Mr David Macklan v Cap Security Services Pty Ltd
[2012] FWA 8047
•31 OCTOBER 2012
[2012] FWA 8047 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Macklan
v
CAP Security Services Pty Ltd
(U2012/11051)
COMMISSIONER CAMBRIDGE | SYDNEY, 31 OCTOBER 2012 |
Unfair dismissal - jurisdictional objection - s.386 - employment not terminated on initiative of employer - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by David Macklan (the applicant) and the respondent employer has been identified as CAP Security Services Pty Ltd (CAP or the employer).
[2] The application was lodged at Brisbane on 2 July 2012. The application indicated that the date of the applicant’s dismissal was 27 June 2012. Consequently, the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.
[3] Scheduled conciliation of the claim was cancelled, as the employer declined to participate after raising an objection to the application proceeding, for reasons that the applicant was a casual employee who had not been dismissed. This objection was articulated in the Employer’s Response to Application for Unfair Dismissal Remedy (Form F3) which was filed on 12 July 2012.
[4] The Form F3 was completed by Ms Hayley Morgan who identified herself as HR Administrator. In brief, the Form F3 outlined the circumstances surrounding the employer’s objection. Ms Morgan wrote:
“1. David has not been dismissed. David is a casual employee as is the majority of our employees [sic].
...
Do you have any jurisdictional or other objection(s) to the application?
1. CAP Security Services object to this application proceeding.
2. David Macklan has not been dismissed as claimed. We booked David in for two shifts on Wednesday, 27 June. David worked on Friday, 29 June 2012 which he has been paid for and then on Tuesday, 03 July 2012 pulled out of his shift for Wednesday, 04 July 2012.”
[5] Although a formal Objection to Application for Unfair Dismissal Remedy (Form F4) was not filed, the matter proceeded to arbitration before Fair Work Australia (FWA) in a Jurisdictional Hearing conducted in Brisbane on 14 September 2012.
[6] At the Jurisdictional Hearing, Mr Dale Hall, Ms Hayley Morgan and Mr Kyl Reber appeared for the employer and the applicant appeared in person. Mr Hall advanced the case in support of the objection raised by the employer and both Mr Reber and Ms Morgan were called to give evidence as witnesses. The applicant also gave evidence as a witness in support of his application.
Factual Background
[7] The applicant commenced work with CAP in around March 2011. The applicant worked as a Security Guard at various venues and locations in Brisbane on a casual basis. The majority of employees employed by CAP are casual employees.
[8] On 14 March 2012, whilst working at the Royal Exchange Hotel the applicant was involved in an incident whereby he sustained an injury due to a collision with a taxi. The applicant subsequently made a claim with WorkCover and took a period of absence as he was declared unfit for work. This incident has also been the subject of a further investigation by Q-Comp.
[9] Up until the time of this incident, the applicant worked around 5 shifts per week. This however would fluctuate depending on what shifts were available and also on the availability of the applicant.
[10] On 15 June 2012, the applicant was issued with a Medical Certificate certifying that he had recovered from his injuries. This clearance was further supplemented by a Final Workers’ Compensation Medical Certificate dated 17 June 2012, which stated that the applicant was declared fit to return to normal duties from 18 June 2012.
[11] On 18 June 2012, the applicant contacted the employer and advised that he had been declared medically fit to return to work and that he was now looking for shifts. The applicant was told by the employer that no shifts were available at that time. The employer advised that if shifts became available that week they would endeavour to contact the applicant. On 25 June 2012, the applicant again contacted the employer in search of work with no success.
[12] It is the employer’s normal practice for casual employees to be allocated shifts via a “call-in system”. This involves the employee calling the HR office of CAP (HR), usually on Mondays, at which time they will be allocated shifts depending upon availablity.
[13] As there were no shifts available for the applicant at this time, a meeting was arranged for 27 June 2012, between the applicant and the employer, to discuss the applicant’s re-integration into work. Ms Morgan, Mr Reber and the applicant were present at this meeting. The parties are in dispute about the outcome of the discussions at this meeting surrounding the applicant’s re-integration. Both parties accept however, that during this meeting, the applicant was offered two shifts: one on 29 June 2012 and another on 4 July 2012.
[14] During the meeting of 27 June 2012, the applicant accepted to work both of these shifts. On 29 June 2012, the applicant attended the Suncorp Stadium and worked his first shift as planned.
[15] On 2 July 2012, the applicant filed an unfair dismissal application with FWA. The application stated that the date of the applicant’s dismissal was 27 June 2012.
[16] On 3 July 2012, the applicant called the employer to advise that he could not attend his shift scheduled for the following day, 4 July 2012, as he did not have the means of getting to the venue. The applicant confirmed his non-attendance in an email to HR on 3 July 2012. The email stated:
“to hr caps security since of [sic] lack of hours and loss of full time hours and have not received any pay in 2 weeks no income since the return after my injury’s and fit for my duty’s i can not top up my go card and i need to pay for fares so in that case i can not attend to a shift that you put me on Wednesday.
thank you David macklan. [sic]” 1
[17] The applicant subsequently did not attend work for his scheduled shift on 4 July 2012 and he has not received or worked any shifts for CAP since.
[18] The applicant is claiming that he has been unfairly dismissed and seeks a remedy pursuant to section 394 of the Act. Consequently, the essential issue for determination in this instance is whether the applicant has in fact been dismissed from his employment with CAP. If there is no dismissal within the meaning of the Act, then FWA has no jurisdiction to deal with the unfair dismissal application.
The Employer’s Case
[19] Mr Hall, who presented the case on behalf of the employer, made submissions in support of the objection raised against the application for unfair dismissal remedy proceedings, namely that the applicant had not been dismissed from his employment at CAP. The employer submitted that the applicant was, and still is, a casual employee at CAP. 2
[20] Evidence was given on behalf of the employer by Ms Hayley Morgan and Mr Kyl Reber. The employer made several submissions on the casual status of the applicant’s employment. It was the employer’s submission that as a casual employee, there was no such thing as regular full time hours. In particular, the employer submitted that the applicant was thoroughly aware of the casual nature of his employment, as he had signed the “Casual Security Employment Expectations” in March 2012, acknowledging that: “Due to the nature of the industries that CAP Security Services work in, we cannot offer permanent part time or full time work or guarantee regular hours each week”. 3
[21] The employer submitted that it did not terminate the employment of the applicant at the meeting of 27 June 2012; rather, it submitted, it advised the applicant that it could not provide him with regular hours at that time and informed him that it would take time to re-integrate him into the CAP casual employee system. During cross-examination, Mr Reber gave the following evidence:
“What we explained to you in that meeting was, as you have to understand, you were exited from the company for three months due to a WorkCover issue. In that time the shifts you regularly did had to be replaced. To work you back into the system takes time, and that’s what we explained to you in that meeting.” 4
[22] The employer submitted that it had not received any further communication from the applicant since 3 July 2012.
[23] The submissions made by the employer placed particular emphasis on the fact that the applicant had worked a shift for CAP on 29 June 2012, two days after the date of the alleged dismissal. Consequently, the employer submitted that the applicant had not been unfairly dismissed because his employment had not been terminated by CAP at any time and particularly not on 27 June as was asserted in the application.
The Applicant’s Case
[24] The applicant represented himself at the Jurisdictional Hearing.
[25] The applicant provided an explanation of the circumstances that he believed to be the termination of his employment with CAP. In his application and statement, he supplied extensive documentation in support of those explanations. 5 In particular, the applicant complained about the actions of the employer at the meeting of 27 June 2012, the employer’s lack of communication, and their attitude regarding his workplace injury.
[26] The applicant submitted that he was dismissed at the meeting of 27 June 2012, as he had reached the conclusion that he was not going to be offered regular shifts in terms of the hours he was receiving before his claim with WorkCover and the subsequent period of absence. The applicant submitted that during this meeting, Ms Morgan and Mr Reber advised that he had been replaced, that he would only be receiving one shift a week and that he would never get his hours back. The applicant understood this discussion to represent the termination of his employment.
[27] The applicant submitted that once he received his clearance to return to work, he contacted HR every week to ask for shifts, however he submitted that HR advised him to stop calling and that they would return his call. The applicant submitted that he never received any calls back from CAP; he was only told to stop harassing HR. The applicant placed particular emphasis on his submission that the employer did not attempt, or make contact with the applicant, after 3 July 2012.
[28] Following the incident of 14 March 2012 at the Royal Exchange Hotel, and the subsequent investigations by WorkCover and Q-Comp, the applicant believed that the employer’s attitude towards him changed dramatically. The applicant submitted that he had not been receiving any shifts as a result of his workplace injury and the discrimination that CAP now had towards him.
[29] The applicant also alleged that CAP had been advertising for more casual security guards. The applicant included in his evidence job advertisements for “Casual Venue Guards & Static Security Officers” from the job search website SEEK. The applicant submitted that even though he had been calling CAP constantly, he was not being offered any work, despite the employer recruiting for more employees.
[30] These events and actions of the employer led the applicant to believe he had been unfairly dismissed by CAP, and he sought a remedy from FWA.
Consideration
[31] The applicant has made an application under section 394 of the Act. That section reads, in part:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.”
[32] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[33] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically, whether the applicant was a person who has been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly sub-section 386 (1) of the Act is in the following terms:
“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.”
[34] This case involved a preliminary jurisdictional issue as to whether the applicant can proceed with his unfair dismissal application given that the employer asserted that the applicant had not actually been dismissed. Consequently, FWA must consider and determine that jurisdictional objection before any consideration of the merits of the case could be undertaken. The applicant has not submitted that he resigned from his employment; therefore, jurisdiction can only exist in accordance with subsection 386(1)(a), where the applicant’s employment was terminated at the initiative of the employer.
[35] The definition of “initiative” was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) 6 where it said:
“… 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.” 7
[36] The Full Court in Mohazab went on to state:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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.” 8
[37] In P O’Meara v Stanley Works Pty Ltd 2(O’Meara) 9, a Full Bench of the Australian Industrial Relations Commission said:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to [sic] be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 24 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 10
[38] Whilst the above decision in O’Meara was concerned with a constructive dismissal, the principle expressed therein is applicable in this matter. The issue to be determined here is if there was any action of the employer intended to bring the employment relationship to an end.
[39] The applicant has alleged that the date of his dismissal was 27 June 2012; the date of the meeting with his employer. Consequently the issue to be determined is whether the discussions held with Ms Morgan and Mr Reber during this meeting, in relation to the re-integration of the applicant into their system, and the act of the employer in offering less shifts to the applicant upon his return to work, resulted either directly or consequentially in the termination of employment with CAP.
[40] Mr Reber gave the following evidence when asked by FWA about the applicant’s re-integration into the workplace:
“PN114
Correct me if I’m wrong but you say that what you were informing Mr Macklan was that it would take time to work him back into the system?---That’s correct.
PN115
What do you mean by that?---Well, as I explained to Mr Macklan just before, he was regularly doing shifts at the venues. Obviously he has gone away on his WorkCover issue. We were unsure of when he had returned. I think we got a clearance back the Monday prior and we do our rosters a couple of weeks in advance, obviously to stay ahead. So in Mr Macklan’s absence we had to roster other people into that shift. So the way we obviously work is again, to be fair, when Mr Macklan does return to work, we can’t pull out those people that have been in his spot as, in a three-month absence, they’ve obviously filled the role and been doing a good job. So it again takes time to work him back in.
PN116
So there might be the first week – well, here the first week there were two shifts?
---Yes.
PN117
The following week there might be three?---Exactly right.
PN118
And it might build up depending upon how you move people around?---And that was explained and the first two shifts were at one of our stadiums which again we can work back in and then, you know, it would have been an ongoing process...” 11
[41] When asked about his previous pattern of employment, Mr Macklan gave the following evidence:
“PN255
THE COMMISSIONER: I’m just trying to understand the pattern of the employment. Were there ever any weeks where you got no shifts at all?---No.
PN256
So you always got at least two or three or something?---Yes. Well, regulars anyway.
PN257
The lowest that I could find in this, apart from when you started in weeks 1 and 2 back in March of 2011 where you were obviously just building up, week 1 was 282 gross, week 2 was 307?---Yes.
PN258
Then week 3, $319, week 4 jumps to $1038. So you really start to – it sort of builds up and kicks away?---Yes, it does.
PN259
You got right up and then, for instance, week 31 in the week of the 14th of the 11th and the 20th of the 11th in 2011 it’s back at 363?---I would be at TAFE at that time doing a course and then returning back to my normal duties.
PN260
So you would ordinarily ring up on a Monday and, what, you’d just in that week, because you were at TAFE you might say, “No, I can’t do those shifts”?---I’d give them two weeks’ notice.
PN261
Okay?---Yes.
PN262
You see, I suppose the obvious question that might arise is that as it has started off and built up in that pattern that I’ve just seen with weeks 1 to 4 and then I’ve seen fluctuations from – because I’ve gone through every one of those pay slips. Wouldn’t it have been reasonably for you to anticipate that the same process might occur again when you returned after your injury?---Well, I don’t know, to be honest...” 12
[42] It is apparent that the applicant believed the shifts being put to him in the meeting of 27 June 2012 were significantly less than what he was receiving before his workplace injury in March 2012. However, taking into consideration the applicant’s earlier pattern of employment, prior to March 2012 as documented in his payslips, 13 I am satisfied that he was not entitled to work a set number of days or hours each week, as this was dependent on both his availability to work, as well as on what shifts and venues were available at that time.
[43] The applicant should have been aware of the casual nature of his employment, which was brought to his attention again in early 2012, when the applicant was required to re-sign his employment paperwork at CAP.
[44] Both the employer and the applicant provided consistent evidence, that a casual employee’s pattern of employment at CAP may take time to develop. The evidence has demonstrated the circumstances of why the applicant was not receiving the same amount of hours as he previously carried out, and this appeared to be a temporary situation. I am satisfied, on the evidence, that if the applicant had permitted this initial period to complete, instead of filing an unfair dismissal application, he would have in all likelihood been able to obtain work consistent with his normal work pattern.
[45] It was the usual practice for all causal CAP employees to contact HR each Monday to “lock in” their shifts and indicate their availability. The applicant said that he had been ringing HR every week and was told that when there are available hours they would ring him. Ms Morgan, however, gave the following evidence in relation to the applicant’s communication with the employer:
“The last communication that we had with you, David, was the day that you pulled out of your shift. You were meant to be calling in each Monday to get locked away for further shifts, which is normal procedure.” 14
[46] Conversely, the employer had not contacted the applicant or followed up on his availability after the applicant pulled out of his shift scheduled for 4 July 2012. It was the employer’s evidence, as stated by Mr Reber, that:
“If there’s no shifts available at the time we’ll take their availability, which is again logged on the database, and if shifts become available to them at a later date they’ll be called, and if their availability is still current they’ll be locked away for those shifts.” 15
[47] When FWA asked a question regarding the “call-in” system, Mr Reber responded:
“So the first one that rings in on a Monday gets the shift?---Not necessarily. Not necessarily. I mean, we’re constantly calling staff ourselves, obviously, to get availabilities if we have large events coming up or stuff like that.” 16
[48] Despite the employer’s own evidence that it continually calls staff to obtain availabilities in order to roster their shifts, it is unusual that this did not occur in the case of the applicant, when CAP was aware that he was fit for work. Arguably however, the employer may not have followed this usual practice once they were in receipt of the unfair dismissal application, served on CAP on 9 July 2012, and which included the notice of the imminent Tribunal proceedings.
[49] Although there was no evidence that the employer attempted to contact the applicant once they had received the current application for the purpose of clarifying the circumstances and inform the applicant that he had not been dismissed, I am not satisfied that the employer’s lack of communication in that regard was an action that resulted in the direct or consequential termination of the applicant’s employment, particularly because this communication would have had to occur after the date of the alleged dismissal.
[50] The most important aspect of this case is that the applicant worked a shift for CAP after the date of the alleged dismissal. This scenario poses the obvious question of how one can work a shift for their employer two days after being dismissed. The applicant provided the following evidence when questioned by FWA:
“PN263
But if I understand your evidence you say you were dismissed on the 27th?---Yes.
PN264
You worked on the 29th?---Right.”
[51] The applicant was also rostered to work a further shift on 4 July which he rejected on the basis that he was unable to arrange transport. In these circumstances, even if the applicant believed that the discussions with the employer on 27 June amounted to his dismissal because he would not be provided with a number of shifts that was similar to that previously experienced, he was obliged to test that belief. If, after a period of a few weeks it was to become clear that the employer was reducing his shifts significantly, then he would be able to assert that the employer’s action amounted to dismissal.
[52] I am not satisfied that the discussions between Ms Morgan and Mr Reber about re-integrating the applicant into the workplace at the meeting of 27 June 2012, did or were intended to, bring the applicant’s employment to an end. It is clear that the employer was offering employment with the applicant to continue on a casual basis and was attempting to have him re-integrated into their pool of casual employees.
[53] Having considered all the evidence, in the circumstances, I am not satisfied that the applicant’s employment was terminated at the employer’s initiative.
Conclusion
[54] The determination of this matter has primarily involved a contest about whether or not the applicant was a person dismissed from employment. An analysis of the evidence involving the circumstances of the termination of employment has established that the words and actions of the employer did not cause the employment to come to an end.
[55] Consequently the applicant was not a person dismissed from employment and the jurisdictional objection advanced by the employer must be upheld. The application is dismissed as it is without jurisdictional foundation. An Order [PR530641] confirming the dismissal of the application will be issued.
COMMISSIONER
Appearances:
Mr D Macklan on his own behalf.
Mr D Hall on behalf of the employer.
Hearing details:
2012.
Brisbane:
September, 14.
1 Exhibit 2 - Annexure 5.
2 Transcript of proceedings (14 Sept 2012) @ PN118.
3 Exhibit 2 - Annexure 7.
4 Transcript of proceedings (14 Sept 2012) @ PN95.
5 Exhibit 4.
6 62 IR 200 (1995).
7 Ibid at 205.
8 Ibid at 205-206.
9 PR973462.
10 Ibid at paragraph 23.
11 Transcript of proceedings (14 Sept 2012) @ PN114 - 118.
12 Transcript of proceedings (14 Sept 2012) @ PN255 - 262.
13 Exhibit 4.
14 Transcript of proceedings (14 Sept 2012) @ PN157.
15 Transcript of proceedings (14 Sept 2012) @ PN105.
16 Transcript of proceedings (14 Sept 2012) @ PN106.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR529287>
0
0
0