Mr Aaron Whitfield v Master Tree Ninja T/A Tree Ninja/Adelaide Palm Tree Removal - [2018] FWC 6666

[2018] FWC 6666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Mr Aaron Whitfield

Master Tree Ninja T/A Tree Ninja/Adelaide Palm Tree Removal

(U2018/8279)

Deputy President Anderson

ADELAIDE, 29 OCTOBER 2018

Application for an unfair dismissal remedy – whether employee dismissed – section 386 Fair Work Act 2009 – changes to contract of employment – meaning of termination “on the employer’s initiative” – meaning of “forced” resignation – statutory exclusion of “demoted” persons – dismissal found - dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered

For the parties ease of reference, a shorthand summary of this decision and its reasons can be gleaned by reading paragraphs 111, 145, 146, 176, 177, 178 and 179.

Mr Aaron Whitfield (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by Master Tree Ninja Pty Ltd (Tree Ninja or ‘the employer’). He claims to have been unfairly dismissed on 26 July 2018. At the date of dismissal he was employed as a leading hand.

Tree Ninja oppose the application and raise a jurisdictional issue.

Tree Ninja says that Mr Whitfield could not have been unfairly dismissed because he was not dismissed. It says that Mr Whitfield ended his employment with Tree Ninja by action he took on 26 July 2018.

In response, Mr Whitfield says that Tree Ninja materially altered his contract of employment by announcing a decision to demote him, and that this conduct was a dismissal within the meaning of section 386(1)(a) of the FW Act. In the alternative, he says that if his conduct brought his employment to an end, he was forced to resign within the meaning of section 386(1)(b) of the FW Act. He seeks compensation.

On 6 September 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

On 18 September 2018 I conducted a directions hearing. I issued directions on 19 September. I directed that the hearing deal with all issues in dispute, being the jurisdictional issues as well as merits and remedy. I granted permission for Mr Whitfield to amend his application by correcting the specified start date of his employment (16 December 2016 not 16 December 2017).

I decided to hear the matter by conference and the parties were directed to file written materials. Each did so.

I heard the matter by determinative conference on 23 October 2018. Both Mr Whitfield and Tree Ninja were self-represented. At the conclusion of the hearing I reserved my decision.

I received oral and documentary evidence from both parties.

Mr Whitfield gave evidence in his own right[1]. Tree Ninja’s evidence came from its owner Mr Hugh Currie[2] and an employee, Mr Thomas Henschke[3].

All the persons giving evidence were straightforward. They appear decent people who formerly had respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mr Aaron Whitfield v Master Tree Ninja T/A Tree Ninja/Adelaide Palm Tree Removal [2018] FWC 6666
Case: [2018] FWC 6666
Decision Date: 29 OCTOBER 2018

CaseChat Overview and Summary

In the matter of Mr Aaron Whitfield versus Master Tree Ninja Trading as Tree Ninja/Adelaide Palm Tree Removal, the Federal Circuit Court was tasked with determining whether the respondent's actions amounted to an unfair dismissal of the applicant. The applicant, Mr Whitfield, claimed that his employment was terminated without just cause, while the respondent argued that the termination was not an unfair dismissal. The crux of the dispute lay in the interpretation of the relevant sections of the Fair Work Act 2009, specifically sections 386 and 387, and the implications of changes to the terms and conditions of the applicant's employment contract.

The legal issues before the court involved discerning whether Mr Whitfield was dismissed by the respondent, as defined under section 386 of the Fair Work Act 2009. This required the court to examine the nature of the changes to Mr Whitfield's employment contract and whether these changes constituted a termination "on the employer's initiative." Additionally, the court had to determine if Mr Whitfield's resignation was effectively a "forced" resignation, thereby excluding him from claiming unfair dismissal under section 386(d) of the Act. The court also needed to consider if the dismissal was harsh, unjust, or unreasonable as per section 387 of the Act.

The court found that Mr Whitfield was indeed dismissed, as the changes to his employment contract effectively terminated his role. The court determined that the resignation was not a voluntary decision but rather a forced one, aligning with the statutory definition of a dismissal. Given the circumstances, the court concluded that the dismissal was harsh, unjust, and unreasonable. However, the court deemed reinstatement inappropriate and instead ordered that the respondent pay the applicant compensation, reflecting the severity of the unfair dismissal.

Orders