Mr Charles Shelton v Ultra NDT ATF the O & a Kavanagh Family Trust T/A Ultra NDT Pty Ltd

[2014] FWC 2646

[2014] FWC 2646

FAIR WORK COMMISSION

DECISION

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

Mr Charles Shelton
v
Ultra NDT ATF The O & A Kavanagh Family Trust T/A Ultra NDT Pty Ltd
(U2013/16351)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 APRIL 2014

Summary: application for unfair dismissal remedy - whether applicant dismissed - whether Applicant labour hire casual - credit findings.

[1] This application was made by Mr Charles Shelton (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant is seeking an unfair dismissal remedy in relation to his dismissal, as he contends it to be, on 12 November 2013 by Ultra NDT ATF The O & A Kavanagh Family Trust T/A Ultra NDT Pty Ltd (“the employer”).

[2] The Applicant had been employed since August 2012. He claims to have commenced work as a trades assistant with the employer and performed assignments as were available. The employer’s enterprise comprises (in part) a labour hire business (in addition to a non-destructive testing business).

[3] The majority of the Applicant’s assignments whilst employed by the employer were carried out at the Yarrabee coal mine. That is, the Applicant performed duties through the agency of his employer at Yarrabee mine through a number of discrete assignments.

[4] The employer contends that a number of performance and conduct issues arose between August and November of 2013 that caused the Yarrabee mine supervisor to form a view that it no longer required the Applicant to remain on its site. It so communicated its desire in this regard to Mr Owen Kavanagh, the owner/director of the employer’s business, in early November 2013.

[5] According to Mr Kavanagh, upon the employer being notified that the Applicant was not to perform further duties at the Yarrabee mine site, the Applicant remained on its books as an employee for whom it was waiting for a new assignment (that was consistent with the Applicant’s skills profile).

[6] In essence, therefore, Mr Kavanagh contends that the Applicant had never been dismissed from his employment, had never received a letter of dismissal as a consequence, and remained an employee at all times.

[7] More specifically, Mr Kavanagh claimed that on 12 November 2013, he conveyed to the Applicant that he had been informed by the maintenance superintendent at the mine site that he (the Applicant) was no longer permitted to be rostered at the mine.

[8] Mr Kavanagh claims that in the course of conveying that information to the Applicant he also indicated to the Applicant that, “we are looking for other work for you” with another host.

[9] Mr Kavanagh claimed that on 12 November 2013 he had attempted to secure alternative work for the Applicant with MacKellar Mining. He also stated that on the following day, 13 November 2013, he approached Leightons Contractors in an endeavour to find a new assignment for the Applicant. On 19 November 2013 he contacted Rolleston Coal seeking an assignment. And a few days later on 23 November 2013 he contacted Jellinbah Mine in an effort to find an alternative work assignment for the Applicant. All these contacts were in person and Mr Kavanagh was able to indicate the person with whom he spoke on each occasion.

[10] Mr Thomas Holden, a trainee non-destructive technician employee for the employer, gave evidence that he was in attendance with Mr Kavanagh on 12 November 2013 when he contacted MacKeller Mining on behalf of the Applicant. Mr Holden also gave evidence that he was in the company of Mr Kavanagh on 13 November 2013 when he contacted Leightons Contractors in an effort to find an assignment for the Applicant. Mr Holden gave further evidence that on 23 November 2013 he was present with Mr Kavanagh when he (Mr Kavanagh) contacted Jellinbah Mine Site in a continuing endeavour to source a new assignment for the Applicant. On each of these occasions Mr Holden was able to confirm the identity of each individual with whom Mr Kavanagh spoke (which corroborated the evidence of Mr Kavanagh).

[11] Mr Kavanagh admitted that he had provided the Applicant with a certificate of separation, which in some circumstances may be an indicator of a decision to dismiss an employee. But here Mr Kavanagh claimed that he only provided a separation certificate at the request of the Applicant’s wife, who had contacted Mr Kavanagh’s wife (for reason they had a social relationship). It was claimed (and not challenged) that the Applicant’s wife requested the separation certificate. Seemingly, the reason for so doing was so the Applicant could if needed access Centrelink benefits until he could secure a new placement with a new host or new employment.

[12] Mrs Kavanagh gave evidence to the effect that she had been contacted by the Applicant’s wife on or about the morning of Sunday 17 November 2013 when she was at home. Mrs Kavanagh claimed that the Applicant’s wife had sought the certificate so the Applicant could obtain Centrelink benefits the next day, being a Monday. Mrs Kavanagh recalls that she was not able to provide the separation certificate on that day because her husband was away at the time.

[13] It appears that Mr Kavanagh cited on the certificate of separation that the reason for the separation was “a shortage of work”.

[14] About a week later, Mr Kavanagh claimed that the Applicant’s wife contacted him by telephone and “forcibly demanded” that the certificate of separation be amended so that the reason for the dismissal was cited as “unsatisfactory work performance”. Mr Kavanagh stated that he did not accommodate this request.

[15] The thrust of the Applicant’s evidence was that he believes that he was dismissed from his employment by Mr Kavanagh on 12 November 2013. In the conversation of that day, the Applicant asserted that Mr Kavanagh informed him that there had been complaints about him from Yarrabee Mine and that he was no longer able to attend that site. Because of this, Mr Kavanagh was said to have said to the Applicant, “I am going to have to let you go”.

[16] This is directly contrary to the evidence given by Mr Kavanagh.

[17] The Applicant therefore claimed that he was dismissed directly by Mr Kavanagh, and at no stage did Mr Kavanagh indicate that he was looking for work for the Applicant (which would reasonably have been communicated to the Applicant by Mr Kavanagh if he (the Applicant) had not been dismissed).

[18] The Applicant also relied on a transcription of a lengthy telephone conversation between himself and Mr Kavanagh on what was said to be “13/14 November 2013”. During the course of that conversation Mr Kavanagh made no reference to the Applicant being a continuing employee or that he was attempting to source new work for the Applicant. That transcription reveals that Mr Kavanagh had asked the Applicant, “Have you been able to put feelers out about any job or anything?”

[19] I was invited to draw an inference that this comment gave clear indication that Mr Kavanagh was dismissing the Applicant.

[20] The Applicant also claimed that in the course of his transcribed conversation with Mr Kavanagh he made reference to his dissatisfaction with being “sacked from the job”.

[21] The Applicant claims that had Mr Kavanagh been of the view that he (the Applicant) had not been “sacked” at the employer’s initiative he (Mr Kavanagh) would have indicated reasonably at that time.

[22] The Applicant also rejected “out of hand any suggestion that my wife asked to change the wording of the separation certificate”.

[23] The Applicant conceded that it was indeed his wife who requested the certificate of separation.

[24] The Applicant also relied on the issuance of the separation certificate which indicated that he had been dismissed for reasons of “shortage of work”.

Legislative context

[25] An employee can only be found to have been unfairly dismissed if the employee has been dismissed from his or her employment. This requirement is set out at s.385 of the Act, which provides as follows:

385 What is an unfair dismissal

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[26] The meaning of the term “dismissed” is set out at s.386 of the Act, which provides 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

Consideration

[27] There are a number of matters to determine on the way to establishing whether the application is jurisdictionally competent (in so far as the application is predicated upon a dismissal at the employer’s initiative).

[28] There appears to be no dispute that the Applicant was performing duties as part of a labour hire arrangement.

[29] As set out above there is a deal of competing evidence as to whether or not the employer took the requisite steps to dismiss the Applicant from his employment. Largely, this contest can only be resolved on the basis of credit in the context of the surrounding evidence.

[30] It is said, initially, by the Applicant that Mr Kavanagh dismissed him on 12 November 2013 at the time he conveyed to him (the Applicant) that he was no longer a required person on the mine site.

[31] The Applicant contends that the failure on the part of Mr Kavanagh to articulate his commitment to finding new work for the Applicant as evidenced in the transcription of the conversation which took place on either 13 November or 14 November 2013 gives weight to his claim in this regard.

[32] Mr Kavanagh agrees that he spoke with the Applicant on 12 November 2013 but apart from communicating that he was no longer a required person at the mine site only indicated that he would be looking for new work, or new assignments for him.

[33] On the balance of probability I am inclined to believe Mr Kavanagh at the expense of the Applicant.

[34] One reason for so finding is the evidence that was given by Mr Thomas Holden. As set out above Mr Holden gave evidence of being in the company of Mr Kavanagh on 3 occasions on which Mr Kavanagh made enquiries about obtaining new assignments for the Applicant. The first of these occasions was on 12 November 2013, the day of the alleged dismissal. The second occasion was the following day, 13 November 2013. The third occasion was on 23 November 2013.

[35] Mr Holden’s evidence was unchallenged.

[36] I very much doubt that if Mr Kavanagh had verbally conveyed to the Applicant that he had been dismissed on 12 November 2013 he would have troubled himself on at least 3 other occasions (that have been corroborated by Mr Holden) to have been actively looking for new work for the Applicant.

[37] Mr Kavanagh’s efforts therefore to find alternative assignments for the Applicant sits comfortably then with his claim that on 12 November 2013 he informed the Applicant that he would be looking for new assignments for him.

[38] My finding in this regard is firmed by the quality of the Applicant’s evidence. The Applicant provided a transcript of a recording of a conversation with Mr Kavanagh but did not provide the recording itself. The transcription appears to have been partial. The date of the conversation was uncertain. There is nothing in the transcription, as it is, that demonstrates that Mr Kavanagh had dismissed the Applicant on the prior day. If anything, the transcription merely demonstrates that Mr Kavanagh was being particularly (or even exceedingly) empathetic to the Applicant after the Applicant’s work performance had been the subject of a number of critical assessments by the Yarrabee mine site supervisory staff.

[39] I add that Mrs Kavanagh gave evidence that when the Applicant’s wife approached her for the certificate of separation she did so on the basis that she (and the Applicant presumably) believed that “there was no work coming up”. This claim went unchallenged. While it is not determinative of the matter, this is not a statement that is strongly consistent with a dismissal having taken place a week earlier. It is more the case that the comment reflects the position taken by Mr Kavanagh that he was attempting to find new assignments for the Applicant, but this had been fruitless thus far.

[40] On the balance of probability, I prefer the evidence of Mr Kavanagh to the effect that he at no stage took the initiative to dismiss the Applicant from his employment.

[41] It remains to be determined, however, whether the Applicant was a casual employee or a permanent, full-time employee at the time of his alleged dismissal.

[42] The Applicant argued that he was a permanent employee and had been made so on 1 January 2013 following a trial period as a casual. The Applicant claims that Mr Kavanagh informed him on 1 January 2013 that he would be appointed as a full time employee and would be permanent. He assumed he would be retaining the same, if not an enhanced, rate of pay in addition to accessing the relevant accruals.

[43] Mr Kavanagh denies any such new contract of employment having been entered into.

[44] It seems to me that the Applicant had few grounds to assume that he was at all times a permanent employee. At the very least he had had access to a number of his payslips (which indicated that he was not accruing any personal leave or annual leave entitlements). The Applicant had also been aware since September 2013 (when a particular incident brought the focus upon the Applicant’s entitlements) that Mr Kavanagh believed him to be a casual employee and was paying him as such.

[45] But despite this, the matter was not agitated in a substantial way, despite the Applicant’s claim that he believed himself to have been made a permanent employee at the beginning of the year. The Applicant seemingly worked on for some months on the arrangements as they were, until a decision was taken by Yarrabee mine to no longer require his services (which led to the current application).

[46] There appears from Mr Kavanagh’s evidence to have been discussions in 2013 about the prospect of the Applicant entering into a new contract of employment as a permanent employee. Mr Kavanagh claimed that this offer was rejected by the Applicant on grounds that the contract did not provide “enough money”. Mr Kavanagh stated that at the same time he had offered similar contracts to other employees in the other business that he conducted and they had accepted those new contracts of employment.

[47] In all, Mr Kavanagh’s evidence was more dense by far than that of the Applicant. Mr Kavanagh was able to distinguish between various contractual arrangements with particular members of staff in particular parts of the business and to give reasonable explanations for the outcomes. By contrast, the Applicant’s evidence was at times very confusing and demonstrated an underlying uncertainty of mind about the basis of his application. The Applicant’s response to questioning in cross examination underscored this. I do not take the Applicant’s evidence to amount to intentional obfuscation, however.

[48] I prefer Mr Kavanagh’s evidence to that of the Applicant.

Conclusion

[49] The Applicant, on the evidence before me, was engaged as a labour hire casual employee. His assignment came to an end for reason he was not permitted to return to the host or client’s work site owing to alleged work performance issues. Efforts were made by the employer to secure new assignments subsequently, but these proved unsuccessful. Though it does not form part of my determination, I observe that these are not unusual circumstances in labour hire situations.

[50] The Applicant, therefore, was not dismissed at the initiative of the employer. The requirement of s.385(a) of the Act is therefore not made out. The application as made under s.394 of the Act therefore must be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr K. Bressington, of Bressington & Partners Solicitors, for the Applicant

Mr C. Mossman, of Macpherson + Kelley Lawyers, for the Respondent

Hearing details:

By telephone

2014

15 April

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