Mr Joshua Findley v Diamond Protection Pty Ltd T/A Diamond Protection

[2016] FWC 2211

[2016] FWC 2211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Joshua Findley
v
Diamond Protection Pty Ltd T/A Diamond Protection
(U2015/12391)

COMMISSIONER ROE MELBOURNE, 8 APRIL 2016

Procedure and directions.

[1] The conduct of this matter was the subject of hearing on 6 April 2016.

[2] Diamond Protection are seeking that the matter of whether or not Mr Findley was dismissed be determined separately and in advance of any hearing of the merits of Mr Findley’s unfair dismissal claim.

[3] Mr Findley strenuously opposed the application and when I indicated that I considered that the employer had raised strong arguments in favour of separating the two matters Mr Findley said that he had not been given adequate opportunity to consider his case in opposition to this proposal. I allowed Mr Findley some further time to provide an additional written submission. Mr Findley provided additional written submission on 7 April 2016.

[4] The general practice of the Fair Work Commission (the Commission) is to consider and hear these matters together but then to determine the matters separately as required by the Act. This is to avoid delays in finalising matters and to avoid costs to the Fair Work Commission and the parties particularly given that the factual contests involved in determining whether or not the employee was dismissed usually overlap with at least some of the factual contests involved in determining whether or not the dismissal was fair.

[5] Mr Findley is of course correct that:

● Granting the application will lead to some delay in the finalisation of the matter in the event that the Fair Work Commission finds that he was dismissed. The matter is currently listed for hearing in early May. If the jurisdictional issue is heard at that time then the merits hearing, if required, would not take place until June. In other words there would be a delay of at least a month. I note that Mr Findley does not seek reinstatement and this reduces the potential prejudice caused by the delay.

● In the event that the Fair Work Commission finds that Mr Findley was dismissed, Mr Findley would have to attend the merits hearing and this may necessitate him taking time off work. I accept that this could be a significant inconvenience to a person who has recently found new employment.

● There have already been three decisions in this matter. This process has already caused some delays in finalising the matter and required Mr Findley and the employer to attend hearings.

[6] The three previous decisions in this matter have been as follows:

● Firstly, a decision by Commissioner Ryan to allow Diamond to be represented by a lawyer in the hearing to determine whether or not Mr Findley had the minimum employment period to bring the application. 1

● Secondly, an appeal by Mr Findley against that decision. The Full Bench dismissed the appeal. 2

● Thirdly, a decision by Commissioner Ryan finding that Mr Findley had served the minimum employment period. 3 Commissioner Ryan found that Mr Findley was a casual employee who was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. He found that when “Latrobe University required that the Applicant be removed from the DRS the response from the Applicant (Respondent) was to allocated shifts to the Applicant in the library at Latrobe University.” He considered that this was supportive of a finding that Mr Findley was in fact a permanent employee, not a casual employee.

[7] The main argument of Diamond in support of determining the issue of whether or not there was a dismissal first is that they say the relevant contested facts are distinguishable from those which are relevant to the issue of the merits of the dismissal. They also argue that the volume of the contested facts in respect to the merits of the dismissal is so extensive that it would be oppressive to require Diamond to prepare the merits case. Diamond argue that it would be a much more efficient use of the resources of the Fair Work Commission and the parties to determine what they say is a narrower and distinct issue first.

[8] The following matters do not appear to be in contention:

● Mr Findley was provided with an offer of employment letter when he was first engaged. That letter stated that his terms and conditions were covered by the Diamond Protection Security Collective Agreement 2009 and that in addition to those terms and conditions his individual conditions were “Job Title DRS Night Manager (Security).” The Classification level was also specified and it was also stated that the individual terms and conditions may only be changed by agreement.

● On 16 October 2015 Mr Lovemore for Diamond wrote to Mr Findley advising him that as a result of an investigation of an incident which occurred on 4 October 2015 a specific direction was issued by University Management that Mr Findley could no longer be employed in the DRS (Accommodation Services). Mr Lovemore advised that Diamond has decided not to dismiss him from employment with the company or at the University and that he would be able to perform alternative security work in other areas of the site.

● A revised letter of appointment was also provided. It specified that employment continued to be casual but the job title was now Security Officer.

● On Monday 19 October 2015 Mr Lovemore emailed Mr Findley stating that his roster for this week in the library was on Saturday and Sunday and noted that his rates of pay are the same as per DRS.

● On the same day Mr Findley provided a resignation letter. The resignation letter alleged constructive dismissal due to the new duties being unsuitable, a demotion, a lower pay rate and fewer hours per week. The letter suggested that he had been effectively dismissed on 14 October 2015 when he was told that he would not be able to work in DRS.

[9] Mr Findley has sought orders for the production of a significant volume of documents from Latrobe University, Victoria Police and Diamond. I have granted some of these requests. Mr Findley argues that in order to resolve the merits case it will be necessary to consider:

● His contention that his conduct on 4 October 2015 was consistent with general practice which had been condoned by Diamond and the University. To make out this contention Mr Findley will seek to provide evidence of what has happened in respect to a number of earlier incidents.

● His contention that various policy documents are either general guidance rather than strict policy or that they support his contention that his actions on 4 October 2015 were acceptable.

● His contention that he has been the subject of bullying and that this is the reason for the adverse findings in respect to the 4 October 2015 incident. To make out this contention Mr Findley wishes to provide significant evidence in respect to behaviour towards him and to contrast this with behaviour towards others. He also wishes to cross examine those who he contends are involved in the bullying and inequitable treatment.

● His contention that it was Diamond not Latrobe University that decided that he should not work in DRS following the investigation of the 4 October 2015 incident.

● His contention that the threat to report matters arising from 4 October 2015 to the police was used to extract his resignation.

[10] Mr Findley argues that many of these issues are also relevant to the issue of whether or not he was dismissed.

[11] Mr Findley argues that his contract of employment was for a Night Manager at DRS and that the unilateral decision of the employer to end that contract constitutes a dismissal. I consider that this argument has very limited prospects of success. The main focus of the Fair Work Commission in these matters in not on what is written in the common law contract of employment. The Commission looks at the substance of the employment relationship. If it is established that Diamond’s client decided that Mr Findley was not to work any longer at DRS then Diamond had two choices: either dismiss Mr Findley or offer him alternative employment. If the offer of alternative employment was reasonable and equivalent it is very difficult to see how Mr Findley could succeed in achieving an unfair dismissal remedy. Mr Findley was offered further work. If that work was reasonably equivalent then it would be very difficult to see how there could be a finding that he was forced to resign due to the conduct of the employer.

[12] Of course it will be a matter for the member of the Fair Work Commission who hears the case to determine what evidence is relevant. The issue is whether or not Mr Findley “was forced to (resign) because of the conduct, or a course of conduct, engaged in by” Diamond. I consider it likely that the focus of a hearing will be on the nature of the employment relationship and whether or not the work offered in security was reasonably equivalent or not. I doubt that the following factual disputes will be relevant to the issue of whether or not Mr Findley was forced to resign because of the conduct of the employer:

● Alleged bullying prior to 4 October 2015.
● The incident of 4 October 2015 and the details of the investigation of that incident and whether or not the findings in respect to that incident were valid or reasonable.
● The issue of whether or not that incident would be reported to the police.

[13] For these reasons I have decided that the factual disputes which are likely to be considered in determining whether or not Mr Findley was dismissed will be quite narrow and they will have only limited overlap with the much broader and more numerous factual disputes which are likely to be considered in determining whether or not Mr Findley was unfairly dismissed if in fact he was dismissed.

[14] I have balanced this against the inconvenience caused to Mr Findley and the possible delay in finalising any merits case. I am satisfied that the objects of a fair go all round and efficient use of resources in the public interest is best served by hearing the issue of whether or not Mr Findley was dismissed separately from any merits hearing.

[15] Directions will be issued as follows:

● Mr Findley’s materials in response to Diamond’s submissions on the issue of whether or not there was a dismissal are to be received by 19 April 2016.
● The hearing of the issue of whether or not there was a dismissal will be held on 2 May 2016 at 10am in Melbourne. The other days will be vacated.
● The date for Diamond to produce its materials in response on the merits of the unfair dismissal application is deferred until 10 June 2016. If the decision in the jurisdictional matter is not issued by then Diamond can apply for a variation in directions.
● The merits arbitration hearing if required will be listed for the week of 20 June 2016.

[16] Some Orders to produce documents have been issued as determined at the hearing on 6 April 2016. I also indicated that I was prepared to issue orders for Mr King and Mr Caminiti to attend the merits hearing. Given that the hearings have now been separated Mr Findley will need to make a fresh application for an order to be issued for these persons to attend following the outcome of the hearing on 2 May 2016. I do not consider it appropriate to issue a summons for those persons for the jurisdictional hearing.

COMMISSIONER

 1   [2015] FWC 8645.

 2   [2016] FWCFB 1066.

 3   [2016] FWC 551.

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