Mark Berry v Hanson Construction Materials Pty Ltd, Phil Cole
[2024] FWC 3606
•31 DECEMBER 2024
| [2024] FWC 3606 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mark Berry
v
Hanson Construction Materials Pty Ltd, Phil Cole
(C2024/7224)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 31 DECEMBER 2024 |
Unlawful termination – jurisdictional objection – applicant not dismissed – upheld – application dismissed
Mr Mark Berry was employed by Hanson Construction Materials (Hanson) from March 2021 to 17 September 2024 and held the position of Leading Hand of the Afternoon/ Night Shift Maintenance Team. On 7 October 2024, Mr Berry applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act) against his former employer Hanson and Mr Phil Cole, Northern Region Aggregates Supply Chain Manager of Hanson. Mr Berry alleges that he was dismissed in contravention of the general protections when he raised safety concerns and other misconduct by the organisation.
An application under section 365 of the Act can only be made by, or on behalf of, a person who has been “dismissed”. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.[1]
Hanson objects to the application on the basis that they say they did not dismiss Mr Berry, and rather that he voluntarily resigned on 16 September 2024 by contacting his Supervisor (Mr Alan Brook) and the Quarry Manager (Mr Jarrod Leech) by text message and his subsequent action.
I find that Mr Berry resigned voluntarily and was not dismissed by Hanson Construction Material. The result is that Mr Berry cannot apply for the Commission to deal with the dispute under s.365 of the Act. These are my reasons.
Permission to appear
Mr Berry sought to be represented before the Commission by Counsel instructed by a lawyer, and the Respondent by a paid agent.
The Act provides that a party may be represented in a matter before the Commission only with the permission of the Commission.[2] It also provides the reasons that permission may be granted.[3] Previous cases determined by the Commission or superior courts, give guidance as to how these reasons should be considered.[4]
I provided the parties with an opportunity to make submissions about these issues. Neither party objected to the other being represented. I considered all of these issues, I agreed with the submissions made and granted permission for both parties to be represented at the hearing as sought.[5]
Was Berry Dismissed?
I acknowledge the submissions and evidence made by both parties in writing, pursuant to my directions which are set out in the Digital Court Book. This evidence and other relevant matters were further tested and explored at hearing. I don’t intend to detail them all here however they have all been considered and these are my findings.
I accept that Mr Berry had some months previously made a complaint about a safety incident that occurred on 30 May 2024. I am not fully satisfied that there were further substantiated incidents that may give rise to an adverse action being taken unlawfully prior to the employment coming to an end, however it is not necessary for me to make such findings in order to deal with the jurisdictional objection before me.
On 13 September 2024, Mr Berry contacted Mr Phil Cole. Mr Berry told Mr Cole:
(a) He had decided with his wife that he would enquire if there were any alternate positions in the business he could be considered for; and
(b) That he had enough of Nerang (where he worked) due to concerns about safety, not being appreciated or recognised for the work he did and the business not doing enough to replace staff who had left.[6]
In that call on 13 September 2024, Mr Cole informed Mr Berry that it was unlikely there would be any alternate positions available and that if he had any concerns about safety incidents not being reported, that he should immediately report those to himself, the Regional General Manager or to the Mines Department.[7]
On 16 September 2024, at around 5pm,[8] Mr Berry had an exchange with his supervisor Mr Alan Brook in which Mr Berry asked Mr Brook if he was upset with him. Mr Brook agreed that he was upset, and that he was frustrated with Mr Berry “running other staff down”, calling them names and “telling lies”.[9]
Almost 4 hours later, whilst on the same shift on 16 September 2024, at 8.56pm, Mr Berry sent a text message to his supervisor (Mr Brook) and the Quarry Manager (Mr Jarrod Leech) as follows:
“Hope its not too late in the night, sorry if it is, if you two want to work out between you both what length of notice you need from myself to move on and let me know please.”
Mr Leech enquired with Mr Cole as to what length of notice Mr Berry would be required to give and forwarded a copy of the text message to him. Mr Cole was not surprised by this given his discussion with Mr Berry a few days earlier. Mr Cole advised Mr Leech that he would not require Mr Berry to work out his notice period, he could finish up immediately and would be paid out the rest of the week. I accept the evidence of Mr Cole and Mr Leech that this was a common practice given that employees who had resigned might not be fully focussed and that may pose a greater risk to their ability to work safely.[10]
The following day, Tuesday 17 September 2024, not wishing to disturb Mr Berry’s sleep following his night shift, Mr Leech responded by text message at 12.58pm asking Mr Berry to give him a call to discuss the text message.[11]
At 4.04pm Mr Berry called Mr Leech.[12] I find that a conversation ensued which can be characterised thus:
(a) Mr Leech had spoken to Mr Cole and Hanson was happy to let Mr Berry move on immediately and that he would be paid out the rest of the week;
(b) Mr Berry asked “how is me asking about notice taken as resignation”?;
(c) Mr Berry indicated he was not happy with only being paid out for one week, that he had made enquiries and was entitled to 3 weeks’ notice to be paid to him, which would take him up until his scheduled annual leave which was due to be taken in October. Further, Mr Berry stated that he would not return his phone or keys until this was resolved.;
(d) Mr Leech invited Mr Berry to have a face-to-face meeting with him but Mr Berry declined;
(e) Mr Leech listened to Mr Berry for some 27 minutes as he let Mr Berry express his dissatisfaction with the job at Nerang; and
(f) Mr Leech finished the call by indicating he would speak to Mr Cole and assured Mr Berry that he would paid out all his entitlements.[13]
I accept that in that call, Mr Berry’s concern was being paid out the required 3 weeks’ notice. I do not accept Mr Berry’s contention that he got dressed prior to this call and went to Woolworths to purchase his lunch. Mr Berry provided no evidence of purchasing his lunch or that he was at Woolworths. I also find it unlikely that he intended to attend work that day. Mr Berry contends that he had got ready for work at 3pm and bought his lunch from Woolworths at Pacific Pines prior to making call at 4.04pm to Mr Leech (returning Mr Leech’s earlier call to him). Mr Berry claims he made the call as he was driving to work after having bought his lunch.[14] So to recap that timeline, Mr Berry lives at Pacific Pines,[15] he says he purchased his lunch at Woolworths Pacific Pines and was in the car on his way to work when he made the call to Mr Leech at 4.04pm.[16] The distance from Woolworths Pacific Pines to Hanson’s Nerang quarry in Hymix Road is a 9 minute drive according to Google Maps which is information publicly available.[17] There was no evidence put by anyone and I find it unlikely that Mr Berry turned up for work before his scheduled start time of 5pm, even if he waited until the end of the call, which is not specified in his evidence. Mr Berry’s evidence is he was driving to work throughout the conversation.[18] Further, Mr Berry gave evidence that he spoke to Mr McKechnie at 5.01pm when Mr McKechnie told him that the shift had been cancelled. If Mr Berry’s evidence was correct, he would have arrived to work before then. Indeed, if his shift started at 5pm, he should have been there before 5pm, and thus before the 5.01pm conversation he claimed to have with Mr McKechnie. I do not accept that Mr Berry had gotten dressed, prepared and drove to work that day at all. None of the evidence supports that contention, including Mr Berry’s own evidence.
Later that day at 9:45pm, Mr Berry sent a further message to Mr Leech as follows:
“Hey so I’m trying to understand how a message asking what notice is required has resulted in myself getting less than what the eba says? I think I started at Hanson in early 2021, if Hanson is deciding for me to not work out any notice shouldn’t I be paid out longer than 4 days? Doesn’t seem to make sense. I read eba as 3 weeks? As with every interview I’ve done we ask how much notice they need to give to b able to start… I did nothing but ask a question. Unless I’m being paid rest of the week then my 3 weeks? Feels like my family is being [financially] punished cause I asked a question. Instead of staying in my position and making drama nd going down the road of what Phil said to do and make a formal complaint. I wasn’t out to ruin anyone’s jobs I just didn’t feel comfortable in the environment. Can you please explain to me so I can understand No hate just seemed very backwards”
Mr Leech responded the following day, 18 September 2024, at 8.44am indicating that he considered it would be best if he and Mr Berry met in person and “talk things out” and Mr Leech suggested a time and place. Mr Berry responded informing he felt there was no real need to meet in person. Mr Berry declined to do so. Instead, Mr Berry responded by saying:
“Hey Jarrod, there’s no real need to meet in person, I’m sure Ur (sic) busy, Just need clarification on what is happening with my pay? Seeing as my question has been taken as my resignation which it was not, I started in 2021 so is it still Phil’s directive to just pay me the rest of the week or is it my correct entitlements? Really the only thing I need to know from Hanson. Then everyone can just move on”
If Mr Berry did not want to resign, he was given the opportunity to meet with Mr Leech and pursue this, however he declined to do so and instead pushed that he just wanted his notice of 3 weeks paid out and “then everyone can just move on”.
It is my view that when Mr Berry questioned how his text message about what notice was required could be a resignation, he was referring to at what point his resignation would become the trigger for when the notice period was to be counted. It is my finding that the words of the text message on the evening of 16 September, mean to a reasonable person, an indication of an intention to end the employment, the only outstanding issue being to enquire as to how much notice is required. This has to be considered in light of the circumstances and communications between the parties in the lead up to and following that text message which I have set out in my decision.
At the hearing, Mr Berry’s representative handed up a timeline of the events leading up to and following the alleged resignation/dismissal. Whilst it was in Mr Berry’s statement,[19] there were two important messages missing from that timeline. The first is that at 8.08pm on 17 September 2024, after Mr Berry is said to have resigned and Mr Leech had discussed the length of notice to be paid out, Mr Berry contacted Mr Haine who he describes as the “site EBA representative”.[20] On his own evidence it was to enquire about the notice period required under the EBA.[21] The second missing message is the follow up text sent by Mr Berry to Mr Hain on 18 September 2024 at 12.18am,[22] which was also included in Mr Berry’s statement but missing from the timeline. Whilst I accept that Mr Berry disputes whether the text message was a resignation, he makes it very clear that his concern is about the length of notice he is entitled to be paid out, that he doesn’t want Mr Haine’s assistance to take any action “ATM keep this quiet”,[23] he says he is ‘happy to b gone, but not with 4 days shitty pay”.[24] Mr Berry asks for assistance to ensure he is paid out his notice. He does not ask for assistance to say I don’t want to leave my employment.
This finding is supported by the multitude of messages that only queried the length of the notice.[25] These messages are many but included “I just need confirmation of correct pay then I get my stuff phone keys dropped back same time. One trip, one moment Nd (sic) done for me. Best handshake U can give is the confirmation”.[26] The multitude of messages include the ones to Mr Haine as detailed in the preceding paragraph and they also confirmed on numerous occasions that if the notice period was sorted the outstanding matters were resolved. This is further supported by Mr Berry’s refusal to meet with Mr Leech to “talk things out” as mentioned earlier. If Mr Berry did not want to resign, he would have taken that opportunity to say so at that meeting however he declined to do so.
Furthermore, it is clear that Mr Berry was unhappy at work, he asked Mr Cole for a transfer from Nerang and advised him that he had discussed this with his wife some days before he asked how much notice he would have to give. This is further supported by Mr Berry’s correspondence to his former employer on 18 September that he had already been offered 2 jobs[27] and my earlier finding that Mr Berry did not attempt to attend for work that day (see paragraph [17]). These are indicative that Mr Berry did intend for his employment to come to an end and so I find, for all of these reasons, I do not accept that Mr Berry did not intend to resign, but rather he did not intend to resign with immediate effect. Instead, Mr Berry wanted to ensure he would be paid out his full notice in accordance with the Enterprise Agreement for his length of service.
Conclusion
For the reasons set out the jurisdictional objection is upheld. The Applicant’s application for an Unlawful Termination remedy is therefore dismissed. I so order.
DEPUTY PRESIDENT
Appearances:
Mr Armit of Counsel instructed by Mr Brodie Roberts of Rose Litigation Lawyers for the Applicant.
Mr Phil Copeland of Copeland Workplace Law for the Respondent.
Hearing details:
Brisbane
In Person
19 December 2024.
[1] Fair Work Act 2009 (Cth), ss 12 and 386.
[2] Section 596(1) of the Act.
[3] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[4] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act (see the decision in Warrell v Fair Work Australia [2013] FCA 291). The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted (see the decision in Warrell v Fair Work Australia [2013] FCA 291).
[5] By email on 17 September 2024.
[6] Digital Court Book (DCB) p.71.
[7] Ibid.
[8] DCB p.69.
[9] DCB pp.27-28; See also pp.69-70
[10] DCB pp.71-72 and p.74.
[11] DCB p.74.
[12] DCB p.44.
[13] DCB p.74
[14] DCB pp.29-30.
[15] DCB p.25.
[16] DCB p.30.
[17] Woolworths Pacific Pines to Hanson Australia - Google Maps
[18] DCB p.30.
[19] DCB p.32.
[20] Ibid.
[21] Ibid.
[22] DCB p.33-34.
[23] DCB p.34 at [b].
[24] Ibid.
[25] DCB pp.32-33 at [r]; pp.74-75 at [13]; See also DCB p.34 at [13d], [13e], [13f].; p.75 at [14b], [15a], [15b]. See also DCB p.76 at [15f].
[26] DCB p.76 at [15f].
[27] DCB p.75 at [15d].
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