Mr Justin Murray v Peter Helmi T/A Leading Edge Garden Care

[2013] FWC 2399

[2013] FWC 2399

FAIR WORK COMMISSION

DECISION

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

Mr Justin Murray
v
Peter Helmi T/A Leading Edge Garden Care
(U2012/8949)

COMMISSIONER ROE MELBOURNE, 18 APRIL 2013

Termination of employment.

[1] The matter arises from an application filed on 27 June 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr Justin Murray (the Applicant) for relief in respect to the termination of his employment from Peter Helmi T/A Leading Edge Garden Care (the Respondent). The Respondent is a small business.

[2] Following an unsuccessful conciliation conference the Respondent objected to the matter proceeding on the grounds that they alleged that the Applicant had not been dismissed at the initiative of the employer.

[3] The jurisdictional objection was heard and determined by Commissioner Jones on 21 December 2012. The Applicant failed to attend the hearing.

[4] The Applicant was employed continuously from 10 May 2010 until his dismissal on 14 June 2012.

[5] The Applicant was absent from work on 13 June 2012 and did not contact the employer until late in the day. The Applicant says that this was because he was visiting his seriously ill father and forgot to take his phone with him. The next day the Respondent says that he advised the Applicant that although he was a good worker he was not ready for a management position and that he was converting him to casual employment and in a less senior position. His hourly rate was reduced from $19 per hour to $17 per hour and he was paid an additional 25% casual loading.

[6] Commissioner Jones found based upon the evidence of Mr Helmi for the Respondent that at the meeting on 14 June 2013 Mr Helmi told the Applicant that he was prepared to give Mr Murray casual work for up to four weeks but could not guarantee continued work after that. Mr Helmi's evidence was that in the circumstances where he was aware that Mr Murray preferred full-time work because of his family commitments, he would understand if he looked for work elsewhere. The applicant was paid out his annual leave entitlements.

[7] The Applicant was told not to work on 14 and 15 June and he was not paid for those days. He then worked on the 18th, 19th, 20th and 22nd of June. On 20 June the Applicant advised that he was not able to work on 21 June. On Monday 25 June 2012 he left work at 1.30pm. The Respondent says that the Applicant left saying that he was “sick of this.”

[8] Commissioner Jones found as follows:

“There is no dispute that Mr Murray, the applicant, remained with the respondent subsequent to being converted as a casual, into a casual employee. The question involves whether or not, as urged by the respondent, the demotion did not involve a significant reduction in the applicant's remuneration or duties.

The respondent submits that the applicant was not dismissed, he was demoted, and remained in employment until he resigned. In this respect the respondent relies on section 386 subsection (2)(c) and argues that the applicant's role remained essentially the same; any supervisory duties that the applicant performed were very limited and occurred only when Mr Helmi was away; secondly, the employee was provided twice the minimum notice period; and thirdly, the applicant's pay rate increased and the applicant was thereby compensated for any loss of entitlements consequent on becoming a casual. The respondent also states that he was advised by Fair Work Australia that he was entitled to convert the applicant to a casual, provided he paid the relevant notice.

I now consider the respondent's jurisdictional objection. I am satisfied on the evidence that the applicant did not agree to change the basis upon which he was employed. The decision to convert the employee from a permanent full-time employee to a casual employee was a unilateral decision by the respondent, and I emphasise here I am not dealing with the merits of the reasons for that conversion.

Further, I am not here deciding whether this action amounted to a repudiation of the contract, although I am satisfied that the applicant continued to work as a casual employee until 25 June 2012. It is apparent from section 386 of the Act, subsection (2)(c), that in certain circumstances a demotion of an employee may amount to a termination although the employee continues in employment with the employer.

The question then arises whether the change in the applicant's employment status in June 2012 amounted to demotion. The word "demote" as a verb is defined in Black's Law Dictionary, seventh edition, as follows: "to lower a person in rank, position or pay". Similarly, in the supplement to the Oxford English Dictionary, "demote" as a verb is defined as "to reduce to a lower rank or class".

In my view there is no doubt that the alteration of the applicant's employment status from that of a permanent employee to a casual employee is a reduction to a lower class or rank. The loss of the applicant's permanent employment status has involved a significant reduction in his entitlements, with a corresponding reduction in his remuneration. He has no right to any minimum number of hours of work, nor to any regularity in those hours, which restricts his ability to be available to work the hours that may be offered. He has lost annual leave and sick leave entitlement.

In my view, the change in employment status amounts to a demotion involving a significant loss in remuneration. It is, in my view, a demotion of the type that is a termination of his employment by virtue of the definition contained in section 386 of the Act.” 1

[9] Commissioner Jones also found that there was no provision under the applicable Award which allowed an employer to alter employment status in the manner which occurred and dismissed the jurisdictional objection. Commissioner Jones found that the Applicant was dismissed at the initiative of the employer on 14 June 2012. 2

[10] The Applicant failed to attend the hearing on 12 April 2013.

[11] Immediately following the hearing my associate wrote to the Applicant as follows:

“Dear Mr Murray,

On 26 March 2013 you were sent a notice of listing that the arbitration of your matter will be heard at 10:00 am on Friday 12 April 2013.

The arbitration was heard then and you failed to attend.

We contacted you on both of the telephone numbers that you provided with your application. We left voicemails and received no response.

The Commissioner heard the evidence from the employer and decided to give you 3 days to explain why the application should not be dismissed.

You have until 12 noon on Wednesday 17 April 2013 to provide us with any reasons as to why the application should not now be dismissed.

The Commissioner may make a Decision to dismiss the application after the 17^th of April 2013.”

[12] The Applicant did not respond.

[13] The Respondent does not allege that the small business code and check list was utilised and I am satisfied that it was not.

[14] Mr Helmi refers to three incidents which raised concerns about the Applicant’s conduct but none of these were the subject of a formal warning or appear to me to be grounds for discipline on the basis of conduct or performance. The Respondent raised an additional matter concerning conduct but there is no direct evidence to support this allegation. It is clear that the substantive ground for the termination is the alleged unreliability in respect to attendance and in particular the late notification of the absence on 13 June 2012 and an earlier absence on 22 March 2012 where there was some doubt over the accuracy of the reason given for the absence. 3

[15] I have heard and accepted the evidence presented by the Respondent given the failure of the Applicant to attend the hearing. Based upon the Respondent’s case alone the Applicant has an arguable case. However, I have concluded that it would be unfair and unreasonable to deal with this matter further when the Applicant has shown by his failure to attend the jurisdictional hearing, his failure to attend the arbitration hearing and by his failure to respond to a further opportunity that he is not prosecuting his case.

[16] Pursuant to Section 587 of the Act I dismiss the Application for want of prosecution. An Order will be issued.

COMMISSIONER

Appearances:

The Applicant did not appear.

Mr Peter Helmi appeared for the Respondent.

Hearing details:

2013

Melbourne

April 12

 1   PN169 to PN175.

 2   [PR532720].

 3   Statement of Cynthia Helmi and Statement of Peter Helmi at paragraph 10.

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