Michael O'Shea v Skilled Group Limited T/A Skilled Australia

[2016] FWC 1159

[2016] FWC 1159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael O’Shea
v
Skilled Group Limited T/A Skilled Australia
(U2015/16438)

COMMISSIONER RYAN MELBOURNE, 24 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] The application in this matter was filed with the Commission on 2 December 2015. In his application the Applicant identified that the date of dismissal was approximately 14 October 2014. If this was correct then the application was over a year out of time.

[2] The Respondent is a labour provider to other businesses. The Applicant was engaged by the Respondent as a casual employee and allocated to work at the premises of other businesses when required.

[3] The Applicant in both his application (Form F2) and in his written submission in response to the directions issued by the Commission in relation to the out of time application, outlined events that occurred on or about 14 October 2015 and events which occurred on and after 18 November 2015.

[4] The Respondent both in its written submissions in relation to the out of time application filed on 25 January 2016 and in its Form F3 filed on 2 February 2016 the Respondent does not admit that there was a dismissal. Rather the Respondent relies upon the alleged date of dismissal identified by the Applicant. The Respondent does not respond to or address events on and after 18 November 2015.

[5] As part of its written submission the Respondent contended that the Applicant had not complied with directions issued by the Commission. However, the Applicant had filed a written submission on 20 December 2015 as required by directions issued on 14 December 2015 and a copy of the Applicants written submission had been forwarded to the Respondent by the Commission.

[6] The Applicant, both in his Form F2 and in his written submission, recounts his interaction with the Respondent on 14 October 2014. In that interaction it appears clear that the Respondent gave the Applicant no reason to believe that his employment was terminated. The Respondent made clear to the Applicant that an employee of the Respondent would contact the Applicant in relation to any future work.

[7] The Respondent raises no challenge as to the accuracy of the Applicant’s recount of the interaction on 14 October 2014.

[8] The Applicant in his Form F2 recounts a further interaction between himself and the Respondent in November 2015 as follows:

“I emailed Skilled on 18-11-2015 asking if I was still employed with the company and if I did not receive a response within 2 working days I will assume I am no longer employed with them.

I received a response from Jessica at Skilled (1300 660415- her direct line) explaining to me that I was still on their books but would not be receiving any further work at Murray Goulburn or with Skilled. I can only assume that my employment has been terminated with the company.”

[9] In his written submission of 20 December 2015 the Applicant recounts the same interaction as follows:

“I emailed Skilled and advised them that unless I was contacted within 48 hours regarding my employment status I will assume I am no longer employed by Skilled. The very next morning I received a call from Jessica at Skilled who advised me that I was still on Skilled’s employment books but I would be receiving no more work through Skilled.”

[10] The Respondent raises no challenge as to the accuracy of the Applicant’s recount of the interaction on 18 and 19 November 2015.

[11] The Respondent in its written submissions accepts the starting position of the Applicant that he was dismissed on 14 October 2014 and makes submissions only in relation to the fact that the Application was made 414 days after the alleged dismissal.

[12] The Respondent makes no submission as to whether the Applicant was dismissed or as to the date of dismissal.

[13] In its Form F3, which was filed after the written submissions, the Respondent answered the question: What were the reasons for the dismissal? as follows:

“1. The Applicant was not dismissed.

2. The Applicant was engaged to provide services to clients of Skilled through an on-hire arrangement. Field employees are eligible for engagement/assignments by Skilled but are employed when engaged. He was not employed by Skilled for that period but for certain times within that period.

3. The Applicant has not worked continuously since commencement. The Applicant has completed a number of assignments in a non-successive nature.

4. The Applicant was assigned to (Murray Goulbourn Co-operative) as a “casual production worker” between Saturday 20 September 2014 and Saturday 4 October 2014.

5. The Applicant’s assignments came to an end at Murray Goulbourn. He was still represented by Skilled Group Ltd and remained active on the system.

6. The Applicant has not undertaken any actions to query or dispute the dismissal with Skilled at any time since his last assignment on the 4 October and the time of making his application on 2 December 2015.”

[14] The Respondent’s Form F3 raises a number of issues which need to be dealt with. Was the Applicant dismissed? If so, what was the date of dismissal? Is the Applicant’s application in this matter out of time? If so, should an extension of time be granted to the Applicant?

Was the Applicant dismissed? If so, what was the date of dismissal?

[15] The starting point for considering these two questions is to have regard to the provisions of the Act and relevant authorities.

[16] The Full Bench decision in Barkla v G4S Custodial Services Pty Ltd 1(Barkla v G4S) provides a useful start to answering the two questions. In that matter the Full Bench said:

“[22] The definition of “dismissed” is contained in s 386 of the Act in the following terms:

‘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.’

[23] It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination. We have reviewed the various communications including the email of 11.19am 13 October 2010, relied on by Mr Barkla and we do not believe that any of those communications expressly terminate his employment. We reach that conclusion notwithstanding that some of the correspondence may have equated Mr Barkla’s application for extended leave without pay as akin to a resignation, that the employer clearly brought the secondment to the ‘Supervisor Geraldton’ position to an end and directed Mr Barkla to return to his permanent position of CSCS Officer based in Perth.. In our view none of the correspondence expressly brought the entire employment to an end. This is clear from a review of the totality of the correspondence including the clear intention of the parties, as contained in the letter of appointment, as to what would occur after completion of the secondment and the employer’s statements regarding Mr Barkla reverting to his employed position of CSCS Officer once the secondment was ended We find that G4S consistently maintained that it was not terminating Mr Barkla’s employment and that there is no express statement to the contrary.

[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:” [citations omitted]

[17] The Full Bench in Barkla v G4S then set out a very lengthy extract from the decision inO’Meara v Stanley Works Pty Ltd 2  but for the present purposes I will only repeat the last paragraph of that extract, where the Full Bench in O’Meara v Stanley Works Pty Ltd  said:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to 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. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”  Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[18] Just as the Full Bench did in Barkla v G4S the first step is “to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination.” The communications with the Applicant on 14 October 2014 were couched in terms of a continuing employment relationship but in the context of a then current unavailability of work for the Applicant. The communication on 19 November 2015 between the Applicant and the Respondent had the Respondent clearly identify a continuing relationship by advising that the Applicant remained on the Respondents books but also had the Respondent identify to the Applicant that he would get no work from the Respondent. The communications from the Respondent to the Applicant could not be considered to be a communication which constitutes an express termination.

[19] Just as the Full Bench did in Barkla v G4S Custodial Services Pty Ltd the second step is “to consider whether any action of the employer amounted to termination of employment.” As the Full Bench in O’Meara v Stanley Works Pty Ltd makes clear this second step requires “that there ..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.”

[20] The action of the Respondent in its communication with the Applicant on 19 November 2015 makes very clear that the Respondent had determined not to provide any work to the Applicant even where such work was available. Any employment relationship which had existed between the Applicant and the Respondent was clearly not in existence as at 19 November 2015.

[21] As is apparent from the Applicant’s recount of the communications between himself and the Respondent in October 2014 and November 2015 it was the communication from the Respondent on 19 November 2015 which, in hindsight, made clear to the Applicant that the Respondent’s conduct on 14 October 2014 was intended to end the employment relationship. This explains the Applicant identifying the date of dismissal as 14 October 2014. However, the Applicant’s presumption that the employment relationship had ended on 14 October 2014 is nothing more than a presumption. There is nothing in the communication from the Respondent to the Applicant on 14 October 2014 which would constitute an express termination of the employment relationship.

[22] For the purposes of s.386(1)(a) it is possible that the Applicant was dismissed on 14 October 2015, and it is certain that the Applicant was dismissed no later than 19 November 2015. It is clear from the Applicant’s material that Respondent’s conduct on 19 November 2015 was “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.”

[23] Having said that the issue for consideration in this matter is not when the dismissal occurred but when it took effect.

[24] The date of dismissal for the purpose of s.386(1)(a) may not be the same as the date the dismissal took effect for the purpose of s.394(2). That section is as follows:

“394 Application for unfair dismissal remedy

(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).”

[25] Full Bench authority is very clear that a “dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.” 3

[26] In the circumstances of the present matter the communication from the Applicant to the Respondent on 18 November 2015 and the Respondent’s reply on 19 November 2015 are relevant. In the context of the Applicant’s email of 18 November 2015 the Respondent’s reply on 19 November 2015 should be considered as constituting a communication to the Applicant that the employment relationship has ended. For the purpose of s.394(2)(a) the dismissal of the Applicant took effect on 19 November 2015.

[27] As the dismissal of the Applicant took effect on 19 November 2015 and the Application in this matter was filed with the Commission on 2 December 2015 the application was filed within the 21 day time limit specified by s.394(2)(a).

[28] This matter will now be subject to further programming.

COMMISSIONER

 1   [2011] FWAFB 3769.

 2   PR973462.

 3   Galati v Veneto Club [2015] FWCFB 1830 at [9] citing Burns v Aboriginal Legal Service of Western Australia (Inc.) Print T3496 at [24].

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