Mr Damon Dodds v Metro Utility Traffic Services

[2012] FWA 4094

[2012] FWA 4094

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Mr Damon Dodds
v
Metro Utility Traffic Services
(C2012/2729)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 AUGUST 2012

Was the termination at the initiative of the employer?

Introduction

[1] Mr Damon Dodds has made an application pursuant to s.365 of the Fair Work Act 2009 (“the Act”). Mr Dodds alleges that his employment was terminated by Metro Utility Traffic Services (Metro).

[2] Metro argues that Mr Dodds resigned his employment by abandoning his employment.

[3] The jurisdictional prerequisite for an application for Fair Work Australia to deal with the matter, is that the person has been dismissed. In the event that a person has not been dismissed, then jurisdiction does not exist to issue a certificate pursuant to s.369.

[4] Given that this jurisdictional point has been raised it is appropriate to determine whether or not there had been a termination at the initiative of the employer. Otherwise, the application does not meet the jurisdictional requirements of the Act. Section 365(a) requires that a person must be dismissed for Fair Work Australia to deal with the dispute.

Background and Evidence

[5] Mr Dodds was employed on 25 May 2011 as a traffic controller. He argues that he was dismissed on 15 December 2011.

[6] It was the evidence of Mr Doods that:

● He had complained about his rate of pay and superannuation contribution to his employer;

● His complaint was conveyed to a union representative;

● He was contacted by telephone by two managers who advised that his complaint had caused the company to lose the contract for traffic management services and this was, in his view, conveyed in an aggressive manner. He admits that he too was aggressive at this stage and in response to a meeting request, stated that he wanted a solicitor to attend such a meeting;

● Following the first phone call there was a subsequent one made by Beklan Altuntas about 20 minutes later where it is said that Mr Altuntas stated that there was no way that the company could take him back and that he was fired. 1

[7] Mr Dodds called another person who he said witnessed a phone call the following morning. The person was Mr A. Hanna. Mr Hanna is the housemate of Mr Dodds. It was Mr Hanna’s evidence that Mr Dodds rang Mr Altuntas and asked “so am I fired” to which Mr Altuntas answered “yes”. Mr Hanna said that the conversation was on loud speaker and that he was asked to specifically witness the conversation.

[8] Metro called Mr Altuntas to give evidence. His evidence was:

● That he and Mr Berkovic did ring Mr Dodds to find out what the situation was but did not accuse him of losing the contract;

● He did not say that Mr Dodds was fired but simply wanted to convey to him that a Director of the Company wanted to organise a meeting;

● The phone call the next morning was to seek to arrange that meeting (with the solicitor if necessary) and that they couldn’t give him any work until the matter had been discussed. Mr Altuntas specifically rejected the allegation that he said that Mr Dodds had been dismissed. Mr Altuntas advised that he did not have the authority to dismiss.

[9] Under cross-examination by Mr Dodds, Mr Altuntas again rejected the proposition that he had said that Mr Dodds had been fired.

Conclusion

[10] It was the submission of Metro that it did not dismiss Mr Dodds. In support of this contention it relied upon the direct evidence of Mr Altuntas and its sympathetic treatment of Mr Dodds when he lost his driving licence. In this connection, the company submitted that notwithstanding the need to have a drivers licence for the role he performed, the company worked around the problem to assist him.

[11] Towards the conclusion of the proceedings the following exchange took place:

THE DEPUTY PRESIDENT: Let me ask you this question and see whether I'm right, but you won’t like the way I’m putting it. But nonetheless, I’ll ask you. Your submission rests on this proposition, doesn’t it: that the director of the company, who had just lost a contract worth $500,000, was more concerned about the complaint that a level 2 casual employee had about their wages, management structure and superannuation and wanted to deal with that, rather than rid themselves of this person who had just caused a stoppage and the loss of a $500,000 contract? Do you see the point that I'm making?

...

You see, I’ve got directly conflicting evidence, and on the one hand I’m asked to accept that this company was not antagonistic towards Mr Dodds. He’d been to the union, they’d had a stoppage, they’d lost the contract and I’m asked to accept the evidence that what they were more interested in doing was discovering why he was concerned about his wage, why he was concerned about the way management ran the company and why he was concerned about his superannuation. On the other hand, Mr Dodds’ proposition is all of this was going around, and he doesn’t say he was a saint in the discussion, and that he was dismissed. 2

[12] Metro submitted that it was not a welfare concern but that it needed to discover all issues and deal with them.

[13] These matters are resolved on the balance of probabilities. Given the evidence of Mr Dodds and Mr Hanna together with the factual circumstances surrounding the telephone calls I find that it is more probable than not that Mr Dodds was terminated. A certificate will issue.

DEPUTY PRESIDENT

Appearances:

D. Dodds the applicant.

N. Spicer, Solicitor on behalf of Metro Utility Traffic Services.

Hearing details:

2012.
Melbourne:
April, 11;
May, 8.

 1   Transcript PN70

 2   Transcript PN254—255

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