Mr Clinton MacDonald v Black Ivory Pty Ltd T/A Ivory Lounge Bar
[2015] FWC 2098
•26 MARCH 2015
| [2015] FWC 2098 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Clinton MacDonald
v
Black Ivory Pty Ltd T/A Ivory Lounge Bar
(U2014/14320)
DEPUTY PRESIDENT ABEY | HOBART, 26 MARCH 2015 |
Application for relief from unfair dismissal - casual employment on a regular and systematic basis - reasonable expectation of continuing employment - whether there was a resignation or termination at the initiative of the employer - application declined
[1] The applicant, Mr Clinton MacDonald, has filed for an unfair dismissal remedy under s394 of the Fair Work Act 2009 (the Act).
[2] The respondent, Black Ivory Pty Ltd T/A Ivory Lounge Bar (Ivory), raises two jurisdictional issues:
1. The applicant, being a causal employee was not engaged on a regular or systematic basis.
2. There was not a termination at the initiative of the employer in that the applicant resigned.
[3] Sworn evidence was taken from Mr MacDonald and Ms Anna Porretta, owner of the business.
[4] Unsworn statements were submitted from the following individuals:
● Pasquale Porretta, owner and staff member.
● Sancia Porretta, General Manager of Ivory
● Savali Lopa, proprietor, SL Security Pty Ltd
● Adrian Barrett, Head of Events & Venues, Vintage Artists and Touring
● Glenn Ewin, witness to a meeting between Mr MacDonald and Anna Porretta on 1 October 2014.
[5] Mr MacDonald advised that he did not wish to cross-examine any of the above witnesses and had no objection to the statements being included in the evidence.
Period of Employment
[6] The applicant commenced employment as Head of Security with Ivory on 9 August 2013 and was engaged on a casual basis. His employment came to an end in either mid-September 2014 (respondent’s contention), or on 1 October 2014 (applicant’s contention).
[7] The respondent is a small business employer within the meaning of s23 of the Act. Hence the minimum employment period is one year. Section 384(2) reads:
“(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;”
[8] The evidence is that Ivory opened two nights each week (Friday and Saturday) and occasionally a third night when that preceded a public holiday. Save for the occasional shift when Mr MacDonald did not work for personal reasons, he worked whenever Ivory was open. Payroll advice for a sample four week period submitted by the respondent indicates that Mr MacDonald worked between nine and sixteen hours per week over either two or three days.
[9] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic Roe C observed:1
“It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” (citations omitted)
“Full-time, part-time and casual employees often work on varying days and at varying times. Awards provide wide flexibility in this respect and further flexibility is available through flexibility agreements and through collective agreements. Under many awards ordinary hours can be averaged over a week, a month or sometimes longer periods; ordinary hours under many awards can be worked on any day of the week, and daily hours for full-time workers can vary under many awards from 4 to 12 hours. The fact that an employee works more hours in one week or one month than another and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement.”
“I find that there was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted. I find that work was being offered generally when it was available and that periods when work was less intense were generally when work was not available. I find that the employer had a reasonable expectation that Mr Ponce would work when work was offered. The pattern of offer and acceptance could not be described as informal, irregular or occasional. This is sufficient to find that the period of casual employment was on a regular and systematic basis.”
[10] I am satisfied that the respondent offered security work to the applicant whenever Ivory was open and on most occasions Mr MacDonald accepted such offers. Given this pattern of offer and acceptance, there is good reason to conclude that Mr MacDonald had a reasonable expectation of continuing employment.
[11] I am satisfied that:
● Mr MacDonald was employed for more than the requisite one year, and
● The employment was on a regular and systematic basis, and
● Mr MacDonald had a reasonable expectation of continuing employment on a regular and systematic basis.
[12] Accordingly I am satisfied that the applicant has completed the minimum period of employment which is a prerequisite to be protected from unfair dismissal.
Did Mr MacDonald Resign or was there a Termination at the Initiative of the Employer?
[13] The evidence indicates that from mid-2014 there were a number of discussions between Mr MacDonald and Ivory management concerning performance related issues. The common denominator appears to be stress on the part of Mr MacDonald which apparently negatively impacted on his general wellbeing and attitude towards patrons. From the evidence these discussions would not appear to be disciplinary in nature but rather a concern for the applicant’s wellbeing and the attendant impact on work performance.
[14] On or about 1 September 2014 a meeting took place involving Mr MacDonald, Anna, Sancia and Pasquale Porretta. (Note: the applicant contends than Anna Porretta was not present at this meeting).
[15] It was suggested to Mr MacDonald that he was showing signs of ‘burn out” and he needed to take a four week break from the business. Mr MacDonald did not disagree with this proposal.
[16] Immediately following this meeting Mr Macdonald continued to meet with Pasquale Porretta for approximately one hour. The evidence of Pasquale is:2
“You need to take time off, regroup yourself and I told him several times that his job was not under threat, he was not being sacked and he had nothing to worry about. He just needed toa take time off.”
[17] Approximately two weeks later Mr MacDonald returned to Ivory and handed in a set of keys in his possession. It is common ground that management had not requested the return of the keys and that this action was entirely of Mr MacDonald’s volition. Later that day Mr MacDonald met with Sancia Porretta. He said:3
“I didn’t know if there was a way for me to come back.”
Asked to explain this comment, Mr MacDonald said:4
“What did you mean by that comment, “I don’t know how I could go back”?---It wasn’t really explained to me in any great way – when I was asked to take the month off it really left me wondering what the possibilities were with the venue from there. I thought a lot about it, and – yes, I just wasn’t sure under what circumstances that I’d be able to go back to the same capacity of working there that I had been previously, and the – just generally, how things would be working there.
Is there any particular reason why you took the keys back two weeks into this period rather than on day one or day three or something like that?---It slipped my mind. I was trying to scrape together and work as much as I could, at that stage. The opportunities to go in there weren’t always there at the times. Later on when I did think about it, it was only probably a week into it, a week and a half in that I actually realized that I had the keys on me. I was - - -
Did you use the expression along the lines of, “No hard feelings”?---Sancia said that to me.
There’s some confusion about this, from the statements. Who said that?---That was explicitly said to me by Sancia. I don’t recall a direct response to that except for that I definitely expressed the same feelings that - yes, I had no hard feelings.
You said the similar thing, did you?---Yes. Yes, I did. I expressed that I had no hard feelings of the matter. I still intended to see what had happened at the end of the four week period. Whether that was expressed openly enough, I’m not sure.”
[18] Sancia Poretta states:5
“This conversation, coupled with the handing in of his keys led me to believe Clinton had resigned.”
[19] During September and subsequently, Mr MacDonald worked with security contractor Savali Lopa at other venues. It would seem from the evidence that Ivory management were aware that Mr MacDonald was working elsewhere.
[20] On 29 September 2014 Mr MacDonald sent an email to Anna Porretta as follows:
“I am sending this in an attempt to seek clarity of my employment status at Ivory.
It has been a month since being requested that I take four weeks off from working at the venue (as of 1/9/14) - I have not in an official capacity discussed this further with any clear resolution and hope to do so.
I wish to kindly request a reply as to be aware of this status, in effort of both parties moving forward.
With regards,
Clinton MacDonald”
[21] A meeting took place with Anna Porretta, in the presence of Glenn Ewin (witness) , on 1 October 2014. The evidence of Anna Porretta is:6
“Clinton asked me why he was dismissed and I said you were not, you resigned. I said to Clinton I thought you were going to work at Apartment 808. I cannot remember a response.
Clinton said that he did not mean what he said to Sancia as a resignation and I said to him that if that was the case he could come back to work under Savali as he was already doing so, that way I could have him rostered on that weekend as Savali can move his team around. Clinton did not respond about wanting to come back or not. He persisted in asking for reasons of his dismissal and I said you were not dismissed you were asked to take four weeks away. He again wanted to know why and what complaints had been made and I believe I said to him, he knew why and that I could seen no point in going over it again as it would do nobody any good.”
[22] Anna Poretta said that Ivory had made a business decision to engage all security staff through the contractor. However Mr Macdonald would not be “out of pocket” either in terms of hourly rate or hours worked. Further, it could have been arranged to have Mr MacDonald back on the roster the weekend immediately following.7
[23] Mr MacDonald declined this offer. The following exchange refers:8
“Were you ever told by us that you were dismissed or there was no employment at Ivory?---Not until 1 October was when I was told that there was no - - -
That’s not true. I sat there and said to you – you said, “I’m not rostered on this weekend”, and I said, “If you want to come back under SL Security”, I could have actually changed the roster that weekend and had you back on, and you declined?---I feel that it was a different job, and that it would not have been the same circumstances that I was previously employed.
I don’t understand. How would it have been a different job. You still would have been on the door. You still would have been on the same pay rate, and I could have put you back on that weekend as I can have that roster changed with the security company any time. You declined that offer to return to work that weekend under SL Security?---I feel that it was different employment. It was with a different employer, and it would not have been the same circumstances.
You had worked with SL Security the whole time you were there. You were the only employed security guard who wasn’t under SL Security. How would it have been different? You worked with these people for 12 months. How would it have been different?---It was a different employer.
At the end of the day, when you came to work and SL Security come to work, who is their employer?---That would be Sovali Lopa.
No, it wouldn’t. Sovali’s not there. I’m there, my husband’s there or Sancia is there We are the employer on the night. We dictate what happens, and who does what, and we can ask security to move around. Sovali Loper is only the head of the contracting firm; is that correct?---As far my understanding goes those guys are employed by Sovali contracted to you as a venue.
But when they’re at place of employment, at Ivory, who tells them what to do?---That would be you.
Thank you. So your position realistically would not have changed because you would still be under myself, Sancia or Pascale’s direction?---Yes.
So how could the job be different?---As I said, I feel that it was a different employer, different circumstances to work there.
Did you not just say it’s not different because, at the end of the day, I would still be the employer on site telling security what to do? You just said that?---The decision on the night would have been yours, and the other management.”
Consideration
[24] To be effective, a resignation must be clear and unambiguous, taking into account the context in which statements are made and the ensuing circumstances.9
[25] In the conversation with Sancia Porretta in mid-September 2014, Mr MacDonald fell short of stating, in absolute terms, that he was resigning. However the circumstances of that conversation must be seen in proper context. The following points are relevant:
● Mr MacDonald was employed as a casual;
● Mr MacDonald had been assured by Ivory management on 1 September 2014 that his position was not in jeopardy;
● Mr MacDonald returned the keys of his own volition half way through the four week break. He had not been asked to by Ivory management;
● Mr MacDonald stated that he didn’t know if there was a way for him to come back. There was also a mutual expression of “no hard feelings”, and
● Mr MacDonald was working with the security contractor elsewhere at the time
[26] In all the circumstances I am satisfied that it was reasonably open for the respondent to conclude that Mr MacDonald had resigned and I find accordingly.
[27] Even if I am wrong on this point, I would not be inclined to grant an unfair dismissal remedy. As soon as Anna Porretta became aware of Mr MacDonald’s position she offered immediate employment with the security contractor at no financial disadvantage. Whilst it was of course open for Mr MacDonald to decline this offer, given that he was already (and continues) working for the security contractor, it calls into question whether Mr MacDonald wished to continue to be employed within the Ivory business. His explanation for declining this offer was frankly not convincing.
[28] I conclude that Mr MacDonald resigned his employment and his application for an unfair dismissal remedy is declined.
DEPUTY PRESIDENT
Appearances:
Mr MacDonald in person
Ms A Porretta for the respondent
Hearing details:
2015
4 March
Hobart
1 [2010] FWA 2078
2 Exhibit R4
3 Transcript PN 99
4 Transcript PN 66
5 Exhibit R7
6 Exhibit R1
7 Transcript PN 167-172
8 Transcript PN 107-115
9 Guptu v Koukourou Pty Ltd [2012] FWA 8755 Hampton C
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