[2017] FWC 5159

FAIR WORK COMMISSION

DECISION

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

Mr Cirano De Maria
v
BiltBeta Constructions
(U2017/4045)

COMMISSIONER JOHNS

SYDNEY, 5 OCTOBER 2017

Application for Relief of Unfair Dismissal – jurisdictional objection – employee not dismissed.

Introduction

[1] On 13 April 2017 Cirano De Maria (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by BiltBeta Constructions (Employer/Respondent).

[2] On 30 May 2017 the Employer filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it submitted, the Applicant was not dismissed.

[3] Attempts at conciliation were attempted, but the matter remained unresolved.

[4] Consequently the matter was listed for hearing on 27 July 2017. At the hearing:

a) the Applicant represented himself, gave evidence on his own behalf and made himself available for cross-examination.

b) the Respondent was represented by Mr Adam Fenessy, its Managing Director. Mr Fenessy gave evidence on behalf of the Respondent (Exhibit R9) and made himself available for cross-examination. Mr Fenessy also called Natalie Low from the Respondent’s accounts payable/payroll department to give evidence. Ms Low had filed a witness statement (Exhibit R1), but was not required for cross-examination. 1

[5] During the hearing there was a dispute about when particular telephone calls occurred and who made them. Consequently, the parties were given leave to file and serve telephone records after the hearing. They did so by 4 August 2017.

[6] The parties were also:

a) provided with an extract from the Commission’s Unfair Dismissal Benchbook (about “What is dismissal?”); and

b) given leave to file and serve any final submissions by 11 August 2017. Neither party elected to do so.

Background

[7] I make the following findings of fact:

a) On 22 February 2016 the Applicant commenced employment with the Respondent as a casual.

b) On 20 June 2016 Applicant transfers to full-time employment as a Leading Hand.

c) The Applicant usually worked 40 hours per week. He was paid $35 per hour.

d) On 10 January 2017 the Applicant applied for 21 days annual leave (due to commence on 10 February – 13 March 2017). 2 The leave was approved.

e) The Applicant experienced some difficulties with the Project Manager at the Queenscliff Project work site.

f) On around 6 or 7 February 2017 Mr Fenessy had a conversation with the Applicant in the Respondent’s office. The Applicant expressed dissatisfaction to Mr Fenessy about working for the Respondent (at the Queenscliff Project work site). The Applicant said he may not return to the Respondent after his annual leave. There was some mention of driving trucks. There was also some discussion about possibly moving the Applicant to a different work site on his return from leave.

g) On 8, 9 and 10 February 2017 the Applicant was unfit for work. 3

h) Between 10 February 2017 and 13 March 2017 the Applicant was on annual leave. He was not entitled to be paid for the entirety of the 4 weeks of annual leave because he had only accrued about 1 week of annual leave. The Respondent paid him his accrued entitlement and for another week. About 2 weeks was unpaid authorised leave.

i) On Tuesday, 14 March 2017 the Applicant was due to return to work, but he did not attend work. He did not inform the Respondent that he would not be attending. It seems that, in flying back from South America, the Applicant made an error about departure and return dates. He says he had no access to phone or email to alert his Employer of his expected late return.

j) On Wednesday, 15 March 2017 the Applicant was again meant to be at work, but did not attend. He arrived back in Australia that day from his annual leave. On his arrival back into Australia he made no effort to contact his Employer.

k) On Thursday, 16 March 2017 the Applicant was meant to be at work. Again he did not attend. However, phone records were produced to the Commission, evidence that the Applicant made the following attempts to speak with his employer:

i. At 9.05 am the Applicant telephoned Mr Fenessey.

ii. At 10.33 am the Applicant called the Respondent’s office.

iii. At 11.41 am the Applicant called the Respondent’s office.

iv. At 2.10 pm the Applicant called the Respondent’s office.

v. At 5.00 pm the Applicant called the Respondent’s office.

vi. At 5.01 pm the Applicant telephoned Mr Fenessey.

During one of the calls to the office, Mr Fenessy’s sister the company’s secretary, took a message for him from the Applicant. Mr Fenessy received the message after he returned from various work sites. Mr Fenessy did not call the Applicant back that day.

Friday, 17 March 2017

l) On Friday 17 March 2017, the Applicant was keen to find out where he was to attend for work. Phone records produced to the Commission, evidence that the Applicant made the following attempts to contact his employer:

i. At 9.13 am the Applicant called the Respondent’s office.

ii. At 9.14 am the Applicant telephoned Mr Fenessey.

iii. At 10.22 am the Applicant telephoned Mr Fenessey.

iv. At 10.23 am the Applicant telephoned Mr Fenessey.

v. At 10.23 am the Applicant called the Respondent’s office.

vi. At 10.23 am the Applicant called the Respondent’s office.

vii. At 10.24 am the Applicant telephoned Mr Fenessey.

viii. At 10.36 am the Applicant telephoned Mr Fenessey.

ix. At 10.59 am the Applicant telephoned Mr Fenessey.

x. At 11.00 am the Applicant telephoned Mr Fenessey.

xi. At 11.03 am the Applicant telephoned Mr Fenessey.

xii. At 11.08 am the Applicant sent an email 4 to Mr Fenessy,

“I’m just back from holydays (sic) and I want to find out where I’m going to. I left couple messages yesterday and I had no lucky (sic). You please call me back is your answer machine is full. Thank you and have a good day.”

xiii. At 11.28 am the Applicant telephoned Mr Fenessey.

m) At around 12.45 pm the Applicant attended the Respondent’s office and met with Mr Fenessy. Mr Fenessy expressed dissatisfaction about the Applicant being ill before his leave, being away for so long, failing to return on time and then, just expecting to be return to a work site. 5

Notwithstanding, Mr Fenessy says he asked the Applicant to return to work on 20 March 2017.

The Applicant disputes that he was told to return to work on 20 March 2017. He says he was told to stay at home for the week (without pay).

While the exact details of the conversation are not known the Applicant accepted that, on 17 March 2017, Mr Fenessy told him that he would find him a place to work. 6

The Applicant said Mr Fenessy said I’m “going to find another site for you.” 7 I accept the truthfulness of the Applicant’s evidence. The conversation he had with payroll after the meeting supports his recollection over Mr Fenessy’s.

I am not satisfied that, at the end of the meeting, the Applicant had an understanding that he was to attend anywhere for work on 20 March 2017. However, he clearly understood Mr Fenessy had an intention to find him work.

n) At 3.47 pm the Applicant called the Respondent’s office, he asked to speak to payroll (Ms Low).

o) At 4.05 pm Ms Low called the Applicant back. She confirmed that he was a full-time employee. The Applicant told her, if he had to stay home, he had to be paid.

p) Phone records produced to the Commission evidence that, at 4.29 pm Mr Fenessy called the Applicant on his mobile phone. The call went for 33 seconds.

Mr Fenessy says he advised the Applicant to attend a work site in Maroubra on Monday, 20 March 2017. The Applicant denies this.

q) No relevant events occurred on Saturday, 18 or Sunday, 19 March 2017.

Monday, 20 March 2017

r) On Monday, 20 March 2017,

i. The Applicant did not attend the work site in Maroubra.

ii. at 2.16 pm Mr Fenessy called the Applicant. He was annoyed about the Applicant not attending the Maroubra site.

The Applicant says Mr Fenessy terminated his employment during this phone call. He says Mr Fenessy said he should finish up in 2 weeks.

Mr Fenessy denies this.

Mr Fenessy says he told the Applicant:

A. there may be redundancies coming up.

B. he was about to go on annual leave.

C. the Applicant should attend at the Maroubra site until his return from annual leave. At Maroubra the Applicant was to work as a labourer and not a leading hand.

iii. at 3:49 pm the Applicant emails 8 Mr Fenessy,

“I want to know the reason why my services been terminated? I am just trying to find some answers on the right source”

iv. at 6.48 pm Mr Fenessy attempts to call the Applicant. He then sends the Applicant a text message 9,

“Cirano - can you please go to site [address omitted] tomorrow for 7 AM. You didn’t turn up last week, not today. Please go to site tomorrow. Thanks and hope you had a good holiday. I will address the issue with you extending your holiday without approval tomorrow. Please Cirano, we are trying to work with you.”

“I will send you your signed agreement for holidays tomorrow. Please explain why you did not call me until Thursday?? You already had 4 weeks holiday. You really created a big drama by not turning up… We always support our workers and I see you sent me an email of unfair dismissal? At no stage have we dismissed you. We just want you to come back to work… Can you make tomorrow’s address? Please let me know as your non-attendance is causing much havoc.”

v. The Applicant replied by text message 10,

“I had a phone call from you saying you given the notice today and I have to work 2 more weeks and I just asked the reason why I have been dismissed and you change your mind. Sounds like you a bit confused as you try to put me aside for couple week without pay and after you find out I am full-time things changed. I am not keen to cause any trouble I just want what is fair. As you gave me notice today sounds an unfair dismissal according to fairwork.”

vi. at 10.04 pm Mr Fenessy replied 11,

“Disagree Cirano. Your responses are in keeping with our concerns. Can you please confirm your attendance to site tomorrow.”

“We are giving you notice that if you fail to turn up to work tomorrow, as you did last week, we will be forced to review your position. Are you coming to work??

vii. The Applicant replied, 12

“Yes I will.”

viii. Mr Fenessy replied, 13

“Thank you. I will arrange a meeting between yourself, your last Project Manager, and the Directors, to address issues that have come about since your return, almost one week after you were required-also your email of apparent unfair dismissal. Very concerned at your perspective and will contact relevant bodies to address both your allegations, and our position of handling such false allegations.”

“However, your position is open until such time as we can address the issues appropriately. So please turn up tomorrow. We have lost enough time. Thank you.”

“Please have all your tools with you.”

(my emphasis)

s) On Tuesday, 21 March 2017:

i. the Applicant attend for work at the Maroubra site.

ii. Mr Fenessy commenced annual leave (until 24 April 2017).

t) On Friday, 31 March 2017 the Applicant ceases working for the Respondent.

u) Sunday, 2 April 2017 the Applicant sends an email to Natalie Low (Accounts Payable/Payroll) about a redundancy payment. 14 He wrote,

“I had a Redundancy Notice 2 weeks ago and this is my last week with Biltbeta, when do you guys send the letter and final payment?”

v) Monday, 3 April 2017,

i. the Applicant calls Ms Low about the redundancy payment.

ii. A redundancy payment is made to Applicant. 15 The Respondent says in error.16

w) Thursday, 13 April 2017 the Applicant commenced this unfair dismissal application.

x) Monday, 24 April 2017,

i. Mr Fenessy returned from annual leave.

ii. at 10.48 pm, Mr Fenessy sent a text message to the Applicant,

“you are quite an interesting man-received application for unfair dismissal. Regarding redundancy??? You simply stop coming to work. Same as you did not turn up to work for 4 days after you were meant to, post your holidays. Redundancy??? What redundancy??? I would provide that in writing if there was one”

[8] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or compensated.

Protection from Unfair Dismissal

[9] An order for reinstatement or compensation may only be issued where the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[10] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[11] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[12] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[13] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“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

(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.”

[14] Neither the issues of the application of the Small Business Fair Dismissal Code or Genuine Redundancy arise in the present matter.

[15] Whether the dismissal was harsh, unjust or unreasonable does arise, but only if it is established that the applicant was dismissed by the Respondent.

Was the Applicant dismissed?

[16] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides that:

“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.”

[17] The Respondent submits the Applicant was not dismissed by it because there was an expectation that the Applicant would continue to work at the Maroubra site (at least until Mr Fenessy returned from annual leave when issues that had arisen in the employment relationship could be addressed).

[18] The Applicant submits he was dismissed by the Respondent because, he says, Mr Fenessy told him on 20 March 2017 that he would be finished up in 2 weeks’ time and that there would be a redundancy.

Consideration

[19] It is well established that a dismissal does not take effect unless it is communicated to the employee being dismissed. 17 That communication can be done orally.18

[20] The Applicant claims that he was dismissed by the Respondent when, he says, Mr Fenessy told him on 20 March 2017 that he would be finished up in 2 weeks’ time and that there would be a redundancy. Mr Fenessy denies the conversation was to that effect. Mr Fenessy says there was mention of a possible redundancy in the future, but that he told the Applicant he was to report to the Maroubra site. The Applicant denies that he was told to go to the Maroubra site.

[21] It is not possible to reconcile the different versions of events of the conversation that occurred during the telephone call on 20 March 2017. The telephone conversation occurred 4 months prior to the evidence being given in the Commission. It is in this context that we should remember that “one of the greatest misconceptions we continue to have about memory is that it is largely an accurate recorder, faithfully transposing into our brain events as they occur”. 19 It is not. Rather, the,

“…process of experiencing or acquiring, laying down or storing memory and then reproducing an account, all of which is involved in “recalling or “remembering”, and therefore giving evidence in a … trial, is disconcertingly malleable. It is at best, almost always, a rough reconstruction with inaccuracies and distortions.” 20

[22] Both the Applicant and Mr Fenessy presented as honest people doing their best to recall the events that had occurred. It is possible that each of their accounts has some truth about it. The fact that their accounts differ does not mean that either of them are not telling the truth. It may simply be a case of each of them having a different recollection of events, both filled with inaccuracies and distortions.

[23] However, it seems to me that, even if the Applicant’s version of events about what occurred during the telephone call on 20 March 2017 is entirely accurate (i.e. that he was dismissed during the telephone call), the dismissal was withdrawn by the time of the text message exchanges at 6.48 pm and 10.04 pm (recorded above).

[24] The very clear and unequivocal message from Mr Fenessy was that the Applicant was employed and expected to continue to work. He writes “At no stage have we dismissed you. We just want you to come back to work.”

[25] The content of those messages from Mr Fenessy makes me conclude that the Applicant is incorrect in his recollection about the content of the conversation on 20 March 2017. There may have been mention of redundancy or the employment relationship ending at some time in the future, but there was no termination of his Applicant’s employment. Even if there was a termination of the Applicant’s employment by 6.48 pm on 20 March 2017 that was no longer the case.

[26] There was nothing in the conduct of Mr Fenessy that could be described as “action by the employer that either intend[ed] to bring the relationship to an end or [had] that probable result.” 21 In short, the Applicant was not dismissed by Respondent.

[27] Consequently, I find that the Applicant was not:

a) terminated on the employer’s initiative.

b) dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Conclusion

[28] For the reasons above, the Commission, as presently constituted,

a) is satisfied that the Applicant was protected from unfair dismissal, but

b) is not satisfied that he was dismissed by the Respondent.

[29] Consequently, the unfair dismissal application must be dismissed.

[30] An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr C De Maria for himself.

Mr A Fenessy for the Respondent.

Hearing Details:

Sydney,

27 July

2017

Post hearing filing of evidence about telephone records:

31 July and 2 August 2017 by the Applicant.

2 August 2017 by the Respondent.

1 Transcript PN18.

2 Exhibit “R1”.

3 Exhibit “R3”.

4 Exhibit “R4”.

5 Transcript PN314-316.

6 Transcript PN291-292.

7 Transcript PN300.

8 Exhibit “R5”.

9 Exhibit “R6”.

10 Ibid.

11 Ibid.

12 Ibid.

13 Ibid.

14 Exhibit ‘R7”.

15 Exhibit “A1”.

16 Transcript PN454.

17 Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496, [24].

18 Plaksa v Rail Corporation NSW[2007] AIRC 333 (Cartwright SPD, 26 April 2007), [8]; citing Barolo v Centra Hotel Melbourne (AIRC, Whelan C, 10 December 1998) Print Q9605.

19 Judge Penelope Wass SC, “Would I lie to you? (an examination of eyewitness testimony in a criminal trial)”, Legal Aid (NSW) Conference, 2016. Ibid.

21 Barkla v G$S Custodial Services Pty Ltd (2011) 212 IR 248, 256; citing O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100, [23].

Printed by authority of the Commonwealth Government Printer

Mr Cirano De Maria v BiltBeta Constructions