Malcolm Edwards v Australian Parking and Revenue Control Pty Limited T/A Aparc

[2020] FWC 194

[2020] FWC 194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcolm Edwards
v
Australian Parking and Revenue Control Pty Limited T/A APARC
(U2019/9678)

DEPUTY PRESIDENT BOYCE SYDNEY, 14 JANUARY 2020

Application for an unfair dismissal remedy — jurisdictional objection — whether the Applicant’s employment with his employer has been terminated at the employer's initiative — application dismissed

Introduction

[1] On 29 August 2019, Mr Malcom Edwards (Applicant) filed a Form F2 with the Fair Work Commission (Commission) claiming that he had been was unfairly dismissed by his former employer, Australian Parking and Revenue Control Pty Limited (Respondent), on 22 August 2019.

[2] On 9 September 2019, the Respondent filed a Form F3 with the Commission. The Respondent raised a jurisdictional objection to the Applicant’s claim, being that the Applicant was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act).

[3] On 13 December 2019, I held a hearing in Sydney to determine whether the jurisdictional objection should be upheld. At the hearing, the Applicant appeared for himself. Mr Michael Mazzone (Solicitor, Diamond Conway Lawyers) sought permission to appear for the Respondent. Having considered the criteria under s.596 of Act, and noting that there are inherently complex issues where matters of jurisdiction are raised, I granted permission to Mr Mazzone to appear on behalf of the Respondent. The Applicant did not object to that permission being granted.

[4] Having taken into account the evidence and submissions of the parties, I have determined that the Applicant was not dismissed. As such, the Commission is without jurisdiction to hear the Applicant’s claim for unfair dismissal. My reasons for this decision follow.

Relevant law

[5] Sub-section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.

[6] It necessarily stands to reason that a person who is not dismissed cannot apply for an unfair dismissal remedy. Section 386 of the Act defines “dismissal” as follows:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part”.

[7] The only issue for determination is whether the Applicant’s employment with the Respondent was terminated on the employer's initiative viz sub-para.386(1)(a). I turn now to consider whether that is the case.

Applicant’s submissions

[8] The Applicant provided written submissions prior to the hearing. When given the opportunity, the Applicant did not seek to supplement those submissions at the hearing.

[9] The Applicant submits that the Respondent engaged him as a full-time employee from 1 October 2018. The Applicant denies that he resigned from his employ. Instead, he submits that his employment terminated on 22 August 2018, and that it occurred at the initiative of the Respondent. The Applicant submits that his dismissal is evidenced by the removal of his IT access, and the pay-out of his accrued entitlements.

[10] Further, the Applicant denies that he agreed to carry on services as a contractor for the Respondent after his dismissal. The Applicant submits that he expected to continue working for the Respondent on a part-time basis, and that he would do so remotely from New York.

Respondent’s evidence and submissions

[11] The Respondent filed evidence and written submissions prior to the hearing. The Respondent also supplemented those submissions at the hearing. The following is a summary of the Respondent’s case.

[12] The Respondent submits that the Applicant voluntarily left his employment. To that end, the Respondent says that the Applicant was not terminated at its initiative.¹ The Respondent submits that the Applicant has not identified any conduct of the Respondent that would be caught by sub-para.386(1)(a) of the Act.

[13] The Respondent submits that (by his own evidence) the Applicant had a discussion with Mr Philip Verity (Managing Director for the Respondent) about moving overseas and converting to part-time employment. The Respondent posits that the Applicant does not point to any concluded agreement. Further, the Respondent says that the Commission should accept Mr Verity’s evidence that his discussion with the Applicant entailed the Applicant continuing to work for the Respondent whilst he was overseas, but in a relationship of principal and contractor (as it had been in the past), and not that of employer and employee.²

[14] The Respondent’s evidence is that the Applicant’s access to its IT systems was cut-off because the Applicant had resigned and was moving overseas.³

[15] Finally, the Respondent submits that the Applicant’s silence after his IT access was terminated is evidence that the Applicant understood that he had not been dismissed. The Respondent submits that, if the Applicant’s belief was that he had been terminated by the Respondent., then the Applicant would have contacted Mr Verity to inquire as to why he no longer had IT access. Instead, the Respondent says that the Applicant’s position is “inherently implausible” in the face of the evidence before the Commission.⁴

Consideration

[16] The Applicant has not identified any conduct that demonstrates his employment was terminated at the initiative of the Respondent.

[17] I do not accept that the Applicant was unaware that his employment had come to an end when it did. Both the Applicant and the Respondent agree that the Applicant was moving overseas. A “farewell afternoon” tea was held to acknowledge that fact. The purpose of that afternoon tea (being that it was an occasion for employees to acknowledge the Applicant was leaving his employment) is evidenced by the statements of Ms Julia Kerr (Business Manager of the Respondent) and Ms Elizabeth Coleman (Financial Manager of the Respondent). Further, the fact that a cake was specially purchased for that occasion sees it as distinguishable from the other occasions when the Applicant had travelled overseas for a limited period. This afternoon tea held a special status. It was to say goodbye to the Applicant and acknowledge he was no longer an employee of the Respondent.

[18] I do not accept the Applicant’s submissions that the removal of IT access was an act that ended the Applicant’s employment. I agree with the Respondent’s submission on this point — had the Applicant truly thought his employment had been terminated, he would have done more to inquire as to why his IT access had been revoked. He would have sought to confirm his employment status. He did not, however, because his employment had ended upon his resignation.

[19] The same too can be said of the Applicant’s submission regarding the finality of his pay. It would be excepted that, given the length of the working relationship, the Applicant would have contacted Mr Verity to inquire why he had received a termination payment. On balance, I infer the Applicant expected this to occur because he had resigned.

[20] Even more telling is the fact that Mr Verity attempted to contact the Applicant by telephone on two occasions on or around 22 August 2019, but the Applicant did not return those calls. If the Applicant did not expect a change in his IT access, then he should have welcomed the opportunity to discuss his concerns with Mr Verity (who was actively trying to contact the Applicant).

[21] On the evidence, I find that the Applicant voluntarily left his employment. Clearly, there was a miscommunication between the Applicant and Mr Verity as to the true nature of his future engagement (be it employed part-time, or engaged as a contractor) in lieu of his full-time employment. The Applicant indicated he would prefer to work part-time. The Respondent did not accept this and instead suggested he be re-engaged as a contractor. That neither of these two arrangements were ever properly finalised is not to the point. The fact of the matter is that the Applicant ended his employment by leaving the country, with no other employment arrangement agreed to thereafter.

Conclusion

[22] In view of the above, the Respondent’s jurisdictional objection is upheld, and the Applicant’s claim for unfair dismissal is dismissed.

[23] An order to that effect will be published in due course.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr M Mazzone (Solicitor, Diamond Conway Lawyers) appeared for the Respondent.

Hearing details:

A hearing was held in Sydney on 13 December 2019.

Printed by authority of the Commonwealth Government Printer.

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1 Transcript PN166.

2 Transcript PN344.

3 Transcript PN348.

4 Transcript PN349.