Marlon Tomaszek v Toll Holdings

[2020] FWC 1045

[2020] FWC 1045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marlon Tomaszek
v
Toll Holdings
(U2019/10725)

COMMISSIONER WILLIAMS PERTH, 27 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made on 23 September 2019 (Application), by Mr Marlon Tomaszek (Mr Tomaszek or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Toll Holdings (the Respondent or Toll).

[2] The Respondent filed a Form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 3 October 2020.

[3] The Employer’s Response objects to the application on the ground that the Applicant was not dismissed within the meaning of section 386 of the Act.

[4] The Application was the subject of a conciliation conference conducted by a Fair Work Commission Conciliator; however, the matter was not resolved and has been referred to myself for determination.

[5] Consequently, the matter was listed for hearing and directions issue to the parties.

[6] This decision concerns only the determination of the Respondent’s jurisdictional objection.

[7] Evidence was given by the Applicant and Mr Jason Holmes, the Respondent’s General Manager – Regional Rail and Port Services, Toll Global Express Services and Mr Stuart Preen the Respondent’s Warehouse Manager, Toll Global Express Services at Picton.

Factual Findings

[8] The Applicant commenced employment in May 2017, as one of two causal forklift drivers with the Respondent in Picton, at the Toll/MGM Freight Hub.

[9] In June 2017, he was promoted to leading hand as the other forklift driver was laid off.

[10] In April 2018, he says he was offered permanent fulltime employment subject to a medical and paperwork but there was an error in the paperwork, and nothing eventuated because Toll had placed a freeze on employment.

[11] Toll’s role at the Toll/ MGM Freight Hub is to do the handling in and out of the freight for the main end customer Iluka.

[12] Iluka were the first customer of the Freight Hub to come on board in mid-2017. The majority of the freight is bulk export mineral sands.

[13] Under the Iluka contract MGM, the main contractor, would pick up freight from the Iluka mine site and bring it to the Picton Freight Hub.

[14] Toll would then handle the freight in and out of the Picton Freight Hub warehouse.

[15] Iluka would later transport the freight to Toll Wharf Services in Fremantle.

[16] From 2018 the Applicant says he reported to Mr Jason Holmes (Mr Holmes).

[17] Mr Holme’s evidence was that over the first year of the Iluka contract, labour hours were 14-32% above the forecasted hours for the contract. As such, it became clear that Toll needed to have a Senior Warehouse Manager on site.

[18] Mr Preen is the Warehouse Manager at Picton, who started there around July 2018. In this role he is responsible for managing Toll's storage facility at Picton and was responsible for setting up a second new contract.

[19] The new contract is with Crystal (now Tronox). It was expected Tronox would come on board at the Freight Hub in November 2018. However, the start date was delayed by a year due to legal and contractual delays as a result of a management buy-out.

[20] Toll negotiated a new contract with Tronox and MGM, which was finalised in June 2019.

[21] Under the Tronox contract, Toll would be responsible for the storage, handling in and out and transport of titanium dioxide.

[22] Significantly the Tronox contract also involved the construction of a new 12,000sqm shed. MGM was responsible for constructing that new shed for the Tronox contract.

[23] On completion the expanded storage facility would then be a multi facet facility providing storage services for both Iluka and Tronox and then provide storage for 12,000 pallets.

[24] Mr Preen says the need for a casual forklift driver was a day by day proposition which he told the Applicant. He would advise the Applicant via text message when and if he was required the next day which sometimes changed overnight.

[25] Mr Preen did some hours on the forklift himself which reduced the Applicant’s hours.

[26] Toll also no longer required the Applicant to do some administration tasks he had been doing because they viewed this as inefficient and it had resulted in unnecessary overtime. This also reduced the Applicants hours

[27] In June 2019, Toll advertised for an Inventory Controller. The Applicant applied but was unsuccessful.

[28] Around July 2019, the Applicant sought and obtained casual employment with MGM on the construction project for the new Tronox storage shed at the Picton Freight Hub in order to supplement his Toll income.

[29] Both Mr Preen and Mr Holmes were aware of and supportive of the Applicant working casually for MGM on the shed construction.

[30] A couple of times Mr Preen agreed to change his start times with Toll to enable him to work for MGM later that same day.

[31] When the Tronox contract began Toll says it would require three new full-time Forklift Drivers, who would require specialised training on the Tronox work which was different from the Iluka work. Once their training was completed and the additional freight from the new Tronox contract had started to flow in, these new full-time staff would work on the Tronox work and the casual forklift drivers would work on the Iluka work as they had always done.

[32] Mr Holmes evidence which I accept was, that given the Applicant's experience with Iluka they didn't intend to let him go because he was a competent forklift driver but it was clear he needed to be managed and supervised which is what Mr Preen did when he arrived at Picton.

[33] Mr Holmes evidence was that there was a negative impact on the Applicants hours as they ramped up towards the commencement of the future Tronox work, but that it had become clear that the Applicants hours on average would sit between 20 to 30 a week once everything got back to normal and Toll was operating both the Illuka and the Tronox contracts.

[34] During the construction phase by MGM of the shed Toll wouldn’t need the Applicant but when the construction was finished, he would revert back to the 20 to 30 hours per week as the floating casual for Iluka and as necessary Tronox.

[35] Unfortunately, the start of the additional work for Toll under the Tronox contract was delayed two months because of construction issues with the shed.

[36] Mr Preen did employ three additional forklift drivers, one at a time, to work on the Tronox contract. The first started on 11 September 2019.

[37] The Applicant says that in August 2019 his hours were gradually reduced.

[38] On each of 25, 26, 27, and 28 August 2019, Mr Preen sent a text message to the Applicant advising him he was not required the next day.

[39] The Applicant says that on Monday 2 September 2019 he worked a four-hour shift for Toll.

[40] The Applicant says he received no further communication from Toll management after he worked on 2 September 2019. He says however, he was contacted by Toll People who were enquiring as to whether he had been working as they hadn’t received a timesheet from him.

[41] The Applicant says he was informed by an employee of the client that new employees had started for Toll and that they had four forklift operators and only three forklifts.

[42] I accept Mr Preens evidence that on 8 September 2019, he sent the Applicant a message about line marking work being postponed and that he would not need him the next day (9 September 2019).  1

[43] The Applicant did not attempt to contact either Mr Holmes or Mr Preen after 2 September 2019.

[44] Nobody from Toll told the Applicant he didn’t have a job or that there would be no more work for him.

[45] The Applicant made this application on 23 September 2019.

[46] In the Application he says he was not notified of his dismissal and last worked on 2 September 2019. He says no reason for dismissal was given “...just not rostered any hours...”

[47] The evidence is that Toll’s work under the Tronox contract did not start until 28 October 2019. This does involve work the Applicant would have been able to do.

[48] In late October Toll say they attempted to contact the Applicant to offer him this work, but he did not reply to the messages.

[49] Toll have received approval to engage a casual forklift driver to work as and when required which is work the Applicant would have been able to do.

The Applicants Submission

[50] The Applicant submits that after two years of regular employment with a reasonable expectation of this continuing his hours were gradually reduced and then stopped altogether.

[51] He argues that Toll wished to replace him and stopped offering him shifts. It was clear they had no intention of offering him anymore work.

[52] He submits it is clear that Toll was hoping that he would just go away.

The Respondents Submission

[53] The Respondent submits that there was no dismissal in accordance with s386(1) of the Act.

[54] At question 1.3 of the Application, in response to the question “What date were you notified of your dismissal?”, Mr Tomaszek responded “Was not notified”.

[55] At 1.4 of the Application, in response to the question “What date did your dismissal take effect?”, Mr Tomaszek responded “Last worked 2/9/2019”.

[56] In O’Meara v Stanley Works Pty Ltd (2006) AIRC 496 at 23 the Full Bench concluded that there must 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.”

[57] The Respondent submits that there was no action on its part which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end. There was limited work available for the Applicant during the construction phase of the new shed for the Tronox contract by MGM. Consequently, he took the initiative to seek out other casual work with MGM during this time. However, unfortunately the go live date for the Tronox contract was delayed to late October 2019 due to the construction of the new shed.

[58] The Respondent never said to Mr Tomaszek that there was no more work or indicated to him that he would not have a job.

[59] The Respondent intended to continue to engage Mr Tomaszek when the work was available, however before this was able to occur, Mr Tomaszek submitted this Application.

[60] However, in spite of this, the Respondent attempted to get in touch with Mr Tomaszek on a number of occasions to discuss the opportunity for further work. Despite these attempts, Mr Tomaszek never responded.

[61] The Respondent submits that as there was no dismissalin accordance with s386(1) of the Act, and the Application should be dismissed.

Consideration

[62] The relevant sections of the Act, s.386 and s.394, are set out below.

“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.

(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.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[63] Section 394(1) set out above provides that a person who has been “dismissed” may apply to the FWC for an unfair remedy.

[64] The meaning of “dismissed” is set out in section 386 above. A person has been dismissed if their employment has been terminated on the employer’s initiative or that person resigned from their employment but was forced to do so because of conduct or a course of conduct, engaged in by their employer.

Was the Applicant’s employment terminated at Toll’s initiative?

[65] A termination is at the employer’s initiative when:

•  the employer’s action ‘directly and consequentially’ results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed. 2

[66] There must be action by the employer that either intends to bring the relationship to an end or has that probable result. 3

[67] The question of whether the act of an employer results ‘directly or consequentially’ in the termination of employment is an important consideration but it is not the only consideration. 4 It is important to examine all of the circumstances including the conduct of the employer and the employee.5

[68] In this case what the Applicant complains of in terms of action by the employer, is a reduction in the hours of work he was offered as a casual employee and that there were periods where no work was offered to him.

[69] The reason there was a reduction in the hours of work offered to him was a number of operational changes that negatively impacted on the Applicant's hours. Mr Preen when he commenced at Picton, did some work on the forklift and also decided the Applicant would no longer do some administrative tasks he had previously done, all of which led to a reduction in his hours. These changes were not out of the ordinary and entirely within the discretion of the employer. Separately the expansion of the storage facility to include a second customer required the construction of a large shed and the recruitment of additional forklift drivers who needed to be trained before that work commenced. These changes also in the short term lead to a reduction in the hours offered to the Applicant and the delay in the construction of the shed, which is a project he separately worked on as a casual employee for MGM, further impacted negatively on his hours.

[70] None of these changes or circumstances amounted to action by the employer that resulted in the termination of the Applicant's employment either directly or consequentially. The employers’ action at worst led to a temporary reduction in his hours, which would have reverted to 20-30 hours per week by the end of October 2019. This was not intended to nor did it have the probable result of ending the employment relationship. There simply was no termination of the Applicant's employment at the employer's initiative.

Did the Applicant resign and if so, was he forced to do so because of the conduct or a course of conduct engaged in by Toll?

[71] It is questionable whether in this case the Applicant resigned at all. What actually occurred was that without any contact or advice to his employer he made this application asserting he had been dismissed. He never indicated to Toll in any way at all that he had resigned from him employment.

[72] I will however assume for the sake of completeness that the Applicant did resign. Accepting what occurred was a resignation, was the Applicant forced to resign because of the conduct or a course of conduct engaged in by Toll?

[73] A forced resignation is when an employee has no real choice but to resign. 6

[74] The onus is on the employee to prove that they did not resign voluntarily. 7 The employee must prove that the employer forced their resignation.8

[75] The employer must take action with the intent to bring the relationship to an end or that has that probable result. 9

[76] The Applicant had always been employed as a casual employee. Over the course of his employment there appears to have been some variation in his hours for a range of reasons. The operational changes referred to above in 2019 and the circumstances being the delay in the construction of the new shed resulted in his hours being reduced and there being a period where no work was offered to him. Immediately after that on 2 September 2019, he worked for four hours and shortly thereafter it seems from his evidence he decided to make this application which he did on 23 September 2019.

[77] There is nothing in these facts that forced the Applicant to resign. His actions were entirely voluntary. There is no evidence that Toll took any action with the intent to bring the relationship to an end nor that that would be the probable result of its actions. Indeed, the evidence is that Toll intended to offer the Applicant further hours as a casual forklift driver in the relatively near future when the unfortunately delayed Tronox contract commenced.

[78] It is regrettable that before the Applicant chose to make this application, he did not take any steps to ask them whether they were expecting to have work for him in the future or not. Instead he chose to believe the operational changes Toll had made in mid-2019 and the consequential reduction in work resulting from delayed Tronox work and the training of permanent forklift drivers (which took some work hours away he might otherwise have done), were actions taken with the intention of ceasing to offer him work altogether. The evidence however demonstrates this belief was not correct.

[79] The Applicant’s employment was not terminated on the employer’s initiative. Nor if in fact and law he had resigned was he forced to do so because of conduct or a course of conduct, engaged in by his employer.

[80] The Respondent’s jurisdictional objection is upheld, this application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

Mr Marlon Tomaszek on his own behalf.

Mr Peter Swingler from the Respondent.

Hearing details:

2020.
Perth:
January 24.

Printed by authority of the Commonwealth Government Printer

<PR717048>

 1   Exhibit R3, attachment SP- 4.

 2   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].

 3   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 (Watson VP, O'Callaghan SDP, Cargill C, 8 July 2011) at

at para. 24, [(2011) 212 IR 248]; citing O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb

C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

 4   Pawel v Advanced Precast Pty Ltd, Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000).

 5   O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23,

[(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd, Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C,

12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR

200]; ABB Engineering Construction Pty Ltd v Doumit, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9

December 1996).

 6   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 206].

 7   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30, [(2009) 185 IR 359].

 8   Ibid.

 9   O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].