Mr Ken Koetsveld v McColl's Transport Pty Ltd
[2022] FWC 1681
•30 JUNE 2022
| [2022] FWC 1681 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ken Koetsveld
v
McColl’s Transport Pty Ltd
(U2022/2202)
| Deputy President Millhouse | MELBOURNE, 30 JUNE 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the applicant was dismissed pursuant to section 386
Mr Ken Koetsveld alleges that he has been unfairly dismissed from his employment with McColl’s Transport Pty Ltd (respondent). On 20 February 2022, Mr Koetsveld applied to the Commission for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
The respondent submits that Mr Koetsveld has not been dismissed within the meaning of s 386(1) of the Act. Accordingly, the matter proceeded to a jurisdictional hearing before me.
For the reasons that follow, I find that Mr Koetsveld has not been dismissed within the meaning of s 386(1) of the Act. Consequently, Mr Koetsveld cannot have been unfairly dismissed for the purposes of s 385. It follows that I uphold the jurisdictional objection and Mr Koetsveld’s application for an unfair dismissal remedy is dismissed.
Background
Mr Koetsveld is a 68-year-old truck driver. He commenced employment with Peter Stoitse Transport Pty Ltd (PST) on 17 August 2015 on a seasonal contract before transitioning to ongoing casual employment. Mr Koetsveld worked the day shift for a period of approximately four years. He worked the night shift in PST’s milk division from 2019.[1]
In September 2021, the respondent commenced the process of purchasing the milk division of PST.[2] At this time, Mr Koetsveld completed a functional capacity re-evaluation at PST’s request. A medical report was completed dated 29 September 2021 (Medical Report).[3]
On 6 December 2021, the respondent sent an email to Mr Koetsveld acknowledging his expression of interest to transfer his employment to it from PST.[4]
On 13 December 2021, Mr Koetsveld was provided with a document from the respondent titled “Conditional offer of employment with McColl’s Transport Pty Ltd.”[5] The offer was for the position of Driver in the Eastern Victoria Milk Division. The offer of employment specified amongst other things, the following:
“This offer of employment is conditional upon the following:
·The successful completion of the transfer of business between Peter Stoitse and McColl’s.
·The satisfactory outcome of all Pre-employment requirements as specified by McColl’s. Whether an outcome is satisfactory will be determined by McColl’s.
Your commencement date will be tentatively 1 February 2022.
…We hope you accept this conditional offer and subject to the conditions being met, I look forward to working with you.”
Mr Koetsveld, through his wife, replied to the 13 December 2021 offer letter by email the same day but did not attach a signed copy of the offer. Ms Ranieri replied to this email, advising that it would be assumed that Mr Koetsveld had accepted the offer.[6]
On 15 December 2021, the respondent provided Mr Koetsveld with a “pre-employment pack” by email.[7] This pack contained the respondent’s pre-employment medical assessment requirements and information about the clinics that were available to undertake the pre-employment assessment. The letter, sent by the respondent’s CEO, stated as follows:
“Your McColl’s Pre-Employment Pack, includes:
·Personal Details Form
·Medical Assessment
·Approved Medical Clinics
·Police Check
·Tax File Declaration
·Superannuation Choice Form
·Uniform Order Form
McColl’s will require copies of the following documents:
·Copy of your Licence (HC/MC)
·Driver History Report
·Copy of digital Covid Certificate
All pre-employment information must be returned to [email protected] no later than 20 December 2021…
If you have any questions, please contact McColl’s People & Culture team, Claudia Ranieri (HR Business Partner).”[8]
On 16 December 2021, Mr Koetsveld granted PST permission to provide the Medical Report to the respondent.[9]
On 22 December 2021, Mr Koetsveld received an email from the Chief Executive Officer of PST, Mr Mike Munday. The email advised that milk division employees transferring to the respondent had received conditional offers of employment, and the respondent would be sending unconditional offers later that week.[10]
The following day, Mr Koetsveld received a further email from PST which attached a letter dated 23 December 2021.[11] The letter stated, amongst other things:
“We understand you have indicated to McColl’s that you would accept an offer of employment from McColl’s. Accordingly, subject to completing the necessary requirements to become a McColl’s employee, your employment will transfer to McColl’s from the next working day following 31 January 2022.
For the avoidance of doubt, your employment will cease with PST on 31 January 2022 and you will commence with McColl’s on 1 February 2022. Upon becoming a McColl’s employee, McColl’s will recognise your service and your accrued entitlements…”
Also on 23 December 2021, the respondent’s Human Resources Business Partner, Ms Claudia Ranieri sent Mr Koetsveld an email attaching a conditional offer of employment, effective from 1 February 2022 (conditional offer of employment). A signed copy was requested by 30 December 2021.[12] The conditional offer of employment provided, amongst other things, the following:
“This is a binding employment contract between Kenneth Koetsveld (Road Transport Driver) and McColl’s Operations Pty Ltd (Employer), effective from 1 February 2022…
…This employment offer is subject to the satisfactory completion of all pre-employment information requested by McColl’s and the offer may be revoked if pre-employment information is not completed or discloses any issue that conflicts with or is otherwise non-compliant with the inherent requirements of the role.”[13]
(emphasis in original)
Ms Ranieri was assisted in the task of managing the transfer of approximately 144 employees from PST to the respondent by Human Resources Graduate Ms Tahlia Douglas.[14] On 5 January 2022, Ms Douglas emailed Mr Koetsveld confirming receipt of some of Mr Koetsveld’s pre-employment documents, including the Medical Report.[15]
On 6 January 2021, the respondent received an email from Mr Koetsveld’s wife attaching Mr Koetsveld’s Victorian Roads Driver History Report.[16]
On 7 January 2021, the respondent advised Mr Koetsveld’s then employer PST that it had received all of Mr Koetsveld’s pre-employment paperwork and Mr Koetsveld was required to complete induction training via a link sent by email to Mr Koetsveld that week.[17] Also on this day, Ms Ranieri sent an email to Mr Koetsveld thanking him for provision of pre-employment documentation and advising that he can expect a call from McColl’s to welcome him to the team.[18]
On 10 January 2022, the respondent received the conditional offer of employment signed by Mr Koetsveld.[19]
On or about 12 January 2022, Mr Koetsveld completed the online induction process for the respondent.[20]
On 24 January 2022, Ms Ranieri sent an email to Mr Koetsveld advising of a weight capacity for seats, steps and handles in the respondent’s vehicles.[21] On 27 January 2022, Mr Koetsveld received an email from PST advising of a transition in pay arrangements following the transfer of employees to the respondent.[22]
Mr Koetsveld’s personnel file, including the Medical Report were assessed on 28 January 2022 by Ms Ranieri. The Medical Report disclosed that Mr Koetsveld suffered from chronic lower back pain and had restricted mobility.[23] Ms Ranieri formed the view that Mr Koetsveld may not be physically capable of performing the inherent requirements of the role of Farm Milk Collection Driver, noting the role involved alighting the truck, and tasks such as bending and twisting to connect hoses to the vehicle.[24]
On 28 January 2022, Ms Ranieri advised the respondent’s senior management team of her concerns regarding Mr Koetsveld’s physical restrictions. Ms Ranieri said Mr Koetsveld should not be rostered pending an independent medical and functional assessment.[25]
On 1 February 2022, Mr Koetsveld performed work during night shift (6:00pm to 6:00am) for the respondent.[26] Mr Koetsveld observed that several drivers were wearing the respondent’s uniform. Mr Koetsveld performed his duties wearing his PST uniform and was issued with a uniform for respondent upon the conclusion of his shift.[27] Mr Koetsveld was paid for this shift by the respondent on 8 February 2022.[28]
On 2 February 2022, Mr Koetsveld presented for night shift wearing the respondent’s uniform but was advised by the shift supervisor that there was no work for him. Mr Koetsveld returned to his residence.[29]
On 3 February 2022, Mr Koetsveld’s position is that he received a phone call from the Chief Executive Officer of PST, Mr Mike Munday. Mr Munday was not called to give evidence in the proceeding. Mr Koetsveld’s evidence in respect of the phone call is as follows:
“It was a fairly quick call – no small talk really. He was straight into: “Sorry Ken, there’s no easy way to tell you this. McColl’s don’t want you. You don’t suit their criteria”. I should have asked him what that meant but I didn’t. It hadn’t completely sunk in with me at that point. I just felt shocked.
Mike referred to the Stoitse medical assessment I’d done in September 2021, and I got the impression that he had it in front of him and was flicking through it. He mentioned that ‘chronic back pain’ was listed in the report in a few places…
I got the strong impression Mike was acting as a messenger for McColl’s. I don’t think he would have made the call off his own bat. Mike had known me as a tanker driver since he started in the role of CEO at Stoitse about 2 years before the sale to McColl’s. He knew I carried out my job capably.
I recall saying something like: “So this is it? No more work?”. He said to me – “Talk to Duane. Ring Duane.” That’s how it was left.
My feeling after the call ended was that this was the end of it. You get a phone call like that and you know it’s from management and you know its fair dinkum. They don’t make those phone calls for fun. So, I just accepted that that was it. I’ve got the sack.”[30]
Later on 3 February 2022, Mr Koetsveld telephoned the respondent’s Operations Manager – Gippsland, Mr Duane Shirreff. Mr Koetsveld’s evidence as to the phone call with Mr Shirreff is as follows:
“I believe I said pretty much straight away to Duane: “I feel like no one’s batting for me here”. I recall him responding with something like: “Yes I am. I’m also batting for several others” Four or five others he may have said. He went on to say that “You need to go see a doctor, get another medical done so that I’ve got some ammunition to work with”. I don’t believe we said anything else.”[31]
Mr Shirreff said that during the call, he advised Mr Koetsveld that the respondent had concerns about his physical fitness for the role. Mr Shirreff’s evidence is that he told Mr Koetsveld that (1) he could not be rostered to work until those issues were resolved and (2) the best way forward was for Mr Koetsveld to complete the medical assessment in the pre-employment pack he was provided in December 2021.[32] Mr Sheriff denies telling Mr Koetsveld that the respondent was terminating his employment or that he would never receive shifts from the respondent in the future.[33] However, Mr Koetsveld says that it was not explained to him that there was a medical information pack available to him or that he would need to see a doctor nominated by the respondent.[34]
Approximately two weeks later, Mr Koetsveld telephoned Mr Shirreff to advise that he had consulted with two general practitioners who would not complete the pre-employment medical without company paperwork.[35] Mr Shirreff’s evidence is that he enquired of Mr Koetsveld what he was planning to do and how he would return to work and offered his help.[36] However, Mr Koetsveld’s evidence is that Mr Shirreff did not say much in response, there was no offer to help him and no explanation about providing the respondent’s employment medical pack to his treating practitioner.[37]
On 11 March 2022, the respondent became aware that Mr Koetsveld had lodged an application for an unfair dismissal remedy in the Commission.[38]
On 16 March 2022, Mr Koetsveld received a staff wide email from “McColl’s HR Department” with the subject line “McColl’s Footy Tipping – AFL 2022.[39]
On 24 March 2022, Mr Koetsveld received a further email from “McColl’s HR Department” titled “Farm Pick Up - Employee Bulletin.”[40]
On 7 April 2022, Ms Ranieri sent an email to Mr Koetsveld requesting that he attend a medical review with an independent medical examiner on 14 April 2022 at the respondent’s cost.[41] Mr Koetsveld declined the invitation on 12 April 2022 subject to obtaining legal advice.[42]
Statutory framework
The circumstances in which a person has been unfairly dismissed is set out in s 385 of
the Act 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) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act, which provides as follows:
“(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:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;
(b) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the
demotion.”
Section 386(1) of the Act operates subject to the exceptions set out in s 386(2), none of which are presently applicable.
Contentions
Mr Koetsveld contends that his employment was terminated during his telephone conversation with the Chief Executive Officer of PST, Mr Munday on 3 February 2022. Mr Koetsveld’s position is that Mr Munday was acting on behalf of the respondent during the conversation. Further or in the alternative, Mr Koetsveld submitted by way of his written submissions that his employment was terminated during his telephone conversation with the respondent’s Operations Manager – Gippsland, Mr Shirreff on 3 February 2022 although as discussed at [45] of this decision, Mr Koetsveld resiled from this position at the hearing.
In support of Mr Koetsveld’s contention that he was dismissed on 3 February 2022, it is submitted that:[43]
(a)Mr Koetsveld was given no further shifts.
(b)Mr Koetsveld was not paid a second bonus, which was payable to employees of PST who maintained their employment until 8 February 2022.
(c)There was no effort by the respondent to arrange a medical assessment for Mr Koetsveld between 3 February and 7 April 2022.
(d)With the exception of an automated payslip email and staff wide emails, the respondent made no contact with Mr Koetsveld until after these proceedings had commenced.
(e)Steven Stoitse from PST had spoken to the respondent regarding Mr Koetsveld’s reinstatement.
In the alternative, Mr Koetsveld contends that there was a repudiation of the employment relationship. It is said this arises by reason of:
(a)a refusal by the respondent to provide Mr Koetsveld with further shifts in circumstances where he was employed by the respondent pursuant to a single continuous casual contract; or
(b)the repudiation of a series of casual contracts covered by the extended roster.
A further alternative advanced by Mr Koetsveld is that he was constructively dismissed. It is contended that by preventing Mr Koetsveld from working his rostered shifts and requiring him to undergo medical testing without taking steps to organise such testing, Mr Koetsveld had no choice but to resign.
The respondent’s position is that Mr Koetsveld has not been dismissed. It says that for Mr Koetsveld to have been dismissed, there must be action by the respondent that either intends to bring the relationship to an end or has that probable result. The respondent contends that an analysis of the respondent’s communications with Mr Koetsveld disclose that the respondent had no intention to bring the employment relationship with Mr Koetsveld to an end. It submits that Mr Koetsveld’s application for an unfair dismissal remedy should therefore be dismissed.
Consideration
In order for an employee to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed.[44]
The term “dismissed” is defined in s 12 of the Act by reference to s 386. As noted at [33], it includes a person’s employment with his or her employer being “terminated on the employer’s initiative” (s 386(1)(a)) or resignation “because of conduct, or a course of conduct, engaged in by his or her employer” (s 386(1)(b)).
It is not in dispute in the proceedings before me that the respondent is the “employer” for the purposes of s 386(1) of the Act.
I turn now to consider Mr Koetsveld’s contentions.
Express dismissal
As identified at [35] of this decision, in his written submissions Mr Koetsveld contends that he was “expressly terminated”[45] on 3 February 2022:
(a) during a telephone conversation with the Chief Executive Officer of PST, Mr Munday; and/or
(b) during a telephone conversation with the respondent’s Operations Manager – Gippsland, Mr Shirreff.
Mr Koetsveld resiled from the contention that he was dismissed by Mr Shirreff during the hearing and proceeded on the basis that his employment with the respondent was terminated by Mr Munday.[46]
For the purposes of s 386(1)(a) of the Act, the termination of employment on the employer’s initiative may occur by clear words or conduct by an employer directed to an employee that the employee’s employment is to end or has ended. A termination of employment will also be on the employer’s initiative if an act of an employer was the principal contributing factor which led to the termination of employment and that act resulted directly or consequentially in the termination of the employment.[47]
A Full Bench of the Commission in NSW Trains v James[48] recently determined that the expression “employment with his or her employer has been terminated” in s 386(1)(a) of the Act means termination of the employment relationship and/or termination of the contract of employment.[49] Section 386(1)(a) therefore encompasses both the situation where a particular contract has been terminated but the employment relationship persists in altered form, and the situation where the contract and the employment relationship has ended. To the extent that Mr Koetsveld’s submissions contend that the unfair dismissal jurisdiction is concerned with the termination of the employment relationship (and not necessarily termination of the contract),[50] this is no longer an accurate reflection of the law.
For the reasons that follow, I reject the contention that Mr Koetsveld’s employment with the respondent has been terminated on the respondent’s initiative. Specifically, I do not find that Mr Koetsveld was dismissed by the respondent during the telephone call with Mr Munday on 3 February 2022 as contended.
It is not in dispute that Mr Koetsveld received a telephone call from Mr Munday on or about 3 February 2022. As earlier stated, Mr Munday is the Chief Executive Officer of PST and is not employed by the respondent.[51] During the proceedings, Mr Koetsveld accepted that Mr Munday could not make statements on behalf of the respondent when Mr Munday did not work for them.[52] Mr Koetsveld’s position is that he was “shocked” that the respondent “thought it was okay for my former boss at Stoitse to explain why I no longer had a job. My employment had already changed over to McColl’s and he wasn’t my boss anymore.”[53] However, Mr Koetsveld believed that Mr Munday “had the authority to make that call.”[54]
There is no evidence supporting Mr Koetsveld’s belief that Mr Munday was acting as an agent of the respondent at the time of the discussion. In the absence of probative evidence of this fact, I do not accept that Mr Munday held the actual or ostensible authority to dismiss Mr Koetsveld from his employment with the respondent.
In any event, Mr Munday was not called to give evidence. Despite this, Mr Koetsveld urges the Commission to make a finding about the statements made by Mr Munday during the telephone call on 3 February 2022, Mr Munday’s intention for making the call, and upon whose behalf he was calling. However, the evidence before the Commission regarding these matters is untested. In the circumstances, I can only attach limited weight to Mr Koetsveld’s summary of this discussion.[55]
Even if I were to assess Mr Koetsveld’s evidence of his discussion with Mr Munday at its highest, I would not be satisfied that the language used by Mr Munday had the probable effect or result of bringing Mr Koetsveld’s employment with the respondent to an end. Notwithstanding the alleged statement, “McColl’s don’t want you,” the telephone call concludes with Mr Koetsveld enquiring “So this is it? No more work?” to which Mr Munday allegedly responds, “Talk to Duane. Ring Duane” (being a reference to Mr Shirreff). I regard this as demonstrative of Mr Munday appropriately deferring questions regarding Mr Koetsveld’s employment to a representative of the respondent.
Mr Koetsveld invites the Commission to draw an inference that Mr Koetsveld was dismissed by Mr Munday on account of the content of [12] of Ms Ranieri’s witness statement. This provides that PST employees “that were unsuccessful and had no potential to transfer to the Respondent were directed to the Peter Stoitse Chief Executive Officer - Mike Munday or their People and Culture Manager - Sue Kemp.”[56] Mr Koetsveld relies upon this statement to support his position that he believed that Mr Munday had the authority to terminate his employment with the respondent.[57] The obvious difficulty with this argument is that Ms Ranieri’s witness statement was prepared for the purposes of these proceedings and post-dated Mr Koetsveld’s 3 February 2022 telephone call with Mr Munday by approximately three months. There is no evidence that Mr Koetsveld was aware, as at 3 February 2022, that unsuccessful PST employees were directed to Mr Munday. In any event, I decline to draw the inference sought. In the absence of evidence from Mr Munday regarding the reason for his calling Mr Koetsveld, there is no rational basis for concluding that Mr Munday called Mr Koetsveld for the express purpose of dismissing him from his employment with the respondent, noting that (a) Mr Koetsveld’s employment with PST ended on 31 January 2022; and (b) Mr Munday is the Chief Executive Officer of PST, not the respondent.
Subsequent to his telephone call with Mr Munday, Mr Koetsveld spoke with Mr Shirreff by telephone on 3 February 2022. During the proceedings, Mr Koetsveld accepted that Mr Shirreff did not advise Mr Koetsveld that he had been dismissed or was no longer employed by the respondent, but rather that the respondent had no work for him.[58] On Mr Koetsveld’s own evidence, no one from the respondent ever told him that he had been dismissed or that he was no longer an employee.[59]
While it is not strictly necessary to do so given the concession Mr Koetsveld made during the proceedings as described at [45] of this decision, I reject the contention that Mr Shirreff dismissed Mr Koetsveld from his employment with the respondent on 3 February 2022 or at all. Rather, I find that Mr Shirreff advised Mr Koetsveld during the discussion on 3 February 2022 to “see a doctor”[60] and “get another medical done”[61] or “get a new medical”[62] and proceeded on the basis that Mr Koetsveld understood what steps he needed to take in relation to these matters. Further, I find that Mr Shirreff said to Mr Koetsveld words to the effect of, “I can’t roster you ‘til you pass the requirements.”[63] These statements do not amount to a dismissal.
For completeness, I turn now to address the matters which Mr Koetsveld says support his contention that he was dismissed on 3 February 2022.
Mr Koetsveld submits that he had been rostered to perform shifts to the end of June 2022. However, he says that he was given no further shifts after 3 February 2022.[64] I do not consider this to support Mr Koetsveld’s contention that he was dismissed on 3 February 2022 for two reasons. Firstly, the roster relied upon by Mr Koetsveld is titled “12 month Driver’s Roster” and applied to Mr Koetsveld during his employment with PST, the roster having commenced on 1 July 2021.[65] There is no evidence that supports a finding that PST’s 12-month roster applies to Mr Koetsveld in his employment with the respondent, or that Mr Koetsveld will be engaged by the respondent to work pursuant to PST’s 12-month roster. On the contrary:
(a) The conditional contract of employment specifies, under the heading “hours of work” that Mr Koetsveld is employed as a casual employee and is required to work as per operational requirements. There is no mention of a roster.[66]
(b) Both the conditional contract of employment and the 13 December offer letter[67] provide that Mr Koetsveld’s employment with the respondent will be in accordance with the Peter Stoitse Milk Enterprise Agreement 2021 (Agreement).[68] PST’s driver’s roster is not a term of the Agreement. Mr Koetsveld relies upon clause 8 of the Agreement (which requires employees to be ready, willing and available for work at the times and during the hours for which they are rostered) in support of his position that the driver’s roster would continue to apply to him.[69] However, a general reference of the kind in clause 8 of the enterprise agreement to being rostered to work does not support a finding that PST’s driver’s roster applies to Mr Koetsveld in his employment with the respondent.
(c) Ms Ranieri’s evidence is that as a casual employee of the respondent, Mr Koetsveld has no set shifts as it does not operate pursuant to a fixed roster.[70]
Secondly, Mr Koetsveld is engaged by the respondent pursuant to a conditional contract which remains subject to completion. I do not accept the contention that Mr Koetsveld’s employment became unconditional as of 1 February 2022.[71] Nor do I accept the submission that if the employment was not unconditional then Mr Koetsveld would not be employed.[72] There is a distinction between a condition which is precedent to the formation or existence of a contract and a condition which is precedent to the obligation of a party to perform their part of the contract. In this respect, the High Court in Perri v Coolangatta Investments Pty Ltd (Perri)[73] stated:
“In the first category the transaction creates no rights enforceable by the parties unless and until the condition is fulfilled. In the second category there is a binding contract which creates rights capable of enforcement, though the obligation of a party, or perhaps of both parties, to perform depends on fulfilment of the condition and non-fulfilment entitles him to terminate.”
By its express terms, the conditional offer of employment between the respondent and Mr Koetsveld is “a binding employment contract” that is “subject to the satisfactory completion of all pre-employment information.” I therefore regard the conditional offer as falling into the second category identified by the High Court in Perri. The document plainly compels the completion of the conditions to the respondent’s satisfaction. Mr Koetsveld accepted employment with the respondent in accordance with the conditional contract and in these circumstances, I reject the submission that it was unreasonable for the respondent to seek compliance with its terms.[74] It is apparent from the material before the Commission, and the evidence of Ms Ranieri during cross examination,[75] that the respondent has not waived compliance with the conditions. The performance of a shift by Mr Koetsveld on 1 February 2022 does not, of itself, alter this. In these circumstances, I accept the evidence of Ms Ranieri that the respondent elected not to roster Mr Koetsveld after 1 February 2022 until he had completed a further medical assessment and not because it had dismissed him.[76]
Mr Koetsveld submits that he was not paid a second bonus relating to the transfer of business between PST and the respondent.[77] Mr Koetsveld says that this supports a conclusion that his employment had ended before the bonus payment date of 8 February 2022. However, the evidence before the Commission is that the second bonus was to be paid by the respondent to all transferring PST employees upon satisfaction of all pre-employment conditions. That is, once their employment became unconditional, they would be paid the second bonus of $600.[78] While the terms of the bonus payment are not in evidence, I accept Ms Ranieri’s evidence that the second bonus payment was paid to employees offered unconditional employment contracts with the respondent.[79] This is supported by Mr Shirreff’s evidence that some employees received the second bonus and others did not.[80] Accordingly, I do not accept that the non-payment to Mr Koetsveld of the second bonus payment supports a conclusion that Mr Koetsveld has been dismissed.
Mr Koetsveld contends that there was no effort by the respondent to arrange a medical assessment for him between 3 February and 7 April 2022.[81] I accept on the evidence that the respondent did not take steps to communicate with Mr Koetsveld during this time to arrange a medical assessment. However, Ms Ranieri’s evidence is that the respondent did not organise medical assessments for any of the 144 transferring employees on the basis that it would have been logistically impossible to do so without knowing their personal schedules and rosters.[82] Rather, the transferring employees were provided with the “pre-employment pack” on 15 December 2021 setting out how they could make arrangements for a medical assessment at a time and place that was suitable for them.[83] I accept Ms Ranieri’s evidence that the respondent did not arrange for any transferring employees to obtain a medical assessment,[84] as this is supported by the content of the pre-employment pack, which contains instructions for completion of the health assessment for provision to a medical practitioner for the purposes of the medical assessment.[85]
Ms Ranieri proceeded on the understanding that Mr Koetsveld was taking steps to undertake the medical assessment.[86] Mr Koetsveld did not make contact with Ms Ranieri at any time to seek clarity regarding the process for obtaining a medical assessment,[87] notwithstanding the following:
(a) Mr Koetsveld (through his wife) had corresponded with the respondent’s Human Resources graduate, Ms Douglas regarding all matters concerning the transfer of Mr Koetsveld’s employment to the respondent.
(b) The correspondence from the respondent to Mr Koetsveld dated 15 December 2021 in which Mr Koetsveld was provided with a “pre-employment pack” invited Mr Koetsveld to reach out to Ms Ranieri in the event that he had any questions.
(c) The letter from the respondent of 15 December 2021 attaching the “pre-employment pack” identified that it includes a “Medical Assessment” as well as “Approved Medical Clinics.”[88] Mr Koetsveld’s evidence is that he assumes that he did not read this information because he had relied upon his September 2021 medical assessment for PST for the purposes of the transfer of his employment to the respondent.[89] Nor did Mr Koetsveld revisit the material after 3 February 2022,[90] notwithstanding that Mr Koetsveld had worked through the pre-employment pack by providing the respondent with other information required in accordance with it (such as the police check).[91]
(d) Mr Koetsveld gave evidence that he understood that he was able to call the respondent’s human resources department if he did not understand something and considered human resources to be responsive towards his concerns.[92] Mr Koetsveld does not know why he did not speak to either Ms Ranieri or her assistant in light of his confusion.[93]
In circumstances where (a) the “pre-employment pack” contained information as to the process for obtaining a medical assessment, and (b) it is not in dispute that Mr Shirreff advised Mr Koetsveld to “see a doctor” and “get another medical done,”[94] or “get a new medical,”[95] I reject the contention that by not arranging a medical assessment on behalf of Mr Koetsveld that the respondent’s conduct demonstrates that it intended to bring the employment relationship to an end or had that probable result. As earlier stated, the evidence discloses that the respondent did not organise medical assessments for any of the transferring employees.
Mr Koetsveld contends that after 3 February 2022, he received no further communication from the respondent, with the exception of an automatically generated email attaching a payslip and all-staff emails (which he did not receive until after lodging his application for an unfair dismissal remedy).[96] The material before the Commission does not identify the extent to which the respondent corresponds with its drivers by email. Accordingly, no relative comparison can be made between other drivers and Mr Koetsveld. However, in circumstances where Mr Koetsveld does not use email for his role (the evidence being it was his wife who engaged with the respondent on his behalf during the transfer of his employment), I do not consider that the limited email correspondence between the respondent and Mr Koetsveld supports a finding that Mr Koetsveld had been dismissed on 3 February 2022 in circumstances where the respondent believed Mr Koetsveld was taking steps to undertake the medical assessment requested of him.
Finally, I give no weight to the statement that Mr Stoiste spoke to the respondent regarding Mr Koetsveld’s “reinstatement”[97] in circumstances where Mr Stoitse was not called to give evidence about the discussion and the evidence is untested.[98]
Having regard to the above matters and the conclusions reached, I reject the contention that Mr Koetsveld was dismissed by the respondent within the meaning of s 386(1)(a) of the Act. There is no conduct on the part of the respondent that was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Koetsveld’s employment. Rather, I find that Mr Koetsveld has mistakenly assumed that Mr Munday had the authority to, and did, dismiss him from his employment with the respondent by telephone on 3 February 2022. The evidence does not support this assumption as being correct. Mr Koetsveld accepted that he had “possibly” made this assumption but did not concede his primary position.[99]
Repudiation of the employment relationship
In the alternative, Mr Koetsveld contends that there has been a repudiation of the employment relationship. It is said this arises by reason of the following:
(a)a refusal to provide Mr Koetsveld with further shifts in circumstances where he was employed by the respondent pursuant to a single continuous casual contract; or
(b)the repudiation of a series of casual contracts covered by the extended roster.[100]
Much of Mr Koetsveld’s submissions focus on the question of whether Mr Koetsveld was engaged by the respondent under a single continuous casual contract of employment, or in the alternative, under a series of separate contracts of employment on each occasion he undertakes work.[101] It is not in contest that Mr Koetsveld was employed by the respondent on a casual basis.[102] Nor does it appear to be controversial that Mr Koetsveld was engaged by his former employer, PST, pursuant to a 12-month roster.
In relation to the repudiation of the employment relationship in the context of a casual contract of employment,[103] Mr Koetsveld’s submissions focus on the rostering practices adopted by Mr Koetsveld’s former employer, PST.[104] For the reasons earlier stated at [57], there is no evidence that supports a finding that PST’s 12-month roster applies to Mr Koetsveld in his employment with the respondent, or that Mr Koetsveld will be engaged by the respondent to work pursuant to PST’s 12-month roster.
Mr Koetsveld performed one shift for the respondent in accordance with the conditional contract of employment, before the respondent ceased offering Mr Koetsveld shifts pending a further medical assessment. Accordingly, there is simply no factual basis upon which it can be determined whether Mr Koetsveld’s service to the respondent has been given under a continuing casual contract or a series of separate casual contracts.
In any event, for the reasons that follow, it is unnecessary to determine whether Mr Koetsveld was engaged under a single continuous casual contract or under a series of separate contracts. This is because I do not accept the submission that there has been a repudiation of the employment relationship.
The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[105] (Koompahtoo) described repudiation as referring to “conduct which evinces an unwillingness or an inability to render substantial performance of the contract” or “conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations” or “it may refer to any breach of contract which justifies termination by the other party.”[106] Repudiation of a contract is a serious matter and is not to be lightly found or inferred.[107] The test is “whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”[108]
Whether there has been a repudiation of a contract of employment is determined objectively.[109] It is unnecessary to show a subjective intention to repudiate and whether there has been a repudiation is a question of fact not law.[110] A repudiation of the contract by the employer gives the employee who is not in breach the option to decide whether to affirm the contract or to treat the contract as at an end by accepting the repudiation.[111]
I reject the submission that the respondent has repudiated the conditional contract of employment by ceasing to offer casual shifts to Mr Koetsveld. Relevantly, the respondent’s conduct does not evince an unwillingness to be bound by the conditional contract. Nor does it amount to a breach of any of its terms. Rather, the respondent’s election to cease offering Mr Koetsveld casual shifts is permitted by Mr Koetsveld’s conditional contract of employment, which is subject to the satisfactory completion of all pre-employment information required by the respondent. The obligation on the respondent to perform under the conditional contract depends on fulfilment of the condition by Mr Koetsveld, in the sense described in Perri at [58] of this decision.
It follows that I am not satisfied that Mr Koetsveld was terminated on the employer’s initiative within the meaning of s 386(1)(a) of the Act on account of the respondent’s repudiatory conduct, as contended.
Constructive dismissal
As noted at [38] of this decision, a further alternative advanced by Mr Koetsveld is that he was constructively dismissed.
Section 386(1)(b) of the Act is concerned with the resignation of a person from their employment where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. Rather, it depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party has said or done, in light of the surrounding circumstances.[112] It is the conduct of the employer that is the essential element.[113]
I reject Mr Koetsveld’s contention that he has been dismissed within the meaning of s 386(1)(b) for two reasons.
Firstly, I have earlier concluded that it was open to the respondent to rely upon its contractual rights to cease offering Mr Koetsveld casual shifts pending the completion of the conditional contract. The respondent took this approach in lieu of exercising its right to bring the employment to an end on account of the non-fulfilment by Mr Koetsveld of an essential term. The respondent’s actions cannot, in these circumstances, be described as conduct which is intended or likely to have the effect of bringing the employment to an end. Rather, it is the opposite.
At [61] of this decision, I accepted the proposition that the respondent did not, in the period after 3 February 2022, organise a further medical assessment for Mr Koetsveld on his behalf. However, in light of the circumstances described at [61], this does not of itself, support a finding that Mr Koetsveld had no choice but to resign. It was open to Mr Koetsveld to make contact with the respondent to seek clarity in the manner identified at [62] of this decision but he chose not to.
Secondly, and accepting that the primary focus of the s 386(1)(b) enquiry is on the employer’s conduct, there is no evidence supporting a finding that Mr Koetsveld resigned from his employment. The absence of an express statement of resignation is not fatal to Mr Koetsveld’s contention that he resigned, as the test is an objective one which depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances. However, in my assessment, the objective position is that Mr Koetsveld did not resign. Mr Koetsveld’s own understanding of the circumstances supports this conclusion. Mr Koetsveld’s evidence is that the respondent “had sacked me, so my understanding from conversations with Duane is that if I got that medical maybe they - we could get them to change their minds.”[114]
Accordingly, for the reasons given, I find that the respondent did not intend to bring Mr Koetsveld’s employment to an end and nor was termination of employment the probable result of the respondent’s conduct such that Mr Koetsveld had no effective or real choice but to resign. I am therefore satisfied that Mr Koetsveld was not forced to resign because of conduct, or a course of conduct, engaged in by the respondent within the meaning of s 386(1)(b) of the Act.
Conclusion and disposition
Having regard to my findings and the conclusions reached, I find that Mr Koetsveld has not been dismissed within the meaning of s 386(1) of the Act. Consequently, Mr Koetsveld cannot have been unfairly dismissed for the purposes of s 385.
The respondent’s jurisdictional objection is upheld and Mr Koetsveld’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Bunce on behalf of the applicant
Mr M Reid on behalf of the respondent
Hearing details:
13 May 2022, by Microsoft Teams
[1] Digital Court Book (DCB) 76 at [1], [4]-[6]
[2] DCB 189 at [2]
[3] DCB 200-215
[4] DCB 78 at [21]; DCB 226
[5] DCB 78 at [21]; DCB 189 at [3]; DCB 198-199
[6] Ibid 78 at [22]; 227-228
[7] Ibid 78 at [23]; 229; 100
[8] DCB 229
[9] DCB 78 at [25]; DCB 101
[10] DCB 78 at [27]; DCB 104
[11] DCB 108. The letter was amended to include reference to personal leave on 24 December 2021 (see DCB 113)
[12] DCB 110
[13] DCB 111
[14] DCB 189 at [5]
[15] DCB 114; DCB 247
[16] DCB 79 at [36]; 121; 192 at [20](g)
[17] DCB 192 at [20](h)
[18] DCB 123
[19] DCB 124; DCB 192 at [20](i)
[20] DCB 79 at [39]
[21] DCB 126
[22] DCB 79 at [42]; DCB 128
[23] DCB 202
[24] DCB 190 at [9]-[10]; DCB 218
[25] DCB 190 at [11] and [13]
[26] DCB 80 at [43]-[46]
[27] Ibid
[28] DCB 14
[29] DCB 80 at [47]-[50]
[30] DCB 81-82 at [53]-[58]
[31] DCB 82 at [64]
[32] DCB 194 at [4]-[5]
[33] DCB 194 at [6]
[34] DCB 82 at [65]
[35] DCB 83 at [70]; DCB 194 at [7]
[36] DCB 194 at [8]
[37] DCB 83 at [71]
[38] DCB 191 at [17]
[39] DCB 84 at [75]; DCB 161
[40] DCB 94 at [76]; DCB 162
[41] DCB 224
[42] DCB 164; DCB 191 at [19]; DCB 223
[43] DCB 67 at [13]
[44] Section 385(a) of the Act
[45] DCB 66 at [10]
[46] Transcript of proceedings dated 13 May 2022 (Transcript) at [350]; see also Transcript at [270]
[47] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205
[48] [2022] FWCFB 55
[49] Ibid at [45]
[50] DCB 66 at [9]; DCB 68 at [16]
[51] Transcript at [183], [184], [390]
[52] Transcript at [274]
[53] DCB 9 at [29]
[54] Transcript at [338], [341] and [347]
[55] Transcript at [464]
[56] DCB 190 at [12]
[57] Transcript [396]
[58] Transcript at [351]
[59] Transcript [369], [364]-[365]
[60] DCB 82 at [64]
[61] Ibid
[62] Transcript at [126]; see also Transcript [317]
[63] Transcript at [126]
[64] DCB 67 at [13a]
[65] DCB 90; Transcript at [248]-[249]
[66] DCB 111
[67] Ibid; DCB 96
[68] AE514095; [2021] FWCA 6914
[69] Transcript at [374]-[377]
[70] Transcript at [160]-[161]
[71] DCB 73 at [38]
[72] DCB 73 at [37]-[38a]
[73] (1982) 149 CLR 537 at 551 per Mason J
[74] DCB 73 at [39]
[75] Transcript at [139]
[76] DCB 190 at [14]
[77] DCB [13b]
[78] Transcript at [138]
[79] Ibid
[80] Transcript at [107]
[81] DCB [13c]
[82] Transcript at [140], see also Transcript at [205]-[206]
[83] Transcript at [140], [142], [143] and [152]
[84] Transcript at [141]
[85] DCB 233
[86] Transcript at [155]-[156], [159]; DCB 191 at [16]
[87] Transcript at [320], [326]-[331]
[88] DCB 229
[89] Transcript at [404]; see also Transcript [315]
[90] Transcript at [318]
[91] Transcript at [279]
[92] Transcript at [264]-[265]
[93] Transcript at [271]
[94] DCB 82 at [64]; Transcript at [409]-[410]
[95] Transcript at [126]
[96] DCB 67 at [13d], [13e]
[97] DCB 67 at [13f]
[98] DCB 67 at [13f]
[99] Transcript at [358]
[100] DCB 67 at [14]
[101] DCB 68-70 at [17]-[24]; DCB 70 at [25]-[31]
[102] DCB 111
[103] See City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan [2018] FWCFB 5 at [21]-[29]
[104] DCB 70 at [24]; DCB 71 at [28]
[105] [2007] HCA 61; 233 CLR 115
[106] Ibid at [44]; NSW Trains v Mr Todd James[2022] FWCFB 55 at [125]
[107] NSW Trains v Mr Todd James[2022] FWCFB 55 at [125]
[108] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd at [44]. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract, see Abandonment of Employment [2018] FWCFB 139 at [21]
[109] City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan [2018] FWCFB 5 at [18]
[110] Ibid
[111] Ibid at [19]; NSW Trains v Mr Todd James[2022] FWCFB 55 at [69]-[70]
[112] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[113] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[114] Transcript at [353]; See also Transcript at [342]
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