Mr Brian Bouchaud v People Consulting Pty Ltd trading as Jobwire

[2013] FWC 3536

[2013] FWC 3536

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Brian Bouchaud
v
People Consulting Pty Ltd trading as Jobwire
(U2012/17283)

DEPUTY PRESIDENT SMITH MELBOURNE, 6 JUNE 2013

Termination at the initiative of the employer or resignation?

Introduction and Background

[1] Mr Brian Bouchaud argues that he was dismissed from his employment by People Consulting Pty Ltd trading as Jobwire (Jobwire). Jobwire resist the application on the basis that the cessation of employment of Mr Bouchaud was not at the initiative of the employer. Jobwire argued that Mr Bouchaud resigned his employment.

[2] Among other services, Jobwire is a labour hire firm and Mr Bouchaud was an employee who had been placed with various employers over two and a half years. At the relevant time Mr Bouchaud had been assigned to a company called Dynamic Supplies Pty Ltd (Dynamic) which is a technology distribution company. Mr Bouchaud was a storeman responsible for picking orders for clients of Dynamic. In his application, Mr Bouchaud stated that he was dismissed in his employment on 3 December 2012. To begin, Mr Bouchaud alleged that his employment was terminated by Dynamic but following correspondence from Dynamic the respondent to the application was changed to Jobwire.

[3] On 28 November 2012, the CEO of Jobwire, Mr J. Thompson was advised by one of his staff that an incident had occurred between Mr Bouchaud and some staff at Dynamic which caused Dynamic to advise Jobwire that it no longer wanted Mr Bouchaud assigned to it. Mr Thompson rang Mr Bouchaud and advised him of the call from Dynamic and that his assignment at that workplace was cancelled. He was advised that he would be paid until the end of the week while the matter was investigated and another assignment found for him. Whilst I will come to it, it was the evidence of both Mr Thompson and Mr Bouchaud that the telephone conversation was robust.

[4] On 4 December 2012, Mr Bouchaud had a telephone conversation with Ms B. Myers (Branch Manager) and Ms R. Raine (Consultant). It was that meeting which crystallised the employment status of Mr Bouchaud.

[5] When the matter came on for hearing it was adjourned into conference. In accordance with ss.398 and 399 of the Fair Work Act 2009 (the Act) I discussed with the parties the most appropriate way to deal with the matter. The conference canvassed all the matters and the possibility of agreement. Given that it was likely that the matter would be resolved on conflicting evidence, I considered that a hearing would be the most effective and efficient way to resolve the matter.

The Evidence

[6] For Jobwire, evidence was led by Mr J. Thompson, Ms B. Myers and Ms R. Raine. It was the evidence of Mr Thompson that in the telephone conversation with Mr Bouchaud on 28 November 2012, Mr Bouchaud was swearing and accusing Jobwire of killing his father-in-law. It was the evidence of Mr Thompson that he ended the conversation saying that Mr Bouchaud was too heated and that when he calmed down a further discussion could be held. Mr Thompson’s evidence was that he never called back. The evidence of Ms Myers was that she and Ms Raine had a telephone conversation where Mr Bouchaud:

• was abusive;

• stated that he was terminated by Dynamic;

• was told that Jobwire had another job for him with similar pay, similar duties and similar location;

• stated that he didn’t want to work for Jobwire anymore and that the company did not show a duty of care to him and that Jobwire and Dynamic killed his father-in-law; and

• Stated that the best thing Jeff [Thompson] could do was get on a plane and go an see him and offer him money—if he doesn’t he will regret it.

[7] It was the evidence of Ms Myers that Mr Bouchaud then told her she was F***ing useless and didn’t want anything to do with Jobwire. It was also the evidence of Ms Myers that later Mr Bouchaud rang her on her mobile phone again swearing and being very abusive. Ms Myers sent the following text message (SMS) to Mr Thompson:

“Hi Jeff. Just letting you know that Brian has called again this evening being abusive and swearing. He said that he wants additional pay for being terminated and also being suspended. He also wants to know what his pay was made up of. I explained it is after hours and I don’t have access to his time sheet and I would need to call him tomorrow. He told me I was no F***ing use to him and he will continue playing games with us. I will try to sort it out tomorrow. Just keeping you informed.”

[8] There were subsequent SMS exchanges the following day when property belonging to Mr Bouchaud was couriered out to him.

[9] The evidence of Ms Raine corroborated the telephone conversation during the day and recalled that Ms Myers had sent her a text message that night advising of Mr Bouchaud’s telephone call.

[10] Ms Amanda Bouchaud was called to give evidence that she overhead the telephone conversation between Mr Bouchaud and Jobwire and that no offer of other employment was made. However, in cross-examination, Ms Bouchaud advised that she only heard one side of the conversation.

[11] Mr Bouchaud’s evidence was that he was working with Dynamic when he was hit on the head by a pole whilst picking. He stated that he reported this to his supervisor and went home with a headache. The next day his headache became worse and he left the premises. His evidence accorded with other evidence given about the conversations except he stated that he was not offered alternative employment but rather was dismissed.

[12] Mr Bouchaud also expressed the view that given his treatment and the swearing at him by Mr Thompson it could be expected that he would not longer work for Jobwire. This submission led to an explanation by me of the types of termination of employment that might occur with particular reference to constructive dismissal. Mr Bouchaud was asked if he resigned under pressure or was dismissed. His submission was that he was dismissed by both Jobwire and Dynamic.

Conclusion

[13] Mr Bouchaud complains that he was removed from his employment at Dynamic without having an opportunity to answer any allegations against him, although Jobwire advise that it investigated the complaint made against him and found it to be substantiated. Mr Bouchaud argues that Dynamic asked that he be removed from his employment because he had a workplace injury. There is no evidence to demonstrate if this is true or not. Mr Bouchaud argues that Jobwire did not exercise a duty of care by ignoring him and not having its return to work officer contact him at all after the incident. This is not surprising as on either account, Mr Bouchaud was no longer employed by Jobwire from 4 December 2012.

[14] The critical question is whether or not Jobwire did offer a further assignment following the cancellation of his assignment with Dynamic. Persons who work through labour hire agencies do face the dilemma of a host “employer” taking a decision about a person’s continued employment but seeking to avoid scrutiny as to whether or not it has acted fairly. I am satisfied that Jobwire did have another assignment available for Mr Bouchaud and did not terminate his employment. Had that not been the case I would have considered further the actions of Dynamic and whether or not the concept of joint employment would have come into play and been available under Australian jurisprudence.

[15] In resolving the evidence, I prefer the evidence of Ms Myers and Ms Raine that another assignment was available for Mr Bouchaud. Their evidence was consistent 1 and fitted with Mr Bouchaud’s evidence that he considered that he was dismissed by Dynamic and that it was unfair that he could not go back to that site. It is also consistent with his view that given the attitude of Mr Thompson he could not work for Jobwire any longer.

[16] On this later point I have considered the submissions and evidence of Mr Bouchaud and Mr Thompson and whilst it was agreed that the conversation on the telephone on 28 November 2012 was robust, it appears to me from the submissions that Mr Bouchaud had been robust with Mr Thompson in the past, nevertheless other work assignments had been arranged. I accept that Mr Thompson was not seeking to bring an end to the employment relationship and put forward the invitation to Mr Thompson to call him back. The conversation with Ms Myers and Ms Raine fortifies my conclusion in this regard.

[17] On this basis I find that Mr Bouchaud resigned his employment with Jobwire. His actions in seeking to challenge the decision of Dynamic and refusing to accept any other assignment, together with his statements about it not being surprising that he would not want to work for Jobwire form the basis of my conclusion.

[18] That being so, I find that the termination of employment of Mr Bouchaud was not at the initative of the employer and therefore there is no jurisdiction for the Commission to consider his application.

[19] The application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

B. Bouchaud the applicant.

J. Thompson on behalf of People Consulting Pty Ltd trading as Jobwire.

Hearing details:

2013.

Melbourne:

June, 3.

 1   I took the step of removing the witnesses particularly since the parties were unrepresented.

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