Mathew Thomas Hill v Golden Ponds Wa Pty Ltd

[2025] FWC 160

[2025] FWC 160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mathew Thomas Hill
v

Golden Ponds Wa Pty Ltd

(U2024/8789)

COMMISSIONER LIM PERTH, 17 JANUARY 2025

Application for an unfair dismissal remedy – jurisdictional objection – was the Applicant dismissed – Applicant was dismissed – matter to proceed to merits.

1. What is this decision about?

1. Mr Mathew Thomas Hill has made an unfair dismissal application against his former employer, Golden Ponds WA Pty Ltd. Golden Ponds operates a resort in Baldivis, Western Australia, that includes various recreation and hospitality facilities. Mr Hill says Golden Ponds dismissed him. Golden Ponds say Mr Hill resigned. I must determine whether Mr Hill was dismissed before his application can proceed.

1. I conducted a hearing via Microsoft Teams on Monday, 11 November 2024. I granted permission for Mr Andrew Wright of WK Lawyers to represent Mr Hill and for Ms Mariam Noorzai of Irwell Law to represent Golden Ponds.

1. Having considered the relevant evidence and submissions of the parties, I find that Mr Hill was dismissed.

1. My detailed reasons follow.

1. Was Hill dismissed?

2.1      Observations on the evidence

1. At the hearing, Mr Hill and his mother, Mrs Sarah Hill, gave evidence in support of Mr Hill’s case. Mrs Hill’s evidence was generally not probative for the matters in dispute.

1. Golden Ponds called Mr Tony Pannacchione, Mrs Maria Pannacchione and Mr John Kooy. Mr Pannacchione is the co-owner of Golden Ponds and the ‘working manager’. Mrs Pannacchione is Mr Panancchione’s wife and the Director/Secretary of Golden Ponds. She undertakes the company’s paperwork. Mr Kooy is the Groundskeeper for Golden Ponds.

1. Both Mr Pannacchione and Mr Kooy led unflattering evidence regarding Mr Hill’s character and credibility. Mr Hill similarly led unfavourable evidence about Mr Pannacchione. Based on the evidence that was led, it was not necessary for me to make any factual findings on the allegations that Mr Pannacchione and Mr Kooy made about Mr Hill’s conduct at this stage of the proceedings.

2.2      What happened?

1. Golden Ponds employed Mr Hill in March 2021. Mr Hill was 14 years old at the time. Mr Hill was employed as an ‘all-rounder’ where he performed various gardening, landscaping and maintenance tasks. Mr Pannacchione was his direct report.[1]

1. The witnesses diverged on the events that led to the end of the employment relationship. From the evidence, there are two key dates.

1. The first is Wednesday 26 June 2024. Mr Hill’s evidence is that he approached Mr Pannacchione and asked him for a pay increase. Mr Hill says that Mr Pannacchione told him that he was already paid above the award and said words to the effect that if Mr Hill didn’t like it, then he could leave. Mr Hill accepted Mr Pannacchione’s decision and continued on with his workday.[2]

1. Mr Pannacchione does not agree that this conversation occurred on this day.

1. Mrs Pannacchione’s evidence is that on or around Wednesday 26 June 2024, Mr Hill rang her to say that he thought he should have a pay rise. Mrs Pannacchione says that she decided to not increase his pay because he was being paid above the award rate, which Mr Hill accepted.[3]

1. Mr Hill says that he did have a conversation with Mrs Pannacchione on Wednesday 26 June 2024, but what happened was that she called him about a water leak on the premises.[4] Mr Hill provided a copy of his call history with Mrs Pannacchione which shows that she called him on Wednesday 26 June 2024 and the call lasted a little over a minute. The call history shows that there were no other calls around that date and the next call was on Monday 8 July 2024.[5]

1. Mr Hill also provided a screenshot of his text messages with Mrs Pannacchione on Wednesday 26 June 2024, which took place 15 minutes after their phone conversation and show that Mr Hill told Mrs Pannacchione that “he” (presumably Mr Pannacchione) “knew” and that he was “mad” but he would get someone in to fix the issue. Later that day, Mr Hill also texted Mrs Pannacchione, “leak fixed”, which Mrs Pannacchione acknowledged.[6]

1. The second date where the parties’ evidence diverges is Monday 8 July 2024.

1. Mr Hill’s evidence is as follows:[7]

(a)He arrived at work as per usual at 8:00am and commenced his duties for the day.

(b)At 9:00am, Mr Pannacchione met him at the workshop. Mr Pannacchione was angry and shouting about a missing tool.

(c)Mr Hill found the tool nearby and brought it to Mr Pannacchione’s attention.

(d)Mr Pannacchione continued to shout at Mr Hill, culminating in Mr Hill saying words to the effect, “well, what do you want me to say?”. Mr Hill’s evidence is that Mr Pannacchione responded with words to the effect, “don’t worry about it, you’re done”.

(e)Mr Hill asked Mr Pannacchione if he was being fired. Mr Pannacchione confirmed that he was firing Mr Hill.

(f)Mr Hill asked Mr Pannacchione if he would get a separation certificate, which Mr Pannacchione told him that Mrs Pannacchione would send one to him. Mr Pannacchione asked Mr Hill to hand back his buzzer, which Mr Hill complied with.

(g)Mr Hill saw Mr Pannacchione speak briefly to Mr Kooy but could not hear what they discussed.

(h)Mr Hill called his mum to ask her to pick him up from work. He then told Mr Kooy that he had been fired.

1. Mr Pannacchione’s evidence is as follows:[8]

(a)On Monday 8 July he was doing his rounds in his car when Mr Hill flagged him down. Mr Pannacchione stopped the car but did not get out of the car.

(b)Mr Hill asked him to discuss his pay with him and his parents. Mr Pannacchione’s recollection is that he said words to the effect, “I’m not discussing your pay with you, your mum, your dad or anyone else. You’re paid above the award, if you’re not happy with it, you can leave”.

(c)Mr Pannacchione then drove away to continue working, and that there was no conversation about a missing tool.

1. Mr Kooy’s evidence is that:[9]

(a)On Monday 8 July 2024 at approximately 9:00am, he was at the workshop with Mr Hill and Mr Pannacchione. Mr Hill had left a tool somewhere and Mr Hill was being rude to Mr Pannacchione when he asked Mr Hill where the tool was.

(b)When Mr Hill and Mr Pannacchione started discussing the tools, Mr Kooy left to go to his car. From his car, he could see the workshop, and did not see Mr Hill or Mr Pannacchione leave the workshop.

(c)He did not hear most of the conversation between Mr Hill and Mr Pannacchione, but did hear Mr Pannacchione say, “suit yourself, it’s up to you”. After this, Mr Pannacchione got into his car and drove away.

(d)Mr Hill left the workshop and said to Mr Kooy, “I am going, I am out of here, Tony fired me”.

1. Mr Hill says that after his mum picked him up from Golden Ponds, he called Mrs Pannacchione. They had a conversation where Mr Hill told Mrs Pannacchione that he had been fired and asked her for a separation certificate. Mr Hill says that Mrs Pannacchione briefly put him on hold to check his employment details before confirming that she would send out his separation certificate.[10]

1. As per Mr Hill’s call log referenced in [12], it shows that Mr Hill called Mrs Pannacchione at 10:56am and that they spoke for a little over two minutes.

1. Mr and Mrs Pannacchione both say that when Mr Pannacchione came home from work on Monday 8 July 2024, he told Mrs Pannacchione that Mr Hill had left his employment.[11] Mrs Pannacchione’s evidence is that she is “quite sure” that she did not speak to Mr Hill that day, and that Mr Hill did not call her to request a separation certificate until 1-2 days later.[12]

1. Did Golden Ponds dismiss Hill?

1. ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:

“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.”

1. The definition of dismissal in s 386(1) of the Act has two parts. The first deals with ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’.

1. The parties do not disagree on the relevant principles to be applied. Where they differ is what occurred. Mr Hill submits that Mr Pannacchione dismissed him. Golden Ponds submits that Mr Hill resigned his employment of his own volition without any pressure, undue influence or coercion.

1. Having assessed the evidence of the parties, on balance, I make the following findings.

1. Firstly, both Mr Hill and Mr Pannacchione agree that Mr Hill requested a pay rise, and that Mr Pannacchione responded with words to the effect that Mr Hill was already paid above the award, and that if he did not like it, he could leave. I find that this conversation occurred on Wednesday 26 June 2024.

1. I am not persuaded that the conversation about wages on Wednesday 26 was between Mr Hill and Mrs Pannacchione. Mr Hill’s call log and text messages are consistent with his account that Mrs Pannacchione called him to discuss a water leak. I find that the conversation about wages on Wednesday 26 June 2024 was between Mr Hill and Mr Pannacchione.

1. This means that after Mr Hill’s request for a pay rise on Wednesday 26 June 2024 was refused, he continued to work for Golden Ponds.

1. Secondly, Mr Hill and Mr Kooy’s evidence of the events of Monday 8 July were largely similar. Both agree that Mr Pannacchione left his car and was inside the workshop with Mr Hill and Mr Kooy. Both agree that Mr Hill and Mr Pannacchione had a conversation about a missing tool. It was put to Mr Kooy during his cross-examination that Mr Pannacchione’s evidence was that there was no discussion about a missing tool. Mr Kooy emphatically rejected the suggestion that there was no discussion about a missing tool. Mr Kooy had no reason to lead evidence that was contrary to his employer’s case, and so I have given Mr Kooy’s evidence in this regard weight.

1. Mr Kooy did not hear most of the conversation between Mr Hill and Mr Pannacchione. In weighing up Mr Hill’s and Mr Pannacchione’s accounts of what was said on Monday 8 July, I am more persuaded by Mr Hill’s account for two reasons. The first is that Mr Hill’s evidence regarding the events of this matter were more consistent internally and also corroborated in part by his evidence of his call logs and text messages, and Mr Kooy’s evidence. The second is Mr Pannacchione’s responses during his cross-examination.

1. During his cross-examination, Mr Pannacchione was defensive and evasive. Mr Pannacchione’s responses included that Mr Hill was “a delinquent” and that he “did not put up with delinquents”. When it was put to Mr Pannacchione that he in fact didn’t “put up with delinquents” and that he had terminated Mr Hill’s employment, Mr Pannacchione responded, “Yes I did” before changing his answer to, “I didn’t terminate him, he terminated himself.”

1. The way that Mr Pannacchione spoke about Mr Hill and their interaction on Monday 8 July 2024 during his cross-examination is consistent with Mr Hill’s account that Mr Pannacchione was angry at him. Whilst I am not persuaded that the events of Monday 8 July 2024 occurred exactly as how Mr Hill relayed them, I am persuaded that Mr Pannacchione told him that he was “done” and asked for his buzzer back. I am also persuaded that Mr Hill asked about a separation certificate and that Mr Pannacchione told him to speak with Mrs Pannacchione.

1. For completeness, I find that contrary to Mrs Pannacchione’s evidence, Mr Hill did call her on Monday 8 July 2024, which further supports the general consistency of his evidence.

1. In line with the above findings on the evidence, I find that Mr Pannacchione terminated Mr Hill’s employment.

1. As Mr Hill was dismissed, this matter will now be programmed to deal with the merits of Mr Hill’s application.

COMMISSIONER

Appearances:

M Wright for the Applicant.
M Noorzai for the Respondent.

Hearing details:

2024.
Perth by Video using Microsoft Teams:

[1] Witness Statement of Mathew Thomas Hill at [5].

[2] Ibid at [11] – [20].

[3] Witness Statement of Maria Pannacchione at [11].

[4] Further Witness Statement of Mathew Thomas Hill at [16].

[5] Ibid attachment MH-4.

[6] Ibid.

[7] Witness Statement of Mathew Thomas Hill at [22] – [51].

[8] Witness Statement of Tony Pannacchione at [23] – [28].

[9] Witness Statement of John Kooy at [14] – [22].

[10] Witness Statement of Mathew Thomas Hill at [59] – [60].

[11] Witness Statement of Tony Pannacchione at [30]; Witness Statement of Maria Pannacchione at [12].

[12] Witness Statement of Maria Pannacchione at [12] – [13].

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