Mark Handley v Recom Group Pty Ltd
[2024] FWC 2701
•27 SEPTEMBER 2024
| [2024] FWC 2701 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mark Handley
v
Recom Group Pty Ltd
(C2024/3197)
| COMMISSIONER P RYAN | SYDNEY, 27 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – whether applicant was dismissed – jurisdictional objection dismissed – application to proceed.
Introduction
Mr Mark Handley (Mr Handley/Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) alleging he was dismissed from his employment with Recom Group Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act (Application).
In its Form F8A Response, the Respondent objected to the Application on the ground that Mr Handley was not “dismissed”.
The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the FW Act) is a jurisdictional prerequisite to the making of a valid application pursuant to s.365 of the FW Act. Where the respondent to a s.365 application contends, in its response to an application or otherwise, that an application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission exercising the powers conferred by s.368.[1]
The Respondent’s jurisdictional objection was heard before me on 9 July 2024. The Applicant was self-represented. The Respondent was represented by Mr Scott Wilson, a director of the Respondent.
For the reasons that follow, the Respondent’s jurisdictional objection is dismissed.
Evidence before the Commission
The following materials were admitted into evidence:
· Witness Statement of Scott Callender, employee of the Respondent (Hearing Book at p.17) (Exhibit R1);
· Witness Statement of Kathlyn Kelly, employee of the Respondent (Hearing Book at p.19) (Exhibit R2);
· Text Messages exchanged between the Applicant and Steffanie Kelly and David Hall (Hearing Book at p.23-25) (Exhibit R3);
· A copy of the text of the Applicant’s Letter of Offer and Contract of Employment dated 15 January 2024 (Hearing Book at p.26-34) (Exhibit R4);
· Text Messages exchanged between the Applicant and Steffanie Kelly (Hearing Book at p.80) (Exhibit R5);
· GPS Data for “Smurf” Flatbed Truck on 26 April 2024 (Hearing Book at p.82-86) (Exhibit R6);
· Text Message exchanged between the Applicant and Steffanie Kelly (Hearing Book at p.87) (Exhibit R7); and
· Applicant’s Bundle of Documents (Hearing Book at p.35-68) (Exhibit A1).
Mr Callender, Ms Kathlyn Kelly and the Applicant also gave evidence at the hearing.
Relevant Factual Background
The Respondent operates a business known as Western Landscape Supplies at Willawong in Brisbane, which supplies and delivers gardening and landscaping materials to residential and commercial customers throughout Southern Queensland.
To facilitate its delivery service, the Respondent has a fleet of small, medium and large trucks, including trucks with trailers.
On 12 January 2024, the Applicant commenced casual employment in the position of Rigid Truck Driver. The primary function of the Applicant’s role was to deliver the Respondent’s products to customers. The Applicant’s role was covered by the Road Transport and Distribution Award 2020 (Award). The Applicant’s supervisor was Ms Steffanie Kelly, who is the domestic partner of Mr Wilson.
Throughout his employment, the Applicant was required to have an interlock device installed in any vehicle that he was driving because of a previous drinking driving offence. An interlock device is connected to a vehicle's ignition. To start the vehicle, the driver must provide a breath sample. The vehicle only starts if no alcohol is detected.
The Respondent allowed an interlock device to be installed on its Kenworth flatbed truck that had a blue cabin and was referred to as the “Smurf Truck”. The Applicant arranged and paid for the interlock device to be installed by Draeger Australia.
Due to the interlock device requirement, the Applicant could only be offered work driving the Smurf Truck. The Smurf Truck is only used by the Respondent for specialised loads and the availability of work depends upon demand.
If the Applicant was required for work, the Respondent would usually advise the Applicant on the afternoon or evening of the previous day. In addition to his employment with the Respondent, the Applicant performed work as a labourer for his neighbour who is a bricklayer. However, the Applicant prioritised his availability for the Respondent.
Throughout his employment, the Applicant raised concerns relating to:
· Award entitlements, such as penalty rates, overtime and allowances;
· Driving hours; and
· Safety/roadworthiness issues with the Smurf Truck.
On Friday, 26 April 2024, the Applicant commenced work at 5:00am and undertook delivery duties throughout various suburbs of Brisbane. The Applicant returned to the Respondent’s yard at Willawong at approximately 10:30am to reload the Smurf Truck. The Applicant then delivered goods to the Sunshine Coast region before returning to Willawong.
Throughout the afternoon, the Applicant called Ms Kelly and explained that he could not complete the last delivery job due to exceeding legal driving hours.
At approximately 5:30pm, the Applicant drove the Smurf Truck into the Respondent’s yard. The speed limit in the Respondent’s yard at Willawong is 10 kilometres per hour. As the Applicant approached a corner in the yard, Ms Kelly’s dog ran towards the path of the Smurf Truck. Mr Callender stated the truck was “flying down the driveway” and that the Applicant had to “lock the brakes up” and only just missed hitting Ms Kelly and her dog. The Applicant accepts that he was driving faster than 10 kilometres per hour and that he braked to stop the truck but denied that he had to lock the brakes. The GPS data for the Smurf Truck recorded that it was travelling at 17 kilometres per hour.
While the Applicant waited for Ms Kelly to pick up her dog, Mr Wilson approached the Applicant in an angry manner. The Applicant advised Mr Wilson that he had exceeded his legal driving hours and could not complete the last delivery. The Applicant stated that Mr Wilson responded in a raised voice “you’re done”, to “rip out the interlock on Monday”, and to “f*** off”.[2] Mr Wilson did not give evidence, and the Respondent did not otherwise challenge the Applicant’s evidence of the exchange between the Applicant and Mr Wilson in the yard.
At 8:02pm on Sunday 28 April 2024, the Applicant sent an SMS text message to Mr Wilson and Ms Kelly which stated:
Hi Scott and Steffanie,
Just a quick message to confirm that I am [no] longer required at Western Landscapes? I wasn’t sure if you were both committed to letting me go on Friday evening after I already exceeded my legal driving hours?
Could you just make it official, so I can commit to prioritise other avenues, otherwise just let me know a start time if required. I’m unclear of the resolution that is decided from you both, as I have not heard otherwise. I realised the moment can be over amplified due to external pressures, but if things are official, then I will start to budget for the interlock removal.
Any questions or updates, please message or email me with the appropriate documents.
Sincerely
Mark.
At 8:06pm on Sunday 28 April 2024, Ms Kelly sent an SMS text message in reply stating:
Hi Mark,
Following the events of Friday afternoon can you be available for a meeting tomorrow afternoon at 2pm for further discussion?
At 8:08pm on Sunday 28 April 2024, the Applicant sent an SMS text message in reply stating:
Unfortunately, I have another job that I have committed to already, and don’t think I can make that time. I will keep you updated on my availability, as I do want to resolve these issues amicably.
At 8:30pm on Sunday 28 April 2024, the Applicant sent a further SMS text message to Ms Kelly stating:
If you wanted to elaborate further on what this particular meeting is about, then feel free to communicate anything relative via email or text, in the meantime… Being casually employed, I am unsure as to the reason you both require a meeting on this matter. Please feel open to send any relative information you need addressed in the meantime, and I will try to address your issues in due time.
Thanks to confirm that I am no longer required for your services. I appreciate the notice to devote my time to more important matters and am thankful for the opportunity to work for Western Landscapes.
On Monday 29 April 2024, the Applicant worked for his neighbour as a labourer.
On Friday 3 May 2024, the Applicant sent an SMS text message to Mr Wilson and Ms Kelly stating:
Hi Scott and Steffanie. I was organising to remove the interlock around my current schedule, and found that it was removed Monday. I still need to come by to pick up my 4 x load chokers and boots and pants in the office.
I can pay off the interlock cost, if you wanted to provide the receipts, when I pick up my gear. If you can let me know if the truck is in the yard to get everything all at once.
I can come by Saturday morning also, so the receipt can be left with Dave.
Sincerely,
Mark.
On Saturday, 4 May 2024, the Applicant collected his personal belongings from the Respondent’s yard.
On 16 May 2024, the Applicant made the Application.
Consideration
As stated above, the requirement for a “dismissal” is a jurisdictional prerequisite to the making of a valid application pursuant to s.365 of the FW Act.
Section 386(1) of the FW Act states:
“(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.”
In O’Meara v Stanley Works Pty Ltd[3]a Full Bench of the Australian Industrial Relations Commission summarised the approach as to whether a person was dismissed as follows:
[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)
Where a respondent to an application raises a jurisdictional objection, the respondent bears, if not the legal onus, the evidentiary onus of establishing the facts in support of its jurisdictional objection.[4]
Having regard to the evidence before me, I find that the Respondent dismissed the Applicant for the following reasons.
I accept Applicant’s evidence unchallenged evidence that Mr Wilson dismissed the Applicant on Friday 26 April 2024 when he stated to him “you’re done”, to “rip out the interlock on Monday”, and to “f*** off”.
I also accept the Applicant’s evidence that he contacted Draeger Australia on Friday 3 May 2024 to make arrangements to remove the interlock device from the Smurf Truck and was advised that it had been removed on Monday 29 April 2024. The Applicant then sent the SMS text message to the Respondent referred to at paragraph [25] above. While the Respondent made a submission that it was removed on Wednesday 1 May 2024, there is no direct evidence supporting this submission and the Respondent did not challenge the Applicant’s evidence that it was removed on the Monday.
The removal of the interlock device on the Monday was consistent with Mr Wilson’s stated intention and prevented any future engagement of the Applicant as a truck driver.
These two events, when considered individually or collectively, were actions by the Respondent that directly and consequentially resulted in the termination of the Applicant’s employment.
I do not accept the Respondent’s submission that the Applicant “was reprimanded and requested to come into the office the following Monday to discuss the incident.” In response to whether he was available, the Applicant confirmed he was not available at that time which must be viewed in the context of a casual employee who has a second job and did not want to lose a days’ pay due to the timing of the meeting. Furthermore, I accept the Applicant’s evidence and submissions that the only reason the prospect of a meeting between the Applicant and the Respondent arose was because the Applicant attempted to ascertain whether Mr Wilson acted in the heat of moment on Friday evening.
Although the Applicant advised the Respondent that he would update them on his availability before sending the further message, which the Respondent agreed was confusing, those actions were of no consequence because he was dismissed on the Friday evening and a contract of employment cannot be terminated twice.[5]
Even if I was to find that the words of Mr Wilson did not constitute a dismissal, it would not have changed my finding that the Applicant was dismissed. The Respondent submitted that the SMS text message sent by the Applicant at 8:30pm on Sunday 28 April 2024 “finished with a confusing statement”. The Respondent took no steps to confirm the Applicant’s intention or to confirm that his employment was not terminated.[6] Rather, the Respondent proceeded to have the interlock device removed the following day which meant the Applicant could no longer work for the Respondent.
Conclusion
For the reasons set out above, I find that the Applicant was dismissed by the Respondent.
The Respondent’s jurisdictional objection is dismissed. The matter will be listed for a conference pursuant to s.368 of the FW Act.
COMMISSIONER
Appearances:
Mr M Handley, Applicant.
Mr S Wilson, for the Respondent
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
9 July.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75].
[2] Exhibit A1 (Hearing Book at p.37); Transcript at PN397, PN400, PN465.
[3] [2006] AIRC 496 (PR973462).
[4] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[5] Melbourne Stadiums Ltd v Sautner [2015] FCFCA 20 at [112] (per Tracey, Gilmour, Jagot and Beach JJ).
[6] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [38]-[39].
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