Mr Cody Jackson v The Trustee for L & L Chua Family Trust No 17 T/A Brisbane Quarters
[2023] FWC 268
•1 FEBRUARY 2023
| [2023] FWC 268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Cody Jackson
v
The Trustee for L & L Chua Family Trust No 17 T/A Brisbane Quarters
(C2022/7950)
| COMMISSIONER WILSON | MELBOURNE, 1 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection; whether dismissed – dismissal found – jurisdictional objection dismissed
BACKGROUND
On 1 December 2022, Mr Cody Jackson (the Applicant) lodged a general protections application against The Trustee for L & L Chua Family Trust No 17 T/A Brisbane Quarters (Brisbane Quarters or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 22 November 2022 he was dismissed in contravention of the general protections provision of the Act.
On 20 December 2022 the Respondent filed an F8A Employer response and raised a jurisdictional objection that the Applicant had resigned from his employment and was not dismissed.
As a result of the Full Court’s judgement in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On the basis of its jurisdictional objection, the Respondent declined to participate in a conference before a staff conciliator.
The parties were issued with directions for the filing of material in relation to the jurisdictional objection to which each responded. After reading the material I formed the view the matter could be decided by me on the papers and without the need for a hearing. Each of the parties agreed to that proposition.
After considering all relevant material I am satisfied for the reasons set out below that Mr Jackson was dismissed within the meaning of s.386 of the Act and that the Respondent’s jurisdictional objection must be dismissed.
LEGISLATION
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368.
If the Commission is satisfied that all reasonable attempts to resolve the dispute (other than arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate under s.368(3). Section 370 imposes a substantial restriction[2] upon applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute.
The Commission cannot issue a certificate pursuant to s.368(3) of the Act unless “an application is made under s 365.”3An application cannot be considered to have been properly made unless the criteria outlined in s.365 have been properly addressed.4
Section 365 of the Act relevantly states:
365 Application for the FWC to deal with a dismissal dispute
If:
a) a person has been dismissed; and
b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this part
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The Full Court in Coles Supply Chain v Milford[3] made the following relevant observations about the Commission’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
a) The Commission’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the Commission’s authority to perform its functions under s.368 (at [51]).
b) A dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the Commission’s authority to compel an employer to participate in its conciliation processes (at [65]).
c) It is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
d) That dispute must be resolved before the Commission’s powers under s.368 can be exercised at all (at [67]).
e) The Commission is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
f) In so determining the limits of its authority the Commission may determine matters of fact (at [71]).
g) The Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the Commission (at [74]). The Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the Act (at [75]); and
h) The determination by the Commission is not authoritative in the sense of being final. If the Commission errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the Act (at [79]).
The pertinent question for the Commission in this decision is whether Mr Jackson was “dismissed” when it was communicated either “that he was dismissed” due to his “moods being ‘up and down’” and because he was “‘constantly butting heads’ with the Regional Manager” (as alleged by Mr Jackson) or that it was stated to him “we no longer had hours for him” (as alleged by Brisbane Quarters).
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[4] summarised the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.6 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.7
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.8 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.9 Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?10 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.11 All the circumstances – including the conduct of both the employer and employee – must be examined.12 In other words, it must be shown 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.”13
CONSIDERATION
Mr Jackson started his employment with Brisbane Quarters on or around 18 April 2022 An employment agreement applying to the position refers to him being appointed as a Guest Services Attendant with him being employed as a casual employee. The employment agreement states about his hours of work and termination,
“Hours of work: Your hours of work will be based on the operational requirements of the business and its outlets from time to time. As per the Award, your minimum hours per shift will be two (2). Please ensure vou read the roster regularlv.”
“Termination: Either party may terminate the employment agreement by providing two (2) hours' notice. Payment in lieu of this notice period may be made by the Employer. If the Employee fails to give the required notice, the Employer has the right to withhold monies due to the Employee to a maximum amount equal to the ordinary time rate for the period of notice.”
“Termination without notice: The Employer reserves the right to apply summary dismissal at any time during your employment for any reason relating to serious gross misconduct. The period of notice by either party shall not apply in the case of summary dismissal. . Upon termination of employment, you are required to return all employer property Including your security card, locker key, and anv staff uniforms.”
Mr Jackson lived on site in a caretaker capacity. He also asserts he undertook duties beyond the scope of his employment contract submitting that, at times he “would be forced to assume further responsibilities that he was not originally employed for”. He also submits that he made complaints about the Regional Manager, Chris Schneider,
“This was because the Regional Manager was constantly absent from the work site and this meant that the Applicant had to take on more work. The Applicant complained to the Respondent about the Regional Manager and stated that the work load was too much for him and that he needed help. These complaints were ignored by the Respondent.”[5]
On 21 November 2022 he had a “mental breakdown due to the stress of his increased workload”, was unfit for work, and immediately requested two weeks off, which was approved by the General Manager, Stuart Howard. Mr Jackson submits that on the following day, 22 November 2022, being the first day of his personal leave, he received a call from Mr Howard “outlining that he was dismissed” and giving brief reasons for the decision, with the reason being stated,
“… that it was due to the Applicant’s moods being “up and down”. Also, that the Applicant was constantly “butting heads with the Regional Manager”.”[6]
The Applicant puts forward these matters establish he was terminated for reason of him being temporarily absent due to his mental health, in contravention of the Act’s general protections provisions. The Applicant argues ss.340 (Protection) and 352 (Temporary Absence – Illness or Injury) have been contravened by Brisbane Quarters as a result of these matters.
The Respondent denies the construct put forward by Mr Jackson, submitting,
Mr Jackson worked for Brisbane Quarters “for 7 months for the company as a live in caretaker, groundskeeper, cleaning and general maintenance)[7]
The extra responsibilities Mr Jackson took on were assumed by Mr Jackson “putting undue stress on himself”;
He worked as a casual and lived on site and due to this fact he “often confused what hours were working hours and what hours were not working hours”. His complaint “was noted and [he] was told not to worry about anything happening on the project nextdoor”;[8]
In October 2022 he was counselled over a workplace matter and he verbally resigned shortly after the counselling. He later changed his mind with the Respondent keeping him on as a courtesy and because it had hours to give to him.[9]
Brisbane Quarters accepts Mr Jackson sought and was granted leave in November 2022, but denies it dismissed Mr Jackson,
“Cody asked for two weeks leave, during this time more revelations from other staff about Cody came to light.of plotting and rumour spreading, the general manager came to the regional manager with this information. The regional manager instructed the general manager to call Cody and tell him we no longer had hours for him.
Cody hours were reduced to zero and the hours were filled by the two already hired replacements.”[10]
The Respondent denies it was stated to Mr Jackson that he would no longer have hours “moods being ‘up and down’” and because he was ‘constantly butting heads’ with the Regional Manager”. It also notes the possibility of further work being made available to Mr Jackson in early 2023, if Mr Jackson “will improve his attitude and focus only on his assigned duties”.[11]
Arising from these matters it is plain there is a dispute between the parties about the nature of the Applicant’s work and whether he was required to take on additional duties as he claims. That dispute is unable to be dealt with in this decision.
There is agreement that Mr Jackson sought leave in late November, however the parties do not agree that the leave request was approved. That aspect of the dispute between the parties does not require resolution in this decision.
The parties agree that Mr Jackson was not provided with work to do at Brisbane Quarters after about 22 November 2022, however they dispute what was said to Mr Jackson. The Applicant says he was told it was due to us “up and down” moods and because he was “butting heads” with Mr Schneider the Regional Manager. The Respondent submits it told Mr Jackson “we no longer had hours for him” and that his “hours were reduced to zero and the hours were filled by the two already hired replacements”.
The Respondent’s submission that there was no dismissal is plainly misconceived and allied to the proposition that a casual employee may simply be dispensed with by reducing their hours to zero without the employee having recourse either to the Fair Work Act’s unfair dismissal or general protections provision. That analysis is not correct.
In Dorine Torres-Carne v Darwin Aboriginal and Islander Women’s Shelter (DAIWS) Deputy President Sams explained the considerations to be given in relation to whether a casual employee had been “dismissed” within the meaning of the Act;
“[53] At the outset, let me say that there is often a tension between the statutory protections from unfair dismissal (s 384) afforded to a regular and systematic casual employee with the ordinary well-understood rights of a casual employee to refuse casual engagements, and alternatively, the employer’s right not to offer shifts to a casual employee. That is not to say that an employer cannot refuse to offer further shifts (effectively terminating the employment relationship) for poor performance, misconduct or other valid reasons; see: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). That said, each case will turn on its particular facts and circumstances.
[54] On the other hand, the statutory protections from unfair dismissal afforded to a regular and systematic casual employee must include the full gamut of the matters the Commission is required to take into account under s 387 of the Act, including affording the employee procedural fairness when the employer decides to no longer offer the employee further casual shifts.”[12]
The Deputy President then followed and applied the findings of the Full Court of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd in which it was held that,
“… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship”, with the enquiry to be undertaking in these proceedings surrounding whether “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.”[13]
It is clear that the statutory test of whether an employee has been dismissed relates to termination of the employment relationship, not termination of the contract of employment.[14]
So far as is relevant the Act provides that a person has been dismissed if their employment “has been terminated on the employer's initiative”. Whether on the basis put forward by Brisbane Quarter or Mr Jackson it is clear that the latter’s employment ended on or around 22 November 2022. It is further clear that irrespective of which version of words are considered the intention conveyed by Brisbane Quarters was that Mr Jackson would no longer work for the business. Whether he was told he was dismissed due to his “moods being ‘up and down’” and because he was ‘constantly butting heads’ with the Regional Manager” (as alleged by Mr Jackson) or that “we no longer had hours for him” (as alleged by Brisbane Quarters) the plain fact is that the employment relationship was intended to be ended.
CONCLUSION
The consequence of the reasoning set out above is that I am satisfied Mr Jackson was dismissed within the meaning of the Act.
Having raised its jurisdictional objection Brisbane Quarters declined to participate in a staff conciliation. With the jurisdictional objection having been dismissed it is appropriate that Mr Jackson’s application now be returned to the general protections team for allocation to a staff conciliation
COMMISSIONER
[1] (2020) 300 IR 146; [2020] FCAFC 152.
[2] Ward v St Catherine’s School [2016] FCA 790, [3].
[3] ibid.
[4] [2017] FWCFB 3941.
[5] Application Form, F8, item 3.1(4).
[6] Ibid, item 3.1(7).
[7] Employer Response Form F8A, item 5.1(1).
[8] Ibid, item 5.1(3).
[9] Respondent’s Outline of Submissions,, p1.
[10] Respondent’s Outline of Submissions, p.1.
[11] Employer Response Form F8A, item 4(1).
[12] [2020] FWC 4080, [56].
[13] [1995] IRCA 625; 62 IR 200.
[14] Searle v Moly Mines Limited (2008) 174 IR 21 at [22]
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