Mr Jesse Fuller v City of Kwinana T/A Kwinana Recquatic
[2013] FWC 6460
•5 SEPTEMBER 2013
[2013] FWC 6460 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jesse Fuller
v
City of Kwinana T/A Kwinana Recquatic
(U2013/7435)
COMMISSIONER CLOGHAN | PERTH, 5 SEPTEMBER 2013 |
Application for relief from unfair dismissal.
[1] This is an application by Mr Jesse Fuller seeking a remedy for alleged unfair dismissal from the City of Kwinana T/A Kwinana Recquatic.
[2] Mr Fuller is employed as a part-time Gym Instructor and contends that when he undertook and role and responsibilities of Gym Supervisor at Kwnana Recquatic, on 26 November 2012, it was full-time and permanent. The City of Kwinana asserts that Mr Fuller undertook the role of Gym Supervisor on a higher duties basis which ceased on 4 March 2013. After the period of higher duties concluded, Mr Fuller reverted to his part-time Gym Instructor role. Mr Fuller claims that when the higher duties ceased, his employment as Gym Supervisor was terminated.
PROCEDURAL BACKGROUND
[3] On 12 March 2013, Mr Jesse Fuller (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from the City of Kwinana T/A Kwinana Recquatic (Employer).
[4] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[5] The application was unable to be resolved at conciliation and was referred to me for arbitration on 18 April 2013.
[6] The application was the subject of a conference on 2 May 2013. The dispute between the parties remained unresolved.
[7] On 3 May 2013, I issued procedural directions for an arbitral hearing on 24 July 2013.
[8] At the hearing on 24 July 2013, Mr Fuller represented himself and gave evidence on his own behalf.
[9] The Employer was represented by Mr S Roffey, Employee Relations Service Manager, WALGA Workplace Solutions and evidence given on behalf of the Employer by:
● Mr Roger Knight, Manager Recreational Services
● Mr Darren Armstrong, Operations Coordinator
● Ms Sue Wiltshire, Manager Human Resources.
[10] After receiving submissions and evidence, I dismissed Mr Fuller’s application and advised the parties that I would provide my reasons at a later date. These are my reasons for decision.
RELEVANT BACKGROUND
[11] On 26 March 2012, Mr Fuller commenced employment as a part-time gym instructor.
[12] On 25 November 2012, Mr Frederick Meyer, the Employer’s former Manager Recquatic, emailed Mr Knight with the subject heading “Fitness area reorganisation”. The relevant parts of the email are as follows:
“On Monday, with immediate effect, I promote Jesse Fuller and Latara Ogle respectively gym and group fitness supervisor. The employee who was on sick leave will have her “supervision responsibilities’ shared.”
[13] The email further states:
“Latara and Jesse have already let us know that they would be available to extend their hours. In the meantime, I intend to nominate them for higher duties”
and finally, under the heading of “Review”:
- if successful [area reorganisation] recommend to make both Latara and Jesse positions permanent while closing...; or
- if mixed results, extend the trial up to the end of the financial year...; or
- if disastrous...we will have to go back to the market...” 1 (my emphasis).
“At the end of February, I will assess our progress...and either:
[14] On 26 November 2012, at a meeting attended by Mr Frederic Meyer, Mr Darren Armstrong, Mr Fuller and Ms Latara Ogle, the Applicant and Ms Ogle were jointly offered the role of Gym and Group Fitness Supervisors on a higher duties basis in the absence of the substantive employee on sick leave. The higher duties appointment required Mr Fuller and Ms Ogle to work full time hours.
[15] On 26 November 2012, Mr Meyer sent an email to Mr Fuller, the relevant parts are as follows:
“As discussed this morning, this memo is to confirm...we have decided to employ you on higher duties effective today until further notice.
You will be employed 38 hours per week at scale 3.1 to cover the following duties...” 2.
[16] On 18 December 2012, Mr Knight approved the continuation of Mr Fuller and Ms Ogle’s higher duties, notwithstanding the return of the substantive employee from sick leave 3.
[17] On or about 20 February 2013, Mr Fuller was informed by Mr Armstrong that his higher duties would cease at the end of the three months (26 February 2013) and that he would revert to his normal part-time hours and classification of Gym Instructor.
[18] On 20 February 2013, Mr Fuller met with Ms Wiltshire. Mr Fuller asserted that following a discussion with Mr Meyer, in which Mr Armstrong was present, the Applicant was offered and accepted the ongoing employment of full-time Gym Supervisor.
[19] Mr Fuller submitted, at the hearing, “that he believed he had a verbal and written contract for the ongoing position of gym supervisor with the Respondent” 4.
[20] On 22 February 2013, Ms Wiltshire advised Mr Fuller by email that she had discussed the issue with Mr Armstrong. Mr Armstrong referred to Mr Meyer’s email in paragraphs [12] and [13] to confirm that Mr Fuller was informed that his period as Gym Supervisor was higher duties and not a permanent arrangement.
[21] On 26 February 2013, Ms Wiltshire and Mr Knight met with Mr Fuller and explained to him that he had been appointed on a higher duties arrangement because the position of Gym Supervisor was not vacant. A Record of Meeting of 26 February 2013 was placed on Mr Fuller’s personnel file.
[22] On the same day (26 February 2013), Mr Fuller was advised by letter that his higher duties would cease on the same day. For rostering reasons, Mr Fuller’s higher duties was extended to 4 March 2013.
[23] On 12 March 2013, Mr Fuller made application to the Commission alleging that he had been unfairly dismissed from his employment with the Employer.
APPLICANT’S CASE
[24] Mr Fuller states that he:
“was employed by the Respondent on 26th March 2012 in the part-time position as Gym Instructor (Scale 2.1) and held this position until 26/11/2012. On 26/11/2012 Mr Fuller was employed in a full-time capacity (Scale 3.1) Gym Supervisor, until being dismissed from that position and returned to his previous position being part-time (scale 2.1) on 4th of March 2013.” 5
[25] Mr Fuller states that he had “several meetings alone with Mr Frederic Meyer, Recquatic Manager...during the week leading to the signing of the Higher Duties Document for a period TBA Form on the 26th November 2012” 6.
[26] During one of the meetings, Mr Fuller advised Mr Meyer that he had a part-time employment with the City of Canning as a Gym Instructor, and was also not familiar with some aspects of the Gym Supervisor’s position. Mr Meyer informed Mr Fuller that the position of Gym Supervisor was full-time and that he would have to resign from his part-time position with the City of Canning and further training would be provided for the Gym Supervisor’s position.
[27] Mr Fuller informed Mr Meyer that he would resign from his part-time position with the City of Canning and take up Mr Meyer’s offer to work full-time in the position of Gym Supervisor.
[28] Mr Fuller agrees that he signed the higher duties form from 26 November 2012 to a date to be determined and that the reason for the higher duties related to a person being on sick leave.
[29] Mr Fuller submits that he “would not have taken the position, if it was for a three month period, as he already had equivalent to full-time work with his position at the City of Canning” 7. The Applicant has financial commitments necessitating full-time employment8.
[30] The Employer’s Higher Duties policies states that higher duties should not be for a period over five (5) weeks without additional paperwork 9. Mr Fuller submits that he was on higher duties for over three (3) months without additional paperwork.
[31] Finally, the term of three months higher duties referred to at the end of Mr Fuller’s engagement was only utilised because the Employer had been unsuccessful in terminating the incumbent employee on sick leave.
EMPLOYER’S CASE
[32] The Employer submits that the position of Gym Supervisor was never vacant and remains occupied by the incumbent employee who was on sick leave at the time Mr Fuller was given higher duties.
[33] Further, the Employer submits that Mr Fuller was employed and continues to be employed by the City of Kwinana.
[34] Mr Fuller was engaged as a Gym Instructor and was offered higher duties as a Gym Supervisor on 26 November 2012. Once that higher duties arrangement concluded, the Applicant reverted to the role he was employed to undertake.
[35] Higher duties is a common practice in local government and does not constitute an offer and acceptance of permanent appointment to a position classified at a higher level.
[36] The Employer submits that Mr Fuller has not been dismissed, demoted or resigned from his employment. The Applicant is employed by the Employer and consequently, the application should be dismissed on the basis that:
● it fails to meet the meaning of dismissal set out in paragraph 386(1)(a) of the FW Act;
● it is frivolous in accordance with paragraph 587(1)(b) of the FW Act; and
● it has no reasonable prospect of success in accordance with paragraph 587(1)(c) of the FW Act.
RELEVANT LEGISLATIVE FRAMEWORK
[37] The relevant statutory provisions in the FW Act are as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) ...
(c) ...
(d) ....”
“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.
(2) However, a person has not been dismissed if:
...”
CONSIDERATION
[38] Mr Fuller’s offer of employment dated 21 March 2012 states that “the following specific conditions of employment are brought to your attention, and apply to your contract of employment with the Town of Kwinana” 10. What follows are seven headings, the first being “Industrial Instrument” which refers to the Town of Kwinana Collective Agreement 2008 (Kwinana Collective Agreement). The Kwinana Collective Agreement, according to the offer of employment, forms “the basis” of the Applicant’s conditions of employment.
[39] Clause 9 of the Kwinana Collective Agreement refers to “Relieving and Higher Duties” and provides for an employee to be engaged “temporarily in duties of a classification higher than their own”. Subclause 9.2 specifically refers to “Recquatic Workers” of which Mr Fuller is one.
[40] It was not an unusual situation when the Employer made an offer to Mr Fuller to carry out the duties and role of a higher graded position, in this instance, Gym Supervisor. Such arrangements are quite common in government at all levels; the City of Kwinana is not an exceptional employer in this regard.
[41] The key to the arrangement is that the employee is engaged “temporarily” and it is neither a substantive appointment nor promotion.
[42] The form signed by Mr Fuller on 26 November 2012 is entitled “Higher Duties Notification”. It is not remotely similar to the letter of offer of appointment made to Mr Fuller on 21 March 2012.
[43] The Higher Duties Notification form states that the higher duties commence on 26 November 2012. The cessation date of the higher duties is non specific and refers to the acronym “TBA” or “to be advised”. In cases where the substantive employee’s absence is non-determinative, it is not unusual for the “end date” of the higher duties to be left open, or alternatively, to have a series of fixed periods such as one month. In this case, the Employer opted for the former - a date to be advised.
[44] The circumstances of Mr Fuller’s higher duties arrangement are that he was employed for 24 hours per week as a part-time Gym Instructor and the higher classification position was a full-time role. This situation is also not remarkable and occurs frequently. In these circumstances, the employee is required to make a decision whether to forego whatever arrangements they have beyond their part-time hours for the opportunity and experience of performing in the position at the higher classification. That is a choice which is made by the individual employee.
[45] However, an employee who accepts such an opportunity to perform in the higher role, is only temporarily in the position and not appointed to the higher classified position.
[46] I now turn to the reasons why Mr Fuller contends, despite what I have said above, that he was appointed to the position of Gym Supervisor.
[47] Mr Fuller relies upon a discussion with Mr Meyer.
[48] Put shortly, Mr Fuller claims that Mr Meyer informed him that the substantive employee in the Gym Supervisor’s position would be terminated and “I [Mr Fuller] was to take up the gym supervisor’s position” 11.
[49] If Mr Fuller’s evidence reflects the discussion he had with Mr Meyer, then it is immediately apparent that the “offer of employment as Gym Supervisor is conditional” - the condition being that the substantive occupant of the Gym Supervisor’s position being dismissed; this did not occur. The incumbent of the position remains employed with the Employer. Consequently, in the event that Mr Fuller is correct regarding his discussion with Mr Meyer (assuming Mr Meyer had the authority to make such a decision), the condition precedent was not fulfilled to enable the Applicant to be appointed to the position of Gym Supervisor.
[50] In view of the importance of the Applicant’s discussion with Mr Meyer, it is important to consider how persuasive this evidence is, when compared to Mr Meyer’s contemporaneous communication with other Employer representatives at the time Mr Fuller commenced higher duties.
[51] Mr Meyer’s email of 25 November 2012 expresses a lack of confidence in the substantive Gym Supervisor and the fact that following a “work appraisal” on 22 November 2012 she advised him of her sick leave for a period of three (3) weeks from 23 November 2012. Mr Meyer then proceeds to respond to the sick leave absence by informing Mr Knight that “...with immediate effect, I promote Jesse Fuller and Latara Ogle respectively gym and fitness supervisor” 12. While the word “promote” is most probably an unfortunate term, I consider Mr Meyer used the term to mean “elevate”, or “advance” and not, as suggested by Mr Fuller, to appoint him permanently to the position of gym supervisor.
[52] The same email of 25 November 2012 from Mr Meyer to Mr Knight refers to his intention to “nominate them [Mr Fuller and Ms Ogle] for higher duties” 13. Further and importantly, Mr Meyer goes on to advise Mr Knight that “due to HR not advertising positions before next year, my options are limited. I intend to give a trial of 3 months to this force re-organisation”14. At the end of the three months, Mr Meyer considers he will have three options. The first option is to make the positions occupied by Mr Fuller and Ms Ogle permanent. Secondly, to extend the trial. Finally, to go to the market for a Fitness Supervisor.
[53] I am not satisfied that Mr Meyer’s email of 25 November 2012 to Mr Knight, when read in its entirety, can be considered the promotion and appointment of Mr Fuller as the Gym Supervisor.
[54] Mr Meyer did not give evidence in the hearing. However, Mr Fuller sought to admit into evidence a handwritten note provided to him by Mr Meyer. While the note was not admitted into evidence, the Applicant relied upon it on several occasions in his evidence. In my view, the file note does nothing more than set out that for Mr Fuller to take up the higher duties as a full-time Gym Supervisor on 26 November 2012, he would have to resign from his part-time position at the City of Canning. Secondly, Employer representatives had considered “making the role (Gym Supervisor) permanent once the incumbent Health and Fitness Manager has been terminated”. I am unable to agree that, even if Mr Meyer had the authority to appoint Mr Fuller as the permanent Gym Supervisor, this document, after the event, purports to do so.
[55] Mr Meyer’s email memo to Mr Fuller on 26 November 2012 conveys the decision to place the Applicant “on higher duties effective today until future notice”. 15
[56] Mr Meyer also sent an email on 26 November 2012 to all Gym staff members, including Mr Fuller, which states, “due to staff being on sick leave...Jesse Fuller will be acting gym supervisor...these arrangements will last until further notice...” 16.
[57] Finally, email communication between various employer representatives on 26 February 2013 have the subject heading, “End date for Higher Duties” and confirm that it was 26 February 2013. Mr Meyer was a recipient of the emails 17.
[58] Following a meeting between Mr Fuller and Ms Wiltshire on 26 February 2013, I have a contemporaneous email from Ms Wiltshire to Mr Fuller advising him that from Mr Knight’s perspective that the arrangement “was not permanent” 18. This position was again reflected in an email from Ms Powell, Director Community Services and Development, to Ms Wiltshire which states:
“I have spoken to Frederick [Mr Meyer] and he confirms that he has not offered the supervisors positions to either Jesse or Latara. He [Mr Meyer] advised them as outlined below (email referred to in paragraphs [12] to [13]) and that the situation would be reviewed in 3 months.” 19
[59] All documentary evidence presented in the hearing points conclusively to an arrangement of higher duties only.
[60] I now compare, for the benefit of the Applicant, the differences between the practices adopted in his initial appointment, and that relating to his alleged appointment as Gym Supervisor.
[61] Mr Fuller agreed that prior to being appointed as a part-time Gym Instructor, he went through a “fairly lengthy application and recruitment process” 20, and subsequently received and accepted a letter of offer of employment.
[62] Mr Fuller also agreed that he did not go through an application process and interview before agreeing to undertake higher duties 21. Notwithstanding these dissimilarities, when asked in cross examination whether this indicated that the arrangement entered into was only higher duties, he responded “no, Mr Meyer stated it would be a permanent arrangement”.22
[63] Mr Fuller agreed that he received emails which indicated vacancies with the Employer 23. Further, he confirmed that he never received an email advising that the Gym Supervisor position was vacant before undertaking the higher duties arrangements.
[64] Finally, when faced with the logic of the Employer’s policies, recruitment practices and Mr Meyer’s email, Mr Fuller agreed that it would “logically follow that in order to offer any position it would need to be in the context of [a] recruitment process that...needs to occur” 24.
CONCLUSION
[65] Having considered the submissions and detailed evidence, I am satisfied the arrangements entered into by the Employer were consistent with providing Mr Fuller with the opportunity to undertake higher duties in a position of a higher classification. The ability to enter into such an arrangement clearly falls within the provisions of Clause 9 - Relieving and Higher Duties of the Kwinana Collective Agreement.
[66] The circumstances leading to Mr Fuller undertaking the higher duties were obviously problematic. However, I am satisfied from the evidence that Mr Meyer was in no position to offer Mr Fuller permanent employment as the full-time Gym Supervisor. Having examined Mr Meyer’s emails, he clearly understood that he could not offer Mr Fuller the position without it first becoming vacant, reorganising the gym structure, and then going through the normal advertising selection and recruitment processes.
[67] Having had the opportunity of observing Mr Fuller give evidence, I am also satisfied that following his discussion with Mr Meyer he had some expectations. However, those expectations were unrealisable and distinguishable from proper human resources appointment processes. Unfortunately for Mr Fuller, his subjective beliefs as to what he had been promised or expected, do not assist him in determining, at law, whether he had been appointed to the position of Gym Supervisor.
[68] On the evidence, I have come to the conclusion that Mr Fuller was engaged, on a temporary basis to a higher classification, and that arrangement ceased on 4 March 2013. Having not been appointed to the position of Gym Supervisor, Mr Fuller could not be dismissed from the position of Gym Supervisor. Having been unable to demonstrate that he has been dismissed by the Employer, Mr Fuller is unable to satisfy the Commission of the necessary condition to enliven its jurisdiction as to whether he has been unfairly dismissed. Mr Fuller was and remains employed by the Employer as a part-time Gym Instructor pursuant to his contract of employment dated 21 March 2012.
[69] For the above reasons, Mr Fuller’s application was dismissed on transcript at the hearing on 24 July 2013 for want of jurisdiction.
COMMISSIONER
Appearances:
J Fuller the Applicant on his own behalf.
S Roffey on behalf of the Respondent.
Hearing details:
2013:
Perth,
24 July.
1 Exhibit R4(2)
2 Exhibit R4(4)
3 Exhibit R4(7)
4 Exhibit R3
5 Exhibit A2
6 Exhibit A2
7 Exhibit A2
8 Exhibit A2
9 Exhibit A2
10 Exhibit R4(1)
11 Transcript PN200
12 Exhibit R4(2)
13 Exhibit R4(2)
14 Exhibit R4(2)
15 Exhibit R4(4)
16 Exhibit R4(20)
17 Exhibit R4(14)
18 Exhibit R4(10)
19 Exhibit R3(16)
20 Transcript PN133
21 Transcript PN135
22 Transcript PN136
23 Transcript PN137
24 Transcript PN165
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