Mr Craig Pickford v North West Alliance Pty Ltd
[2024] FWC 1321
•16 JULY 2024
| [2024] FWC 1321 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Craig Pickford
v
North West Alliance Pty Ltd
(U2024/2092)
| DEPUTY PRESIDENT BINET | PERTH, 16 JULY 2024 |
Application for an unfair dismissal remedy
On 26 February 2024 Mr Craig Pickford (Mr Pickford) made an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by North West Alliance Pty Ltd (NW Alliance).
Mr Pickford’s employment came to an end on 5 February 2024 by way of a letter in which Mr Pickford asserted that he accepted (effective immediately) the repudiation of his contract of employment by NW Alliance. The alleged repudiation occurred during a chain of events which followed after Mr Pickford was accommodated on the evening of 5 December 2023 in employer provided accommodation which was unclean.
On 7 March 2024 NW Alliance filed a Form F3 - Employer Response to an unfair dismissal application asserting that Mr Pickford was not dismissed from his employment (Jurisdictional Objection).
On 15 April 2024 the parties participated in a conciliation, but the issues in dispute could not be resolved.
Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 21 May 2024 (Hearing).
Directions for the filing of materials in advance of the Hearing were issued to the parties on 15 April 2024 (Directions). The Directions required Mr Pickford to file his materials in relation to the merits of the Application by 4pm on 23 April 2024. On the afternoon of 23 April 2024 Mr Pickford’s representative sought and obtained an extension of time until 6.30pm to file Mr Pickford’s materials. Mr Pickford’s materials in relation to merits were ultimately not completely filed until 4pm on 24 April 2024.
The Directions required Mr Pickford to file his materials in relation to the Jurisdictional Objection by 4pm on 1 May 2024. Mr Pickford failed to comply with this deadline and NW Alliance made an application pursuant to s.399A of the FW Act for the Application to be dismissed on the grounds that Mr Pickford had on multiple occasions failed to comply with the Directions (Dismissal Application).
Mr Pickford was invited to respond to the Dismissal Application. On 2 May 2024 his representatives wrote to Chambers and stated that:
“Our practice software has a category for Respondent Directions or Applicant Directions and it has only presented this as a Respondent Direction, which is raised as explanation that Mr Pickford is not in error, but we are. I am also committed to remedying this error. I seek permission to file a response on behalf of Mr Pickford by 9am AWT tomorrow. I called Ms Speak to seek her client's consent and thank her for attempting to get those instructions. I did not want to leave this any longer, while Ms Speak considers this.”
On 2 May 2024 following receipt of this email Chambers granted Mr Pickford an extension to file his materials in response to the jurisdictional objection by 9am (AWST) 3 May 2024, which were then filed.
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, Mr Pickford was represented by Mr Miles Heffernan (Mr Heffernan) a paid agent from Supportah SaaS SRL (Mr Heffernan) and NW Alliance was represented by Ms Amberley Speak a solicitor of Mills Oakley (Ms Speak).
Mr Pickford filed written closing submissions on 5 June 2024 and NW Alliance filed written closing submissions on 12 June 2024.
Evidence
The Directions required the parties to file their witness and documentary evidence in advance of the Hearing.
Mr Pickford filed two witness statements on his own behalf.[2]
Mr Pickford was cross examined by Ms Speak at the Hearing.
A witness statement from Mr Jordan Micallef (Mr Micallef) was filed by NW Alliance.[3] Mr Micallef is employed as a Human Resource Business Partner – Waste and Resource Recovery (WA and SA) employed by Veolia Environmental Services (Australia) Pty Ltd (Veolia).
Mr Micallef gave further evidence in chief at the Hearing and was cross examined by Mr Heffernan.
Both parties chose to call only one witness, neither capable of providing complete evidence in relation to key contested facts. Critically Mr Pickford provided no witness or documentary evidence as to the condition of the accommodation in which he refused to be accommodated in post 5 December 2023. Neither Mr Pickford nor NW Alliance chose to call as witnesses other NW Alliance employee’s involved in the events which led to Mr Pickford’s separation. Consequently, a many of my evidentiary findings have been drawn from contemporaneous documentation and consequential inferences.
A Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked exhibit DCB. A copy of a payslip recording Mr Pickford’s post dismissal income was marked as Exhibit A1.
In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
Background
NW Alliance operates as a joint venture between Veolia and Our Country Group Pty Ltd. Mr Micallef is responsible for human resources and industrial relations matters that arise within NW Alliance.[4]
Mr Pickford commenced permanent employment with NW Alliance as a full-time Driver/Operator on or around 30 September 2021 pursuant to a letter of appointment dated 26 August 2021.[5]
Mr Pickford’s key roles and responsibilities included driving various waste disposal vehicles around set routes in Port Hedland to collect waste.[6]
Mr Pickford worked three weeks on/one week off, and would fly from Perth where he resides to Port Hedland for each swing.[7] NW Alliance managed all travelling arrangements, including booking flights and arranging accommodation in Port Hedland. When commencing his three weeks on swing, Mr Pickford would fly to Port Hedland from Perth on a morning flight and immediately attend site for the commencement of his first shift. He would first attend the accommodation that NW Alliance had arranged for him in the evening after completing his shift.[8]
On 5 December 2023, Mr Pickford flew from Perth to Port Hedland to commence his scheduled swing. When Mr Pickford arrived in Port Hedland he went directly to work to commence his shift. He finished his shift at 6pm and went to dinner. He arrived at his employer provided shared accommodation at Kingsmill (Kingsmill) just after 8pm. His evidence is that the accommodation was in poor condition:[9]
“11. My bedroom air conditioner was full of black mould and leaking, the room was covered in dirt and dust and rubbish from the prior occupant, and the carpet was very stained. I went into the bathroom, the shower was leaking and full of old containers all covered in mould.
12. I then went to look in the kitchen. A cockroach ran across the floor, the sink was full of dirty dishes and the bench had old beer bottles.
13. I opened the cupboards and everyone was full of cockroach faeces. The kitchen/dining air conditioner was also full of black mould.”
Mr Pickford informed Ms Paikare Kadar-Mia, Operations Supervisor (Ms Kadar-Mia), about the condition of Kingsmill.[10]
Ms Kadar-Mia called Mr Pickford back a few minutes later and explained that she could not secure alternative accommodation that night. The following morning Ms Kadar-Mia secured for alternative accommodation for Mr Pickford and he moved to the alternative accommodation that day.[11]
Mr Pickford returned to Perth on 24 December 2023.[12]
Mr Pickford was rostered to return to site on 2 January 2024 to undertake a swing ending on 23 January 2024. In the afternoon of 1 January 2024, Mr Pickford realised he had not yet received his flight and accommodation itinerary for the next day, he contacted Mr Tane Peters NW Alliance Branch Manager, Port Hedland (Mr Peters).[13]
Mr Peters emailed Mr Pickford his flight details and sent a text advising him that:[14]
“You’re in bedroom 1 in the mechanics house (Athol st) for the time being”
Mr Pickford arrived at the airport for his 5:35am flight, to find it had been delayed until 6:35am. At 6:32am Mr Pickford received a text message from Mr Peters stating:[15]
“Morning, Change of plans, You’re in Kingsmill Bedroom 3”
Mr Pickford says that he had already boarded the plane when he received the text from Mr Peter’s. Mr Pickford replied by text: [16]
“Morning, just about to depart. Sorry Kingsmill isn’t satisfactory accommodation. I’ve been there once before.”
Mr Peters replied by SMS: [17]
"Maybe don’t board the plane?".
Mr Pickford says that the plane had began to taxi when he received Mr Peter’s message.[18]
When Mr Pickford landed in Port Hedland he immediately arranged to fly home to Perth on the next flight that day at his own expense.[19] Mr Pickford asserts that he did so because he understood Mr Peter’s message to be a direction to return to Perth.[20] However subsequent text exchanges suggest that Mr Pickford chose to return to Perth because he did not wish to be accommodated at Kingsmill not because he was directed to return to Perth by Mr Peter’s.
At 8:29am Ms Kadar-Mia texted Mr Pickford asking:[21]
“Morning mate, have you landed in Port?”
Mr Pickford says he received the text shortly after he landed in Port Hedland. Mr Pickford responded:[22]
“Just landed, however I'm booked on the next flight home. NWA is unable to supply suitable accommodation”.
Ms Kadar-Mia replied: “Ok. Will chat to you shortly”. Mr Pickford says he did not receive any further communication from Ms Kadar-Mia until 4 January 2024.[23] Mr Pickford did not contact NW Alliance again until 10 January 2024.[24]
On 4 January 2024 Ms Kadar-Mia texted Mr Pickford that while he was offline, her expectations were that any work/customer calls were not to be answered. [25]
“Hi Craig, As you are currently offline – the expectations are that any work/customer calls are not being answered. Just to reiterate we ask that should you receive any phone calls from any customers (BHP, WWS, Landfill ect)- these work queries are being forwarded directly onto me for dealing/action. Thanks”
On 4 January 2024, NW Alliance issued Mr Pickford a letter alleging that he had engaged in misconduct due to being absent from work without authorisation. The letter sought a response from Mr Pickford by Monday 8 December 2024. This was clearly a typographical error.[26]
Mr Pickford did not respond to this letter.[27]
On 5 January 2024 Mr Kadar-Mia sent a text message to Mr Pickford alerting him to the letter.[28]
At 9:15am on 8 January 2024 Ms Kadar-Mia called Mr Pickford. When Mr Pickford didn’t answer Ms Kadar-Mia sent the following text message:[29]
“Hi Craig – just tried calling re email/letter. Can you please get back to me asap to discuss. Thanks,”
On 8 January 2024, NW Alliance issued Mr Pickford with a written first and final warning for engaging in misconduct by failing to attend his scheduled shift on 2 January without reasonable notice (Written Warning). [30]
NW Alliance subsequently sent Mr Pickford a letter of concern (Letter of Concern) that he had abandoned his employment given that:
a.he had been absent from work since 2 January 2024; and
b.he had failed to respond to the Letter of Allegations emailed to him on 5 January 2024 notwithstanding that Ms Kadar-Mia had called and texted him to alert him to the email attaching the letter.
In the Letter of Concern NW Alliance requested that Mr Pickford urgently contact NW Alliance to discuss his absence. The letter warned that in the absence of a response by 5pm Friday 12 January 2024 his employment will be treated as having been abandoned.[31]
At 7:01am on 10 January 2024 Ms Kadar-Mia sent a text to Mr Pickford as follows:[32]
“Morning Craig, FYI – letter posted yesterday to your Perth address. Thanks.”
On 10 January 2024, Mr Pickford arranged for a letter to be sent to Ms Kadar-Mia by email purporting to raise an industrial dispute and to make a workplace complaint (Dispute Notification). Mr Pickford did not identify the nature of the dispute or complaint. In the letter he requested that any further correspondence be directed to his representative Mr Jeremy Walton of Industrial Advocates Australia Pty Limited trading as Industrial Relations Claims (Supportah).[33]
On 11 January 2024, Mr Trent Nolan, Regional Manager of NW Alliance (Mr Nolan) contacted Supportah querying the nature of the dispute and expressing relief that Mr Pickford’s whereabouts were now accounted for. [34]
“Thanks for your email and I acknowledge receipt, ... Can you please clarify on what basis this dispute is being raised under the provisions of the North West Alliance Pilbara Agreement 2022 - 2025. From there, we will review accordingly
If you would like to have a meeting with NWA to go through our process, please reach out. I am glad Craig is safe and well, we unfortunately have not been able to get a hold of Craig since he decided to fly himself back to Perth from Port Hedland.”
On 12 January 2024, Mr Gallagher, a Volunteer Industrial Advocate for Supportah responded to Mr Nolan and indicated that, among other things, Mr Pickford: [35]
a. had not abandoned his employment;
b. did not wish to leave his employment; andc.was ready, willing and able to return to work but could not due Kingsmill presenting a risk to his health and safety.
In the correspondence Mr Gallagher sought that NW Alliance confirm when suitable accommodation would be provided and that the disciplinary action with respect to Mr Pickford’s alleged abandonment be withdrawn.[36]
On 19 January 2024 at 9.31am, Mr Micallef, emailed Mr Gallagher asking for further information as to why, Mr Pickford believed the accommodation was unsuitable noting that:
a.NW Alliance had taken steps to resolve the concerns Mr Pickford had reported in December 2023,
b.Mr Pickford had not attended Kingsmill on 2 January 2024 before returning to Perth and therefore had no grounds for asserting that the accommodation was unsuitable; and
c.Mr Pickford had provided no information as to why he considered the accommodation was unsuitable on 2 January 2024 before returning to Perth.[37]
In the same correspondence Mr Micallef explained that NW Alliance had made numerous unsuccessful attempts to contact Mr Pickford which was why it held concerns he had abandoned his employment. However, given that NW Alliance had now received confirmation that Mr Pickford and his welfare were accounted for, NW Alliance were satisfied that he had not abandoned his employment and NW Alliance considered the disciplinary process in relation to allegation that he had abandoned his employment was closed. [38]
In relation to the disciplinary warning Mr Micallef explained that NW Alliance did not intend to retract the Written Warning because:
a.NW Alliance had commenced an investigation into Mr Pickford’s failure to attend a shift 2 January 2024;
b.Mr Pickford was offered the opportunity to respond and advised that findings would be made on the information available;
c.Mr Pickford failed to respond or seek an extension to respond;
d.based on the information available at the time the disciplinary warning was validly issued.
Mr Micallef stated that while NW Alliance would not retract the Written Warning the correspondence setting out Mr Pickford’s subsequently explanation of the events would be maintained alongside the disciplinary notice on his personnel file.[39]
In conclusion Mr Micallef stated that NW Alliance had made arrangements for alternative accommodation for Mr Pickford for his return to site on his next schedule swing commencing 30 January 2024.[40]
On 19 January 2024, Mr Gallagher responded indicating a substantive response would be provided in the coming days and querying what alternative accommodation had been arranged for Mr Pickford.[41]
On the same day, Mr Micallef responded confirming that NW Alliance had secured a new residence for Mr Pickford upon his return. [42]
On 24 January 2024, Mr Micallef sent a follow up email to Mr Gallagher asking for an update about Mr Pickford by COB that day to make arrangements for his return to site.[43]
On 24 January 2024, Mr Heffernan sent Mr Micallef an email acknowledging the request that Mr Pickford confirm his intention to return to site. In the email Mr Heffernan asserted that Mr Pickford had on 2 January 2024 exercised a right to cease work pursuant to section 84 of the Work Health and Safety Act 2020 (WA) (WHS Act). [44]
Section 84 of the WHS Act permits an employee to cease work only if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard.
Mr Heffernan confirmed that Mr Pickford was ready willing and able to return to work however noted that Mr Pickford considered NW Alliance’s conduct (in particular not being paid) a repudiation of his employment contract and that Mr Pickford was determining whether to accept the purported repudiation. [45]
In response to the request that Mr Pickford confirm whether he would be returning to site the letter obtusely stated: “… it is not for him to involve himself in such decisions” and that it was unnecessary for Mr Pickford “…to be involved in managerial decisions about his rostering arrangements, so please do not ask this of him”. In full the letter stated:[46]
“Thank you for your email and I am responding on behalf of Mr Gallagher, for Mr Pickford.
1. As you are aware, Mr Pickford exercised his right to cease work pursuant to s 84 of the Work Health and Safety Act 2020 on 2 January 2024.
2. For this reason, your request to have our client to respond to the below is curious, as is the follow up with a deadline today.
3. Given my availability, this response is only being made because you arbitrarily imposed a deadline.
4. Your two correspondences below intimate that our client is taking broader, unprotected industrial action, which is of course not the case.
5. Our client remains ready, willing and able to work at any safe location in accordance with his employment contract and it is not for him to involve himself in such decisions.
6. Conversely to our client's good faith and responsible approach his employer's choice of accommodation, our client has been had multiple adverse actions taken against him, including not being paid this year, despite his pay periods being weekly and this misconceived warning, borne from an imaginary abandonment.
7. Obviously it is up to our client whether his accepts this repudiation, (whilst reserving all rights at common law and statute) but one would expect that the employer correcting this contravening forthwith would ameloriate this pathway.
8. Otherwise it unnecessary to ask our client to be involved in managerial decisions about his rostering arrangements, so please do not ask this of him.
9. Feel free to call me to discuss. My Australian mobile is +61403586167.”
On 24 January 2024 at 3.42pm, Mr Heffernan and Mr Micallef had a telephone call that lasted for approximately 7 minutes. [47] Mr Micallef asked Mr Hefferman to confirm whether Mr Pickford intended to return to work on 30 January 2024 but Mr Hefferman declined to do so. Mr Micallef explained that Mr Pickford’s wages had not been paid because Mr Pickford had been absent from work since 2 January 2024 and had not performed any work.[48]
On 25 January 2024, Mr Gallagher sent NW Alliance an email with an attached letter dated 22 January 2024. The letter referred to issues in November and October 2023 relating to Mr Pickford’s absence from and return to work as a consequence of elective surgery and asserted that Mr Pickford had been discriminated in breach of the Equal Opportunity Act. The letter went on to allege that NW Alliance had repudiated Mr Pickford’s contract of employment by failing to pay his wages from 2 January 2024 onwards. The letter asserted that the withholding of wages was adverse action taken in breach of the general protection provisions as a consequence of Mr Pickford making a complaint about workplace safety. The letter contained a demand for payment of wages within 7 days and for the withdrawal of the Written Warning. The letter threatened that Mr Pickford would commence proceedings in the Australian Equal Opportunity Commission and/or Fair Work in relation to the purported breaches of the FW Act, the EEO Act and the WHS Act. The letter concluded by stating that:[49]
“Our client looks forward to continuing his employment with Nort West Alliance.”
On 29 January 2024, Mr Gallagher emailed NW Alliance a medical certificate stating that Mr Pickford was unfit for work from 29 January – 4 February 2024 inclusive. [50]
On 30 January 2024, the NW Alliance accepted the medical certificate and confirmed Mr Pickford’s flight for that day had been rescheduled. Mr Pickford was then on a period of authorised leave until 4 February 2024, with arrangements being made for him to return to site 5 February 2024. [51]
On 5 February 2024, Mr Gallagher emailed Mr Nolan alleging that NW alliance had repudiated Mr Pickford’s contract of employment and attached a letter from the Mr Pickford purporting to accept the repudiation (Repudiation Letter). The Repudiation Letter stated as follows: [52]
“Dear Mr Trent Nolan,
RE: I accept the repudiation of my employment with North West Alliance Pty Ltd
I accept the repudiation of my employment contract.
You have previously been put on notice as to conduct that I consider repudiates my employment contract.
My employment has come to end at the initiative of my employer as of today.
Given the extensive correspondence from my representatives, and the targeted and capricious disciplinary processes I have been subjected to instead of engaging with my concerns it is clear that my employer sought to repudiate my employment contract.
Further, my employer has not paid me since 2 January 2024 and has ignored my demand on 25 January 2024 to remedy this.
Please pay my notice period of three weeks and any accrued entitlements within seven days of today.
Please contact my representatives if you require anything further”
On 5 February 2024 Mr Nolan, sent a reply email rejecting the suggestion that NW Alliance had terminated Mr Pickford’s employment at its initiative. [53]
In line with the Repudiation Letter Mr Pickford’s last day of employment was 5 February 2024. [54]
Mr Pickford submits that he was unfairly dismissed and seeks an order for compensation.
Is Mr Pickford protected from unfair dismissal?
An order for compensation may only be issued if Mr Pickford was unfairly dismissed and Mr Pickford was protected from unfair dismissal at the time of his dismissal.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed 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 one or more of the following apply:
a.a modern award covers the person;
b.an enterprise agreement applies to the person in relation to the employment;
c.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 Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.
For the purposes of Part 3-2 of the FW Act a person is an employee if they are employed by a national system employer. There is no dispute and I am satisfied that NW Alliance is a national system employer and Mr Pickford is therefore a national system employee.
Depending on the number of employees employed by an employer the minimum employment period is either six or twelve months.
Mr Pickford commenced permanent employment with NW Alliance as a full-time Driver/Operator on or around 30 September 2021 pursuant to a letter of appointment dated 26 August 2021.[55] Mr Pickford informed NW Alliance that he intended to treat his employment as having been repudiated by NW Alliance effective 5 February 2024.[56]
I am therefore satisfied that, at the time his employment ended, Mr Pickford was an employee who had completed a period of employment of at least the minimum employment period.
There is no dispute, and I am satisfied, that an enterprise agreement applied to Mr Pickford’s employment at the time his employment came to an end.
There is no dispute and I am satisfied that Mr Pickford is therefore protected from unfair dismissal.
Was Mr Pickford unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a.the person has been dismissed;
b.the dismissal was harsh, unjust or unreasonable;
c.the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d.the dismissal was not a case of genuine redundancy.
Was Mr Pickford dismissed?
The term ‘dismissed’ is defined in section 386 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.”
Section 386(2) of the FW Act contains some exceptions which are not applicable to this Application.
According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.[57] A termination is at the employer’s initiative when the employer’s action ‘directly and consequentially’ results in the termination of employment and had the employer not taken this action the employee would have remained employed.[58] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[59]
In determining whether a termination is at the employer initiative, it is necessary to examine all the circumstances including the conduct of the employer and the employee.[60]
Mr Pickford’s employment relationship ended on 5 February 2024 by way of the Repudiation Letter. [61] Mr Pickford was advised by Supportah at the time so it can be presumed that his language in the Repudiation Letter was chosen advisedly. The Repudiation letter makes no reference to resignation. Rather Mr Pickford states that he is treating the employment as at an end because of an alleged repudiation of his contract by NW Alliance. In the Repudiation Letter Mr Pickford identifies NW Alliance’s refusal to pay his wages for the period from 2 January 2024 as the repudiatory breach.
Subsequently in Mr Pickford’s written submission for the Hearing his representatives sought to expand the nature of the alleged repudiatory conduct to include:[62]
“a. Mr Peter’s SMS;
b. Ms Kadar Mia’s direction on 4 January 2024;
c. the erroneous 8 December 2024 response date, that remains uncorrected;
d. a single missed call after the warning was issued on 8 January 2024;
e. the failure to engage with the industrial disputation process;
f. the failure to engage with the Work, Health and Safety complaint;
g. the failure to provide work when Mr Pickford was ready, willing and able to work
h. the failure to fly Mr Pickford back after 11 January 2024;
i. the failure to pay Mr Pickford;
j. the failure to respond to Mr Pickford putting them on notice as to repudiation.”
The test for repudiation by the employer is whether the conduct of the employer, when judged objectively, showed an intention to no longer be bound by a contract.[63] The employer’s actual or subjective intention is not relevant. A repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract. If the affected party accepts the repudiation the contract will end.
I do not accept that NW Alliance engaged in conduct which gave Mr Pickford no reasonable choice but to resign. Nor do I accept that objectively judged NW Alliance showed an intention not to bound by Mr Pickford’s employment contract. On the evidence before me the end of the employment relationship was not brought about by NW Alliance nor was NW Alliance’s actions the principle contributing factor. To the contrary having been satisfied that Mr Pickford had not abandoned his employment the evidence reveals that NW Alliance were actively and repeatedly seeking to return Mr Pickford to site to continue his employment with NW Alliance.
Late in the evening of 5 December 2023 Mr Pickford did raise concerns about the living conditions at Kingsmill. [64] Given the limited availability of alternative accommodation and the lateness of the hour it is not unsurprising that NW Alliance were unable arrange alternative accommodation until the following day. Such a short delay in response in the circumstances does not suggest an intention to repudiate the contract. Given that Mr Pickford appears to have completed his swing without further comment and proactively took steps to ensure he was mobilised to his next swing on 5 December 2023 suggests that he did not consider the conduct repudiatory. [65]
Mr Pickford flew to Port Hedland on 2 January 2024 to commence his next swing. Upon landing he immediately arranged and purchased a flight back to Perth at his own expense. [66]
Mr Pickford argued that he believed that Mr Peter’s SMS of 2 January 2024 (not to board the plane) was in fact a direction to return to Perth, that Ms Kadar’s text of the same day[67] (responding to Mr Pickford’s text informing her that he was returning to Perth) indicated NW Alliance’s approval of his decision to return to Perth and her text of 4 January 2024 (not to contact clients) was indicative that NW Alliance authorised his absence.
However, the evidence suggests that Mr Pickford unilaterally decided to return to Perth because he did not wish to be accommodated at Kingsmill not because he believed he was directed to do so by Mr Peters or approved to do so by Ms Kadar-Mia. For example:
a.the custom and practise was that NW Alliance arranged and paid for all flights which it authorised not Mr Pickford.
b.Mr Pickford had already purchased his ticket before his communication with Ms Kadar-Mia where she acknowledged he was returning to Perth;
c.Mr Pickford’s representative in his correspondence of 24 January 2024 stated that on 2 January 2024 Mr Pickford had exercised a right pursuant to section 84 of the WHS Act to cease work. [68]
Ms Kardar-Mia’s message not to contact clients[69] is not consistent with NW Alliance believing Mr Pickford was ready, willing and able to work and therefore entitled to pay. Arguable it is consistent with NW Alliance believing Mr Pickford was on an unauthorised absence.
At best it might be argued that a lack of clarity in communication from NW Alliance led Mr Pickford to presume that NW Alliance had authorised his unilateral decision to return to Perth. However, any confusion as to whether his absence was authorised (and entitled to payment) was clarified when NW Alliance sent the letter on 4 January 2024 alleging that Mr Pickford had engaged in misconduct due to being absent from work without authorisation. [70] Mr Pickford chose not to respond to the letter to clarify any misunderstanding about the nature of his absence.[71]
NW Alliance’s 4 January 2024 letter sought a response from Mr Pickford by Monday 8 December 2024. This is clearly a typographical error.[72]
Mr Pickford chose not to respond to this letter notwithstanding two text messages and a call from Ms Kadar-Mia.[73]
On 8 January 2024, NW Alliance issued Mr Pickford with the Written Warning. I am satisfied that this course of action was open to them given the lack of any response from Mr Pickford during the disciplinary process.
It was not until 10 January 2024 that Mr Pickford engaged in any communication with NW Alliance. Even then he chose not to provide any reason for his absence or make any arrangements to return to work. [74]
It was not until 12 January 2024 that Mr Pickford’s representatives provided an explanation for his ongoing absence, namely that Kingsmill presented a risk to Mr Pickford’s health and safety. The letter provided no basis for this assertion and a subsequent request for clarification as to the basis of this concern were ignored by Mr Pickford and his representatives.
NW Alliance say that the concerns raised by Mr Pickford about the living conditions at Kingsmill were addressed following him raising those concerns in December 2023. There is no evidence to suggest that was not the case. Mr Pickford has not identified any reasonable basis for his view that the Kingsmill was in fact unsuitable accommodation as at 2 January 2024. There is no evidence he returned to Kingsmill between 6 December 2023 and 2 January 2024. Mr Pickford did not tender any evidence at Hearing of the conditions of Kingsmill other than on 5 December 2023.
In the 10 January 2024 correspondence Mr Pickford indicated that he wished to raise a dispute. The correspondence did not identify the nature of the dispute. NW Alliance acknowledged receipt of the dispute notification, sought clarification of the nature of the dispute and proposed a meeting to discuss the dispute. The 12 January 2024 response from Mr Pickford’s representatives did not engage further with the dispute resolution procedure[75] but instead raised a smorgasbord of potential common law and statutory alleged breaches. Both parties continued in subsequent correspondence to discuss these matters. The assertion that NW Alliance repudiated Mr Pickford’s employment contract because it did not engage with the industrial dispute he purportedly initiated is not sustainable on the evidence.
On 19 January 2024 NW Alliance responded to Mr Pickford’s representatives. The letter did not evidence any intention to bring Mr Pickford’s employment to an end or any effort to force Mr Pickford to do so. In the letter NW Alliance:
a.Confirmed Mr Pickford’s concerns about Kingsmill had been addressed.
b.Provided a reasoned explanation for its refusal to withdrawn the Written Notice but undertaking to keep Mr Pickford’s subsequent explanation for his absence with the Written Notice on his personnel file.
c.Confirmed that the disciplinary allegation that Mr Pickford had abandoned his employment would not be pursued.
d.Confirmed arrangements for that NW Alliance had made arrangements for alternative accommodation for Mr Pickford for his return to site on his next schedule swing commencing 30 January 2024.[76]
NW Alliance then proactively sought to confirm Mr Pickford’s return to work. On 24 January 2024, Mr Micallef sent a follow up email to Mr Gallagher asking for an update about Mr Pickford by COB that day to make arrangements for his return to site. [77] Mr Micallef also sought to confirm Mr Pickford’s return to work during a telephone call with Mr Pickford’s representatives the same day.
Mr Pickford’s representatives repeated assertion that Mr Pickford was ready willing and able to return to work appears somewhat disingenuous given Mr Pickford’s representatives unwillingness to confirm his return on 30 January 2024 notwithstanding multiple requests from NW Alliance that they do so[78] and the subsequent provision of a medical certificate certifying Mr Pickford unfit to commence his scheduled swing. [79]
Consistent with its submission that it had no intention to bring Mr Pickford’s employment to an end NW Alliance recognised Mr Pickford’s medical certificate commencing payment of sick leave and making arrangements for a new mobilisation date immediately following the conclusion of the certified period of personal leave. [80]
Notwithstanding these efforts on 5 February 2024 Mr Pickford informed NW Alliance that he treated his employment as having been brought to an end by virtue of NW Alliance’s alleged repudiation of his contract of employment.
While his absence from 2 January 2024 until 4 January 2024 might generously be characterised as a misunderstanding. From 4 January 2024 Mr Pickford was on notice that his absence was not authorised by NW Alliance.
Mr Pickford has provided no evidence to establish that Kingsmill posed any risk to his health and safety from 6 December 2023 onwards. When he previously complained about the condition of Kingsmill he was moved to new accommodation the very next day. In any event from 19 January 2024 NW Alliance had undertaken to provide alternative accommodation.
Notwithstanding claiming to be ready willing and able to return to work Mr Pickford chose to relocate himself to Perth on 2 January 2024 so was not able to perform his duties for the balance of the swing ending 23 January 2024. His representatives repeatedly refused to confirm that he would in fact attend his next swing commencing 30 January 2024. As it turns out Mr Pickford did not attend that next swing instead providing a medical certificate. Conveniently that medical certificate covered the period between the date Mr Pickford should have mobilised to site and the date on which he informed NW Alliance that he considered the employment relationship had come to an end.
There is insufficient evidence to sustain Mr Pickford’s assertion that his absence from work was authorised by s.84 of the WHS Act or otherwise. Mr Pickford has not clear entitlement to unpaid wages.
Mr Pickford’s concerns could have been continued to be pressed through a variety of mechanisms other than by ceasing his employment. For example, by reporting his concerns to WorkSafe, filing a section 739 application to resolve his dispute, filing a stop bulling order application, reporting his concerns to the Fair Work Ombudsman, making a claim for underpayments in the Industrial Magistrates Court. Mr Pickford was clearly aware of the existence of multiple mechanisms to resolve his concerns because many of these are set out in detail by his representatives in their correspondence with NW Alliance during the course of Mr Pickford’s employment.
Mr Pickford conceded at the Hearing that NW Alliance’s response to his dispute notification, the withdrawal of the abandonment allegations, the securing of alternative accommodation and the efforts to remobilise him were consistent with NW Alliance intending to preserve and continue his employment with them.
Based on all the evidence before me I am not satisfied that NW Alliance engaged in conduct which gave Mr Pickford no reasonable choice but to resign. Nor do I accept that judged objectively that NW Alliance showed an intention not to bound by Mr Pickford’s employment contract. On the evidence before me the end of the employment relationship was not brought about by NW Alliance nor was NW Alliance’s actions the principle contributing factor. To the contrary having been satisfied that Mr Pickford had not abandoned his employment NW Alliance were actively and repeatedly seeking to return Mr Pickford to site to continue his employment with NW Alliance. Mr Pickford, based on the advice of his representatives, sage or otherwise, pursued a course of action which ultimately concluded with him notifying NW Alliance that the employment contract was at an end.
I therefore find that the termination of Mr Pickford’s employment was at his own initiative and not at the initiative of his employer. I also find that he was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.
Mr Pickford therefore was not “dismissed’ for the purposes of section 385 of the FW Act and is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act. In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. The Application is therefore dismissed.
An order dismissing the Application will be issued with this decision.[81]
DEPUTY PRESIDENT
Appearances:
Mr M Heffernan for the Applicant.
Ms A Speak for the Respondent.
Hearing details:
2024
PERTH
21 MAY
Final written submissions:
Applicant’s final written submissions filed 5 June 2024.
NW Alliance final written submissions filed on 12 June 2024.
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[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 41-91 and 471 – 483.
[3] Ibid 623-670.
[4] Ibid 623.
[5] Ibid 772, 555-564.
[6] Ibid 623.
[7] Ibid 772.
[8] Ibid 623-624.
[9] Ibid 41-42.
[10] Ibid 772, 42.
[11] Ibid 772, 42.
[12] Ibid 42.
[13] Ibid 42.
[14] Ibid 42, 772
[15] Ibid 42.
[16] Ibid 772.
[17] Ibid 773.
[18] Ibid 472.
[19] Ibid 773.
[20] Ibid 472.
[21] Ibid 42, 475.
[22] Ibid 43, 475.
[23] Ibid 43, 475.
[24] Ibid 773.
[25] Ibid 773, 475.
[26] Ibid 773,300-301.
[27] Ibid 773.
[28] Ibid 475.
[29] Ibid 472, 476.
[30] Ibid 773, 566-567.
[31] Ibid 568.
[32] Ibid 476.
[33] Ibid 477-478.
[34] Ibid 773, 574.
[35] Ibid 773, 305-306, 481.
[36] Ibid 305-306.
[37] Ibid 773, 574-575.
[38] Ibid 773, 574-575.
[39] Ibid 773, 574-575.
[40] Ibid 773, 574-575.
[41] Ibid 774, 580.
[42] Ibid 774, 579.
[43] Ibid 774, 579.
[44] Ibid 774, 581.
[45] Ibid 774, 581.
[46] Ibid 774, 581.
[47] Ibid 774.
[48] Ibid 626.
[49] Ibid 774, 583-592.
[50] Ibid 774, 482.
[51] Ibid 774.
[52] Ibid 774.
[53] Ibid 774, 597.
[54] Ibid 774.
[55] Ibid 772, 555-564.
[56] Ibid 12.
[57] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[58] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645;
[59] Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 at [24].
[60] O’Meara v Stanley Works Pty Ltd (PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at. [23].
[61] DCB (n 2) 774.
[62] Ibid 469-470. This list was further expanded in Mr Pickford’s Closing Submissions.
[63] Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 t/as Commonwealth Financial Planning[2011] FWAFB 4038 (30 June 2011).
[64] DCB (n 2) 41-42.
[65] Ibid 42.
[66] Ibid 773.
[67] Ibid 42, 475.
[68] Ibid 774, 581.
[69] Ibid 773, 475.
[70] Ibid 773,300-301.
[71] Ibid 773.
[72] Ibid 773,300-301.
[73] Ibid 773,475,472, 476.
[74] 477-478
[75] Other than to identify an Agreement clause in dispute.
[76] Ibid 773, 574-575.
[77] Ibid 774, 579.
[78] Ibid 774, 579,626.
[79] Ibid 774, 482.
[80] Ibid 774.
[81] PR777071.
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