Mr Frank Monea v Young Guns Container Crew Pty Ltd
[2022] FWC 1016
•3 MAY 2022
| [2022] FWC 1016 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Frank Monea
v
Young Guns Container Crew Pty Ltd
(U2022/726)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 3 MAY 2022 |
Application for an unfair dismissal remedy – no dismissal – application dismissed
On 13 January 2022, Mr Frank Monea made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy (Application), alleging that he had been unfairly dismissed from his employment with Young Guns Container Crew Pty Ltd (Respondent).
The Respondent objected to the Application on the basis that Mr Monea was not dismissed within the meaning of section 386(1) of the Act (Jurisdictional Objection).
The Respondent submits that Mr Monea resigned from his employment with it on 29 December 2021. In his Form F2 Mr Monea concedes that he resigned from his employment but say he was forced to do so and was therefore dismissed within the meaning of section 386(1)(b).[1]
Hearing
The Jurisdictional Objection was listed for hearing before me on 21 April 2022.
Directions were issued on 28 March 2022 for the filing of material by the parties in relation to the Jurisdictional Objection. In accordance with the Directions, the Respondent filed its material on 5 April 2022. I note that in addition to the material directed to be filed the Respondent also filed an Outline of Argument in relation to the merits of the Application. I have not had regard to that material.
Mr Monea’s material in response to the Jurisdictional Objection was directed to be filed by 5 pm on 19 April 2022. At 4.39 pm on 19 April 2022 Mr Monea sent an email to my chambers, having telephoned earlier in the day, requesting that the hearing listed on 21 April 2022 be adjourned. That email was addressed to my associate and provided as follows:
“Lucinda
As discussed earlier today, I would like to request an extension or an adjournment of my impending case. In the process of gathering contents for my submissions I have come across some concerns regarding:
1.Jurisdiction of the FWC.
2.Legal authority of the FWC (as it relates to my case)
I am currently in the process of tabling a submission to the Fair Work Ombudsman, as to gain some clarity and rulings over these aforementioned items.
I understand that the FWC is on a schedule, however the answers that I seek from the Ombudsman are pivotal to my case.”
At 9.03 am on 20 April 2022 my Associate responded to Mr Monea as follows:
“Dear Mr Monea
I refer to the matter above and the request below to reschedule the hearing before Deputy President Young at 10.00am Thursday, 21 April 2022.
The hearing will remain listed for 10.00am Thursday, 21 April 2022. The hearing is to determine whether you were dismissed, as that term is defined in section 386 of the Fair Work Act 2009. As such, it is unclear to the Deputy President how information from the Fair Work Ombudsman is relevant to the matters to be determined at hearing.
Accordingly, your material is required to be filed by no later than 12.00pm today, 20 April 2022. If no material is filed by you, the hearing will proceed on the basis of the material currently before the Deputy President .
Alternatively, if you wish to discontinue your application please return the attached Form F50 to chambers.
Please copy in both parties in any future correspondence with the Fair Work Commission.”
Mr Monea did not file any material by 12.00 pm on 20 April 2022, nor at any subsequent time. At 5.14 pm on 20 April 2022 Mr Monea responded to the above as follows:
“Good afternoon Lucinda,
It’s is unfortunate that I was not granted an adjournment for the case U2022/726. I categorically retain and reserve all my rights moving forward to have this case heard at a later date.
I will not be coerced nor intimidated by a Non-Organisation administering the affairs of the FWC. I will not let the arbitrary schedule and a lack of understanding of my situation from the FWC prevent me from gaining the best and most equitable outcome for my case.
As I have previously mentioned (in a previous email and phone conversation 19/04/2022)in preparing my case (against Young Guns Container Crew Pty, Ltd) I have encountered some concerns regarding the FWC. Those concerns are to do with the jurisdiction and the validity of the FWC. I am only a single man who does not have the resources nor time required to expediently prepare a case. If the Deputy President cannot understand this then it is not any of my concern. Rather, it is his concern and if I may advise, he should be concerned.
My concerns relating to the FWC can be obtained from the Fair Work Commission OMBUDSMAN as is appropriate after filing.
As a gentleman, I will advise you of my intent. I will proceed with my submission to the Fair Work OMBUDSMAN. This should be completed within the next seven days. Dependent upon the outcome I will then present a brief of evidence to the DPP and Attorney General. If there is no favourable and just outcome I will then proceed with a private prosecution before a magistrate.
May I remind the Fair Work Commission, as it relates to its own Act of Chapter 1 (division 2) section 3 (a), (b), (c), (d), (e), (f) and (d).
May I also remind the FAIR WORK COMMISSION that under no circumstances can anyone be contracted with that has not agreed nor consented. You may proceed with tomorrow’s hearing, however I do not consent to it and I will not attend. I cannot possibly in all good conscience present my case as I have been denied a fair opportunity to build one that will result in the best possible outcome for myself by the FAIR WORK COMMISSION Deputy President.”
At 5.40 pm my Associate responded to Mr Monea as follows:
“Dear Mr Monea
I refer to the matter above.
The Deputy President acknowledges your email below.
The hearing remains listed by audio only via Microsoft Teams at 10.00am tomorrow, Thursday, 21 April 2022. The hearing is to determine the Respondent’s jurisdictional objection to your application that you were not dismissed, as defined in section 386 of the Fair Work Act 2009.
If you fail to attend the hearing the jurisdictional objection will be determined on the basis of the material the Deputy President has before her at that time.”
Consistent with his email of 5.14 pm on 20 April 2022, Mr Monea did not attend the hearing on 21 April 2022. At 10.00 am my Associate attempted to contact Mr Monea by telephone on the mobile number provided in his Form F2. A voice message was left informing Mr Monea that the hearing was to commence, leaving a contact telephone number and asking him to call back. My Associate again called Mr Monea at 10.05 am and 10.09 am. Neither call was answered. At 10.12 am my Associate called Mr Monea for the final time, leaving a contact telephone number and informed him that unless he contacted her the hearing would commence in his absence. Having not heard from Mr Monea, the hearing commenced at 10.20 am.
Ms Petney, People and Capability (Human Resources) Manager appeared on behalf of the Respondent and also gave evidence.
In light of the above, Mr Monea having provided no proper basis to support his request for an adjournment of the hearing and his failure to attend the hearing, I have determined the matter on the basis of the material currently before me.
No dismissal
I have concluded that Mr Monea resigned from his employment with the Respondent and was not forced to do so by any conduct of the Respondent. I therefore find that Mr Monea was not dismissed within the meaning of section 386(1) of the Act. These are my reason for that conclusion.
Employment
The Respondent is a business in the warehousing industry, specialising in the packing and unpacking of shipping containers. Mr Monea was employed by the Respondent in Melbourne in the position of “Captain”, which, at hearing, the Respondent said is a team leader role. Mr Monea resigned from his employment with the Respondent effective 29 December 2021.[2]
Legislative Context
Part 3-2 of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 394(1) of the Act provides that “A person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy.” Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed”.
Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:
“Section 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.”
Background and factual findings
On 6 October 2021 the Respondent sent an SMS to its employees informing them that as a consequence of public health directions made under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) all workers of the employer in Victoria must have received a first dose of a COVID-19 vaccination by 15 October 2021.[3]
On 11.59 pm 7 October 2021 the COVID-19 Mandatory Vaccination (Workers) Directions came into force (Direction).[4] The Direction required that if a worker is scheduled to work outside their ordinary place of residence after the “relevant date” the employer of the worker is required to collect, record and hold vaccination information for the worker.[5] Further, the Direction required that on or after the relevant date an employer must not permit an unvaccinated worker to work outside the worker’s ordinary place of residence. If vaccination information is not held by the employer for the worker, the employer must treat the worker as unvaccinated.[6] The Respondent submits,[7] and I find, that Mr Monea is a “port or freight worker” as that term is defined in clause 9(21) of the Direction and the Direction therefore applied to his work for the Respondent. Further, I do not understand from the material before me that Mr Monea contests that the Direction applied to him (although it is clear he does not consider the requirement imposed by the Direction to be lawful). Schedule 1 of the Direction provides that the “relevant date” for port or freight workers is 15 October 2021.[8] The Direction lapsed at 11.59 pm on 21 October 2021 but was replaced by a number of subsequent public health directions made under the PHW Act which, in so far as Mr Monea’s employment with the Respondent is concerned, were to the same effect.
Mr Monea sought a medical exemption from receiving a COVID-19 vaccination but was unsuccessful. He advised the Respondent of this on 15 October 2021.[9] It appears uncontested, and I find, that Mr Monea’s role of Captain required him to work outside of his residence. Accordingly, he could not perform his role if he failed to disclose his vaccination status or was unvaccinated.
With the agreement of the Respondent Mr Monea took annual leave from 15 October 2021 until 25 November 2021. This was confirmed in writing to Mr Monea by letter dated 1 November 2021.[10] That letter, relevantly, provided that Mr Monea’s role of Captain would be temporarily filled while he was on leave and that a meeting would be held with him near the expiry of his leave “to discuss your options and decision moving forward.”[11] On 5 November 2021 Mr Monea responded, acknowledging the letter and stating that his vaccination status was “a private and confidential health matter”.[12]
On 25 November 2021 Mr Monea met with Ms Kym Nelson, General Manager People and Capability for the Respondent, [13] following which Ms Nelson sent an email to Mr Monea.[14] That email, relevantly, confirmed that Mr Monea was waiting for further government announcements regarding “mandates”, which were expected around 15 December 2021 and contained the following:
“…
We are more than happy to keep your job open as our intention is that you
are able to return to Young Guns. As also confirmed in our discussion, you are happy to use up all your annual leave and then leave without pay until you get clarity of the new mandate.…”
Mr Monea remained on annual leave until 6 December 2021 when he had exhausted his entitlements, following which he took unpaid leave.[15]
On 23 December 2021[16] a telephone conversation occurred between Mr Monea and Ms Petney. Ms Petney sent an email to Mr Monea regarding this conversation.[17] That email confirms that the requirements regarding vaccination for onsite work were still in place but provides that “it is still Young Guns intention to keep your role open for when you are able to return to work.” Further, the email contains the following:
“…
As discussed, you mentioned you wanted to get back in touch with me next week or the week after to discuss the situation further, which I will be available to do when you are ready. I will also continue to look elsewhere in the business to see if there is any other work we can get you to complete from home in the meantime.
Please continue to reach out and communicate with myself or another leader at Young Guns so we can work towards a resolution together.”
In his Form F2 at question 3.2 Mr Monea says he resigned in the telephone call which occurred on 23 December 2021. However, elsewhere in his Form F2 Mr Monea says that he was notified of his dismissal on 29 December 2021[18] and that his dismissal took effect on 29 December 2021.[19] The Respondent says Mr Monea resigned verbally and in writing on 29 December 2021.[20] In so far as the resignation was in writing, it was by way of letter (Resignation Letter), which commences as follows:
“To whom it may concern,
I FRANK MONEA wish to, on this day the 29th of December 2021, reservedly and
involuntarily announce my resignation from Young Guns.”[21]
Accordingly, in light of the above, I find that Mr Monea resigned from his employment with the Respondent on 29 December 2021.
The Resignation Letter includes the following:
“…
The unconstitutional (and subsequently unlawful) actions of Young Guns in forcibly and cohesively [sic] directing me to reveal my immunisation status and to conscript to a medical procedure/intervention to fulfil my contracted duties lies at the heart of my decision.Young Guns having made this claim against me left me in a position of not having the
contractually agreed mechanism by wish I could generate an income. Although my position has been left vacant, I am left with no other viable choice but to resign (as no Certificate of Separation was granted) to deal with an impending financial hardship.”
In his Form F2 Mr Monea says that “the resignation (forced dismissal) was unconstitutional and subsequently unlawful.”[22] He says further that the “Australian Immunization Act” [sic] affords him privacy in relation to the disclosure of his vaccination status and the Constitution provides him freedom from being forced to undergo a medical procedure.[23] Mr Monea also raised a number of matters going to the nature of a “mandate” and the terms of his contract of employment with the Respondent.[24]
By email dated 29 December 2021 the Respondent confirmed that it waived Mr Monea’s notice period and was agreeable to his employment ending effective that day.[25]
Consideration
It is uncontested that Mr Monea resigned. Further, I consider no other conclusion could be reached in light of the terms of the Resignation Letter. At issue is whether he was forced to resign by conduct, or a course of conduct, of the employer.
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shanin Tavassoli[26] the Full Bench summarised the position as to when a resignation will be a dismissal for the purposes of section 386(1)(b) as follows:
“A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[27]
In the present circumstances I do not consider that the Respondent engaged in any conduct with the intent of bringing the employment relationship to an end or which would have that probable result. Firstly, as already set out, the Respondent was required by law to comply with the Direction. It had no choice as to this. In such circumstances I do not consider that it can be said that the Respondent engaged in any relevant conduct at all. However, even if that be wrong, I do not consider that the Respondent’s conduct in seeking Mr Monea’s vaccination status and or excluding him from the workplace because of his failure to disclose that status, to have been undertaken with the intention of bringing the employment to an end or that termination of the employment was the probably result of the Respondent’s conduct. Indeed, I consider the Respondent’s conduct evinces an entirely contrary intention. Firstly, as already set out, the Respondent was complying with its legal obligations. Secondly, the Respondent approved the use by Mr Monea of all of his annual leave entitlements and then provided him with unpaid leave while he waited to ascertain if there was any change to the requirements regarding vaccination and disclosure by employees of their vaccination status. Thirdly, it was made clear to Mr Monea on 15 October 2021 that the Respondent would fill his role on a temporary basis only. Fourthly, on 25 November 2021, and again on 23 December 2021, the Respondent expressly informed Mr Monea that it would keep his job open as it was their intention that he return to work when he was able. Accordingly, rather than action intending to bring the relationship to an end, I consider the actions taken by the Respondent were intended to, and did, support the continuance of the employment relationship.
Further, I consider it clear that Mr Monea did have a choice as to whether he resigned. Mr Monea could have chosen to disclose his vaccination status or to be vaccinated. He was entitled to choose not to do so, and indeed, exercised that choice. Accordingly, it cannot be said that he did not have such a choice. Mr Monea could have continued to take leave without pay. He choose not to do so. That he would likely suffer financial hardship as a consequence of that choice does not lead to the conclusion that he did not have such a choice. Mr Monea could have sort approval from the Respondent to obtain alternative employment not subject to the Direction (and subsequent directions). He did not. Rather, Mr Monea chose to resign.
Finally, I reject the submission that the Respondent in any way “forcibly and cohesively” [sic] directed Mr Monea to reveal his immunisation status and to “conscript to a medical procedure/intervention to fulfil my contracted duties.” The Respondent was required to comply with the Direction. Failure to do so exposed it to significant financial penalty. That Mr Monea disagrees with the Direction or challenges its lawfulness does not alter that the Respondent was required to treat the Direction as lawful and comply with it. The Respondent in no way forced, coerced or conscripted Mr Monea. He was at all times free to choose not to disclose his vaccination status and indeed, he exercised that choice. The consequence of that choice though, was that he could not do his job.
Conclusion
In light of the above matters, I do not consider that Mr Monea was forced to resign by any conduct, or course of conduct, of the employer. Rather, I consider that Mr Monea voluntarily resigned from his employment with the Respondent.
Accordingly, I find that Mr Monea was not dismissed with the meaning of section 386(1) of the Act. Specifically, I find that Mr Monea was not dismissed as that term is defined in section 386(1)(b). Mr Monea is therefore not a person who has been dismissed for the purposes of section 394(1) of the Act.
Disposition
Mr Monea’s application under section 394 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
L Pentney for the Respondent.
Hearing details:
2022
Melbourne
21 April 2022
[1] Form F2, q.3.1
[2] Form F2, q.1,3, q.1.4
[3] Form F2, q.3.2 at [1], Attachment 1; Email from the Respondent to chambers, dated 21 April 2022 at 11.47 am
[4] Direction, clause 3
[5] Direction, clause 4
[6] Direction clause 5
[7] Email from the Respondent to chambers, dated 21 April 2022 at 11.47 am
[8] Direction, Schedule 1 at 21
[9] Form F3, Attachment C
[10] Email from the Respondent to the Applicant, dated 1 November 2021
[11] Form F3, Attachment D
[12] Ibid, Attachment E
[13] Form F2, q.3.2 at [3], Form F3, q 3.2 at [3]
[14] Form F3, Attachment F
[15] Form F2, q.3.2 at [2]
[16] Ibid, q.3.2 at [3]; Form F3, q.3.2 at [3]
[17] Form F3, Attachment G
[18] Form F2, q.1.3
[19] Form F2, q.1.4
[20] Form F3, q.3.2. at [4]
[21] Ibid, Attachment H
[22] Form F2, q.3.2 at [4]
[23] Ibid
[24] Ibid at [5-6]
[25] Form F3, Attachment I
[26] [2017] FWCFB 3941
[27] Ibid at [47]
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