Mr Aaron Lynch v Prices Removals and Storage Pty Limited trading as Chess Prices Removals
[2014] FWC 8115
•14 NOVEMBER 2014
[2014] FWC 8115
The attached document replaces the document previously issued on 14 November 2014.
The only change to the document is that the document print number has been added to page 13.
Tameeka Stewart
Associate to Deputy President Wells
Dated 18 November 2014
| [2014] FWC 8115 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Aaron Lynch
v
Prices Removals and Storage Pty Limited trading as Chess Prices Removals
(U2014/7870)
DEPUTY PRESIDENT WELLS | HOBART, 14 NOVEMBER 2014 |
Application for relief from unfair dismissal – jurisdiction – casual employee – whether a dismissal – whether a contract of employment at the time of dismissal.
[1] Mr Aaron Lynch (the Applicant) was employed by Prices Removals and Storage Pty Limited trading as Chess Price’s Removals (the Employer) as a casual motor driver’s assistant/furniture removers’ assistant on 12 December 2011. The Applicant’s last day of undertaking work for the Employer was 5 May 2014.
[2] The Applicant contends he was unfairly dismissed on 23 May 2014 by text message and made an application pursuant to Part 3-2, s.394 of the Fair Work Act 2009 (“the Act”).
[3] Both parties sought and were granted leave to be represented by legal counsel, on the basis that there were technical jurisdictional matters to be determined. Mr A Cameron, represented the Employer, with Mr A Jenschel and Mr A Kelemen representing the Applicant.
[4] Mr Cameron submitted, on behalf of the Employer that there was no protection from unfair dismissal for casual employees. Further, Mr Cameron stated there was no jurisdiction for the Commission to deal with the application, as the Applicant was not terminated by the Employer. He stated that there was a downturn in work and no contract of employment was on foot following 5 May 2014.
Background
[5] On 5 May 2014 the Applicant injured his back at work and was taken to the doctor by his supervisor Mr Carpenter. The Applicant was prescribed pain killing medication and put on light duties. On 6 May 2014 the Applicant telephoned Mr Carpenter advising that the medication had made him nauseas and he requested to be put on leave without pay until he had a full medical clearance, which Mr Carpenter approved.
[6] On 12 May 2014 the Applicant received a full medical clearance from the treating doctor which he provided to the Employer on the same day, advising he was available for work. From 13 May 2014 to 22 May 2014 discussions occurred between the Applicant and Mr Carpenter as to the availability of work. Relevantly, at 5:36pm on 22 May 2014 the Applicant sent the following text message to Mr Carpenter:
“I’ve been told that jack baz and syd are all getting hours! To me mate that is a load of fucking bullshit! I have been loyal, I work my ass off and have worked there a year longer than any of them and two of them have been there fuck all! I gave up my other job just to stay there and you sweep me under the carpet as soon as I do an injury which I was happy to not get paid for! Cheers Carps thanks for you (sic) honesty today!”1
[7] The following day, 23 May 2014 at 7:47am, Mr Carpenter responded by text message to the Applicant as follows:
“Az, I understand your situation, however I have been instructed by the owner’s (sic) not to bring you in as they were pissed off that you didn’t come in despite the doctor saying you would be able to. I went into bat for you when challenged by them, however they pay us, they would see your name on the time sheets and they would get really pissed. I would have you back here tomorrow mate but hands are tied. I understand you are pissed with me, but I will do whatever I can to assist you in gaining other employment if you require my assistance.”2
[8] Further, the Applicant responded at 10:45am that same day to Mr Carpenter in the following terms:
“I called you and explained to you my situation! if I knew I was going to lose my job over this I would have stopped taking the pain killers and been there in a flash! I’m absolutely gutted about this. Thanks for your time Carps take it easy.”3
[9] The Applicant lodged his application for relief from unfair dismissal on 13 June 2014, 21 days subsequent to the text message exchange of 23 May 2014.
The Act as it relates to unfair dismissal and casual employees
[10] The relevant sections of the Act are:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer – 6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer – one year ending at that time.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …
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.
[11] It was common ground between the parties that the Applicant had been employed on a casual basis and had remained a casual employee for the entirety of his employment, approximately two and a half years. The parties also agreed that the Applicant was covered by the Road Transport and Distribution Award 2010. The Employer indicated that the Applicant was paid $22.14 per hour.4
[12] It is common ground the Applicant did not tender his resignation.
Evidence
[13] The following people provided witness statements and oral evidence at hearing:
● Mr Brian Price, Director of the Employer.5
● Mr Aaron Lynch, the Applicant.6
The Employer’s case
[14] It was Mr Price’s evidence that the Employer operates a removalist and storage business from Prospect in Northern Tasmania, with an office also at Glenorchy in the South of the State. The Employer supplements its permanent workforce with up to 10 casual employees.7 Mr Price said the Applicant’s hours of work varied from week to week and that each year in winter the business experiences a slow period and the hours of work for casual employees were reduced.8 As such he said the business reduced the hours of work for their casual employees, including the Applicant, instead prioritising work for permanent employees. Mr Price’s witness statement provided recent weekly hours of work for the Applicant:
Period Ending | Hours Worked |
11 March 2014 | 31 |
18 March 2014 | 24.5 |
25 March 2014 | 24 |
1 April 2014 | 33.5 |
8 April 2014 | 15 |
15 April 2014 | 24 |
22 April 2014 | 17 |
29 April 2014 | 12.5 |
6 May 2014 | 31.5 |
13 May 2014 | 10 |
[15] Mr Price stated that he understood the Applicant did not have a driver’s licence and therefore he was only able to work as a drivers’ assistant. He said this meant there was no work available for the Applicant at the time. Mr Price said he had never met or spoken with the Applicant.
[16] In cross-examination Mr Price confirmed that business had also been down in the winter period of the two previous years that the Applicant was employed (2012 and 2013). Mr Price said, when referred to the text message sent by Mr Carpenter to the Applicant on 23 May 2014, that the content of that message would result in the Applicant believing he had to obtain new employment.
[17] Under questioning by Mr Jenschel, Mr Price stated he was not “pissed off” that the Applicant had not presented for work on 6 May 2014, however he stated that he spoke to Mr Carpenter about his dissatisfaction with the Applicant, when Mr Carpenter had come to see him.9 Mr Price confirmed that he could have provided figures as to the level of work received during the winter period for 2012, 2013 and 2014, however he said he didn’t realise he had to.
[18] Mr Price’s evidence was that he never instructed Mr Carpenter to send the text message of 23 May 2014 and that he never told Mr Carpenter that he was “pissed off”. He stated that Mr Carpenter did not employ the Applicant, although he regularly assigned him his hours of work and was his supervisor.
[19] Mr Cameron, for the Employer, submitted that the decision of Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 had application in this matter and that under the National Employment Standards (NES), a range of entitlements do not apply to a casual employee which, he said, included notice of termination and redundancy pay.10 The Employer submitted that “[n]otice of Termination is not required other than wherever practicable, notify a casual employee if their services are not required the next working day.”11 It was said that the Applicant was advised that he was not required to work at the end of an engagement as the workload was dropping off and therefore his employment was terminated at the end of the engagement.
[20] It was submitted by Mr Cameron that the Applicant’s employment came to an end on 5 May 2014 and therefore he was not an employee at the time the text message was sent on 23 May 2014.
[21] The Employer submitted that the Applicant was not part of a regular roster and that as a casual he does not have any rights to exercise under the unfair dismissal provisions of the Act.12 It was said therefore that no jurisdiction existed for the Commission to deal with the application.13 Further, Mr Cameron stated that an employer has the prerogative to engage some casual employees over other casual employees, citing Kurta v Independent Oil Tools Pty Ltd.14
The Applicant’s case
[22] Much of Mr Lynch’s unchallenged evidence has been dealt with in the background to this decision. As such I have not reproduced that information here.
[23] It was Mr Lynch’s evidence that following receipt of his full medical clearance on 12 May 2014, he contacted Mr Carpenter on 13 May 2014 to request his roster and that Mr Carpenter advised he would be in touch. He again contacted Mr Carpenter a few days later and was advised that “things were a little quiet and that he [Mr Carpenter] would be in touch as soon as things picked up.”15 Mr Lynch said when he became aware that other casual employees were receiving work, he sent the text to Mr Carpenter on 22 May 2014.16 He said he then received the text from Mr Carpenter of 23 May 2014 at 7:47am17 to which he responded at 10:45am18 that same day.
[24] Mr Lynch said that the work in winter in 2012 and 2013 slowed down by about 20%. Under cross-examination, Mr Lynch said he received 3 days work per week on average in winter and that Mr Carpenter would normally contact the casual employees in relation to work.
[25] Mr Lynch stated that Mr Carpenter was fine with him being on leave without pay from 6 May 2014 until he got a full clearance from his doctor.
[26] It was submitted by Mr Jenschel, for the Applicant, that whilst in some cases casual work dries up, this was not one of those occasions. It was put that a casual employee can be dismissed as can a permanent employee, and that the jurisdictional objection was based solely on whether the Applicant had been dismissed. To that end, Mr Jenschel stated that the test of dismissal is an objective one and that any reasonable person would have viewed the text message from Mr Carpenter and had the understanding that they were not going to receive any more work from the Employer.
[27] Mr Jenschel said Mr Carpenter’s text of 23 May 2014 drew a line under the employment of the Applicant. He submitted that it did not mention a lack of work, however it was explicit in its nature by using words such as “I have been instructed by the owners not to bring you in…” and “I would have you back here tomorrow mate but hands are tied.” It was said that it was relevant that when the Applicant responded to Mr Carpenter’s text that same day stating “if I knew I was going to lose my job…” Mr Carpenter did not contact the Applicant and advise him to the contrary. He said the Applicant received no further contact from the Employer advising that he might receive some further work.
[28] The Applicant submitted that as Mr Carpenter was the Applicant’s supervisor and allocated him work, he had the ostensible authority to terminate the Applicant’s employment. Mr Jenschel stated that the Employer’s suggestion that Mr Carpenter did not have authority to effect the termination was incorrect and not supported by the decision of Whitaker v T & M Capobianco Unit Trust T/A Bianchini Pty Ltd [2013] FWC 4630.
[29] The Applicant disputed his hours of work for the week ending 13 May 2014 as being 10 hours. It was submitted that as the Applicant was injured on 5 May 2014, he had not been present for the entirety of that week and therefore the figure was an anomaly and not an accurate reflection of work undertaken. It was said once you viewed the hours of work from 11 March to 6 May 2014 it could be seen that the hours of work for the Applicant were fluctuating, but they were not fading away. Mr Jenschel said this evidence did not support the vague statements of Mr Price about a serious downturn and supports the evidence of the Applicant as to the winter work available in 2012 and 2013. The Applicant stated that if the Employer had the financial evidence to support its position of inactivity in the winter periods, it would have produced it.
[30] Finally, the Applicant submitted that a casual employee has a right to unfair dismissal and that no authority had been provided by the Employer to suggest otherwise; that the matter was simply about whether a dismissal had been effected; and that the test for such a dismissal was an objective one.
Consideration
[31] It is clear that s.384 of the Act contemplates protection of casual employees from unfair dismissal. The pre-requisite to that protection is that you must have completed the prescribed applicable period of employment and show that the employment was on a regular and systematic basis and that the employee had a reasonable expectation of continuing employment on that basis. It is noted that the Employer did not advance any argument that the Applicant’s employment was not worked on a regular and systematic basis, nor whether the employee had a reasonable expectation of continuing employment. However, the Employer did state that there was a downturn in work generally in the winter months and that there was no work for the Applicant to do.
[32] The Applicant does not hold a current driver’s licence, however Mr Price’s evidence provided that despite experiencing a down turn in work every winter, the Employer had continued to employ the Applicant through the winter periods in 2012 and 2013 as a driver’s assistant/furniture removers’ assistant. I accept the submissions of Mr Jenschel as they relate to the Employer’s failure to provide financial documentation to corroborate its evidence as to the serious downturn in work for winter 2014. Whilst the Employer had the opportunity to provide supporting evidence of the hours of work for the Applicant’s 53 months of employment, together with actual hours worked by all employees, no such evidence was forthcoming.
[33] The evidence of Mr Price provided a short history of the Applicant’s hours of work from early March to early May 2014. The Applicant’s evidence was that he had work - through winter in 2012 and 2013 - of approximately 3 days per week, although he did not provide pay slips to substantiate his oral evidence. I am satisfied that the Employer, being legally represented, had every opportunity to provide payroll and other financial information to support its position of a considerable downturn in work and to disprove the Applicant’s evidence as to his work in winter. As such I prefer the evidence of the Applicant on this point.
[34] Noting that the Employer did not dispute the criteria found in s.384 of the Act, having regard to the evidence of the continuous nature of the Applicant’s engagements for work from 12 December 2011 to 5 May 2014 and the authority of Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078, I am satisfied that there was a regular and systematic basis to his employment with the Employer and that the Applicant had a reasonable expectation of continuing employment.
[35] It is possible that a casual employee may not have access to protections under Part 3-2 of the Act, however that is to be decided on the facts of each case. There are a number of authorities which deal with this proposition.
[36] The Employer sought to rely on the Full Bench decision in Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (Telum) to support the argument that a casual employee has no access to the unfair dismissal provision of the Act, however, Telum does not reflect this submission. Firstly, Telum deals with an application under s.739 of Part 6-2 of the Act. This section deals with applications under the model term for dealing with disputes which usually are different in nature to applications for relief from unfair dismissal. Secondly, the dispute in Telum, whilst involving casual employees, related to the application (or otherwise) of redundancy payments under the National Employment Standards (NES) and involved a different set of circumstances to those in this present application.
[37] It follows that the findings made by the Full Bench in Telum relate to the circumstances and facts of that case as it related to the application of redundancy entitlements for casuals whose employment came to an end at the conclusion of a construction project. Having considered the Telum decision I have concluded that it has no precedent value to this present application.
[38] Further, the Employer submitted that it was entitled to engage other casual employees in preference to the Applicant, as the Applicant did not have a drivers’ licence and was therefore less skilled, seeking to rely on the decision of Kurta v Independent Oil Tools Pty Ltd [2012] FWA 747 (Kurta) at paragraph 94 which provides:
“[94] When taking into account the Employer’s specific operational circumstances existing at the time, its decision to employ casual employees other than Mrs Kurta was not an action to dismiss her from her employment, or an indication of an intention to cease her employment, but a common sense decision to use the most appropriate and safest labour available.”
[39] In Kurta, Cloghan C held that Mrs Kurta was not dismissed from her employment, noting that Mrs Kurta “did not assert that the Employer had verbally and unambiguously advised her that her employment had ceased” and that, at paragraph [116]:
“[116] On the facts of this application, there is no ascertainable date of termination of employment because that point was never reached. While Mr Mullally submitted that by the time the Applicant filed her application, she considered, because the Employer had not contacted her for work, her employment had been terminated at its initiative. Having considered all the circumstances, I am not satisfied that such a situation existed.”
[40] The facts of the present application are considerably opposed to those in Kurta. The Applicant’s witness statement and attached documentation evidenced that his supervisor, Mr Carpenter, sent a text to the Applicant on 23 May 2014 which stated:
“Az, I understand your situation, however I have been instructed by the owner’s (sic) not to bring you in as they were pissed off that you didn’t come in despite the doctor saying you would be able to. I went into bat for you when challenged by them, however they pay us, they would see your name on the time sheets and they would get really pissed. I would have you back here tomorrow mate but hands are tied. I understand you are pissed with me, but I will do whatever I can to assist you in gaining other employment if you require my assistance.” (my emphasis)
[41] The test for termination of employment is an objective one. The text of 23 May 2014 makes no mention of a lack of work for the Applicant as a casual employee. Further, the response text from the Applicant to Mr Carpenter stated – in part – “if I knew I was going to lose my job over this I would have stopped taking the pain killers and been there in a flash!” I accept the Applicant’s submissions that Mr Carpenter did not disavowalthis view of the Applicant. These circumstances are a direct contradiction to the findings in Kurta. I am of the view the text communication is definitive and was intended by the Employer to bring about, or could be seen to have the probable effect of bringing about an end to the casual employment of the Applicant.
[42] A recent decision of this Commission dealt with the circumstances of dismissal of casual employees and is relevant to this present matter. In D Booth and C Booth v Organic Formulations Pty Ltd [2014] FWC 7629, (Booth) Watson SDP found that whilst the casual employee applicants in that matter had not been terminated, he held the following:
“[22] I find that the communication by the Respondent with the Applicants conveying to them the non-availability of work was clear in its terms and did not expressly or otherwise reflect an intention or have the probable result of bringing the [casual] employment of the Applicants to an end.
…
[25] I find that the 6 and 10 August 2014 communications do not evince an intention by the Respondent to bring about, nor could be seen to have the probably effect of bringing about, an end to the casual employment of the Applicants. Far from indicating an intention to bring the casual employment to an end the Respondent reaffirmed the basis of the casual employment, subject to the availability of future work which would be advised when it arose, with the other communication, simply being a statement of the right of casual employees to seek alternative work.
[26] …Whilst, the actions may have reflected a view of the Applicants that they would not be offered further casual engagements, such a view was not objectively supported by the 6 and 10 August 2014 communications which indicated that the Applicants would be notified when further work was available and reiterated the casual basis of the employment and specifically advised D Booth that he would always have a casual position with the Respondent.
…
[30] Neither Applicant contended that there was an express termination of their employment communicated to them by the Respondent. No express termination of the Applicants’ employment by the Respondent is found in the evidence.”
[43] The facts present in Booth which assisted Watson SDP in his findings that dismissal had not occurred, are simply not present in this current matter.
[44] The evidence of the Applicant under cross-examination elicited that he was communicating with Mr Carpenter about when further hours of work would be available, with Mr Carpenter advising that work was quiet. I reject the assertion of the Employer that there was no employment relationship on foot at the time of the text message as it is clear on the actions of both the Applicant and Mr Carpenter, that an employment relationship existed and that there was an express termination of that employment on 23 May 2014.
[45] I turn now to the issue of whether Mr Carpenter held the appropriate authority to terminate the Applicant’s employment.
[46] It was Mr Price’s evidence that Mr Carpenter did not have the authority to terminate the Applicant’s employment and that in any event the text message Mr Carpenter sent was inaccurate. It was submitted by the Applicant’s representative, Mr Jenschel, that that evidence was irrelevant as the test of dismissal is an objective one.
[47] In Whitaker v T & M Capobianco Unit Trust T/A Bianchini Pty Ltd [2013] FWC 4630, Hampton C considered the issue of whether the people who effected the dismissal in that matter had ostensible authority to do so. Commission Hampton held that “…the statements as a whole made on behalf of Bianchini should be objectively understood as brining the employment to an end” and further “given the role played by the Managers in the workplace, and the absence of Mr Copabianco overseas, I am satisfied that they had actual or at least ostensible authority to dismiss Ms Whitaker”,19 (referencing Buck v Crown Limited AIRC PR914349, 15 February 2020, per Williams SDP).
[48] Mr Carpenter was the Applicant’s supervisor and allocated him his hours of work. There was no evidence led by the Employer as to who had the authority to effect a termination - only that Mr Carpenter did not hold that authority. Mr Price also gave evidence that he had never met or spoken to the Applicant. On the basis of the employment relationship between Mr Carpenter and the Applicant, I am satisfied that Mr Carpenter, in his role as supervisor of the Glenorchy worksite, had ostensible authority to effect the dismissal of the Applicant. Further, given that the test of dismissal is an objective one, it is arguable whether this point has any relevance in any event. It was reasonable for the Applicant to consider that Mr Carpenter had the authority to effect his dismissal and that he had done so.
Conclusion
[49] The jurisdictional matter to be determined is whether the Applicant’s employment was terminated at the initiative of the Employer through its actions, in that those actions directly terminated the employment, either by intending to bring the employment to an end or having that probable result.
[50] Having regard to the findings I have made I conclude that there was an express termination by the Employer of the Applicant’s employment, pursuant to s.384(1)(a), which was communicated to him via text message on 23 May 2014.
[51] Objectively, it was reasonable for the Applicant to conclude, on the basis of the content of that text message, that his employment with the Employer was at an end.
[52] For clarity, I am satisfied that as the termination took place on 23 May 2014 and the application for relief from unfair dismissal was filed on 13 June 2014, the application was made within the prescribed timeframe of 21 days under the Act. There were no submissions indicating any issues of jurisdiction pursuant to the ‘high income threshold’ in s.382(b)(ii) and, as eluded to earlier in this decision, the Applicant was covered by the Road Transport and Distribution Award 2010. Accordingly, I can detect no other jurisdictional issue affecting the application.
[53] The matter will now be referred for conciliation and/or arbitration.
DEPUTY PRESIDENT
Appearances:
Mr A Jenschel, for the Applicant
Mr A Kelemen, for the Applicant
Mr A Cameron, for the Respondent
Hearing details:
Hobart
2014
7 November
1 Exhibit A1 – Witness Statement of Aaron Lynch, dated 8 October 2014, attachment AL1
2 Exhibit A1 – attachment AL2
3 Exhibit A1 – attachment AL3
4 Respondent’s Form F3, cl1.5
5 Exhibit R1 – Witness Statement of Brian Price, dated 7 October 2014
6 Exhibit A1
7 Exhibit R1 – Paragraph 8
8 Ibid – paragraphs 12 & 13
9 Transcript – Mr B Price
10 Exhibit R2 – Employer’s written submissions – paragraph 18
11 Ibid – paragraph 19
12 Transcript – Mr A Cameron
13 Transcript – Mr A Cameron
14 Kurta v Independent Oil Tools Pty Ltd[2012] FWA 747, paragraph 94
15 Exhibit A1 – paragraph 7
16 Ibid – attachment AL1
17 Ibid – attachment AL2
18 Ibid – attachment AL3
19 Whitaker v T & M Capobianco Unit Trust T/A Bianchini Pty Ltd [2013] FWC 4630
Printed by authority of the Commonwealth Government Printer
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