Mr Beau Krywko v MSN Enterprise Group Pty. Ltd
[2024] FWC 709
•19 MARCH 2024
| [2024] FWC 709 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Beau Krywko
v
MSN Enterprise Group Pty. Ltd.
(C2024/472)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 19 MARCH 2024 |
Application to deal with contraventions involving dismissal
The Applicant, Mr. Beau Krywko has applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute relating to his alleged dismissal by MSN Enterprise Group Pty Ltd (Respondent). The Applicant claims that his alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act.
The Respondent has objected to the application on the basis that the Applicant was not dismissed.
Section 365 of the FW Act provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
In order for the Commission to be able to deal with the dispute under s.368 of the Act it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[2]
Section 386 of the Act defines the circumstances in which a person is taken to have been dismissed for the purposes of s.365.[3] Section 386 provides, relevantly, as follows:
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.
For the reasons which follow, I have concluded that the Applicant was dismissed within the meaning of s.386. The Applicant was therefore dismissed for the purposes of s.365.
Background and Evidence
The only person to give evidence in this matter was the Applicant. His statement was admitted without objection, and he was not cross-examined. The following background and factual material are drawn from the unchallenged evidence of the Applicant.
The Applicant commenced his employment with the Respondent in February 2023. He obtained his employment through a disability service. The Applicant was employed on a casual basis and worked as a supermarket trolley collector.
The Applicant has autism, ADHD and clinical anxiety.
The Respondent supplied workers to another business, Controlled Trolley Collection Services (Controlled). Controlled provides services to a major supermarket at various sites in Sydney. The Applicant worked at three of these sites, Warringah, Bondi and Marrickville.
Under the terms of the Applicant’s contract of employment the Applicant was required to wear a uniform while he was working. Part of the uniform was a ‘hi-vis’ collared shirt which was 100% polyester and had a thick thread. It had a ‘Controlled’ logo imprinted on the back. In the cooler months the Applicant wore this item without difficulty. As the weather warmed, the Applicant began experiencing health issues because of the uniform, particularly when he was working in less well-ventilated underground car parks such as the Bondi facility. The Applicant’s evidence was as follows:
11. I would sweat uncontrollably while working, I would feel dizzy and dehydrated all the time. My cognition also felt impaired. I sometimes had to find a seat while working because I felt like I was going to faint. I fainted a couple times once I got home from work. I have never fainted before this and it stopped after my employment ended. I vomited at work a few times due to these symptoms and how unpleasant it all was. I was feeling like I had heatstroke every day.
12. One of the symptoms of my anxiety is that I have poor temperature regulation, which made things worse. I also have some sensory issues due to autism which made the shirt material feel very hot and uncomfortable on my skin.
13. In or around a month of working in the hot conditions I had lost around 10 kilograms. I had not changed my diet or activity in anyway during this month, it was solely due to my working conditions.
14. I began to feel increasingly worried about the effect the work and the uniform was having on my health. I also felt extremely uncomfortable every time I worked.
15. I raised the issues I was having with the uniform to Josh Warren, one of my managers, in early December and I asked him if I could wear a more breathable uniform.
16. He said he knows how the company works and they’re not going to care. He refused to accommodate my request.
17. I also raised the issue with Patrick around the end of December. He told me he would get back to me on it but never did.
18.As the summer went on I found it harder and harder to continue working. I felt like I was going to die in that shirt every time I worked with it on.
19. I offered Josh to pay for my own uniform, including printing and laminating the company logos onto more breathable clothes. Josh also refused this request.
20. I felt incredibly frustrated. I wasn’t being listened to and there was no acknowledgement that my health was being negatively affected by the decision that we had to wear a specific uniform, which I didn’t understand. All the while I was more and more concerned about my health.
In late 2023 the Applicant began to wear his own shirt to work. It was thinner, made of a cooler fabric and was ‘hi-vis’. His health improved even though the work was still hot.
On Sunday 7 January 2024 the Applicant was working his usual shift at Bondi. He was wearing his own shirt. He was approached by a manager, Mr. Warner. The Applicant’s evidence was as follows:
24. He came over to me and gave me a new shirt. He was quite upset when he arrived and talked to me in frustrated, heightened tone. I refused and told Josh how bad it was to work in the uniform. I felt triggered by the way Josh was talking to me and I got angry at him in return
25. He told me that the company had told him that if he didn’t wear the uniform that you’ve got to leave the site. I decided to leave the site. I said something along the lines of “I’m out, I’m done” and left. I was very upset. Due to my autism I don’t react well when someone is frustrated at me.
26. I did not intend to resign. I left because I was angry it was one of the choices given.
27. A couple hours after I was removed from three work group chats for the three different locations I worked.
28. I messaged Patrick, the HR representative, asking him to call me. I was very worried I was going to be fired. Patrick called me and I explained what had just happened and I asked what was going on. He said he would get some information and get back to me. He seemed to understand the situation and said he had heard other complaints about the uniform.
29. Patrick gave me a call back the next day.
30. We discussed the issues I was having with the Respondent. I asked what the status of my employment was and if I was being dismissed. Patrick responded that if I couldn’t wear the shirt during the summer months, I can’t work the job.
31. Patrick also told me that he had been asked to let me go.
32. In that call he informed me that he had been asked to let me go. He said if I couldn’t wear the uniform required then I couldn’t perform the role.
33. I have had no further contact with Patrick or Josh. The only further contact I have had with the business was when I tried to get a separation certificate so I could access Centrelink benefits. This was a difficult process as they sent a certificate with an incorrect starting date.
The Respondent tendered a number of documents. The first was a Controlled induction record signed by the Applicant. It showed that the Applicant had declared that amongst other things, he would comply with the policies and procedures of Controlled and would raise any safety concerns with his supervisor. The second document was an employer hire agreement between the Applicant and the Respondent. It showed that that the Applicant had agreed to wear full uniform, including a high visibility shirt and to report unsafe practices.
There were also two screenshots of text messages provided by the Respondent. One was apparently from Mr. Warner. It was dated 7 January 2024. It said “Hi neha I’ve given shirt to beau this morning, he’s refused to wear it an decided to quit an leave site. Trying to get a replacement.” The other is undated. It appears to have come from Mr. McKee, the Respondent’s human resources manager. It refers to a conversation with the Applicant some time after 8 January. The authors of the messages were not called to give evidence. I am of the view that they should be accorded little weight in those circumstances.
Submissions
The Applicant argued that his employment had been terminated on the Respondent’s initiative on 8 January 2024 when he spoke with Mr. McKee. He said that the evidence confirmed that Mr. McKee made it clear that he (Mr. McKee) had said if the Applicant could not wear the shirt in the summer months he could not continue to work, and that he been asked to “let (the Applicant) go”. The Applicant said that this was a termination on the employer’s initiative for the purposes of s386(1)(a). Further, the Applicant said that he did not explicitly say that he was resigning during the exchange on 7 January and that he did not intend to resign. He said that he simply expressed his frustration after a confrontation with his employer. He said he was upset and angry and that a reasonable person in the Respondent’s position would have understood that the Applicant was distressed and angry and that he spoke “in the heat of the moment.” He said the Respondent should not have regarded the incident as a resignation and did not seek to later clarify whether the Applicant intended to resign.
In the alternative, the Applicant said he had been forced to resign by his employer because he had been told he had to wear a uniform that he regarded as detrimental to his health and if he did not, he was unable to work. He said the employer’s conduct had the probable effect of bringing his employment to an end and he had no real or effective choice in the matter.
The Respondent submitted that the Applicant’s conduct on 7 January 2024 was an unequivocal resignation. They said they were entitled to regard the Applicant’s words as a resignation and that the Applicant made no attempt to indicate that a resignation was not intended. The Respondent said that the Applicant’s autism was immaterial in that it was not disclosed to the Respondent and could therefore have no impact on how the Respondent was to understand the Applicant’s behaviour on 7 January and thereafter. They said the Applicant resigned rather than accept a lawful direction from his employer.
Consideration
The unchallenged evidence of the Applicant was that he had raised his health and safety concerns with both Mr. Warner and the Respondent’s human resources manager, Mr. McKee in December 2023. Mr. Warner told him that the Respondent would not care about his complaint and did not accommodate his request. Mr. McKee said he would get back to him and did not. The Applicant’s statement that he was ‘out’ and ‘done’ on the 7 January 2024 has to be appreciated in that context. He was frustrated because of an issue he had tried to resolve without success. Both of the Respondent’s representatives would have understood this. I do not think it was an unequivocal resignation. I think that the Applicant’s words should have been reasonably understood as meaning he did not want to work his casual shift on that day because of the problem with the uniform, not that he was resigning his employment. The fact that the Applicant rang Mr. McKee shortly thereafter to explain the situation and ‘ask what was going on’ would have conveyed to the Respondent that the Applicant had not intended to resign but just wanted a resolution of his concern. Mr. McKee responded accordingly. He said he had heard similar complaints from others and that he would get further information and come back to the Applicant. There was no mention of resignation or the Respondent’s acceptance of a resignation.
The termination on the employer’s initiative came on 8 January when Mr. McKee spoke to the Applicant. Mr. McKee told the Applicant that if he could not wear the uniform he could not do the job. Mr. McKee would have known that the Applicant was unlikely to agree to wear the uniform because he had been told by the Applicant that his health had been affected by it. Mr. McKee also said he had been asked to ‘let (the Applicant) go.’ Mr. McKee’s words resulted directly or consequentially in the termination of the employment relationship.[4] Had he not said this to the Applicant, the employment relationship would have continued. The statements were made with the intention of bringing the employment to an end[5] and that was their effect. When one considers all of the circumstances, including the interaction between the Applicant and Mr. McKee on 8 January, the Applicant’s employment was brought to an end on the Respondent’s initiative on that day. The Applicant was therefore dismissed within the meaning of s.386(1)(a).
If I am wrong as to the characterisation of the Applicant’s words of ‘resignation’ on 7 January and the view that the relationship was brought to an end on the Respondent’s initiative by Mr. McKee’s words on 8 January, then I would add that I regard the events here as squarely captured by the ‘heat of the moment’ resignation as discussed by the Full Bench in Bupa Aged Care Australia Pty Ltd t/as Bupa Aged Care Mosman v Tavassoli (Bupa).[6] In that decision the Bench said:
There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
The Applicant was clearly upset when he left work on 7 January. His statements were made and his action taken after he had earlier made reasonable attempts to resolve the matter which had been rebuffed. His employer had approached him and spoken to him in a heightened tone. He responded in anger and frustration. The Respondent did not initiate contact with the Applicant after a reasonable time to clarify whether the Applicant intended to resign. Instead, the Respondent took at least some steps to treat the events as a resignation by removing the Applicant from work ‘chat groups’ for the three sites where he worked. However, the Applicant made contact with the Respondent shortly after the incident to discuss what had happened. Mr. McKee responded and was asked by the Applicant what the situation was. It would have been apparent to Mr. McKee at that point that the Applicant had not intended to resign or he would not have undertaken to get more information and come back to Applicant to clarify the situation. The following day the Applicant was still asking what the status of his employment was.
The ostensible resignation was ineffective because of the circumstances in which it was given. The Respondent should not now be able to now rely on the events of 7 January as a freely given expression of the Applicant’s intention to resign his position. On the basis of the approach outlined in Bupa I am of the view that to the extent the Applicant’s conduct on 7 January may be considered a resignation, that resignation had no legal effect and the Applicant’s employment was terminated on the employer’s initiative.
The Respondent’s jurisdictional objection is dismissed. The matter will be relisted for conference on a date to be determined.
DEPUTY PRESIDENT
Appearances:
Mr A. Wright, Solicitor for the Applicant.
Mr J. Bove, Solicitor for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEDT on Friday, 15 March 2024.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[2] Lipa op cit at paragraph [4].
[3] See s.12 FW Act.
[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 205].
[5] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at para. 24, [(2011) 212 IR 248]; citing O’Meara v Stanley Works Pty Ltd PR973462 at para. 23.
[6] [2017] FWCFB 3941.
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