Mr Bradley Richmond v APS Group (Placements) Pty Ltd
[2020] FWC 4710
•8 SEPTEMBER 2020
| [2020] FWC 4710 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bradley Richmond
v
APS Group (Placements) Pty Ltd
(U2020/3609)
DEPUTY PRESIDENT BULL | SYDNEY, 8 SEPTEMBER 2020 |
Application for an unfair dismissal remedy – whether valid reason for dismissal.
[1] This matter was initially heard before the Commission 18 June 2020, where APS Group (Placements) Pty Ltd (the employer/APS) submitted that the Commission was without jurisdiction to hear Mr Bradley Richmond’s (the applicant) unfair dismissal application as there had not been a dismissal on the employer’s initiative. In the employer’s view, Mr Bradley had resigned his employment on 2 January 2020.
[2] On 7 July 2020, the Commission issued a decision [2020] FWC 3266, holding that, despite the employer’s understanding, Mr Richmond had not resigned from his employment with his employer APS Group (Placements) Pty Ltd (APS), a labour hire business.
[3] The Commission further held that for a dismissal to be initiated at the employer’s initiative it will not ordinarily take effect until such time as it is communicated to the employee, the effective date of dismissal was 4 March 2020 being the notification date to Mr Richmond that he was no longer employed.
[4] As Mr Richmond’s unfair dismissal application continued to be opposed by APS, his application for an unfair dismissal remedy was heard in full before the Commission. Both parties were granted leave pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act) to be legally represented. Much of the evidence given in the jurisdictional hearing was again provided and by the same witnesses.
Submissions and evidence of Mr Richmond
[5] Mr Richmond was engaged as a casual employee on 23 January 2018. Mr Richmond’s employment terms are reflected in a document titled “Contract of Engagement’. 1 Section (1) of the Contract of Engagement sets out the employment relationship and includes the following terms:
‘… the Contractor 2 is engaged by the Company as a casual employee to work on assignment for clients at a client’s premises.
Nothing in this agreement shall compel the Contractor to accept an assignment or constitutes an offer of ongoing work.
… the Contractor may also register the Contractor’s services with other personnel agencies and remain registered with other agencies at all times whilst registered with the Company.
The Contractor’s engagement to work on assignment may be terminated by the Company providing one hour’s notice.’
[6] On commencement of work with APS in January 2018, Mr Richmond worked 6 days a week and would be sent text messages each week with his roster for the following week. 3At all times, Mr Richmond has worked for APS’s client, Coles, as a ‘pick packer’ at its Eastern Creek Chilled Distribution Centre.
[7] Mr Richmond states that, in October 2018, he wanted to start a career in insurance but also wanted to retain work at Coles so he could earn extra income to save for a house deposit. He enquired with Mr Ferreira, a Coles employee whether he could be rostered to only work weekends if he secured a fulltime job elsewhere. Mr Ferreira agreed to this request, however, this arrangement did not proceed at the time.
[8] In May 2019, Mr Richmond again enquired with Mr Ferreira whether he could still move to working weekends only. This was agreed and Mr Richmond changed his working hours to weekends only and he was sent weekly text messages from APS advising of his weekend roster. At the same time, Mr Richmond had commenced working full time with Employers Mutual Management Pty Ltd as a Claims Adviser. 4
[9] On 28 July 2019, Mr Richmond left work early having experienced pain which was later diagnosed as kidney stones. This effectively became Mr Richmond’s last day at work as he later broke bones in both his legs in a ‘freak accident’. Mr Richmond states he was declared unfit for work until the end of November 2019. 5
[10] Mr Richmond states that, on 9 August 2019, he spoke to an APS Onsite Recruitment Consultant Ms Britney Ray by telephone who advised him to let APS know the progress of his recovery and when he was ready to return to work.
[11] On 24 September and 25 October 2019, Mr Richmond states that he spoke to Ms Ray advising of his recovery progress. On 1 November 2019, Mr Richmond attended the Coles Eastern Creek worksite to speak to Ms Ray and while there met Ms Sarah Russell the APS National Contract Manager who advised that APS required a medical clearance to enable his return to work.
[12] On 4 December 2019, Mr Richmond obtained a medical clearance to return to work on ‘light duties’ and immediately informed Ms Ray by email stating:
‘I’ve been given a clearance finally to come back into a warehouse environment, for suitable duties.
I’m still limpy and slow and will be for some time, however, I can at least perform warehouse duties at a suitable/appropriate level.
Please feel free to give me a call if you’d like to discuss anything.’
[13] Mr Richmond called Ms Ray the following day, as he had not received a response, and was told that his case had been ‘escalated to Ms Russell’.
[14] Mr Richmond states he then spoke to Ms Hosannah Sale, also an On-Site Recruitment Consultant of APS on 6 December 2019, to obtain an update as to whether he could work the following day. He was told that because of his injury, and having not worked for more than three months, he had been made inactive on APS’s records and would need to be re-inducted, which would not happen until the new year as Coles were not conducting any inductions for the balance of 2019. 6 Mr Richmond queried why he was only being made aware of this now, when he had previously been promised his job back by Ms Ray and Ms Russell, to which he was advised that it was the policy.
[15] Mr Richmond states that he contacted Mr Brett Rixon, his Team Leader and a Coles employee, on around 9 and 13 December 2019, and Mr Rixon indicated that there was no reason why he could not return to work.
[16] On 12 December 2019, Mr Richmond states he received an email from Ms Russell stating that she had been advised that he would like to return to work and asking that he confirm his availability. Mr Richmond took this response as meaning he could start immediately without an induction. He then responded with his availability for weekend work. As he had not heard back from Ms Russell, Mr Richmond telephoned the APS office the following day, 13 December 2019, and was told that APS’s records indicated that he had been made ‘inactive’ the day before. 7
[17] Mr Richmond states that, on 17 December 2019, he spoke to Ms Russell by telephone who told him that APS’s internal procedure was that after three months without being rostered to work, employees are automatically made inactive on the APS system. This required Mr Richmond to reapply for work or be re-inducted.
[18] Following this conversation, Mr Richmond sent two emails to Ms Russell requesting clarification regarding his inactive status, 8 as he was concerned that he might have been terminated.
[19] Mr Richmond sent a further email on 20 December 2019, requesting a copy of his employment contract and requesting to be advised of his employment status in the APS system.
[20] Ms Russell responded that day by email stating that Mr Richmond was not currently active on the APS data base as previously advised by telephone. If he wished to re-apply for any advertised positions in the new year, he could do so online as previously advised. 9 Mr Richmond states he was devastated about how APS was treating him and felt discriminated against because of his injury.
[21] On 23 December 2019, Mr Richmond again emailed Ms Russell. On this occasion, Mr Richmond asked whether he had been terminated and what award he was covered under, to which Ms Russell replied the same day that he had not been terminated and was covered under the Storage Services Award. 10
[22] Mr Richmond sent two further emails to Ms Russell, on 23 and 24 December 2019, but did not receive a response.
[23] On 2 January 2020, Mr Richmond attempted to contact Ms Russell by telephone. As Ms Russell was unavailable, Mr Richmond requested that he speak to someone with authority and was put through to Mr Volarich, APS’s Employment Relations Manager. Mr Richmond states the conversation was heated from the start. Mr Richmond expressed to Mr Volarich his frustration with Ms Russell and states that he said she was unprofessional and not very transparent. Mr Volarich then told him that he needed to be careful with what he was saying.
[24] Mr Richmond advised Mr Volarich of his understanding of the agreement to return to work on weekends at Coles and requested that he be made active again and put back on the roster for work with Coles.
[25] Mr Richmond states that Mr Volarich replied that weekend work is reserved for people who work during the week as a reward. 11 Mr Richmond also raised APS’s loyalty and values which are stated on its website as being its core values. Mr Richmond states that Mr Volarich replied with words to the effect of:
‘Our loyalty is to people who currently work full time not to people like you where APS is your secondary employment. Your agreement is irrelevant, and besides, APS has to move forward and make decisions that are in our best interests.’
[26] Mr Richmond states that, on his further request to resume work, Mr Volarich stated that he would see what he could do. Mr Richmond asserts that he was firm during the discussion but maintained a ‘considerate and professional tone’. Mr Richmond denies having agreed to part ways during his telephone conversation with Mr Volarich.
[27] A month after this telephone conversation with Mr Volarich, Mr Richmond, on 4 February 2020, emailed and spoke to Ms Ray, who stated that APS were unaware of the policy (re-induction) until after he had returned with his medical clearance in December 2019 and Ms Ray advised Mr Richmond that ‘It is unlikely there would be any work until Easter’. 12
[28] Mr Richmond spoke to Ms Ray again on 22 February 2020, and states he had a similar conversation as had occurred during the earlier 4 February 2020 telephone conversation.
[29] On 28 February 2020, Mr Richmond sent Ms Russell an email apologising for any disrespect he had shown her previously. 13 Mr Richmond stated that the employment relationship was probably ruined and referred to a ‘toxic trait that has been caused’.
[30] Mr Richmond concluded his correspondence by asking if APS could consider making an exception to enable him to return to working at Coles for weekends only, on a trial basis.
[31] Mr Richmond received an email response from Ms Russell on 4 March 2020, which confirmed that he was no longer employed by APS and based on his attitude towards APS he would not be considered for roles in the future.
[32] Mr Richmond states that, following receipt of this email, he sent two emails to Ms Russell requesting advice as to when he was terminated but did not receive a reply.
[33] Mr Richmond states that, while he was frustrated with APS’s lack of communication and inconsistent directions, he denies having made disparaging comments about Ms Russell, APS and Coles as alleged by Mr Volarich in his statement of 12 August at [19]. Nor does Mr Richmond accept that he was rude and disrespectful in his telephone conversation with Mr Volarich. 14
[34] Mr Richmond did not accept that a phone call with Ms Russell on 9 December 2019 took place as alleged by Ms Russell.
[35] In a file note Mr Richmond made of a telephone conversation on 22 July 2020 with Ms Russell (post his employment), Mr Richmond observes that Ms Russell did not appear to be ‘stressed, angry or shocked’ during the conversation. Mr Richmond states he included this observation as Mr Russell could have taken the call out of context and said otherwise. 15
[36] It was submitted that, at all times, Mr Richmond raised legitimate workplace grievances and it is to be expected that a working relationship can withstand such robust discussions. It was put by Mr Richmond, that it was a reasonable response for him to be frustrated about not being able to return to work after having been given an expectation that his return to work would be facilitated by APS. Taken in its context, the approach taken by Mr Richmond towards APS was not unreasonable.
Evidence and submissions of APS
[37] APS described itself as a labour hire business providing employees to clients, including Coles supermarkets at their Eastern Creek Distribution Centre in the Greater Western Sydney region. Up until May 2019, Mr Richmond worked as a casual employee at the Coles Eastern Creek Distribution Centre as a warehouse Pick Packer. Mr Richmond worked six days a week including weekdays and weekend work. Unrelated to Mr Richmond’s employment with APS, he became a full-time employee working Monday to Friday with an insurance company Mutual Management Pty Ltd as a Claims Adviser. As a result, Mr Richmond commenced working only on weekends, as a casual, at the Eastern Creek Distribution Centre in June 2019.
[38] On 29 July 2019, Mr Richmond injured himself in a non-work-related incident resulting in his inability to perform his work as a Pick Packer at the Eastern Creek Distribution Centre. From this date onwards Mr Richmond has not worked for APS in any role, although he continues to work full-time with Mutual Management Pty Ltd.
[39] In response to an enquiry from Mr Richmond regarding his employment status Ms Sarah Russell the National Contract Manager on 4 March 2020, advised Mr Richmond that he was no longer employed with APS.
[40] APS denies that the dismissal of Mr Richmond was unfair and contended that Mr Richmond engaged in a pattern of conduct of repeated contact of inappropriate dealings with its staff, challenging its requirements and that of its client Coles. 16 This conduct included disparaging comments made about its National Contract Manager and its client Coles, as well as directly contacting Coles.
[41] APS further put that Mr Richmond himself acknowledges that his conduct led to a breakdown in the employment relationship to such an extent that he requested the employer to make an exception for him to resume work at Coles on weekends only.
[42] Mr Volarich, the APS Employee Relations Manager, and Ms Sarah Russell gave evidence on behalf of APS and were subject to cross-examination. Both Mr Volarich and Ms Russell live in Victoria, it was therefore necessary that they gave their evidence at the hearing by telephone.
[43] Mr Volarich’s evidence 17 was that, in December 2020, Ms Russell advised him that Mr Richmond wanted to be placed for work at the Coles Eastern Creek Facility. Mr Richmond had been ‘extremely insistent’ that he be rostered to work at Coles. As Mr Richmond was not satisfied with Ms Russell’s explanation as to why he had not been placed with Coles the matter had been escalated to him as the Employee Relations Manager.
[44] Mr Volarich’s evidence was that due to the long absence from being available to work, Mr Richmond had become inactive in the system. Mr Richmond also required a full re-induction/training prior to returning to Coles. 18
[45] Mr Volarich states that his interaction with Mr Richmond was limited to the telephone discussion on 2 January 2020 which lasted about 45 minutes. The telephone conversation was not heated but Mr Richmond was insistent and interrupted him on a number of occasions while he was trying to explain the situation. Mr Richmond wished to know why Ms Russell had not responded to his emails regarding his placement back with Coles. Mr Richmond wanted to know whether he was an “active or inactive” employee and Mr Volarich advised him that he was inactive in the system as employees are deactivated automatically after a period of inactivity of more than three months.
[46] Mr Richmond was told by Mr Volarich that this was an internal process, and in order to become active again, he would have to undergo a new site induction. In addition to the site induction, employees working at the Coles site need to be available for work six days per week, including Monday to Friday and that weekend shifts are be given to workers with this availability and that he could not force Coles to take on staff.
[47] Mr Volarich’s evidence was that Mr Richmond stated that Ms Russell was a ‘liar’ and ‘incompetent’ 19 and he criticised the way she had handled things. Mr Volarich stated that Mr Richmond told him that Ms Russell would not be lying to her employees if she was a good manager and that once Coles knew of her lying she would be removed from the contract and this would not be a good look for APS. On asking Mr Richmond for evidence to support these allegations he continued to make disparaging remarks about Ms Russell, APS, and Coles.
[48] Mr Volarich stated that Mr Richmond made comments that he would report Ms Russell to Coles for lying and being a bad manager, and that APS had a poor culture of treating employees badly. Mr Volarich also stated that Mr Richmond commented that Coles was not treating him fairly by not reinstating him immediately.
[49] Mr Volarich then asked Mr Richmond why he would want to work for APS if that is how he felt, and why would APS want to place him with a client if he felt like that, to which Mr Richmond responded, “fair comment.”
[50] Mr Volarich said to Mr Richmond that the relationship had obviously broken down and that maybe it was best to part ways, to which Mr Richmond agreed, the conversation then ended. Mr Volarich states that he was of the belief that Mr Richmond had resigned from his employment and he made a file note of the conversation which was recorded in the APS management system on 3 January 2020 and a copy was attached to his witness statement. The file note reflects the account of the telephone conversation Mr Volarich provided. 20 Mr Volarich stated that he then advised Ms Russell of Mr Richmond’s resignation.
[51] Mr Volarich states that had he not been of the view that Mr Richmond had resigned, he would have taken steps to end his employment following the telephone conversation. 21
[52] Mr Volarich denies having told Mr Richmond that, in respect of working at Coles, he “will see what I can do.” Mr Volarich states that he would not have made this comment as he could not change the internal processes at Coles.
[53] Mr Volarich stated that Mr Richmond’s telephone manner was rude, disrespectful and unprofessional, and contrary to the APS Code of Conduct. Mr Volarich maintained this assertion under cross examination.
[54] Mr Volarich’s evidence was that Mr Richmond’s behaviour and attitude towards APS Ms Russell and Coles was inconsistent with APS values and potentially damaging to APS’s relationship with Coles and, as such, Mr Richmond could not continue his employment with APS.
[55] In Mr Volarich’s oral evidence, he stated that APS was under instructions that Coles was not inducting employees over the Christmas peak period referred to it as a ‘black out period’. During this period, there is no training, no annual leave taken, and no inductions. APS was not in a position to request that Coles give special consideration to Mr Richmond.
[56] Mr Volarich stated that, on or around 24 July 2020, he was advised by Coles that Mr Richmond had been placed on a ‘do not use list’. As a result of this advice, it would not be possible to place Mr Richmond with Coles as APS has no authority to compel clients to take on an individual employee. 22
[57] Ms Russell provided a witness statement and was subject to cross examination. Ms Russell states that she met Mr Richmond in person on one occasion only in October or November 2019, when he wanted to discuss a return to work at Coles and was seeking commitments from APS to place him at the Coles Eastern Creek Facility when he received a medical clearance. 23 Mr Richmond told Ms Russell that he needed the money to supplement his full-time job which was his “real job”, and the placement at Coles was his “on the side job.”24
[58] Ms Russell’s evidence was that, on 4 December 2019, Mr Richmond made contact with Ms Ray, the Senior on Site Recruitment Consultant, by email, to advise that he had obtained a medical clearance and wished to return to work the following Saturday at Coles. Mr Richmond’s email stated that he was still limpy and slow and the medical certificate stated that he was suitable for light duties only.
[59] Ms Russell stated that, as Mr Richmond had been absent from work for over four months, he had automatically become inactive on the APS internal system. Should he wish to be placed with one of APS’s clients, including Coles, he would need to re-apply for a position at that particular site. This would require undertaking a new site induction and any necessary new training. 25
[60] Coles had informed APS that it had filled its staffing requirements for the month of December 2019 and was not taking on new applicants until the new year.
[61] On 6 December 2019, Mr Richmond spoke to Hosannah Sale an On Site Recruitment Consultant. Ms Sale contacted Ms Russell after the telephone call to advise that she had told Mr Richmond that he would need to undertake a full re-induction as per Coles’ procedure, and that Coles had finalised all its placements until the new year. He was also advised that the preference for Coles was availability for six days per week.
[62] Ms Sale further informed her that Mr Richmond was difficult on the phone and that he did not take this information well. Ms Sale sent Ms Russell an email that day which stated as follows:
“Hi Sarah
Oh man I totally get what you mean with this guy being a royal Pain.
I advised him of every point mentioned down below, 26 and he didn’t take it well. He said “I wasn’t advised that I would have to be re-trained if I was off for more than three month (sic) since when did that start, Sarah said to me that once I supply I (sic) clearance I could come back. I don’t understand why I have to start next year when Coles wants me back. I spoke to all managers and it wasn’t a problem. Please get Sarah to call me because I’m pissed off. I tried my best to calm this dude and he just didn’t take any of it.
Please assist and call him.
Kind regards” 27
[63] Mr Richmond also spoke to another On Site Recruitment Consultant, Ms Alannah Cain, on 6 December 2019. Ms Cain sent an email to Ms Russell in the following terms:
“He called back again!
He had me on the phone for 18 minutes, I told him I had to go
I did explain everything in a way that he now understands, he’s not happy, but he understands.
He said he is not angry with me, but he’s not happy with the situation, and will speak to Coles about it.”
[64] As Mr Richmond contacted the office three times on 6 December 2019, and her team had handled difficult conversations with him, Ms Russell sent him a text message advising him that she was on leave that day and that she would contact him on Monday 9 December 2019. Ms Russell states that her team were constantly advising her that Mr Richmond was repeatedly calling – up to several times a day. 28
[65] Ms Russell telephoned Mr Richmond on Monday, 9 December 2019, as she had stated she would, and repeated what had already been told to him by her team members. This was that he would have to re-apply to be placed at Coles and would need to wait around a month to be ‘on boarded’ as they were not recruiting until 2020. Ms Russell states that she explained to Mr Richmond why he could not be placed at Coles several times as they were only engaging staff that could work six days per week. Mr Richmond was not happy with this response and refused to accept the situation.
[66] Ms Russell stated that Coles had informed her that Mr Richmond had approached its Planner Manager and Planning Resource Analyst around the same time to find out why he had to re-apply and complete a new site induction and both had referred Mr Richmond back to herself at APS.
[67] On 12 December 2019, Ms Russell sent an email 29 to Mr Richmond asking him to confirm his availability for work and Mr Richmond responded the same day by email stating as follows:
“Hi Sarah
As I have a full-time professional job, I am technically only available on weekends, and possibly evenings during the week.
As I had an agreement with APS and Coles previously regarding my availability to only work weekends I am hoping that this could still be the case due to my past excellent work experience and employment history.
As I’ve had a significant injury, I am hoping to at least trial ideally this Saturday 14th Dec for a 930am start to see how it goes. If either party is not happy for what ever reason, we can then assess, reassess and talk more.
I’d rather you call me to discuss this matter. If you can.”
[68] Mr Richmond sent an email to Ms Russell on 16 December 2019, 30 as follows:
“Hi Sarah
I will await for your call tomorrow. But at present, I am really not impressed with this matter and how it has been dealt with.”
[69] On 17 December 2019, Mr Richmond contacted Ms Russell, by telephone, and was advised that consistent with previous discussions he would have to undergo a site re-induction in order to be placed at Coles, however, Ms Russell states that Mr Richmond would not accept this. 31
[70] In response to a further email from Mr Richmond on 20 December 2019, Ms Russell responded by email that day 32 that:
“We need to keep our database up-to-date with active and available employees who have a variety of availability.
We can only keep a candidate active if they work within a 3 month period. Once a candidate has not worked for us for more than a 3 month period then it is our internal procedure that they are made inactive on our database. Should they wish to work for us again then they would need to reapply and be completely re-inducted to ensure they sign all new inductions policies and procedures.
I hope this answers your queries”
[71] On 23 December 2019, Mr Richmond asked in an email if he had been terminated, Ms Russell confirmed by email that as per their previous discussions he had not been terminated. 33
[72] Ms Russell stated that she had spoken to Mr Richmond on at least three occasions by telephone during December 2019 of which one was a lengthy conversation of approximately 45 minutes. During these discussions she reiterated on several occasions that because he was inactive on the APS system, he would need to reapply and be re-inducted with Coles. Mr Richmond would not accept that he had to undertake a new site induction. 34
[73] Ms Russell stated that it was not possible to place Mr Richmond with another APS client as he was only available for weekend work.
[74] Ms Russell stated that, as Mr Richmond was not satisfied with her responses, she had escalated the matter to Mr Volarich. In early January 2020, Mr Volarich told her that Mr Richmond had resigned. 35
[75] On 28 February 2020, Ms Russell received an email from Mr Richmond which included the following comments:
“I would assume that whatever has been said by each party over the last number of months has probably ruined an employement (sic) relationship, in fact it's probaly (sic) not even appropriate for me to be contacting you.
I understand the requirements that the client aks (sic) for when recruiting potential team members. And I am aware that I am probably not an option anymore either because of a toxic trait that has been caused and or because of my injury/availability.
I am asking if there is a way Sarah that you could consider making an exception for me to be able to come back to Coles for weekends, atleast (sic) as a trial.”
[76] Mr Richmond also referred to his financial difficulties and that he was considering resigning from his ‘career job’ and then made the following request:
“Would it be possible if the agreement that I had with you guys and Coles previously could be re considered and possibly granted for me to work weekends and when I can. I don't want to go backwards and resign from a government full time job only to be back at square one again.”
[77] Ms Russell states that she took this email to mean that Mr Richmond was looking to be employed again with APS, at least on some kind of trial basis, as her understanding was that he had resigned from APS in January 2020.
[78] In response Ms Russell, in an email of 4 March 2020, confirmed that Mr Richmond was no longer employed which was purely based on the fact that he was unavailable for work for almost five months and that he had been advised previously that he would not be considered for roles in the future due to his poor attitude. The response email stated:
“I can confirm that the reason you are no longer employed by APS has nothing to do with your injury, and as per our verbal conversations, is purely based on the fact that you were unavailable for almost 5 months. The APS procedure states that APS contractors are to be deactivated if they are unavailable for 3 months.
Our procedure is that anyone who is inactive for the above mentioned period of time, would need to re-register to be considered for roles within APS. You have previously had verbal conversations with both myself and Rob - our ER Manager, where you have voiced your point of view on the whole matter including how you feel towards APS staff. You were advised in these conversations that based on your attitude towards APS, that we would not be considering you for roles in the future.
I would like to take the opportunity to wish you all the best for your future endeavours, and ask that you do not make any further contact with anyone at APS or Coles. This includes site visits, emails and verbal communication.
Thanks in advance”
[79] Ms Russell stated that Mr Richmond telephoned her again, on 22 July 2020, usinga silent number, and made a request to return to work and described Mr Richmond’s manner as rude and condescending. On the same day, she received an email from Coles management advising that Mr Richmond was to be added to the ‘do not hire list’. Ms Russell stated that APS cannot place employees at Coles sites who are on the do not hire list.
Relevant Legislation
[80] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal.
[81] In considering the merits of an application for an unfair dismissal remedy the Commission is required to decide a number of threshold issues including those set out at s.385 and s.396 of the Act.
[82] Section 385 of the Act provides as follows:
“S.385. A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[83] And further at s.396:
“S.396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[84] As stated above, the Commission has previously held that Mr Richmond was dismissed by his employer and that he has satisfied s.382(a) of the Act by completing the minimum employment period while employed as a casual employee on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis during this period. 36
[85] The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Richmond is not a person protected from unfair dismissal. APS is not an employer covered by the Act’s Small Business Fair Dismissal Code.
Was the dismissal harsh, unjust or unreasonable?
[86] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[87] The Commission is required to consider each of these criteria, to the extent they are relevant to the factual circumstances before the Commission.37 In the decision of Nyrstar Hobart Pty Ltd v Peter Brain 38 (Nyrstar) the Full Bench stated:
“[23] Section 387 requires the Commission to approach the consideration of whether a dismissal was harsh, unjust or unreasonable in a particular way. It directs the Commission to take certain matters into account. It does not stipulate criteria that must be satisfied in order for a dismissal to be fair or unfair. Nor does it authorise the Commission to develop or apply its own criteria.
[24] In Esso Australia Pty Ltd v AMWU, CEPU and AWU, 39 the Full Bench stated:
‘[58]In our view the adoption of a decision rule or principle of the type proposed in Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in Gardner v Jay:
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules do not fetter the discretion of the Judge why should the court so do.”
(Footnotes omitted)”
[88] The Full Bench in Nyrstar went on to state that while the Act requires the Commission to take the matters listed at s.387 into account, they are not the subject of incumbency, they are not criteria. 40 These comments are apposite in this matter as on APS’s understanding Mr Richmond’s employment ceased by way of resignation, although not a view held by Mr Richmond or upheld by the Commission.
[89] The matters to be taken into account under s.387(a) to (h) of the Act are considered below.
a) Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[90] In order to be considered a valid reason, the reason for the dismissal should be “sound, defensible or well founded”41 and should not be “capricious, fanciful, spiteful or prejudiced”.42 However, the Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer.43
[91] APS states that Mr Richmond contacted APS on 3 occasions on 6 December 2019 requesting that he be placed with the host employer Coles. APS states that Mr Richmond’s manner was rude and aggressive. 44 He was advised on 6 December 2019 by representatives of APS that the host employer Coles required employees who were available 6 days a week during the December 2019 peak period and that he would have to undergo an induction before being offered work and that there were no inductions occurring until the new year.
[92] On 9 December 2019 and 17 December 2019, Mr Richmond spoke to Ms Russell the National Contract Manager who repeated to Mr Richmond the previous advice given to him which he refused to accept. 45 On 17 December 2019, Ms Russell again explained to Mr Richmond by telephone the requirements necessary to return to work which she states he would not accept.46
[93] On 2 January 2020, Mr Richmond spoke to Mr Volarich the Employee Relations Manager by telephone. At the time Mr Richmond was not an inducted employee having worked his last shift in late July 2019. At this time APS had been instructed by Coles not to induct new employees until early March 2020.
[94] I am satisfied on the evidence of Mr Volarich that the telephone conversation on 2 January 2020 with Mr Richmond was conducted in the manner as described by Mr Volarich. That is, Mr Richmond spoke in a derogatory manner about Ms Russell, APS and Coles.
[95] I am fortified in this conclusion by Mr Volarich’s contemporaneous file note of the telephone conversation and recorded in the document management system on 3 January 2020. The file note is expressed as follows:
“Task Code: Candidate Contact
Description: Brad made contact with me yesterday. He wanted to know why Sarah Russell had failed to respond to his emails. I informed Brad that SR had responded to his emails and that I had SR’s responses – Brad felt his questions had not being answered.
Details: I asked if I could provide more information. He wanted to know whether he was an inactive candidate. I explained to Brad why APS would make a candidate inactive – especially after a long period of absence. After several interruptions Brad repeatedly stated that he was a good and loyal employee in that we should re-engage him to work on Saturdays – I explained to Brad that due to the peak period demands the site requires candidates to work six shifts per week and that weekend work would be first offered to our Mon – Fri employees. Brad wasn’t satisfied with my response and continued his rant for about 45 minutes. During this time, he made several allegations against SR – he alleged that she was lying to him and that she was acting in an inappropriate manner for a person in her position – when I requested evidence or more information about the allegation –He just said he knows what she is saying is not true. He also made derogatory remarks about APS and Coles.
Status: Finished
Completion Comments: The remarks about APS and Coles were in relation to not being reputable employers and that both companies had treated him poorly – At this point I asked Brad that if this is how he felt, then why would he want to work for APS at Coles? Or why would APS want Brad to represent APS on a client site? Brad took a few seconds and remarked that this was a fair comment. I said the relationship between the parties had broken down and that it may be best to part ways – Brad agree with my comments and the call ended.”
(My underline)
[96] At paragraph [13] of Mr Volarich’s witness statement he states that Mr Richmond continually called Ms Russell a ‘liar’. In Mr Richmond’s reply statement of 17 August 2020 47 he denies at paragraph [5b] as having made certain disparaging comments about Ms Russell as alleged by Mr Volarich which included those contained at paragraph [13] of Mr Volarich’s witness statement.
[97] Under cross examination, and contrary to his witness statement of 17 August 2020, Mr Richmond agreed that he had told Mr Volarich that Ms Russell had lied to him.
“PN531 I did say she has lied to me, yes, and that's factually correct.”
[98] Mr Richmond further stated in his oral evidence that Ms Russell was dishonest.
“PN556 … I stand by and say that she was dishonest. … ”
[99] Mr Richmond understandably was anxious to return to work, albeit only on weekends after a lengthy absence through no fault of his own. That absence was, unfortunately, in combination with the Christmas peak period at Coles, and the requirements that Coles had in place at the time prevented his immediate return to work, even accepting that a light duties role existed.
[100] Based on both Mr Richmond’s admissions 48 and the evidence of Mr Volarich including his file note of 3 January 2020, I am satisfied that Mr Richmond spoke in derogatory terms to Mr Volarich about Ms Russell, APS and Coles. While there was no suggestion that Mr Richmond used profanities or was threatening, his allegations were of an egregious nature.
[101] Clearly the barriers that Mr Richmond was facing in his attempt to return to work were the subject of his frustrations. This, however, cannot be a licence to demand an immediate return to work and usurp the need to complete a re-induction that could not occur over the Christmas period. The fact that Mr Richmond’s request was not able to be accommodated by APS resulted in Mr Richmond’s conduct towards his employer degenerating into unjustified accusations against APS, Ms Russell and Coles which, as Ms Russell states, in her 4 March 2020 email meant he would not be offered any future roles with APS.
[102] Mr Richmond was entitled to raise his work grievances with APS management concerning his frustration at not being able to return to work. He was also entitled to do so, as stated by his advocate, in a robust but professional manner. I do not, however, consider that his protestations can be categorised in this manner. Mr Richmond’s comments were far in excess of what could be accepted as a tolerable and a justified expression of his frustration. His comments regarding Ms Russell’s honesty, that APS had a poor culture of treating employees badly and was a bad company, were not acceptable in the circumstances.
[103] I am not satisfied that anything that APS conveyed to Mr Richmond over the relevant period could be remotely classified as lies. Further, there was no justification to describe Ms Russell to the Employee Relations Manager as ‘incompetent’ or for his constant refusal to accept the need to attend a reinduction at the Coles site.
[104] I am satisfied based on the above that a valid reason existed for the dismissal of Mr Richmond.
b) Was the Applicant notified of the valid reason?
[105] Mr Richmond was advised in the email of 4 March 2020 from Ms Russell that based on his attitude towards APS he would not be offered any future roles with APS as a casual employee.
c) Was the Applicant given an opportunity to respond to any valid reason related to his capacity or conduct?
[106] Mr Richmond was not provided with what is typically understood as an opportunity to respond to the reasons given for his dismissal.
[107] This would appear to flow from the understanding of APS that he had resigned from his employment. There can, however, be no doubt that Mr Richmond was aware of the concerns APS held concerning his conduct. Mr Volarich cautioned Mr Richmond about his derogatory comments about Ms Russell during their 2 January 2020 telephone conversation. 49 Mr Richmond was asked by Mr Volarich to elaborate or provide further information about the derogatory allegations he made concerning Ms Russell including being a liar and incompetent50. Nothing further was provided.
[108] On 28 February 2020, Mr Richmond wrote to Ms Russell and acknowledged the concerns held by APS when stating ‘what has been said by each party over the last number of months has probably ruined an employment relationship.’
d) Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[109] To the extent that this is a relevant consideration there was no refusal to allow Mr Richmond a support person.
e) Was the Applicant warned about unsatisfactory performance before the dismissal?
[110] Mr Richmond’s dismissal did not relate to unsatisfactory performance, no work performance issues were raised by APS, this factor is therefore not relevant to the present circumstances.
f) To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[111] The employer is a large employer engaged in the labour-hire industry.
g) To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[112] The respondent’s enterprise does not lack dedicated human resource management specialists or expertise.
h) What other matters are relevant?
[113] It is put on behalf of Mr Richmond that his termination has had a significant impact on his financial and personal well-being. It is noted, however, that Mr Richmond still maintains his full-time position with another employer and that the position he was dismissed from was with his second employer for weekend work only. As stated in his email to Ms Russell on 12 December 2019, he has a full-time professional job and is technically only available on weekends and possibly evenings during the week. Since his dismissal Mr Richmond states that he has been unable to make up the lost income from his previous role with APS.
[114] None of these factors, in my view, result in the dismissal being harsh, unjust or unreasonable.
[115] The email from Mr Richmond to Ms Russell of 28 February 2020 is particularly illuminating in respect of this matter.
[116] Mr Richmond commences by stating that it is probably not even appropriate that he be contacting Ms Russell, stating that he would assume whatever has been said by each party over the last number of months has probably ruined an employment relationship. Mr Richmond then states that he understands the requirements that the client asks for when recruiting potential team members and that he is aware he is probably no longer an option because of a toxic trait that has been caused and or because of his injury/availability. On this basis he requests that APS consider making an exception for him to be able to come back to Coles for weekends, at least as a trial.
[117] It is clear to the Commission that Mr Richmond had accepted, on 28 February 2020, that his working availability of weekends only was inconsistent with the requirements of Coles, and that his previous communications with APS had in his words ‘probably ruined an employment relationship’.
Conclusion
[118] In considering each of the matters specified in s.387 of the Act, as I have done above, I am not satisfied that Mr Richmond was unfairly dismissed within the meaning of s.385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr H Pararajasingham Solicitor for the Applicant
Mr D Lloyd of Counsel instructed by Mr D Sztrajt for the Respondent
Hearing details:
2020
Sydney
August
19, 27
Printed by authority of the Commonwealth Government Printer
<PR722454>
1 Attachment BR1 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
2 Noting that the word ‘contractor’ is to be read as ‘employee’
3 Witness statement of Bradley Richmond dated 29 July 2020 Exhibit A1 at [7-10]
4 Ibid at [19]
5 Attachment BR6 of Witness statement of Bradley Richmond dated 17 June 2020
6 Witness statement of Bradley Richmond dated 29 July 2020 at [30-31]
7 Ibid at [41-42]
8 Attachment BR9 of witness statement of 29 July 2020
9 Attachment BR11 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
10 Taken to mean the Storage Services and Wholesale Award 2010
11 Witness statement dated 29 July 2020 at [51]
12 Ibid at [55]
13 Ibid at [57]
14 Witness statement of 17 August 2020 at (5h)
15 PN701
16 Written submissions of 12 August 2020 at [29]
17 Witness statement of 12 August 2020 at [5]
18 Ibid at [6]
19 Statement of Rob Volarich dated12 August 2020 at [13]
20 Statement of Rob Volarich dated 12 August 2020 at Attachment RV2
21 Ibid at [26]
22 Ibid at [33-34]
23 Witness statement of Ms Russell of 12 August 2020 at [3]
24 Ibid
25 Ibid at [6]
26 Email from Ms Russell to Ms Sale on same day
27 Ibid at [8]
28 Witness statement of 12 August 2020 at [12]
29 Attachment SR 11 to Ms Russell’s witness statement
30 BR9 to Mr Richmond’s witness statement of 29 July 2020
31 Witness statement of Ms Russell of 12 August 2020 at [16]
32 Attachment SR5 of witness statement of 12 August 2020
33 Witness statement of Ms Russell of 12 August 2020, Attachment SR6
34 Witness statement of Ms Russell of 12 August 2020 at [19]
35 Witness statement of Sarah Russell dated 9 June 2020 Exhibit R2 at [19-22]
36 [2020] FWC 3266
37 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith & Ors v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
38 [2018] FWCFB 3346
39 [2015] FWCFB 210
40 [2018] FWCFB 3346 at [26]
41 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
42 Ibid.
43 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
44 See email from Hosannah Sale of 6 December 2019 at SR3 and email from Alannah Cain at SR4 of Witness Statement of Ms Russell
45 Witness statement of Ms Russell at [13]
46 Ibid at [16]
47 Exhibit A2
48 See also PN616 in hearing on 18 June 2020
49 PN616; 18 June 2020 hearing
50 Witness statement of Mr Volarich 12 August 2020 at [13[ and [15]
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