Mr Brodie Harrison v D & D Demolition Pty Ltd

[2025] FWC 436

[2025] FWC 436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Brodie Harrison
v

D & D Demolition Pty Ltd

(C2024/6304)

COMMISSIONER TRAN MELBOURNE, 13 FEBRUARY 2025

Application to deal with contraventions involving dismissal – Jurisdictional objection – Not dismissed – Jurisdictional objection dismissed - Proceed to conference under s 368

1. Mr Brodie Harrison has applied to the Fair Work Commission for the Commission to deal with contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) in relation to his employment with D&D Demolition Pty Ltd (the respondent/employer).

1. Before the Commission can exercise its jurisdiction to deal with a dispute about contraventions involving dismissal, it must first find – as a matter of fact – that a dismissal occurred.[1]

1. Mr Harrison says that he was dismissed because he was removed from the WhatsApp messaging service group work chat and by text message on 15 August 2024.

1. D&D Demolition say that they did not dismiss Mr Harrison. They say Mr Harrison says that he was injured at work, applied for WorkCover and stopped attending work. They say that they continue to have work for him.

1. I issued Directions to the parties on 23 October 2024. Neither party filed any materials. Neither party provided reasons for their failure to comply with my Directions when asked prior to the hearing date.

1. I held a hearing on 17 December 2024. Mr Brodie did not initially attend the hearing but joined it after my chambers contacted him. No one attended the hearing on behalf of D & D Demolition.

1. When my chambers contacted D&D Demolition at the time of the hearing, reception staff informed us that the contact person – Ms Donna Stijakovic, Director – was on leave. Ms Stijakovic had not sought for the hearing to be adjourned nor did she ask to be excused from attending the hearing. Given that I had no materials and no contact from the respondent, but they had been provided with an opportunity to submit their materials, I considered that it was appropriate to determine the matter in the respondent’s absence.

1. At the hearing, Mr Harrison made submissions and gave oral evidence. I provided Mr Harrison with a further opportunity to provide supporting documentation that he referred to in his oral evidence. I also gave D&D Demolition a further opportunity to put materials in reply to Mr Harrison’s materials.

Mr Harrison’s Case

1. Mr Harrison says that he was dismissed by text message and because he was deleted from the WhatsApp chat where he learned of where he was to attend for work each day. He says that each night, a message is sent out to everyone with all the information they need for the job the next day. He says he was deleted from the chat before the work message for the next day was sent out. Mr Harrison says he has never been added back to the chat. Mr Harrison says no one from the Employer contacted or notified him; WhatsApp provided him with a notification that he was deleted from the work chat group and he was then unable to see any prior chats. Mr Harrison also said that he had messages between him and management that said he did not have a job but he did not receive any formal termination.

1. Mr Harrison referred to documentation, which I gave him an opportunity to provide to me after the conclusion of the hearing. Mr Harrison provided my chambers with screenshots of text messages exchanged between him and a person he had saved into his phone and named “Aleks Deejay Consulting.” During the hearing, Mr Harrison had explained that Aleks is the project manager but that he did not know Aleks’ family name. Based on the text messages provided, it is clear that Aleks is the main person with whom Mr Harrison communicated about his employment with the Employer.

1. On Wednesday 14 August 2024 at 7:08pm, Mr Harrison sent Aleks a text message to say that he was unwell and had been in hospital the night before. He said he needed to get the “incident report paperwork” done. This related to an injury.

1. On Thursday 15 August 2024 at 7:29am, Aleks replied to say:

   “Fair enough man, yeah I have to keep going running the business under a lot of pressure at the moment. Had to put someone else on, can't keep up with jobs at the moment. It's been unfortunate.”

2. Mr Harrison replied:

   “I'm a bit unsure what you mean by that I've been off because of a workplace related injury?”

   Mr Harrison’s text message continued about issues with his hand and being sick with influenza A.

1. To that, Aleks replied,

“Dj advised me it’s not going to work mate. Unfortunately we had to hire someone else. All the best.”

Written submissions of the respondent

1. Ms Stijakovic provided brief written submissions in two emails to chambers. The first email was on Wednesday 18 December 2024 and the second email was on Friday 20 December 2024. The second email was after the deadline of noon on Thursday 19 December 2024 that I had provided the employer to submit its materials.

1. Despite this, I am of the view that it is appropriate to accept those submissions. Even with that material, I have little information to assist me in making a determination. Further, as D&D Demolition had not attended the hearing, it is appropriate in the interests of procedural fairness to allow those submissions. D&D Demolition did not provide any documents nor attempt to give any evidence (in the form of an affidavit, statutory declaration, witness statement or similar).

1. In relation to failing to comply with directions, Ms Stijakovic said that she was not aware that she had to provide additional details other than the employer response form. While I accept that parties may be unfamiliar with Commission processes, the Directions that were sent on 23 October 2024 set out what was required of both parties. In addition, my chambers sent an email after relevant deadlines were missed. D&D Demolition did not respond to that email.

1. In relation to failing to attend the hearing, Ms Stijakovic “deeply apologised” for the inconvenience of her absence. The inconvenience is not the Commission’s. It is the respondent’s, as the matter can be decided in their absence provided they have been given an opportunity to participate.[2]

1. Ms Stijakovic’s reason for not attending the hearing was that she was away on holiday with limited telephone reception. A Notice of Listing was emailed to the same address from which we received Ms Stijakovic’s emails. Ms Stijakovic did not, prior to the date of the hearing, ask for an adjournment on the grounds that she was on leave. It is likely that I would have granted an adjournment, given the timing (early December, approaching the usual holiday period). So, I am not persuaded that Ms Stijakovic’s reason for not attending the hearing was acceptable.

1. D&D Demolition’s submissions were not particularly helpful. They do little more than repeat the contents of the F8A, which include statements relating to Mr Harrison’s attendance at work, his workplace injury and Ms Stijakovic’s view about how this affected “the team.” Ms Stijakovic says nothing about the screenshots of text messages supplied by Mr Harrison. Ms Stijakovic does submit, “we have many roles within our company” in support of their argument that they had not dismissed Mr Harrison.

Relevant Law

1. The dictionary in section 12 of the Act defines ‘dismissed’ by referring to section 386 of the Act. The only question to be determined in this matter is whether there was a dismissal within the meaning of s386(1)(a) – whether Mr Harrison’s employment with his employer has been terminated on the employer’s initiative.

1. The other subsections of s 386 are not relevant because there is no contention that this matter relates to:

   ·   Whether a resignation was forced;[3]

   ·   Whether there was a contact for a specified period of time, task or season;[4]

   ·   Whether there was a training arrangement;[5]

   ·   Whether there was a demotion.[6]

1. In order for a person’s employment to be ‘terminated on the employer’s initiative’ under s 386(1)(a), there must be some action on the part the employer that

   -     is intended to bring to the employment to an end[7] ; or

   -     would on any reasonable view, be likely to bring the employment to an end; or

   -     is the principal contributing factor to the employment ending.[8]

1. The Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2)[9] has interpreted the phrase ‘termination at the initiative of the employer’ and said:

“an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

1. The Full Court of the Federal Court decision in Mahony v White[10] and Full Benches of this Commission have affirmed the continued applicability of Mohazab[11] to the current s 386.

Consideration

1. In this matter, there are two relevant actions: the first is Mr Harrison’s removal from the WhatsApp chat group from which he finds information about where he is to attend work and the second is a text message on 15 August 2024 from Aleks, the person whom Mr Harrison usually contacts about his attendance at work.

1. I do not have any evidence about who controls the members of the WhatsApp Group. Mr Harrison gave evidence that he was removed from the group before Aleks’ text message of 15 August 2024 and that he had been messaging Aleks to find out about returning to work. Mr Harrison’s evidence was not clear about when the removal occurred, although he said that it was in the weeks before his messages with Aleks. Having reviewed the messages and Mr Harrison’s evidence, it remains unclear to me the timing of his removal.

1. I am of the view that I have insufficient evidence to conclude that Mr Harrison’s removal from the WhatsApp group constituted termination at the employer’s initiative. But given my finding below about Aleks’ text message of 15 August 2024, it is not necessary to make a finding in relation to Mr Harrison’s removal from the WhatsApp group.

1. I find that the text message of Thursday 15 August 2024 that said - “Dj advised me it’s not going to work mate. Unfortunately we had to hire someone else. All the best.” – is an action of the employer’s that ended Mr Harrison’s employment. There is very little other way to read that message. In context, too, the other text messages that Aleks sent to Mr Harrison lead reasonably to the conclusion that D&D Demolition is terminating Mr Harrison’s employment. Contrasted with this, Mr Harrison’s text messages seek clarification and ask about completing an incident reporting form, clearly indicating that he does wish for the employment to continue.

1. While D&D Demolition’s submissions state that they have roles within the company, there is no evidence that they informed Mr Harrison that he could work these roles around the time that they sent him the text message that said they had to hire someone else and wished him all the best.

Conclusion

1. I am satisfied that the D&D Demolition dismissed Mr Harrison within the meaning of s386(1)(a)of the Act. Accordingly, their jurisdictional objection is dismissed. I will list the matter for a conference under s 368 of the Act.

COMMISSIONER

Appearances:

Mr Brodie Harrison, for himself
No appearance for the respondent

Hearing details:

Tuesday
17 December 2024
Via Microsoft Teams

Final written submissions:

Friday
20 December 2024

[1] Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68]

[2] See Achilleus Taxation Pty Limited ATF The Achilleus Taxation Trust and another v Hobbs[2012] FWAFB 5679 at [12]

[3] 386(1)(b)

[4] 386(2)(a)

[5] 386(2)(b)

[6] 386(2)(c)

[7] See Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769

[8] Khayam v. Navitas English Pty Ltd[2017] FWCFB 5162 at [75]

[9] [1995] IRCA 645; (2005) 62 IR 200, at 205 to 206

[10] [2016] FCAFC 160, 226 IR 221

[11] See Bienias v Iplex[2017] FWCFB 38 at [44]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [66]; Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070at [13]

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