Michael Egeberg v Oceanview Commercial Windows & Glass Pty Ltd

[2013] FWC 6730

[2013] FWC 6730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Egeberg
v
Oceanview Commercial Windows & Glass Pty Ltd
(U2013/6345)

DEPUTY PRESIDENT SMITH MELBOURNE, 10 SEPTEMBER 2013

s.394—unfair dismissal—jurisdictional objection—whether termination of the applicant’s employment was at the initiative of the employer—jurisdictional objection upheld—application for an unfair dismissal remedy dismissed.

Introduction

[1] Mr Michael Egeberg seeks relief under the Fair Work Act 2009 (the Act) in relation to what he argues was the termination of his employment by Ocean View Commercial Windows & Glass Pty Ltd (Ocean View). Mr Egeberg had been employed by Ocean View since 30 April 2011 and ceased employment on 29 January 2013.

[2] Ocean View submits that the Fair Work Commission lacks jurisdiction as Mr Egeberg’s employment was not terminated at the initiative of the employer. Mr Egeberg agrees that he did not continue with his employment, but contends he was left with no option but to resign.

[3] Mr Egeberg represented himself and Mr Michael Hogan, a Director of Ocean View, represented Ocean View.

Relevant legislation

[4] Section 386 of the Act provides:

SECTION 386 MEANING OF DISMISSED

386(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.

Relevant background

[5] Mr Egeberg submitted that:

● On 28 January 2013 he received a phone call from Mr Hogan informing him of a letter left at the Wonthaggi factory and asked him “to ring to discuss”; 1

● Upon reading the letter he found that Ocean View sought to change the terms and conditions of his employment;

● He phoned Mr Hogan and referred to the changes in the payment for travelling time and said that he couldn’t be expected to travel for six hours and only be paid for three;

● He could not accept the new employment conditions;

● Mr Hogan stated that he was paying more than the going rate and that it was “fair”; and

● Mr Hogan said when challenged about the changes: “Well those are the new conditions of employment and that is how it is”.

[6] Against this background, Mr Egeberg stated to Mr Hogan that he would not sign the letter.

[7] Importantly, in his submission, Mr Egeberg submitted that he also asked Mr Hogan about an offer made to prevent him from resigning his employment before Christmas, which had not progressed further since. Mr Egeberg said that Mr Hogan stated he would speak to his wife about Mr Egeberg’s refusal to sign the new employment conditions and get back to him. Mr Egeberg wanted an answer that night. Having heard no response that night, Mr Egeberg “decided to cease employment” as he believed that Mr Hogan would continue to not pay him “for travel or overtime as stated in the letter”. 2

[8] Mr Hogan submitted that:

● On 28 January 2013 he advised all employees that the employment conditions were going to change;

● “All changes to the employees employment conditions were to be implemented if the employee agreed and signed but as stated on the letter if you are in agreeance please sign to which Michael did not which then went into negotiations about his employment. He rang me with concerns and I told him I need to discuss these with my wife and I will get back to you either later tonight or in the morning, but at this stage your conditions have not [sic] changed;” 3

● He had the intention the next morning of putting a proposal to Mr Egeberg, but instead he found the company car outside the workplace with Mr Egeberg’s tools in it and some of Mr Hogan’s tools removed from the factory; and

● Mr Egeberg had sent him an SMS stating that he quit and no notice was given.

Consideration and conclusion

[9] These are largely uncontested facts—in particular, Mr Hogan indicated he would consider Mr Egeberg’s rejection of the proposed new terms and conditions. However, Mr Egeberg, in his submissions at the hearing, stated that he knew by Mr Hogan’s tone that he was going to try to impose the new employment conditions regardless.

[10] I note in passing that the proposed new condition in relation to travelling time appeared to me to be inconsistent with the terms of the Joinery and Building Trades Award 2010 [MA000029]. Another proposed change in relation to overtime may also have been significant in the employment relationship. However, in light of the other matters to which I shall now come to, this is not determinative of the application made by Ocean View.

[11] In essence, Mr Egeberg’s argument is that Mr Hogan repudiated the contract of employment; he accepted the purported repudiation, which led to the conclusion that he was dismissed at the initiative of the employer.

[12] This proposition does not accord with the material before me. If it had been clear that there would not be further discussion and that Ocean View was simply seeking to unilaterally impose new terms and conditions of employment then the argument would have been more persuasive. However, in this case it is the common submission of the parties that Ocean View said that it would consider Mr Egeberg’s concerns.

[13] Mr Egeberg submitted that he did not believe Mr Hogan given that he had not delivered on the commitment made before Christmas on a new salary package.

[14] However from the material before me it is clear that Mr Hogan:

● said that there would be no change unless agreement was reached;
● undertook to consider the position of Mr Egeberg; and
● stated that indeed the next morning he did have a new proposition.

[15] I find on balance that the termination of employment was not at the initiative of the employer. There is not enough evidence to support a conclusion that there was either a repudiation of the contract of employment by the employer or that Mr Egeberg was forced to resign. Mr Egeberg had his fears borne from his experience and the proposals put, but it was not sufficient to uphold his argument. Mr Egeberg had resigned previously, and I have reached the view that on this occasion he did so without waiting to consider his employer’s response.

[16] I find there is no jurisdiction to accept the application made by Mr Egeberg.

DEPUTY PRESIDENT

Appearances:

M. Egeberg the applicant.

M Hogan on behalf of Ocean View Commercial Windows & Glass Pty Ltd.

Hearing details:

2013.

Melbourne:

September, 6.

 1   Paragraph 2 of Mr Egeberg’s written submission dated 18 July 2013.

 2   Ibid, Paragraph 4.

 3   Ibid, Paragraph 3.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541487>