Mark Berry v Hanson Construction Materials Pty Ltd, Phil Cole - [2024] FWC 3606

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 3606
Decision Date: 31 DECEMBER 2024

CaseChat Overview and Summary

Mark Berry, a former employee of Hanson Construction Materials, filed a general protections dispute under section 365 of the Fair Work Act 2009, alleging he was unlawfully dismissed after raising safety concerns and reporting misconduct. Hanson Construction Materials, along with Phil Cole, the Northern Region Aggregates Supply Chain Manager, objected to the application on the grounds that Berry had not been dismissed but rather had voluntarily resigned. The case came before Deputy President Dobson of the Fair Work Commission.

The central legal issue was whether Berry had been dismissed by Hanson Construction Materials or if he had voluntarily resigned. The Commission had to determine whether Berry's actions constituted a resignation or if he was forced to resign due to employer conduct, which would classify his termination as a dismissal. The resolution of this issue was critical as only a dismissed employee can apply for relief under section 365 of the Fair Work Act.

Deputy President Dobson found that Berry had voluntarily resigned. The decision was based on Berry's communications with his supervisors, where he explicitly inquired about the length of notice required upon resignation, which indicated an intention to end his employment. Despite Berry's contention that his text message was merely an inquiry and not a resignation, the Deputy President found that the text message, along with subsequent communications and Berry's refusal to meet with his manager, demonstrated his intention to resign. Therefore, the jurisdictional objection was upheld, and Berry's application for an unlawful termination remedy was dismissed.

The Deputy President ordered that Berry's application for an unlawful termination remedy be dismissed. Both parties were granted permission to be represented by counsel at the hearing, following the Commission's consideration of the relevant criteria under the Fair Work Act.

Orders