Mr Corey John Greatrex v Sydney Earthworks Pty Ltd
[2023] FWC 2109
•23 AUGUST 2023
| [2023] FWC 2109 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Corey John Greatrex
v
Sydney Earthworks Pty Ltd.
(C2023/3282)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 23 AUGUST 2023 |
Application to deal with contraventions involving dismissal – Whether employee dismissed within the meaning of s.365(a)
Mr. Corey Greatrex (the Applicant) has applied under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute relating to his alleged dismissal by Sydney Earthworks Pty Ltd (the Respondent). The Applicant claims that the alleged dismissal was in contravention of Part 3-1 General Protections, of the FW Act. The Respondent has submitted that the Applicant was not dismissed and that he terminated his own employment.
Section 365 of the FW Act provides:
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.
In order for the Commission to be able to deal with the dispute under s.368 of the FW Act it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[2]
For the reasons which follow I have concluded that the Applicant was dismissed within the meaning of s.365.
Background and Evidence
The Applicant was employed as a truck driver by the Respondent. On 19 May 2023 he was required by the Respondent to drive from the Respondent’s yard in Western Sydney to a quarry at Oberon to collect a load and deliver it to the new Sydney Airport Project (Airport Project). Thereafter he was to return to Oberon for a second load on the same day to be delivered to the same site.
The Applicant’s Evidence
The Applicant gave evidence that he left the Respondent’s yard early on the morning of 19 May to drive to Oberon. He said that his departure was delayed by approximately 50 minutes because he had to refuel the truck he was driving. He said that he travelled to Oberon 5 to 10 minutes behind another one of the Respondent’s drivers and collected a load from the quarry at Oberon. He said he then proceeded to drive back towards the Airport Project. At some point in the morning the Applicant contacted the Respondent’s Allocator, Ms. Allan, and told her that he would not be able to complete a second trip to Oberon on that day because he had been delayed with his departure and a second trip would mean he would have to work more than 12 hours in a day which the Applicant says was prohibited by certain road transport regulations applying to drivers.
The Applicant said that later in the morning he stopped for a break when he received a telephone call from the Respondent’s director, Mr. Eldana. According to the Applicant he explained to Mr. Eldana that it would take him seven and a half hours to complete the first delivery and he would not have enough time to do a second trip to Oberon that day without breaching the 12-hour limit. Some further conversation ensued. The Applicant said Mr Eldana told him the second load had to be done. The Applicant said he could not do it because it would be a major breach. According to the Applicant Mr. Eldana said, ‘everyone else can do it and you have to do it.’
On the Applicant’s version, during the telephone call Mr. Eldana did not offer any alternative jobs for him to do that day in lieu of a second trip to Oberon. He said about 3 to 5 minutes after the phone call he received a text message from Mr. Eldana that said:
‘If you can’t do the second load today Best to Park up. And find another job Not being rude but there’s no point of you being in the truck if not you can’t do the job.’ (sic)
The Applicant said he responded to Mr. Eldana’s text with a text of his own that said:
‘I can’t do the second load to Oberon legally on a 12-hour book when it took 50 minutes to get fuel this morning. Could do a Hartley which is 2 hours shorter. So you’re sacking me over not breaking the law. There is cameras and weighbridges that we go through to Oberon.’
The Applicant said he received no further contact from Mr. Eldana. He said that about 30 minutes after the text exchange he contacted Ms. Allan at the office and told her he had been sacked and asked her if he should still deliver the load to the Airport Project. Ms. Allan responded that he should deliver the load, which he did. The Applicant then returned to the Respondent’s yard.
The Applicant said he saw Mr. Eldana’s car at the yard, but he had no face-to-face contact with him there on the afternoon of 19 May. He said he unpacked his truck and put his belongings into his car. He then walked into the office and spoke with two women, Ms. Allan and Ms. Papas. He told them he had been sacked. The Applicant says they told him that Mr. Eldana had gone outside to talk to him but when he went out to the yard Mr. Eldana was not there.
The Respondent’s Evidence
Ms. Allan, the Respondent’s Logistics Allocator, provided a witness statement. She was not required for cross-examination on the contents of the statement. According to Ms. Allan the Applicant had previously called in sick when he had been allocated the Oberon job. She said some attempts had been made in the past to give the Applicant alternative work, but this was not a generally acceptable option for the Respondent and had been done to try to manage the Applicant’s behavioural issues. She said the Applicant had left early on 2 other days in the week in which the 19 May fell and had not completed the required loads on those days. She said she believed that any delay on the morning of the 19 May was an attempt by the Applicant to avoid a second Oberon trip. She said this belief was based on her discussion with the other driver who drove to Oberon with the Applicant on that day and the Applicant’s ‘repeated conduct’. She said the other driver managed to complete 2 trips on that day without exceeding the 12-hour limit. Ms. Allan said the Applicant contacted her at about 8am on 19 May and said he could not complete a second load. She said he had become argumentative at which point she contacted Mr. Eldana.
Ms. Allan said the Applicant came into the office on 19 May and handed her his work shirt and truck key. She said the Applicant was demanding that he be paid his notice period and all other entitlements. She said the Office Manager, Ms. Papas, told him he was not terminated and if he wanted to leave of his own accord he would have to work during his notice period. She said the Applicant asked to be paid for his notice period but that both she and the Office Manager told him this would not happen as he was the one who was leaving the company.[3]
Ms. Papas gave a similar account in a witness statement. She was unavailable on the day of the hearing so was not questioned on the contents of her statement. She said the Applicant said he was unable to work with Mr. Eldana anymore and he was leaving the company.[4]
Mr. Hildoran, the driver who drove the other vehicle to Oberon with the Applicant on 19 May, also gave evidence for the Respondent. He was not cross-examined. He said that the Applicant had said he would not be able to do two runs to Oberon on the 19 May shortly after they had refuelled early in the morning on that day. He said that he managed to do two trips in under 12 hours even though he also encountered delays.[5]
In the Respondent’s Form F8A Response it was conceded that the Applicant was unable to complete the required loads at Oberon within the legally allocated timeframe on 19 May 2023. However, the Respondent argued that this had occurred because the Applicant had engaged in extended, self-induced morning delays, which was a regular occurrence and formed part of his poor performance.
Mr. Eldana also gave evidence. He did not deny sending the text message. He said he sent the message after speaking with Ms. Allan about the conversation she had had with the Applicant.
He also said in his witness statement that he ‘sent a text message to Corey later that day indicating that if he could not fulfil the tasks required of him (and all other drivers), then he would be better off working elsewhere.’ According to Mr. Eldana, after he sent the text, he called the Applicant on his phone. His account was that the Applicant:
‘…continued to be extremely argumentative with me. During the phone call, I advised Corey that I had received confirmation from our other driver on the same run that although there were delays in the morning but that they shouldn’t have an issue completing the 2-loads in under 12 hours. I sensed his irritability, and advised that he could finish the day on another job in an effort to resolve the matter. For the avoidance of doubt, drivers do not customarily get these type of concessions due to preference. I made every effort to keep Corey happy by allocating him to jobs that he liked to work on. However, on this day he was required to work on the Oberon job. Even with alternative options being provided other than Oberon, which would mean he would still finish early, Corey refused to comply and returned to the yard by about 11:30am.’[6]
Mr. Eldana said that he spoke with the Applicant at the yard on 19 May. He said he asked him whether he wanted to continue working with the Respondent and he replied ‘no’ at which point the Applicant went into the office and spoke with Ms. Allan and Ms. Papas. Mr. Eldana maintained that at some point in the conversation he gave the Applicant the option to ‘think about it over the weekend’. He said he also tried to call the Applicant again that afternoon, but his call was not returned. Mr. Eldana said his text was not intended to terminate the Applicant’s employment and that the reference to ‘park(ing) up’ was meant to be just to tell the Applicant to bring the truck back into the yard.
As is apparent from the above there are some differences in the account of events given by the Applicant and, particularly, Mr. Eldana for the Respondent. The Applicant says that Mr. Eldana called him before he received the text message. Mr. Eldana says that the call was made after the text. Mr. Eldana says that he offered the Applicant alternative work for the day during the phone call and the Applicant refused. The Applicant denies this and says it was his text which suggested he could do the shorter journey that day and that he had no reply to the text message. According to the Applicant he did not have a conversation with Mr. Eldana in person at the yard when he returned on 19 May. Mr. Eldana said there was such a conversation.
Some aspects of the accounts of the conversation between the Applicant and Mr. Eldana whilst the Applicant was on the return journey from Oberon were not entirely dissimilar. It was common ground that the Applicant explained that he was unable to do the second run because of the 12-hour restriction, that the Respondent said he expected it to be done and that other drivers had done it and that the exchange was heated.
Although there was evidence that the Respondent had accommodated the Applicant’s wishes in the past by allocating him certain jobs, I regard it as unlikely that Mr. Eldana suggested he do a shorter job on this occasion. I think it is more likely that Mr. Eldana insisted that the second Oberon job be done, and the Applicant refused. It is likely that Mr. Eldana’s text message followed on from this exchange and the Applicant’s text suggesting an alternative job for the day followed that. The fact that the Applicant’s text made reference to the Hartley job as an alternative suggests to me that no alternative Hartley job was put to the Applicant by Mr. Eldana during the conversation. If it had, there would have been no need for the text from the Applicant. Alternatively, if Mr. Eldana had been of a mind to allow the Applicant to do the Hartley job he would have responded to the Applicant’s text. The Respondent did not dispute that the Applicant had sent the text to Mr. Eldana and there was no evidence to show that Mr. Eldana responded to the text.
On balance, I think that the end result of the exchange between the Applicant and Mr. Eldana was that the Applicant was given the option of either doing the second Oberon run or to ‘park up and find another job.’ In any case I accept the Applicant’s evidence that he believed he could not legally complete the second job, and on that basis he returned to the Respondent’s yard.
The Applicant and Mr. Eldana were at odds about what happened when the Applicant returned to the yard. The Applicant said he did not have a face-to-face conversation with Mr. Eldana at all. He said he went into the office, returned the keys and spoke with Ms. Allan and Ms. Papas about finishing work with the Respondent.
Mr. Eldana said they did speak in person. According to the Respondent’s Response form Mr. Eldana spoke to the Applicant before the Applicant went into the office. The Respondent claims that Mr. Eldana instructed the Applicant that he needed to improve his performance immediately and re-iterated the various earlier discussions that had occurred about that. He was provided with alternative options for work other than the Oberon job to which he refused. The Applicant was then asked if he wanted to continue his employment with the Respondent by Mr. Eldana which he refused.[7] According to Mr. Eldana he gave the Applicant the option to ‘think about it over the weekend’.
On the Respondent’s version of events the Applicant then spoke with Ms. Allan and then Ms. Allan and Mr. Eldana jointly.[8] They attempted to reason with him. They told him to think about it before making a final decision. It was then put that the Applicant said he wanted to voluntarily terminate his employment and then spoke with Ms. Papas. There are some difficulties with the evidence about this version of events.
First, Ms. Allan makes no mention in her evidence of any conversation that she witnessed or participated in involving Mr. Eldana and the Applicant. According to her evidence, the Applicant came into the office and spoke with her and Ms. Papas. She said she spoke with Mr. Eldana later that afternoon and told him what had happened. Had Mr. Eldana been present when these conversations occurred there would have been no need for Ms. Allan to recount events to him.
In response to a question as to where the conversation with the Applicant occurred, Mr. Eldana said it took place in the office. Had a conversation occurred between the Applicant and Mr. Eldana in the office in the presence of Ms. Allan and Ms. Papas, it is to be expected that the latter two people would have referred to it in their evidence. Neither of them did.
Thirdly, Ms. Papas did not say that she witnessed any conversation between the Applicant and Mr. Eldana. She just said the Applicant came into the office after he had spoken with Mr. Eldana and spoke to her and Ms. Allan there.
Although I accept that there was an attempt by Mr. Eldana to contact the Applicant by telephone after the Applicant left the yard on the afternoon of Friday 19 May, I am not satisfied that there was a conversation between Mr. Eldana and the Applicant in person at the Respondent’s premises on that date. In that event I am unable to conclude that the Mr. Eldana on behalf of the Respondent gave the Applicant the option to ‘think about it over the weekend.’
Consideration
Section 386 of the FW Act sets out the circumstances in which an employee can be said to have been ‘dismissed’ for the purposes of s.365.[9] That section provides:
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.
‘Forced Resignation’
The Applicant’s representative submitted that the Applicant had resigned but had been forced to do so within the meaning of s.386(1)(b). The submission in this respect was that after he had received the text from Mr. Eldana the Applicant was in a position of either not completing the second load and resigning or going ahead with the second load and being in breach of the regulations. This, it was said, effectively put the Applicant in a position of being forced to resign.
The fundamental difficulty with this submission on behalf of the Applicant is that there was no evidence from the Applicant that he in fact resigned, either because he was forced to do so or for any other reason. In fact, the Applicant gave evidence that his employment had been terminated by the Respondent. In cross-examination the Applicant was asked by the Respondent’s representative whether he was claiming that he had been terminated by the Respondent by text message or whether he resigned as a result of the conduct of the Respondent. He replied that he ‘took it as a sacking’ because he was told to ‘pack his bags and go.’ He also said that he rang Ms. Allan after he received the text and told her that he had been sacked. There was no evidence from the Applicant that when he returned to the yard on 19 May he did or said anything to indicate that he was resigning. He said he told Ms. Allan and Ms. Papas when he got to the office that he had been sacked. He said that one of those persons responded with words to the effect that Mr. Eldana sometimes says things he should not say and that the messages should not have been sent without doing things the right way.
On the other hand, the Respondent submitted that the Applicant left his employment voluntarily. The evidence in support of this proposition came from Ms. Papas and Ms. Allan. According to Ms. Papas’ statement, the Applicant said to both her and Ms. Allan that he had decided to leave the company and that he couldn’t work with (Mr. Eldana) any longer. According to Ms. Allan’s statement the Applicant:
‘….began to demand to be paid for his notice period and all entitlements as he advised he would not be returning to work. Helen, our office manager, then advised Corey that as he was not terminated, if he wanted to leave on his own accord, he would need to provide notice and we would require him to work during his notice period. He asked for his notice period to be paid instead, and Helen advised we could not do this, we could only pay out all entitlements as he was the one who was leaving the company. We both advised him that we were happy for him to continue working with us.’
Ms. Papas was not available to give evidence in person at the hearing and I have to weigh the contents of her statement with that in mind. Ms. Allan’s evidence that the Applicant said he would not be returning to work can be readily construed as the Applicant indicating that he regarded his employment as having been brought to an end by the company. Beyond that, Ms. Allan’s evidence goes to the debate about the payment of notice entitlements and what Ms. Papas said about the circumstances of the Applicant’s departure. It is not conclusive as to the question of resignation.
I am unable to conclude on the evidence that the Applicant did or said anything at the Respondent’s premises on 19 May to indicate that he was resigning his employment. I regard the Respondent’s submission that the Applicant said he wanted to ‘voluntarily terminate his employment’ during the conversation in the office as artificial and unlikely given the events that had preceded it. I regard the Applicant’s representative’s submission that the Applicant was forced to resign under s.386(1)(b) as misconceived and inconsistent with the Applicant’s own evidence and the evidence overall. I conclude that the Applicant was not dismissed within the meaning of s.386(1)(b).
Termination on the Employer’s Initiative
The Applicant’s representative argued in the alternative that the Applicant’s employment was terminated on the employer’s initiative in accordance with s.386(1)(a). In the originating Form F8 application the Applicant said that the Respondent had ‘terminated him via text.’[10] In submissions, the Applicant’s representative said that the Applicant believed he had been dismissed when he received Mr. Eldana’s text message. However, the focus of the Applicant’s representative’s submissions appeared to be to be on what might be described as a ‘heat of the moment resignation’ in the sense described by the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli.[11] That is:
‘…where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.’[12]
Given my conclusions above as to the evidence relating to the issue of resignation, I come to the same conclusion regarding the submission that the Applicant was dismissed at the Respondent’s initiative because there was a resignation given in the heat of the moment which the employer failed to clarify or confirm after a reasonable time. I conclude that no such termination occurred in this instance and the Applicant’s representative’s submissions to the contrary were misplaced.
I turn then to the question of whether or not there was a termination on the initiative of the employer under s.386(1)(a) other than as a result of a ‘heat of the moment’ resignation by the Applicant.
Because there was a lack of clarity as to the extent of the Applicant's reliance on s386(1)(a), I considered it to be appropriate to give the Respondent an opportunity to make further submissions as to whether it was open to conclude that the exchange between the Applicant and Mr. Eldana by telephone and text message on 19 May could constitute a termination on the employer’s initiative within the meaning of s.386(1)(a). Further submissions were made by the Respondent after the hearing had concluded.
The Respondent contended that there was no termination on the employer’s initiative as a result of the exchange between the Applicant and Mr. Eldana. They said the text message was not intended to terminate the Applicant’s employment. They said the exchange had to be viewed in the context of previous conversations about the Applicant’s reluctance to do the Oberon job and that the Applicant would have been aware that the communications on 19 May did not amount to a ‘sacking’. The Respondent said any ‘miscommunication’ that arose from the text message was clarified by the telephone call and the Respondent’s offer of an alternative job on that day. They said the Applicant’s conduct when he returned to the Respondent’s premises was not consistent with that of a person who reasonably believed that they had been dismissed.
The expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.’[13] Termination ‘on the employer’s initiative’ is a termination that is brought about by an employer and which is not agreed to by the employee.[14] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[15] If an act of the employer results ‘directly or consequentially in the termination’[16] the termination of employment will likely be ‘on the employer’s initiative’. All of the circumstances are to be considered in this assessment. In Mohazab[17] the Court also referred to termination at the employer’s initiative as being action of the employer which, had it not been taken, the employee would have remained in the employment relationship.[18] In Khayam[19] the Full Bench of the Commission said where the employment relationship is not left voluntarily by the employee the focus of the inquiry is on whether the employer’s actions are the ‘principal contributing factor’[20] which lead to the termination.
In my view the critical actions that brought the Applicant’s employment to an end occurred whilst the Applicant was still in his vehicle on the return journey from Oberon. The conversation and the text messages between the Applicant and Mr. Eldana, was conduct by the employer that ended the employment of the Applicant or had that probable result. The text message to ‘park up’ and ‘find another job’, viewed objectively, amounted to the termination of the Applicant’s employment. It was not, as the Respondent submitted, ‘opening the dialogue again’ giving the Applicant the option of not continuing with his employment if he did not want to. I also take into account Mr. Eldana’s own evidence that his text was intended to convey to the Applicant that ‘if he could not fulfil the tasks required of him (and all other drivers), then he would be better off working elsewhere’. The Applicant’s suggestion that he do another job on that day and Mr. Eldana’s failure to respond to the Applicant’s text message dispelled any uncertainty about the Applicant’s status. Certainly, the Applicant regarded his employment as having come to an end at that point. He told Ms Allan on the way back that he had been terminated. He then returned to the yard, returned the keys and asked for his entitlements to be paid.
I conclude that the Applicant was dismissed because his employment was terminated on the employer’s initiative within the meaning of s.386(1)(a).
Conclusion
For the foregoing reasons, the Respondent’s objection is dismissed. The matter will be relisted for a conference pursuant to s.368 of the FW Act on a date to be fixed.
DEPUTY PRESIDENT
Appearances:
Mr. S. Carter, for the Applicant.
Ms. B. Mead, for the Respondent.
Hearing details:
By Video using Microsoft Teams at 11am AEST on Monday, 24 July 2023.
Final written submissions:
Respondent filed final written submissions on 18 August 2023.
Applicant filed final written submissions on 22 August 2023.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[2] Lipa op cit at paragraph [4].
[3] Exhibit R4.
[4] Exhibit R3.
[5] Exhibit R5.
[6] Exhibit R6.
[7] Exhibit R1.
[8] Exhibit R1.
[9] See also s.12.
[10] Form F8, 3.1.
[11] [2017] FWCFB 3941.
[12] Ibid [47].
[13] NSW Trains v. James[2022] FWCFB 55 at paragraph [45].
[14] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (‘Khayam’).
[15] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769.
[16] Khayam (n 14) [75].
[17] Mohazab v. Dick Smith Electronics Pty Ltd (No 2.) [1995] 62 IR 200, 205.
[18] Ibid.
[19] Khayam (n 14).
[20] Khayam (n 14) [75].
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