annual leave.
These measures would apply at least for the period until the Glynde site closed completely which was scheduled for 31 July.
At 9.45am that morning (17 July) Ms Rorie sent (by the internal messaging app) the following to the four casuals remaining at the Glynde site, including Mr Friederich:[4]
“Dear All,
Due to the current transition to the new site, the work left for Glynde is not enough and therefore, the casuals won’t be required from tonight until further notice.
Your roster will be amended to reflect the change and we will be in touch when we require you back at work.
Kind regards,
Elena”
Mr Friederich read the message that afternoon (after waking from sleep). He replied with three successive messages to Ms Rorie and the fellow casuals:
“I hated when I found I was right in my prediction. When I learnt the two Makum and the X ray machine would be removed on the weekend but that only few people will be moving to EP, I figured that workload will be low, casuals will be asked to stay home”.
“You left home 4 skilled workers with years of experience right when tax return get cut to a point we own (sic) ATO, when interest rates are up 2.5 that they were a year ago just because we did not moved (sic) to full-time”.
“Obviously gov scheme is not reimbursing…that casuals are asked to stay home. But this time I cannot see why you moved machines but not people to run it. It is very disappointing to be not even told a length for the time down. With that sour taste in my mouth, I wish my 3 coworkers a good day.”
Ms Rorie did not reply.
In light of the message from Ms Rorie, Mr Friederich did not attend the 10pm shift.
The shift Mr Friederich completed on 17 July 2023 turned out to be the last shift he worked at La Casa.
Communications 21 July and 26 July
Mr Friederich remained at home in the period from 21 to 26 July. Having been taken off the Glynde roster and not having been rostered at Edinburgh, this was a period of forced unpaid absence from work.
Mr Friederich monitored for any communication or update from La Casa. None came. However, on 21 July Mr Friederich noticed rosters had been released for the following week (week of 24 July). He was not on the roster. That day (21 July) Mr Friederich sent Ms Rorie the following via the messaging app (visible to the other casuals):[5]
“I saw that the schedules are out for next week, so I have to assume that you are not going to give us another shift next week either. That’s a great news for me, only one week with no shift from my employer, after 8 years with shifts continuously offered weekly, would have been a weak case to argue, but two weeks sounds better.”
As Ms Rorie had no fresh news to advise as to when casuals could expect to be re-rostered, she did not reply.
A further four days passed with no contact. Mr Friederich remained concerned at the loss of income and lack of information from La Casa. He started looking at the prospect of securing work elsewhere. One option he began exploring was with a local manufacturer.
On 25 July Mr Friederich again messaged Ms Rorie via the app:[6]
“When will we know if we are scheduled again the week of the 31.07.23?”
Ms Rorie replied the next day (26 July):[7]
“As we are still in the transitioning process, we won’t know for sure, most likely until the end of August.”
Mr Friederich simply responded:[8]
“2023?”
Notice of intention to resign and resignation
In light of Ms Rorie’s message that it was most likely that news about future rostering would not be known “until the end of August”, on the evening of 26 July and morning of 27 July Mr Friederich discussed his circumstances with his wife. Both Mr Friederich and his wife considered that the household could not continue to manage with no income from Mr Friederich for a further five weeks, having already faced a week without his earnings.
Mr Friederich’s wife, being an accountant, advised Mr Friederich that he was entitled to pro rata long service leave on termination, and that if he resigned from La Casa this would be paid and that this would stabilise family finances without having to eat into savings or equity. Together they checked an online site about long service leave pro rata and saw this confirmed.
Seeing no other alternative to maintain income, Mr Friederich decided to resign. He decided to do so in two stages; by immediately informing La Casa in writing of his intention to resign, and then doing so in writing the day after.
On Thursday 27 July at 4.22pm Mr Friederich sent the following lengthy notice of resignation to Ms Rorie copied to the Managing Director:[9]
“Hi Elena,
Thank you for the answers on the deputy chat about the shifts that are abruptement (sic) and totally cut for the four casuals employees that were with the business for numerous years and likely all at level 4 or 5. I say abrupt as, personally at least, I never have been informed that the transition to the new factory implied any loss of shifts during the transition or ever. I have been told that only two shifts were going to be run and that the night shift employees will have to choose if they transit to day or afternoon shifts and that will be based on what the employee desire and what the business request on an operational level. Again I never have been asked what my desire was regarding which shift I would prefer or which shift I will be likely allocated, which few week before a permanent move of nearly 24 kilometres, and a change of shift is pretty poor. This lack of communication make that, the surprise to find all my expected shifts were cancelled in less of 24 hours, with no clear timing for future shifts, an unpleasant, unexpected and tricky situation.
All the information and explanations we (the four casuals concerned) received from La casa were on a chat in the shift planning software (Deputy) where only us and Elena were part of. This is not a great communication channel between an employer and an employee. The fact there are three more employees on that chat prevent any personal communication so I doubt that way of doing is really effective and if the reason of the shifts being cancelled is that there is not enough work left in Glynde, then why are we not yet being moved to the new factory, where the machine I operated for more than 8 years (the smaller model first then the dual lines one), seems to be already used in production at the new place (a little bird told me) ?
You know that casual workers got no income when they have no shifts. This is disappointing that we are abruptly told to stay home until further notice and when we insist to know when we will be required again in the business, the only answer we are provided is unlikely before the end of August. This is not good enough. We cannot stay without an income for 6 or 7 weeks and you know it. I would qualify this method a way to dismiss those four casuals by not providing any shift and not providing any date or estimation for any further shift that would allow us to assess whether we can afford to wait or if we need to find a new employment. The fact this was without warning (at least for me), left me feeling that we are treated unfairly and I seriously feel bullied here. And to add to the feeling that we are treated unfairly and that a lack of work is not really an acceptable excuse here, the fact that we have seen in the last weeks before you cut our shifts, the company hiring new employees (likely level 1, maximum 2). They have been inducted and hired to work within the company, in the same areas we were working. I doubt that a lack of work can be claimed by a company that hire lower level employees while claiming that higher level employees need to stay home for lack of work load ... This stand not well if you ask people gifted with common sense. I would be interested to hear why those new employees have been hired when the unofficial word going around by people in the know, is that actually there is already more employees than needed at the new factory. I am relying on a bit of unofficial words and rumours on a certain of the facts so if I am wrong, please enlighten me with the truth here.
Anyway, tomorrow I will be preparing my resignation letter, send it by email and by Registered Post as I am not able to stay without shift until, potentially, the end of August or even more. Or ever. I don’t want touching my equity or digging into my savings, so I have to find another way to get income. It is sad that the new exciting chapter of the business had to go through a so poor employees’ management. I think that all those trainings occurring have only been organised to get subsides on wages and obviously the casuals were not part of that. It does not matter anymore but in the last two years, I saw a decline in the work force around me, from a skills perspective, from simple common sense ability to think and about the image about the company in the eyes of the employees. It is sad for me to see that. The truth is that any of those employees hired in the last 2 years, will leave the company for any job that offer them 50 cents extra, with no remorse. I cannot feel anymore that proud feeling of being part of the company and be ready to be loyal. I understand that more profit pass by reducing the amount of wages and generally the reduction of costs and waste. I hope that the way you are driving right now will not bite you back in few months or year when you will realise that you have lost nearly all your skilled employees, just left with supervisors, SOP that are never accurate and employees that need arrows to tell them where to walk safely and signs to not drink chemicals. I hope for you that I will be proven wrong.
I will put that request in my resignation letter but I am asking here already, to provide me with a letter, on business letter head, that says the following facts : I have been hired with a casual contract, that the contract was not limited in length, that the contract mentioned that a week of notice would be required to end the employment, that no work will be guarantee and that after 8 years and a half (or whatever it is) of ongoing shifts offered, you stopped to offer shifts without any notice, on the 17th July 2023, less than 24 hours from the next shift that was offered and planned for me, on the 18th July 2023 at 10pm, with indication that no other shifts would be offered to me until further notice. And that when asked how long this will last, the answer is likely up to end of August 2023. I have all those facts on different supports and paperwork but it would be easy to have this whole story in a written letter. Those are just pure facts, so it should be no issue for you to write this letter to me. As said, my contract says that you have to provide me with a week notice to end my employment, so i assume i have the same notice (unless we both agree on a shorter notice).
In the wait of the requested letter, please have a nice day.
Laurent Friederich
PS : I cc Claude that I have always respected, seen as a great manager and a accessible person. Claude, I am sorry that I have no choice other than to leave. I really hope that my predictions for the future of the business, in that email, are wrong. Hopefully the use of more computerised solutions and less rely on human factors and skills, will result on a successful future for La Casa. Fun fact, I have contacts with a business that is actually located on the same Kaurna Rd in Edinburgh ... We may casually cross path again.”
Ms Rorie received and read the email that afternoon. Neither Ms Rorie nor the Managing Director responded. As the letter foreshadowed a resignation the next day, Ms Rorie decided to await the resignation.
Mr Friederich considered the matter further the next morning. Noting that there had been no response from La Casa (but not having expressly asked for one), he decided to proceed as he and his wife had discussed. He drafted a letter of resignation and a covering email (addressed to Ms Rorie and again copied to the Managing Director).
The covering email of 28 July 2023 read:[10]
“Hi Elena and Claude,
As said yesterday in my email, the abrupt cancellation of the next shift about 12 hours before it and the announcement that no other shift will be provided at least up to end of August, leave me no choice but to resign. In fact I can perfectly get another job while being still casually employed by your company and refuse shifts that would be offer to me, but, having talk with the other 3 casuals that are in the same situation, I have made my mind that this was not about money or even not having work at the new factory, but just a way to have 4 less employees to notice the end of their employment. And if it is not that, it does not matter because at the end of the day, that is how the all four casual employees feel.
I hope the other three will be OK. I am sad but not really surprised as, probably since we started to use agencies few years back, and even more when we stopped using them, and started hire unskilled employees, I started feeling like the rest of the work force ... Having our happiness to attend the workplace, very very affected ... The overall rating of the employment at La Casa in some online website is very poor. I agree that mainly the angry employees spend time to fill reviews, the score is still saying “don’t go working there, they don’t care about their employees”. Few OK comments but mainly from people not working on the floor. And nice comment that sounds too nice to be honest.
Anyway, again, not my business anymore, why should I care?
Please find in attachment my resignation letter. I send a copy by Registered Post this afternoon. There is a reading reply request in the email and a delivery notification and emails are accepted form of communication so I would say that as soon this email has been delivered, I consider it has been served and the notice period start today. As there is no shifts, there is no reason for you to claim that the notice start only Monday as you have not read it today, obviously I have not any job / skill that need to be passed to someone else before the end of the notice so it should not matter.
Please make sure you send a formal last Pay slip with anything I would be entitle to during my time with the business.
Cheers
Laurent Friederich”
The resignation letter of 28 July 2023 (sent by email and by registered post) read:[11]
“Dear Elena and Claude,
As mentioned yesterday in an email, I am resigning from my casual position as machine operator / food processor / cheesemaker in your company. The contract that we have signed in January 2015 mention that you must give me a week of notice, so I guess I have the same period to respect. Therefore, at the end of the notice period, there will be any longer work relation or contract between your company and myself, except any period of confidentiality or non-competition clause that would have to be served after that. Please let me know if one week period is still the right length or if after a certain number of years of contract, it increased or if was any change in the Award or the NES, that would have affected that period. If this is the case, then at the end of that amended period, note that I will no longer be an employee of your company. Please make sure you provide me with an end of employment pay slip that would contain any entitlement I may have with you and if any, a year-to-date amount that I have earned in 2023.
It’s with a heavy heart that I walk away from your company, I have worked there for 80% of my time in Australia. I still meet few times a year, with co-workers that I have made here in the first few years I was employee. They have become friends to me. The coworkers that I had in the last few years in Glynde, will unfortunately not leave a strong memory with me, they were exactly what they were called: co-workers. The spirit of being part of a team has disappeared about 4-5 years ago and now everybody looks for his / her own self and will be happy to push you down if you made any mistake or even use anything else, even lying on their abilities and knowledges, to try to score a higher position and pay level in the business. Having some TL or 2IC being the ones that are the less to respect the policies, like speaking English only, washing hands when returning from outside production area etc… is not a good look. To finalise with what I think you should know, before I leave: there is someone in my shift that never clean his / her hands when starting the shift, while putting the uniform. Without ever naming that I have mentioned this in the last 2 years to XXXXX X, XXXXX , XXXX, XXXXX X, XXXXX X and potentially XXX, but not 100% sure about her. I never told who it was when asked, but I told them that a discreet surveillance from outside the airlock would be an easy way to catch that person. I directly confronted that person too, but the same thing kept happening after few days. I gave up and try to pass further high the command chain. But nothing changed.
Anyway, this is just a bonus resign present I left for you; I may have kept that for me, but it is really bugging me why nobody would care about a so high risk in a food preparation area. It is beyond me to be honest. Probably I care too much for things that are not my business at the end of the day.
I humbly request again that you provide me with a letter with the company letter head, that state the following facts: Start of employment date, casual status level - 5, length of employment, confirmation that unless leave applications from myself, always been offered shifts for 37h30 per week unless Public Holidays or business I closure, that on the day of the 17th July 23 you cancelled my shift starting the same day at 10pm only 12 hours in advance and you cancelled any subsequent shifts already planned and even until further notice. And obviously I would like to see that you confirm that you did not provide any update or estimate date for any new shift until I ask about a week later, and the answer was: not before, at least end of August, which was more than 6 weeks away from my last shift. Those are facts. If you think that I have one of those facts wrong, please correct me. Otherwise, cannot see any reason to refuse me this letter.
I deeply regret that our collaboration end so abruptly and again, I wish La Casa del Formaggio a great future and I will keep praise your cheeses as I love quality products. No hard feeling but a bit of sadness.
Regards
Laurent Friederich”
Ms Rorie responded on 2 August 2023 (five days later):[12]
“Hi Laurent,
I acknowledge receiving your resignation.
This has been accepted effective Friday, 28.07.23, as no further notice is required in accordance with section 123 of the Act.
We can provide you with a standard letter of service; however, that would not match your prescriptive required content. Therefore, please advise if you still want to receive the said letter. Thanks
Thank you for your service, and wish you all the best with your future career endeavours.
Kind regards,
Elena Rorie CAHRI, AFIML
General Manager People & Safety”
The following day, 3 August, Mr Friederich filed these proceedings.
By letter dated 7 August[13] Mr Friederich received a Statement of Service advising that his employment had ceased on 28 July 2023.[14]
Ms Rorie directed payroll to make up and send Mr Friederich his final entitlements. This included pro rata long service leave. This was paid on 8 August 2023.[15]
Post employment circumstances
Mr Friederich began an intensive search for alternate work and applied for multiple jobs particularly once he received Ms Rorie’s message of 26 July that clarity on future rostering could not be provided at least until the end of August.
Mr Friederich, a qualified and experienced machinist and food process worker secured many interviews in the two months that followed.
However, he was not immediately offered work. He openly informed prospective employers that he had been taken off the roster by La Casa and not re-rostered, had resigned in order to access long service leave, and that he was dealing with the fall-out in a claim to the Commission. He found that some job interviews fell flat once he disclosed this. He also found that some prospective employers were unimpressed by a Statement of Service worded in neutral terms, such that in later interviews he stopped using it.
By 25 September 2023 Mr Friederich had found and commenced casual employment as a food process worker with a different business, working three days per week. Although comparably classified, his remuneration was more than two fifths less than his earnings at La Casa as the new employment was day shift only and did not include night shift penalties.
He remains looking for full-time work including a hope that his current employment may, over time, result in this.
Submissions
Mr Friederich
Mr Friederich submits that he was dismissed on 17 July 2023 effective that day. Alternatively, he claims that he was dismissed unfairly on 28 July 2023 by forced resignation.
On jurisdiction, Mr Friederich’s primary submission is that the complete removal of his rostered hours, in circumstances where he had been regularly employed for eight years and had a reasonable expectation of continuing employment on that basis, was conduct by the employer ending his employment particularly given that it was for at least a six week period and particularly given that the employer did not discuss or communicate alternatives with him.
Mr Friederich’s secondary submission is that he was forced to resign by the collective effect of the employer’s conduct which:
· took him off the roster thereby removing all income earning capacity for at least a six-week period;
· despite his requests, provided no indication let alone guarantees of future work and income;
· failed to communicate with him on his preferences for work at the new factory;
· failed to communicate or respond to his notice of intention to resign despite his explanation of reasons; and
· failed to raise with him the potential under South Australian law for long service leave to be paid out in advance of the entitlement crystalising.
On merit, Mr Friederich submits that his dismissal was unfair because:
· it was not a genuine redundancy because La Casa did not comply with the consultation obligations under the Award;
· if there was no work or insufficient work for him at Glynde during the transition or at the new site, he should in fairness have been paid a redundancy payment or equivalent sum given that he was, for all practical purposes, akin to a full-time employee;
· there was no valid reason for dismissal by reference to his conduct or capacity as he was a good, competent, loyal and experienced worker;
· dismissal was procedurally unfair because there was no consultation as required by the Award or at all as to how the adverse effects on him could be addressed; and
· dismissal had particularly harsh consequences on he and his family.
On remedy, Mr Friederich submits that he should be compensated for the economic loss sustained (or a significant portion of that loss) given the period he was looking for work and given the differential remuneration and job security between his former employment and what he has since secured.
La Casa
On jurisdiction, La Casa submit that Mr Friederich was not dismissed within the meaning of the FW Act on 17 or 28 July 2023.
The removal of Mr Friederich from rostered work was likely to be for a limited time only. It was rationally based because there was no productive work that could be rostered at Glynde or at the new factory whilst labour requirements were being assessed at the new site. The lack of work for casuals was communicated as soon as it was apparent and, in any event, this had become readily apparent to Mr Friederich.
La Casa submit that as a casual, Mr Friederich had no right to be rostered even though he was regularly employed. Not rostering a casual was permitted by the Award and by Mr Friederich’s contract. Being the exercise of a lawful right, it was not repudiatory conduct by the employer. The employment relationship was maintained. A consequence of Mr Friederich declining conversion rights to permanent employment was that he chose to retain the casual loading and thus a higher income knowing that casual employment was less secure in the sense that he had no right to rostered hours and would not receive redundancy pay if made redundant.
On the issue of forced resignation, La Casa submit that Mr Friederich chose to resign by making an assessment, in conjunction with his wife, that he would use pro rata long service leave to maintain income rather than access personal savings or utilise equity.
On merit, if there was a dismissal then it was a genuine redundancy because the reorganisation led to less need for labour at the time of transition to the new site. There was no immediate need for casual employees to be engaged on the hot filler machine or elsewhere. Whilst some elements of the Award consultation obligations may not have in a technical sense been observed, there was substantial compliance.
In the alternative on merit, there was a valid operational reason and, in practice, an appropriate level of procedural fairness given the difficult circumstances faced by the business in implementing a major change whilst trying to maintain production and manage over a hundred employees across old and new sites.
In the further alternative on remedy, no substantial order for compensation should be made given that Mr Friederich materially contributed to his loss of income by not waiting until the end of August to see if work for casuals had become available at the new site.
Consideration
Aside from whether Mr Friederich was dismissed as alleged, the other jurisdictional pre-requisites for a valid unfair dismissal application exist. Relevantly, Mr Friederich met the minimum employment period. For well in excess of six months he had been a “regular casual employee” as defined.[16] This is because, and I so find, that he was employed on a regular and systematic basis and, absent the business relocation, had a “reasonable expectation of continuing employment” on that basis.[17] I am satisfied that Mr Friederich was a person protected from unfair dismissal (s 382 FW Act).
Dismissal
A person has not been unfairly dismissed unless, amongst other matters, they have been dismissed (s 385(a)) FW Act).
Sections 385(a) and 394 require a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish that as fact.[18] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
“386 Meaning of dismissed
(1)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.”
I now consider whether Mr Friederich was dismissed on the employer’s initiative within the meaning of s 386(1)(a).
Termination at the initiative of an employer arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[19]
There is no doubt that it was a decision made by the employer to not offer Mr Friederich rostered work for an indeterminate period from 17 July 2023. In that sense, it was on the employer’s initiative that the performance of work ceased. However, the relevant enquiry under s 386(1)(a) is not whether the performance of work ceased, but whether the employment relationship terminated.
It is well established that in considering whether a person has been dismissed, consideration must be given to whether the employment relationship had terminated and not simply whether a singular contract of employment had ended.[20] This is particularly relevant in the case of a casual employee where employment is commonly by the hour but where an employment relationship is capable of surviving beyond the strict conclusion of hourly contractual engagements.
Whether an employment relationship has been terminated is a question of fact to be assessed by reference to all relevant circumstances. This is an objective exercise, not one based on the subjective intention of either party.
For the following reasons I do not consider that the removal of Mr Friederich from rostered work on 17 July 2023, at the time of the removal and at least in the eleven days that followed, was conduct that terminated the employment relationship.
Firstly, although Mr Friederich was a regular casual employee (both within the meaning of s 12 of the FW Act and in a practical sense) and although his casual hours equated, in practice, to full-time work over a lengthy number of years, he was nonetheless a casual employee. The consequence is that lawfully and contractually he had no guarantee of hours let alone an enforceable right to a particular roster in a given week. This was an express term in the letter of offer he accepted in 2015 and one not displaced by the FW Act or the Award.
Thus, the failure to roster Mr Friederich after 17 July was the exercise of a lawful right by La Casa. It was not repudiatory conduct. It was not conduct inconsistent with the contractual nature of its employment relationship with Mr Friederich. This is in contra-distinction to the position vis-a-vis a permanent employee (full-time or part-time) where, absent a lawful stand down or suspension, an obligation to provide work or payment for an authorised absence from work exists.
In arriving at this conclusion I make no criticism of Mr Friederich for declining casual conversion rights in 2021 and not subsequently seeking to assert such rights. Indeed, doing so was the exercise of workplace rights and he did so for rational reasons personal to his preferences. However in so doing, he forewent the greater level of job security associated with permanent employment.
Secondly, the period of time that elapsed between Mr Friederich being taken off rostered work and Mr Friederich claiming that he was dismissed was too short to conclude that, objectively considered, the employment relationship had terminated by 17 July 2023 or 28 July 2023.
The evidence clearly establishes that:
· the decision to remove all four casual employees from rostered work on 17 July was consequent on La Casa transitioning from one location to the other in circumstances where it had identified, at least during the period of transition, a mismatch between the required level of productive labour and production capacity at the old and new sites;
· Mr Friederich was not singled out. All four casuals were removed from rostered work at the same time and for the same reason;
· although the business could not provide assurances or guarantees of future labour requirements, the removal of casuals from the roster was, at that time, on a wait and see basis because permanent employees were being given preference for available work; and
· all casuals, including Mr Friederich, remained ‘on the books’ in the sense of being on the payroll system and in continuous service.
I am well satisfied that in this period the business was in a state of flux. It was at the height of a transition to a new manufacturing site when this uncertainty about future labour requirements became a reality. As of 17 July 2023 Ms Rorie had no insight into when greater clarity about future work for casuals could be provided. A week later, as of 26 July, the best insight she could provide was that there would be no rostered work for casuals at least until the end of August.
Whilst fully taking into account that Mr Friederich was a regular casual of more than eight years standing and had been working hours akin to a full-time employee, I do not consider that the removal of Mr Friederich from the casual roster in the circumstances of and in the midst of the transition to the new location brought an end to the employment relationship either at the time of being removed from the roster or in the eleven days that followed.
I also do not consider that a week later, on 26 July 2023, the employer, advising as it did that clarity could not be provided on future rostering of casuals at least until the end of August was a sufficient lapse of time from his last rostered shift to objectively conclude that this advice, of itself, ended the employment relationship.
In reaching this conclusion I do so on the facts, and not on the proposition suggested by the employer that the absence of a legal obligation to roster a casual means that a regularly employed casual cannot in any circumstances be dismissed on account of not being rostered. A recent decision of a Full Bench of the Commission in Varichak v COG Regional Team Pty Ltd left open the possibility that a lengthy period of non-rostering of a casual employee may have the effect of changing the nature of the relationship:[21]
“Further, the continuation of the Respondent’s position not to offer shifts to Mr Varichak may have at some point changed the status of the relationship to the extent that a dismissal would result, but it had not at the relevant time.”
Whether this proposition in Varichak holds true in light of the decisions or reasoning of superior courts (including in Dolata[22], Skene[23] and Rossato[24]) referred to by the representative for La Casa need not be further dealt with other than to observe that the statutory context must also be taken into account.
In this latter respect, it is more than tolerably arguable that the legislature, having determined that a regular casual employee with a reasonable expectation of continuing employment on that basis is capable of serving the minimum employment period and thus protected from unfair dismissal (s 384(2)(a)), can, in certain circumstances, be “dismissed” within the meaning of s 386 and, if dismissed unfairly, access unfair dismissal remedies in Part 3-2.
I therefore find that at the time of Mr Friederich’s resignation, an employment relationship existed. There had been no earlier termination of the employment relationship at the initiative of the employer at the time or times alleged within the meaning of s 386(1)(a).
I emphasise “at the time or times alleged” because there may have been (and I put it no higher) a dismissal at a later date after a longer period of non-rostering. However, that is not what occurred. What occurred was a resignation by Mr Friederich after eleven days of non-rostering immediately after being told by the employer that the situation would likely remain unchanged for at least the next four weeks.
I now consider whether that resignation was “forced” within the meaning of s 386(1)(b).
A Full Bench of the Commission has observed that the statutory test in s 386(1)(b) requires an assessment of “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”.[25]
Conduct or a course of conduct forcing a resignation is not required to be repudiatory or unlawful. It could, depending on the circumstances, simply be conduct which, in an objective sense, forced the employee’s resignation.
The conduct by La Casa collectively relied upon by Mr Friederich is:
· taking him off the roster on 17 July;
· providing no explanation whether or why he was not rostered at the new site;
· ignoring his communications for a week (17 to 26 July);
· communicating only with the casuals as a group and thereby failing to discuss his individual preferences or circumstances;
· not responding to his notice of intention to resign despite his explanation of reasons; and
· failing to discuss with him the potential under South Australian law for long service leave to be paid in advance of the entitlement crystalising.
This conduct occurred. It is consistent with findings I have made.
Taking Mr Friederich off the roster had an immediate and profound impact on his earnings. As a casual working the equivalent of full-time hours, he lost all income. This occurred in the midst of a roster cycle and on a day when he had ceased work at 6am and was scheduled to re-commence his next shift at 10pm that evening. As no notice was provided, Mr Friederich had no opportunity to plan, adapt or think ahead. As a casual he was provided no compensatory payment in lieu despite the reason being an operational change in the business which had nothing to do with his conduct or capacity. Instantly the loss of income placed financial stress on his family.
Aside from whether La Casa met its consultation obligations under the Award, the lack of notice, its immediate effect and the absence of meaningful communication about its impact or discussion of measures to mitigate its effect compounded the severity of the income loss.
Whilst I take into account that the employer was at the height of a challenging business transition and was required to deal with employment matters with over a hundred employees in a short period, the absence of meaningful communication with Mr Friederich was disrespectful to the eight years of service he had given as a regular and loyal casual employee working the equivalent of full-time hours.
Whilst La Casa had, at that time, a legitimate need to reduce working hours to better match labour supply with demand, none of this explains let alone excuses the off-handed manner in which Mr Friederich was treated. Yes he was a casual and yes hours needed to be reduced. Yes preference in available work was logically given to permanent employees and yes Mr Friederich had declined permanency two years earlier. Yet his treatment was opportunistic because he was a casual. Without the legal protections of permanency, he was expediently left out to dry. He was removed from the roster without discussion about the most fundamental of issues – whether he would be transferred to the relocated site. Moreover, notification of the roster removal was brief and impersonal via a messaging app; and it was directed to all casuals with no suggestion of his individual circumstances being discussed.
No wonder Mr Friederich responded somewhat sarcastically.
Further, Mr Friederich’s responses did not trigger consultation. Whilst Ms Rorie did not have more to advise him about future rostering potential, that is not to the point. Fairness dictates that a business implementing a major operational change should not just instruct, but also listen. Yet, at the height of transitioning to a new site, La Casa failed that basic measure of fairness, at least with respect to its casuals. Even when advised in writing that Mr Friederich was intending to resign, the employer remained mute. Receiving Mr Friederich’s resignation was more convenient than discussing alternatives with him. One alternative that the employer could have raised was whether an agreement could be reached for Mr Friederich to take long service leave prior to his entitlement to leave accruing in order to maintain income until the transition had settled.[26] In her evidence Ms Rorie indicated that she was aware that such a right existed under South Australian law, but that it simply did not cross her mind.[27]
Objectively considered, the treatment of Mr Friederich was opportunistic and thoughtless and, in large measure, this was because he was a casual.
However, the jurisdictional issue is not whether Mr Friederich was treated poorly, but whether he was forced to resign.
Mr Friederich resigned in part on account of the poor treatment and lack of consultation. However, objectively considered the primary operating reason for his resignation was his assessment, made jointly with his wife, that his family could not sustain the eleven day loss of income for a further four weeks until the end of August 2023. It was his removal from the roster and the consequent loss of income coupled with the lack of any assurance or guarantee about future work at the new location which was central to his decision. This much is apparent from Mr Friederich’s lengthy notice of resignation and resignation email:
“Anyway, tomorrow I will be preparing my resignation letter, send it by email and by Registered Post as I am not able to stay without shift until, potentially, the end of August or even more. Or ever. I don’t want touching my equity or digging into my savings, so I have to find another way to get income.”;[28] and
“As said yesterday in my email, the abrupt cancellation of the next shift about 12 hours before it and the announcement that no other shift will be provided at least up to end of August, leave me no choice but to resign.”[29]
As critical as my findings and conclusions are about his treatment, for the following reasons the evidence, objectively considered, does not lead to a finding that termination of the employment relationship by resignation (when it occurred) was the probable result of La Casa removing Mr Friederich from the roster or that Mr Friederich had no effective or real choice but to resign. It was a possible consequence, but not the probable result.
The removal from the roster was triggered by a mismatch at least in the short term between labour supply and demand at the old and new factory sites whilst transitioning to the new site. The evidence is not such that it can be reliably concluded that this was to be a permanent mismatch or necessarily so. Nor did La Casa intend that the employment relationship end. Ms Rorie’s message of 17 July expressly contemplated being “back in touch when we require you back”. Her advice on 26 July that clarity was not likely until the end of August did not alter that circumstance.
The fact that Mr Friederich had not received assurances about being transferred to the new site or that the transition was intended to occur from 31 July 2023 points somewhat objectively to a finding that the employer forced Mr Friederich’s hand despite him still being on the books at the time of resignation. However, Mr Friederich’s notice of intention to resign on 27 July did not make a direct request for such an assurance. Further, there was no certainty about the employment relationship ending when it was ended by resignation. Mr Friederich had difficult but available choices:
· he could have waited until the transition to the new site had occurred or had settled before assessing whether he was likely to be rostered either in his former production work, for his former hours or otherwise;
· he could have waited until the end of August, as Ms Rorie had advised, to see if there was any greater clarity over rostered hours;
· he could have confronted the employer front-on as to whether he or any of the casuals would be transferred to the new site or whether his private assessment that less labour would be required at the new site was correct and whether this would make future rostering of casuals unlikely;
· instead of waiting for an approach from the employer, he could have expressed a preference for day shift or afternoon shift at the new site given that the employer had invited employees to do in June 2023, and which he had not yet done;
· he could have sought temporary alternate casual work elsewhere during the period of transition and income loss whilst also remaining an employee of La Casa; and
· he could have opened discussions with the employer about whether mechanisms existed for income maintenance during the non-rostered period such as the early taking of paid long service leave.
On this latter point, and mitigating somewhat its strength, I take into account that Mr Friederich was unaware of the option available in South Australia of negotiating an agreement to take long service leave prior to the entitlement to take leave arising. Whilst he and his wife had searched online and satisfied themselves that pro rata long service leave was payable by La Casa on employment ceasing, they had not explored that option.
That aside, Mr Friederich did not take the aforementioned steps largely because he had deduced from his observations over the previous days and weeks that there was, in his opinion, likely to be a future reduction in productive work for casuals at the old and new sites, that the reduction was likely to extend beyond the relocation date because three shifts at the old site had been rolled into two at the new, and that permanent employees were being given preference over casuals.
Having read these tea leaves and because he assessed that he could not remain without income for a further indeterminate period. Mr Friederich decided to cut his losses and resign to access his pro rata long service leave. He made this decision ten days after his last shift and a day after being told by Ms Rorie that nothing more could be advised about future rostering for a further month. He did so in the privacy of his home, in the solitude of his thoughts and in discussion with his wife.
Given the circumstances, whilst the employer’s conduct in taking Mr Friederich off the casual roster triggered his decision to resign it did not force it. Mr Friederich was employed at the time he resigned and had been off roster for eleven days with a further four weeks advised. He knew that the business was, at that time, transitioning to a new site. He made his own assessment that future employment was not likely to continue at the new site, at least not as he had been accustomed. He also made an assessment that being without income for an indeterminate period was unviable given his family circumstances. Not wishing to wait for La Casa’s advice at the end of August, he chose to access his long service leave accruals and believed this required him to resign.
I take into account Mr Friederich’s submission that he received no response from La Casa to his notice of resignation in the 24-hour period between 27 and 28 July. However, diminishing the force of this consideration is, as noted, that his advance notification of resignation neither sought assurances of transfer to the new location nor repeated his message of 25 July about future rostering (which had been responded to). By 27 July he had cast his die; Mr Friederich had started to look for new employment.
The alternatives available to Mr Friederich were difficult in the sense that they may not have produced the guarantees he wished or income he needed particularly given their timing. After all, these events occurred at the height of a relocation when La Casa itself did not have a clear line of sight into its labour requirements at the new site and especially not with respect to casuals. Whilst difficult, there were nonetheless a handful of available options short of resignation. Mr Friederich resigned for rational reasons but that is not the statutory test. The statutory test is whether he was forced to resign by La Casa’s conduct or course of conduct.
Removing a casual employee from a roster because of a mismatch at a given point in time between labour supply and demand, even a regular casual employee, necessarily has the effect of removing their immediate source of income. That conduct does not of itself “force” a resignation but, depending on the circumstances, it may do so. What is relevant is an objective consideration of all relevant employer conduct and surrounding circumstances. Also relevant is that the statutory expression “forced” connotes the deprivation of an effective or real choice on account of the employer’s conduct. Not all conduct by an employer, even opportunistic or thoughtless conduct (such as in this matter), forces a resignation, though such conduct points in that direction.
I take fully into account, and it is material, that Mr Friederich was not simply a casual, but one who had been regularly employed for over eight years on the equivalent of full time hours and had a reasonable expectation of continuing employment on that basis. That regular and significant service was known to the employer. Objectively considered, removing him from the roster meant that the financial pressure on Mr Friederich consequent on the immediate loss of income was profound as he was unlikely to have had (and did not have) a second casual job to fall back on. Further, the lack of consultation left him second-guessing whether future work at the new site was likely and, if so, when.
These considerations weigh in favour of a finding that he was forced to resign.
However, the pressure of the situation was also a product of Mr Friederich knowing that he did not have the greater protections of permanency, his private assessment about likely labour demand and the use of casuals at the new site, and his decision about the best mechanism to secure family finances whilst not earning income. His solution was to resign to access his pro rata long service leave and look for another job. These factors weigh against a finding of having been forced to resign.
This is a finely balanced matter. Considered overall, Mr Friederich’s resignation was not forced at the time it was proffered. Whilst his resignation was a possible result of the employer’s conduct it was not, given its timing and the difficult but available alternatives, the “probable”[30] result of that conduct.
Mr Friederich was poorly treated but the employer’s conduct was not such that it denied him a sufficient level of independent and personal judgement, which he exercised, such that he was forced to resign within the meaning of s 386(1)(b) of the FW Act.
Conclusion
Although protected from unfair dismissal, as Mr Friederich was neither terminated at the employer’s initiative nor forced to resign on account of the employer’s conduct. He was not “dismissed” within the meaning of the FW Act.
There being no dismissal, there is no jurisdiction to hear and determine whether Mr Friederich was unfairly dismissed. The application must accordingly be dismissed.
An Order[31] giving effect to this decision will be issued in conjunction with its publication.
Concluding observation
Whilst Mr Friederich was not dismissed, his treatment as a regularly employed casual who had worked full-time hours for more than eight years was opportunistic and thoughtless. It is also more than tolerably arguable that La Casa failed to comply with the consultation obligations of the Award. Those obligations apply to casuals, not just permanent employees.
Notwithstanding the pressure of this litigation, the facts which emerged and these findings may allow the parties to view events in hindsight and develop a greater understanding of the circumstances which each faced. Each could have done things differently, the employer particularly so.
Given what is now known and better understood, it is regrettable that this matter was not settled in conciliation.
Whilst Mr Friederich was not entitled to a redundancy payment given that he was a casual employee, the events which triggered his employment ceasing arose from a significant relocation of manufacturing operations and at least a temporary mismatch between labour supply and demand. It is not contested that Mr Friederich did not bring about this circumstance, that he had been a loyal and long serving casual employee and that he had worked in a manner akin to a full-time member of La Casa’s production staff for eight years.
In those circumstances, and notwithstanding that this application has been dismissed for jurisdictional reasons, I encourage La Casa to consider making an ex-gratia payment to Mr Friederich akin to the whole or a portion of what he may have received had he been permanently employed and made redundant.
This I consider would conclude this litigation and what had been a mutually beneficial relationship for eight years on a respectful and respectable basis.
This concluding observation should be brought to the attention of the Managing Director of La Casa with whom Mr Friederich communicated at the time of his resignation.
DEPUTY PRESIDENT
Appearances:
Mr L Friederich, on his own behalf
Mr M Eleftheriou, with permission, with Ms E Rorie, on behalf of LCDF Trading Pty Ltd t/as La Casa del Formaggio
Determinative conference details:
2023
Adelaide
31 October
[1] A1 LF1
[2] Ibid page 1
[3] R1 ER2
[4] A1 LF2
[5] Ibid
[6] Ibid
[7] Ibid
[8] Ibid
[9] A1 LF4
[10] A1 LF5
[11] A1 LF6 (names of staff members redacted)
[12] R1 ER3
[13] R1 E
[14] A3
[15] R1 ER6
[16] Section 12 FW Act
[17] Section 384(2)(a) FW Act
[18] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
[19] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
[20] NSW Trains v James[2022] FWCFB 55, [45]
[21] [2022] FWCFB 37, [58]
[22] Dolata v Victorian YMCA Community Programming Pty Ltd [2023] FedCFamC 722, [52] – [56]
[23] WorkPac Pty Ltd v Skene (2018) 264 FCR 536
[24] WorkPac Pty Ltd v Rossato (2021) 271 CLR 456
[25] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941 at [47] (Bupa)
[26] Section 7(4)(d) Long Service Leave Act 1987 (SA)
[27] Recording of Determinative Conference, 31 October 2023, 3:02:00 – 3:02:27
[28] A1 LF4 paragraph 4
[29] A1 LF5 paragraph 1
[30] Bupa, [47]
[31] PR768210
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