Matthew Smith v Breaktime 1 Pty Ltd

[2023] FWC 3217

[2023] FWC 3217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Matthew Smith
v

Breaktime 1 Pty Ltd

(C2023/6047)

DEPUTY PRESIDENT BELL MELBOURNE, 20 DECEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – jurisdictional objection dismissed.

1. Mr Matthew Smith has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act) alleging a contravention by the respondent employer of the ‘general protections’ of the Act. In short, Mr Smith alleges he was notified of his dismissal on 13 September 2023 about forty minutes after he had complained that the employer could not cut his hours without a prior discussion. He alleges he was dismissed because of that complaint, which is said to be unlawful adverse action.

1. In the employer’s ‘Form F8A response’, the employer denies dismissing Mr Smith. It says Mr Smith was a part-time employee, and it was only ‘extra work hours’ (i.e. above the part-time hours) that were cut. To be clear, I express no views on the competing assertions made about the substantive matters of dispute between the parties.

1. As the question of whether Mr Smith was dismissed is a threshold jurisdictional matter that needs to be addressed before the Commission can deal with the dispute under s 368[1], I issued directions for the timetabling of evidence, an ‘in person’ hearing (listed for 8 December 2023), as well as listing the matter for a mention hearing on 2 November 2023.

1. At the mention hearing, Mr Syed Ali appeared for the employer. Mr Ali signed the employer’s Form F8A in his capacity as director. At the mention hearing, Mr Ali stated in substance that he was not the manager in charge at the store location where Mr Smith worked and Mr Ali would need to speak to the manager because she is the right person to speak to.

1. Given that Mr Ali did not appear to have any personal knowledge of the events in question, I encouraged Mr Ali to speak with the manager in charge of Mr Smith. I indicated that if she was the one who really knew what was going on then, depending on what she might have to say, Mr Ali might need to reflect on whether the jurisdictional objection was pressed.

1. Regardless, the directions remained on foot and each party was required to file material. The employer filed no material at all, by way of evidence or otherwise. Through chambers, I made enquiries of Mr Ali as to the employer’s intentions and whether it pressed its jurisdictional objection. I also granted further time for any material to be filed. No such material was forthcoming. Mr Smith did file material, albeit very brief in nature and largely documentary.

1. Given that Mr Smith’s material was largely unchallenged, I determined to conduct the listing on 8 December by Microsoft Teams, rather than in person (noting that the parties were based in the Geelong region) and that it would proceed by way of determinative conference rather than a hearing. The parties were advised of such.

1. On 8 December 2023, Mr Ali appeared. He initially asked for an adjournment to file material. I declined that request and, I record here, that the respondent had been given plenty of time to file its material and Mr Ali provided no explanation in advance of what was sought to be filed nor why the respondent had been unable to do so previously.

1. The respondent did not seek to cross-examine Mr Smith.

1. The determinative conference before me was very short, noting again that Mr Smith’s material was unchallenged. At that point, I indicated I was satisfied from the evidence that Mr Smith had been dismissed and stated that I would publish written reasons that would follow. This decision are those written reasons.

1. It is not necessary to summarise Mr Smith’s material but I have considered it and I am satisfied that Mr Smith was ‘dismissed’ within the meaning of s 386(1)(a) of the Act – and therefore s 365 of the Act.

1. While I do not consider it necessary to refer in detail to Mr Smith’s evidence, I will refer to an email he received from his manager on 13 September 2023, being the day Mr Smith says (and I find) he was notified of his dismissal. That email stated:

“Matthew Smith

Unfortunately this email is to notify you that your current employment is no longer required. This is due to hours no longer being available. One weeks (sic) notice will be given as of Thursday 14^th September 2023 and ceasing on Saturday 16^th September 2023.

Regards [Manager].”

1. On the material before me, there is simply no basis to go behind this clear and unambiguous communication that Mr Smith was being dismissed, which was at the initiative of his employer.

1. As the jurisdictional objection was dismissed, the Commission was required to deal with the dispute under s 368 of the Act by conducting a conference with the parties. Following the determinative conference, I inquired with the parties whether they were content to proceed immediately in private conference, which they were. To the commendation of both parties, they were able to adequately resolve the disputes between them and entered into a binding settlement that morning. That settlement agreement was subsequently reduced to a signed agreement.

DEPUTY PRESIDENT

Appearances:

M. Smith on his own behalf with A. Parsons of Wise Employment assisting
S. Ali from the Respondent

Determinative conference details:

2023.
Melbourne (by Microsoft Teams):
December 8.

[1] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591

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