Mr Jason Reed v Australian Computer Society Incorporated
[2024] FWC 1518
•12 JUNE 2024
| [2024] FWC 1518 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Jason Reed
v
Australian Computer Society Incorporated
(C2024/2555)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 12 JUNE 2024 |
Application to deal with contraventions involving dismissal
The Applicant, Mr. Jason Reed, has applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute relating to his alleged dismissal by Australian Computer Society Incorporated (the Respondent). The Applicant claims that his alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act.
The Respondent has objected to the application on the basis that the Applicant was not dismissed.
Section 365 of the FW Act provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
In order for the Commission to be able to deal with the dispute under s.368 of the FW Act it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[2]
Section 386 of the FW Act defines the circumstances in which a person is taken to have been dismissed for the purposes of s.365.[3] Section 368 provides, relevantly, 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.
The Applicant contends that he was notified of his dismissal on 9 April 2024 during a conversation with the Respondent’s representative. In written submissions, the Applicant argued that the Respondent terminated the Applicant’s employment on 27 March 2024 and that the decision to terminate his employment was communicated to the Applicant on 9 and again on 11 April 2024. At the hearing, the Applicant did not appear to press the submission that the Applicant’s employment ended on 27 March and said that the employment ended after the conversation on 9 April. The Applicant argued that the circumstances of his dismissal fell within the first limb of s.386(1), that is, that his employment was terminated on the Respondent’s initiative. There was no reliance on s.386(1)(b) by the Applicant.
The Respondent submitted that there was no termination of the Applicant’s employment by them on 27 March, 9 April or at all. Rather, it was submitted that the evidence showed that the Applicant said that he was unable to commit to ongoing employment with the Respondent on 9 April and the employment relationship came to an end by mutual agreement between the parties on that date.
For the reasons which follow, I have concluded that the Applicant was not dismissed within the meaning of s.386 and that consequently, s.365 is not engaged.
Background and Evidence
The background facts of the matter were largely uncontentious. The Applicant commenced full-time employment with the Respondent on 18 March 2024. On or about 26 March 2024 he suffered from a medical episode which hospitalised him and rendered him unable to communicate with others, including the Respondent. He did not attend for work on 27 or 28 March. The Respondent made efforts to contact the Applicant, but these efforts were unsuccessful. They asked the police to conduct a welfare check on the Applicant but in the absence of full details of the Applicant’s address, the police were unable to complete the check.
The Applicant was released from hospital on 3 April 2024. On 4 April he attended at various medical appointments. On 5 April he received a call from his manager. According to the Applicant, he explained his absence to the manager and asked if he could come into the office to discuss returning to work. He said he was told by the manager that she would be on leave for two weeks and that she would call the Applicant when she returned. The Applicant said he did not receive a further call from the manager.
On 9 April 2024 a critical telephone conversation occurred between the Applicant and the Respondent’s People and Culture Business Partner, Ms. London. The Applicant’s version of events was that he told Ms. London about his medical condition and hospitalisation and offered to provide her with the hospital discharge papers. According to the Applicant, the conversation proceeded as follows:
Ms London: I don’t need to see the discharge papers as I likely wouldn’t understand anything on there. We are not confident in your ability to perform the job since you didn’t let us know you wouldn’t be coming in for work on 27 March 2024.
Applicant: I was not able to call that day due to my circumstances.
Ms. London: I understand that. You are a great fit culturally and we would love to work with you in the future, why don’t you check in again in a month, then 3 months, then 6 months because maybe you would want to come back and do something else with ACS.
Applicant: Absolutely, I will send back my laptop and other assets I have.
In his evidence in chief the Applicant said that on the basis of the conversation with Ms. London on that day he understood that his employment had been terminated by the Respondent. He said his employment had been terminated on 27 March 2024.[4]
Ms. London gave a different version of the conversation. She accepted that the Applicant offered to provide his hospital discharge papers and that she said she did not need to see them. She said she believed the Applicant’s explanation for his absence and his failure to advise the Respondent about his absence from work. Ms. London also accepted that it was she who raised the issue of the Applicant’s commitment to the position with the Applicant. Her version of the conversation that ensued was as follows:
Ms. London: …I wanted to talk to you about your commitment to your new role at ACS as you have not been working and have not communicated with us. I am concerned that you are not able to commit to the position. What are your thoughts?
Applicant: Yes, I agree. I am not able to commit to the role at the moment.
Ms. London: I understand. You are a great candidate and I encourage you to reach out to us to discuss any roles in the future that might suit you when you are able to commit to working.
Applicant: Yes, thanks. I will do that. I appreciate your understanding.
Ms. London denied that she instigated the dismissal of the Applicant. She said that she expressed concern for the Applicant and sought the Applicant’s perspective on his ability and desire to undertake the role. She said she understood from the conversation that the Applicant had elected to end his employment on 9 April because of his health circumstances.
On 10 April Ms. London sent an email to the Applicant’s manager which advised that the Applicant was no longer working for the Respondent and said amongst other things that ‘(the Applicant) is going to take some time to get better’ and “I have asked that if/when he is able to commit to the role that he reaches out…to see if we have a suitable role available.’
On 11 April the Applicant messaged Ms. London seeking details about his employment with the Respondent. The message was not in evidence but a letter in response from Ms. London dated the same date was tendered. The letter included the following:
Jason commenced his employment with ACS on 18 March 2024 in the position of Customer Experience Specialist and concluded his employment with ACS on 27 March 2024.
An exchange of correspondence followed between the Applicant and Ms. London. The Applicant said he did not accept the ‘date of termination’ of 27 March given that termination was only discussed on 9 April. On 17 April Ms. London responded that the date referred to was the date the Applicant did not sign in to work and that the Respondent had ‘concluded that (the Applicant) had abandoned (his) role with ACS. This is why (the Applicant’s) end date is 27 March.’[5]
The Respondent did not contend that the Applicant had abandoned his employment on 27 March at the hearing. They said the Applicant agreed that the employment relationship had ended during the conversation on 9 April. Further, Ms. London said in her evidence that ‘..at no time was it recorded in any official document that the cessation of employment was due to termination or abandonment.’[6] Ms. London also said that on 3 April 2024, following the Applicant’s absence from work, she commenced the ‘offboarding’ process for the Applicant, although there was no further evidence as to what that process involved.
Submissions
The Respondent said that the Applicant’s employment came to an end on 9 April when the Applicant agreed that he could no longer commit to the role. They said the evidence of Ms. London of the conversation of 9 April should be preferred. They said the evidence showed that the Applicant did not initiate contact with the Respondent after his absence and that this was consistent with the Applicant holding the view that he was not able to return to work. The Respondent submitted that the contemporaneous note from Ms. London to her manager on 10 April was consistent with the version of events given by Ms. London that the Applicant was unable to commit to a return to work and that the relationship ended by mutual agreement.
The Applicant submitted that the Respondent had not established a proper basis for its objection. He said that he had requested a meeting to discuss a return to work when he spoke to his manager on 5 April and his evidence on this point was not contradicted. He said that the Respondent initiated the conversation about ending the Applicant’s employment. He said it was not in dispute that the issue of the Applicant’s commitment to the role was raised by Ms. London and urged that this was because the Respondent had already formed a view that the Applicant’s employment should be ended. The Applicant said Ms. London was seeking to press that position on him in circumstances where he was vulnerable because of his mental health situation and had been absent from work for some time. The Applicant argued that the fact that Ms. London had written to him on 12 April saying that his employment had concluded on 27 March 2024 was inconsistent with the existence of an agreement to end the Applicant’s employment on 9 April. The Applicant pointed out that Ms. London was ‘defending’ the date of 27 March as the relevant date in correspondence to the Applicant on 17 April.
The Applicant referred to and relied on the decision in Sharpe v MCG Group Pty Ltd[7] where Deputy President Asbury (as she then was), restated the following proposition emerging from earlier cases in the Industrial Relations Court of Australia:
Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, or the critical action or actions.[8]
Consideration
Termination ‘on the employer’s initiative’ is a termination that is brought about by an employer and which is not agreed to by the employee.[9] In Khayam the Full Bench of the Commission said:
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[10]
I do not consider that any real question arises here as to whether the Applicant abandoned his employment on 27 March 2024. The Respondent did not challenge the fact that the Applicant had a legitimate reason for his absence from work and his failure to notify his employer about that absence. In any case, both parties treated the employment relationship as continuing beyond 27 March as is apparent from the uncontested evidence of the telephone conversations that took place on 5 and 9 April. In my view the Applicant’s employment came to an end on 9 April 2024. The question of whether or not there was a termination of employment on the employer’s initiative on that date turns, in this case, on the view that is taken of the evidence of the conversation that occurred between the Applicant and Ms. London on 9 April.
Both witnesses gave reasonably credible evidence about the conversation on 9 April. I accept that given the Applicant’s circumstances, the conversation of 9 April would have been a difficult one for him. He had a serious health issue and had been receiving medical treatment, including through hospitalisation. He had only started his job recently and had been absent from work for some time. I accept that the Applicant would have felt some pressure and vulnerability in that situation. However, I do not think that the Applicant lacked the capacity to make decisions about his employment arrangements on that date and I do not think that the Applicant expressed his position in the ‘heat of the moment’ in the sense discussed in Bupa Aged Care Australia Pty Ltd v. Tavassoli[11].
On balance, as to the critical aspects of what was said on 9 April, I prefer the evidence of Ms. London. That is, I accept that Ms. London did ask the Applicant whether he thought he was able to continue in his position and the Applicant agreed that he was not able to do so. I am of the view that Ms. London went into the conversation with a genuine desire to obtain the Applicant’s explanation of events and his own thoughts about whether he was able to continue in his employment, rather than attempting to trigger a resignation or to otherwise initiate the termination of the Applicant’s employment.
The Applicant said in his evidence in chief that he told Ms. London that he was ‘ok to return to work’ but in cross-examination accepted that he did not talk about returning to work in the conversation. He said this was because the Respondent had already made a decision and terminated his employment. On the evidence I do not accept the Applicant’s view that the Respondent had already decided that his employment had or would be terminated by the time of the discussion on 9 April.
I note that Ms. London did not disavow the proposition that she was the one who raised the question of the Applicant’s capacity to continue in the role, but I do not think that the evidence of the conversation as a whole shows that the Respondent was looking for a way to end the Applicant’s employment. To the contrary, both parties accepted that Ms. London expressed the view that the Applicant was a good employee and that the Respondent was willing to discuss his possible return when he was well enough to do so. Nor do I think that the conversation could be construed as an employer-initiated termination.
The note from Ms. London to her manager the day after the conversation gives some support to a conclusion that the Applicant acknowledged the difficulty of his health situation during the conversation and that he would need further time before he was able to resume such a role. It also suggests that the Respondent accepted the Applicant’s health situation was genuine and that they had no issues with his performance or other matters that might prompt them to initiate a termination.
The Applicant accepted that he received telephone calls from his manager on 5 April and Ms London on 9 April. He did not contact either of those persons himself to discuss his situation.[12] I accept that during the 5 April call he asked his manager if he could meet with her to discuss a return to work. Aside from that, he did not approach the Respondent about any potential return to work. His evidence was also that he told Ms. London on 9 April that he had been seeing psychiatrists in the last couple of days and that they were going to ‘review him with a view to (him) coming back to work’. I think this evidence makes it more likely than not that the Applicant agreed on the 9 April that he was not then in a position to continue in his role with the Respondent.
It also appears from the evidence that the Applicant did not take issue with the events of 9 April until he received the letter on 12 April 2024 which said his employment concluded on 27 March. His issue was with the ‘date of termination’, not the ending of the relationship itself. Quite rightly the Applicant rejected the idea that he had abandoned his employment on 27 March. The dispute between the parties then escalated when Ms. London, mistakenly, continued to assert that the Applicant’s employment ended on 27 March. However, I do not believe that this mistaken assertion was an attempt to impose a different date because there had been no agreement on 9 April rather than simply an incorrect view of the legal consequence of the Applicant’s absence. Nor does it alter the conclusion I have reached about the conversation that occurred on 9 April, or its effect.
The Applicant’s employment came to an end on 9 April 2024 when it was mutually agreed between the parties that this should occur. There was no termination of employment on the initiative of the employer.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Matthew Lynch, solicitor for the Applicant.
Ms Liesa Zuscak, for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEST on Tuesday, 4 June 2024.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[2] Lipa op cit at paragraph [4].
[3] See s.12 FW Act.
[4] Exhibit A1 paragraph [46].
[5] Exhibit A1 paragraph 19. Note, annexure JR 2 appears to be missing the words relating to abandonment. This appears to be an error. A copy of the message was filed with the application that included the words referred to, the Applicant’s account of the words used was not challenged and subsequent correspondence refers to the issue of abandonment of employment.
[6] Exhibit R2 paragraph 9.
[7] [2010] FWA 2357.
[8] Ibid at [25].
[9] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (‘Khayam’).
[10] Ibid at [50] and n2 [75]. See also Mohazab v Dick Smith Electronics (1995) 62 IR 200.
[11] [2017] FWCFB 3941 at [47].
[12] The Applicant did give unchallenged evidence that he contacted a colleague on 3 April to obtain his manager’s contact details.
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