Marty Cochrane v Qube Heavy Lift Pty Ltd

[2024] FWC 3293

[2024] FWC 3293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Marty Cochrane
v

Qube Heavy Lift Pty Ltd

(C2024/6451)

COMMISSIONER TRAN MELBOURNE, 29 NOVEMBER 2024

Application to deal with contraventions involving dismissal – Jurisdictional Objection - Employer alleges that the employee was not dismissed – Abandonment of employment – Whether terminated on the employer’s initiative – Objection dismissed

This is a decision, delivered orally ex-tempore. It has been edited for readability.

1. Mr Marty Cochrane applied to the Fair Work Commission using a Form F8 for the Commission to deal with a dispute in which he says that he was dismissed by Qube Heavy Lift Pty Ltd in breach of the general protections provisions under s 365 of the Act.

1. Qube objected to the application on the grounds that it had not dismissed Mr Cochrane, but that he had abandoned his employment.

1. For the Commission to exercise its jurisdiction to deal with a contravention involving dismissal, it must first find – as a matter of fact – that a dismissal occurred.[1]

Relevant background facts

1. Mr Cochrane started full-time employment as a Truck Driver with Qube Heavy Lift Pty Ltd in August 2023.

1. Mr Cochrane was last attended work on Friday 19 July 2024. From Monday 22 July until Sunday 28 July 2024, he was on annual leave. From Monday 29 July 2024 until Friday 9 August 2024, Mr Cochrane was absent on sick leave. Mr Cochrane communicated with Mr Adam Ross, Operations Manager for Qube, about this absence including providing a medical certificate.

1. Mr Cochrane informed Mr Ross that he would return to work on Monday 12 August 2024, but he did not.

1. Mr Ross sent Mr Cochrane an email in the afternoon of Monday 12 August, and attempted to call him on Thursday 15 August and also sent an email on Thursday 15 August. Mr Cochrane did not respond to any of those attempts at contact.

1. Mr Ross sent a letter on 23 August 2024 warning Mr Cochrane that if he did not notify them by COB on Wednesday 28 August, Qube would deem him to have abandoned his employment and it would be terminated at that point. Mr Cochrane did not contact the employer before COB on Wednesday 28 August.

1. The employer then sent a letter on 29 August 2024 (although it is dated 22 August 2024) that said:

   The purpose of this letter is to confirm the termination of your employment with Qube Bulk, effective Thursday 29 August 2024.

2. The letter also set out Mr Ross’ attempts to contact Mr Cochrane. The letter set out that Mr Cochrane’s notice period was 2 weeks. In evidence, Mr Ross confirmed that the Respondent made a payment in lieu of notice and also made payments of Mr Cochran’s annual leave entitlements, outstanding remuneration and superannuation.

Submissions

1. Qube submitted that Mr Cochrane had clearly abandoned his employment and so there was no dismissal. They referred me to a number of single-member decisions.

1. Mr Cochrane filed voluminous material, most of which related to events occurring in April, May and June 2024.

1. He did not contest the facts about how his employment ended.

1. In relation to the events in August 2024, Mr Cochrane described that he could not face going to work as he says he had been lied to about availability of work at his usual worksite, and about the events of April and May 2024 in relation to complaints about him. Mr Cochrane also referred to his view that the employer failed in their duty of care to him to provide a safe workplace free of discrimination. His evidence was clear that he did not intend to return to work after around 9 August 2024 because of what he says are the employer’s lies.

Relevant Law

1. In Bienias v Iplex Pipelines Australia Pty Limited, the Full Bench said:

In truth, once an employee is deemed pursuant to clause 21 of the Award to have abandoned his or her employment, the employment of the employee does not come to an end nor is the employer required to end the employment by terminating it. In order to do so, we consider the employer must take the additional step of terminating the employment and if it does not do so employment continues.[2]

1. The effect of the decision in Bienias is that even where an employee has abandoned their employment, there is no automatic end to the employment relationship. It becomes a matter for the employer to form a view and take a further step to bring about that end.

1. The Respondent drew my attention to a number of single member decisions, which pre-dated Bienias. Bienias is a decision of the Full Bench, by which I am bound.

1. Mr Cochranes’s materials reveal that he did not intend to return to work with the employer. Nevertheless, it was the employer who ended the employment by emailing the letter of 29 August 2024 (but dated 22 August 2024), which Mr Cochrane received and knew the contents of, even if he did not read it.

Conclusion and orders

1. I find that what brought about the end of the employment relationship was the employer’s letter dated 22 August 2024 and emailed to Mr Cochrane on 29 August 2024. Therefore, I find that this was a termination at the initiative of the employer and Mr Cochrane was dismissed within the meaning of s 386(1)(a).

1. The Respondent’s jurisdictional objection is dismissed.

COMMISSIONER

Appearances:

M. Cochrane for himself
N. Fitzgerald of KHQ Lawyers, with permission, for the Respondent

Hearing details:

Tuesday
26 November 2024
Via Microsoft Teams

[1] See Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68]

[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [41]

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