Mr Ambriel Armstrong-Hillhouse v Melbourne Shotcrete Specialists Pty. Ltd
[2025] FWC 261
•29 JANUARY 2025
| [2025] FWC 261 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ambriel Armstrong-Hillhouse
v
Melbourne Shotcrete Specialists Pty. Ltd.
(U2024/8569)
| COMMISSIONER WILSON | MELBOURNE, 29 JANUARY 2025 |
Application for an unfair dismissal remedy - Jurisdictional objection: whether applicant “dismissed” - Objection upheld and application dismissed.
Mr Armstrong-Hillhouse was employed by Melbourne Shotcrete Specialists Pty. Ltd (the Respondent) as a project manager from on or around 7 November 2022. The Respondent submitted that his starting date was slightly earlier, being 31 October 2022. Mr Armstrong-Hillhouse’s employment continued until 2 July 2024. Whether his employment ended because of a dismissal or for reason of resignation is a contested matter between the parties. If he was not “dismissed” within the meaning of the Fair Work Act 2009 (FW Act) his application for unfair dismissal remedy is unable to proceed.
After the matter was assigned to me, directions were issued by me to both parties for the filing of material in support of their respective cases. The directions issued on 8 October 2024 were specific:
“[5] The FWC DIRECTS the Respondent to file in the FWC, and serve on the Applicant,
by 4.00PM Wednesday, 23 October 2024:a. An outline of argument in relation to the Jurisdictional Objections;
b. A signed and dated statement of evidence for any witness to be called;
c. A copy of any document relied on; and
d. A document list.
[6] The FWC DIRECTS the Applicant to file in the FWC, and serve on the Respondent,
by 4.00PM Wednesday, 6 November 2024:a. An outline of argument in response to the Jurisdictional Objections;
b. An outline of argument in relation to the merits of the Application;
c. A signed and dated statement of evidence for any witness to be called;
d. A copy of any document relied; and
e. A document list.
[7] The FWC DIRECTS the Respondent to file in the FWC, and serve on the Applicant,
by 4.00PM Wednesday, 20 November 2024:a. An outline of argument in reply to the merits of the Application; and
b. Any other material it wishes to file in reply to the merits.”
Neither party complied with any part of these directions and so the only written material before the Commission is that received from each party at the very early stages of the matter, being the application form (the Form F2) and the response given by the former employer, (the Form F3).
This decision is made on the basis of those materials, as well as the evidence provided to the Commission in the course of a determinative conference held by me that was attended by the Applicant, Mr Armstrong-Hillhouse and the Respondent’s Director, Mr Trinity Himiona.
For the reasons set out below, I am not satisfied that Mr Armstrong-Hillhouse has established he was “dismissed” within the meaning of s.386 of the FW Act.
BACKGROUND
The Respondent, Melbourne Shotcrete Specialists Pty Ltd had been experiencing trading difficulties and on 2 July 2024 a meeting of the owner and key staff was convened. According to Mr Himiona there were 5 people in the meeting, including himself.[1] Mr Armstrong-Hillhouse’s evidence is that the meeting involved himself, Mr Himiona, Mr Himiona’s wife, Teresa as well as his business partner, Peter and an estimator, Dion.[2]
Mr Armstrong-Hillhouse says that in the meeting, convened through Facebook Messenger, the business owner Mr Trinity Himiona told those in attendance that the business was winding up and, in the case of Mr Armstrong-Hillhouse, that it was his last day of work. Mr Armstrong-Hillhouse took that to be a notification of his dismissal by the business.[3] While Mr Armstrong-Hillhouse accepts that he had some prior insight as to the business not tracking well financially, there had been no previous discussions about his employment ending.[4]
Mr Armstrong-Hillhouse’s evidence on the subject of things said in the meeting includes this;
“We were informed that today, being the date of the call, was the last day of work. I confirmed do you need me for any additional days. Trinity conferred in front of us on the phone with Peter to see whether I was needed for any additional days. Pete confirmed no. I was given instructions for what to do for the remainder of the day, which was largely informing clients that I was a) no longer working with the company, and b) any further jobs would be cash only, same day payment. Clarified and confirmed that there was nothing else needed from me. Yes, pretty much said goodbyes and that was it. I did request a separation certificate, because obviously being made unemployed was looking to apply for some Centrelink payment if required, and when I received the separation certificate that's when we started this conversation around dismissal, because it said originally on the certificate that I had left voluntarily, which isn't correct.”[5]
Mr Armstrong-Hillhouse then reiterated that he was told definitively that his employment was ending on the day of the conference call, in answer to this question from me;
“Can you tell me please again the words that were spoken to you that indicated your job was at an end?---I was told it's the last day for the boys in the office, the boys – I'm paraphrasing; I can't remember the exact words verbatim, but this is typical of the language used in the company – that it would be the last day for the boys in the office, those boys being myself and Dion, and then, you know, I replied clarifying is today the last day or do you need me around for tomorrow. It was confirmed that today was the last day.”[6]
Mr Himiona agrees that there was such a meeting and that the financial state of the business was discussed with those present, giving this answer in response to a question from me;
“What did you say in the meeting then?---I was basically going over our finances for the month, or for the fortnight. I knew that we weren't going to make the payroll, and then I told everyone that this isn't good, we need to find other ways to keep it rolling, and that's when we came up with COD, cash on delivery - to make every job cash on delivery. But I put it to the table what I could see happening. It wasn't just me who decided that Ambriel was gone, that no one has work next week. It was what are we going to do. And I wrote it in my statement as well. Ambriel approached the table and said that he's not – he's got a job lined up with another – one of our builders and if he's all right to approach them, and I said yes, that's fine, I'm not going to stop you from doing anything. … [7]
The Respondent states in its Form F3, the Employer Response Form, the nature of the matters discussed in the meeting as well as what it believes Mr Armstrong-Hillhouse said to those in the meeting about his future;
“On Tuesday 2nd July I held a conference call with all office staff. There were 5 employees in attendance including myself. In this meeting we were covering our finances, payroll, outstanding invoices and future works. At this time the company was struggling with cashflow and I had to invoice finance the previous month in order to pay payroll and expenses. The business was going through financial hardship and these meetings were held every week for the last three months in order to find a path through this difficult period. We had already restructured our field staff from 17 employees to 11 employees. We also went from paying our employees a commercial income back to a domestic rate. The field staff were very understanding and supportive of the company’s decision in the restructure of there wages.
After 3 months of restructuring we found that in our last meeting on Tuesday 2nd July our clients were also going through financial hardships and were unable to pay for there previous months invoice. This was a huge upset as Ambriel had reported it to us all in the meeting. It meant that our financier was unable to process the next invoices for the same clients until they pay there current invoices. Automatically I was stunned and I had no idea or words on how I was to navigate through this immediate issue. Our cash flow was below 10k and we had no way of getting through our next weeks payroll.
As Ambriel was telling us the reasons why we couldn’t get any invoices approved he knew our run was coming to a end. In this moment Ambriel had told us he had arranged a job interview with another company and asked if he could attend it on Wednesday 3rd July. I then said that’s fine. Ambriel then also asked in front of everyone is it ok if he can approach our clients and ask them for a job. I said yes I’m not going to stop you from doing anything.
I then proceeded to see what work we had in the pipeline and I told everyone we will only take on Cash On Delivery jobs so we could continue trading to get through the next couple of weeks before our major projects were about to start.
Once I had told Ambriel I was ok with him looking for other work when the meeting was over he immediately told us all in the office thread that he was wrapping up his employment with Melbourne Shotcrete Specialists as of Tuesday 2nd July.”[8]
Mr Himiona says that after the meeting had concluded he learned through a text exchange that Mr Armstrong-Hillhouse was planning to leave employment that day;
“And that's - that's what happened. I didn't tell him that he could leave, and then we found out later on that he had already - through the text messages - that he was wrapping up today, and that's when everyone else in the office found out that Ambriel was leaving. Dion, Peter, myself and Theresa, my wife – yes, we all kept working the next week, because we kept the COD jobs going”[9]
The oral evidence of the discussion in the 2 July 2024 meeting is inconclusive. Mr Armstrong-Hillhouse says he was told that the business was winding up and it was his last day of work. Mr Himiona says those words were never said and that instead those in the meeting discussed the winding up of the business.
CONSIDERATION
A person is “dismissed” in the circumstances set out in s.386, which provides this definition, so far as is relevant to the circumstances of this matter:
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) and (3) – omitted
Section 386(1) provides the primary definition of the term “dismissed”. That primary definition allows for two alternatives; situations in which an employee’s employment has been terminated on the employer’s initiative (s.386(1)(a)) and circumstances in which an employee has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by their employer (s.386(1)(b)).
After an extensive analysis of the law surrounding s.386(1), the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[10] (Bupa) held that the Commission needed to distinguish whether it was argued the dismissal was not legally effective, such as for reason of a “heat of the moment” communication or incapacity of some kind or whether it had been “forced” through conduct or a course of conduct by the employer with an intentional purpose of procuring a resignation. There is no submission to me in these proceedings that Mr Armstrong-Hillhouse’s employment was ended through a “heat of the moment” action.
The actions of an employer in relation to a termination of employment are not the only points of consideration. It is also necessary to consider the circumstances giving rise to the termination; the seriousness of the issues involved; and the respective conduct of the employer and employee.[11]
Assessment of Mr Armstrong-Hillhouse’s contention is assisted by the summary of the general principles laid out by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd (Tao Yang), noting that not all of the summarised principles are relevant to whether there was a forced resignation:
“• The question as to whether there was a dismissal within the meaning of the FW Act is a jurisdictional fact that must be established by the Applicant;
· A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
· The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· Conduct includes an omission;
· Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
· Considerable caution should be exercised in treating a resignation as other than voluntary (forced) where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties’ conduct is required.”[12]
Two documents before the Commission potentially cast some light on the dispute and whether Mr Armstrong-Hillhouse was dismissed.
The first document is a screenshot of a Facebook Messenger exchange which commenced at 12:53 PM on 2 July 2024 involving a number of people. This document is particularly relevant as it makes reference to a number of practical managerial steps to be taken following the earlier discussion about the Respondent’s trading difficulties.
The second document is the text of a Facebook Messenger exchange in mid-July between three people, Mr Armstrong-Hillhouse, Mr Himiona and Ms Teresa Severi, Mr Himiona’s wife (who did not give evidence or provide a witness statement in these proceedings). The date of this exchange is unclear, however appears to have started on Monday 15 July 2024 and extended to the following day, Tuesday 16 July 2024, being two weeks after Mr Armstrong-Hillhouse’s employment ended.
The first document, of the Messenger exchange immediately after the 2 July 2024 (audio) meeting includes these matters, giving only limited insight as to the matters discussed in the meeting:
Teresa Severi asked;
“Let me know if you want me go through expense list and :
- cancel direct debits
- cancel subscriptions
- cancel insurances (Paul MCA public liability)
- give notice on Laverton yard, are we keeping this truck at Dandenong now ?”
Mr Armstrong-Hillhouse said in a string of consecutive texts that
[a person] “called me asking whats going on, mike told them he doesn't work here anymore and to call me (thanks mate)”
“I've said i'm not sure whats happening as I'm wrapping up my position here today”
“gave them your number @Trinity Clarence Lee Himiona said i assume if sprays are booked for this week they'll be going ahead”
I draw from the above that the parlous state of the Respondent’s business was openly discussed in the meeting on 2 July 2024 and the subsequent messaging exchange, with the reaction of those present in the meeting being to plan for winding down the business. For example, Ms Severi engaged in a discussion about reduction of expenses and Mr Armstong-Hillhouse referred to scheduled sprays continuing. While these glimpses of the business in action are not, on their own, so compelling as to ordain a finding, they nonetheless suggest a business which expected to continue to trade, albeit in a manner that reduces costs and maximises incoming cashflow.
Mr Armstrong-Hillhouse argues that he was informed in the meeting that 2 July 2024 would be his last day of work and that he did not resign.
Plainly the writing was on the wall for all involved when the extent of the Respondent’s financial problems were disclosed in the 2 July 2024 meeting. Those present would likely have surmised that their future employment with the Respondent would be very short, perhaps only measured in days.
Beyond this obvious conclusion, the 2 July exchange shows the group to be focussed on restructuring the business and reducing costs.
The later mid-July messenger exchange was initiated by Mr Armstrong-Hillhouse because he was dissatisfied about the content of an employment separation certificate sent to him by the Respondent. The certificate is dated Monday 15 July 2024 and states “employee ceasing work voluntarily” as the reason for separation of Mr Armstrong-Hillhouse from the Respondent. The Applicant disputed that matter in the exchange, which appears to have commenced on 15 July 2024. I do not relate the whole of the exchange as not all parts are relevant to the matter that needs to be determined here. Nonetheless the following statements are relevant to my decision;
In the opening comments of the extract provided to me, Mr Armstrong-Hillhouse stated to those in the exchange;
“On the 2nd of July 2024, I was told that the business was winding up and that it was my last day of work. I have just received a separation certificate today, and it's incorrect.
On the form it says that I chose to cease work voluntarily - this is categorically incorrect as I did not cease work voluntarily and this prevents me from receiving any centrelink payment while I seek new employment. I have also not received payment for my hours already worked or leave accrued.
I understand that there may not be a lot of money floating around right now but I can see that the bank account does have enough for the weeks work currently owed to me, and that other office staff have been paid as well as directors' loans/invoices.
In addition to the unpaid wages and annual leave - I believe I am entitled to 2 weeks payment in lieu of notice of termination or redundancy depending on if you have formalised the winding-up process.
Please provide me with a formal payment schedule asap, I expect this to be resolved by Thursday the 18th of July 2024.”Mr Himiona responded by saying;
“Teresa will adjust your separation certificate and we are sorry about any inconvenience.
I am going through a very hard phase in shutting down the business. I can not give you a time frame as our company has ceased trading and we do not have the funds to pay payroll.”
Mr Himiona said about the discussion on 2 July that;
“Michael was so upset when he called me I couldn’t give him an answer on how I was going to proceed with the company and I told him I was going to call him back that night. I didn’t call him back and then I found out that he was working with someone else the next day.
Everything was happening so fast that when we were all on a call. I remember you told us all that you already had an interview lined up and you were preparing to leave. I told you that you should go for it I’m not going to hold you back.”
You announced that it was the last day of employment for myself and others, it was the main purpose for the group call. No notice period was provided during the call – You asked Pete if he needed me in the office the next day and he confirmed that he did not.
No notice of termination was provided – The Fair Work Act 2009 states an employer must provide an employee with written notice of the day of termination when ending their employment.”
Mr Armstrong-Hillhouse responded;
“Me having an interview is neither a resignation letter or verbal resignation and I did not initiate any conversation about the cessation of my employment.
You announced that it was the last day of employment for myself and others, it was the main purpose for the group call. No notice period was provided during the call – You asked Pete if he needed me in the office the next day and he confirmed that he did not.”
And later;
Mr Himiona: “I would also like to add with your separation letter. I hope you can see that my explanation on these past events and without me receiving a resignation letter it would be voluntary. I would also need to go over your contract to see our terms in regard to redundancy and termination.”
Mr Armstrong-Hillhouse: Quite the opposite - Not having received a resignation letter is a clear reason for it be involuntary.”
It is clear from the 2 July meeting that no party engaged in formal, precise language of contractual termination. As much as Mr Himiona did not say “I hereby terminate your employment by giving you the notice I am required to”, neither did Mr Armstrong-Hillhouse say “you leave me with no choice but to resign”. At one level such is understandable: the meeting on 2 July discussed catastrophic news not only for the business, but for the personal future of each person attending. Likely those attending were laser-focused on what needed to be done for the business as well as their personal futures rather than the formalities of contractual language.
Even so, a finding that a person has been dismissed requires a positive finding about one or more of the elements within s.386 with the onus being on the applicant to establish their case on the subject.
Pertaining to s.386(1)(a), a finding that Mr Armstrong-Hillhouse was terminated on the initiative of his employer is not established through the evidence. The extent of the evidence on the subject is largely the verbal assertions of each party which the other denies and nothing more.
Through the Commission’s case management directions, Mr Armstrong-Hillhouse had the opportunity to bring forward oral evidence from one or other of those in the meeting on 2 July 2024, beyond Mr Himiona, but did not do so. Neither person suffers from a deficit of credit in their oral evidence and as such a finding that I prefer the evidence of one over the other is not available to me.
The 2 July messaging exchange with the Respondent, in which Mr Armstrong-Hillhouse said “I am wrapping up my position here today” critically does not go on to say anything like “because I have been let go”. The same exchange supports Mr Armstrong-Hillhouse’s contention that him leaving the company had been discussed in the meeting, despite Mr Himiona’s assertion it was not. However, nothing in the exchange suggests surprise from the others involved when Mr Armstrong-Hillhouse said he was “wrapping up” that day.
I am unable from these matters to draw the conclusion that Mr Armstrong-Hillhouse’s employment was terminated at the initiative of the employer.
As to the provisions of s.386(1)(b), dealing with a resignation having been forced by the employer’s conduct, it must first be noted that only Mr Himiona asserts a resignation on the part of Mr Armstrong-Hillhouse, who in turn does not accept that he resigned, whether or not forced by the Respondent’s conduct toward him.
While that is so, the evidence does not support a finding of a forced resignation.
By the time of the 2 July 2024 meeting, Mr Armstrong-Hillhouse had some insight as to the precarious financial position of Melbourne Shotcrete Specialists. While such is a relevant background fact, an observation of precarity is not an element of force in itself as it is not conduct, overt or omitted, that would indicate to an employee that they had no choice but to leave their employment through resignation (although it may of course speak to the need to exercise options for alternative employment if they existed).
The mid-July messaging exchange records Mr Armstrong-Hillhouse as asserting the employment separation certificate had been incorrectly completed when it recorded him as having ceased working voluntarily. When that was put to Mr Himiona, along with an explanation that the recorded termination status prevented him from receiving Centrelink payments, the latter said he would adjust the employment separation certificate. Ms Severi then said she was under the impression it was Mr Armstrong-Hillhouse who had left the company, from which I infer she communicates that she understood him to have resigned. Mr Himiona’s comments in response shortly after reiterated his recollection of Mr Armstrong-Hillhouse having “an interview lined up” and that he was “preparing to leave”.
While those statements highlight the debate between the Applicant and the Respondent, they do not meaningfully resolve the debate. In any event, the statements neither show there was a termination of employment at the initiative of the employer or, to the extent there was a resignation, that the resignation was forced.
I cannot be satisfied from these matters that Mr Armstrong-Hillhouse has discharged his onus as an Applicant to prove he has been dismissed, to be entitled to commence an application for unfair dismissal remedy. I am not satisfied Mr Armstrong-Hillhouse was dismissed within the meaning of the FW Act’s s.386.
It follows that I must dismiss Mr Armstrong-Hillhouse’s application for unfair dismissal remedy and an order doing so is issued simultaneously with these reasons for decision.[13]
COMMISSIONER
Appearances:
Mr A. Armstrong-Hillhouse, for the Applicant.
Mr T. Himiona, for the Respondent.
Hearing details:
25 November.
2024.
[1] Employer Response Form, Form F3, item 2.2.
[2] Transcript, PN 45.
[3] Transcript, PN 68.
[4] Transcript, PN 72.
[5] Transcript, PN 45.
[6] Transcript, PN 47.
[7] Transcript, PN 101.
[8] Employer response form, Form F3, item 2.2.
[9] Transcript, PN 102.
[10] [2017] FWCFB 3941, [47] – [54].
[11] Pawel v Advanced Precast Pty Ltd (Print S5904, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000), at [13].
[12] [2023] FWC 1325, [53].
[13] PR783792.
Printed by authority of the Commonwealth Government Printer
<PR783777>
0