Mr Leon De Vere v O2 Supermarket Altona Pty Ltd
[2023] FWC 2317
•25 SEPTEMBER 2023
| [2023] FWC 2317 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Leon De Vere
v
O2 Supermarket Altona Pty Ltd
(C2023/3786)
| COMMISSIONER JOHNS | MELBOURNE, 25 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – not dismissed - application dismissed.
Introduction
On 28 June 2023, Mr Leon De Vere (Applicant), made an application to the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a general protections dispute involving dismissal.
O2 Supermarket Altona Pty Ltd (Respondent) is the Respondent.
The Applicant commenced casual employment with the Respondent on 26 September 2022.
On 28 July 2023, the Respondent filed its response to the application. The Respondent raised a jurisdictional objection. It contended that the Applicant was not dismissed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford,[1] requires the Commission to determine a dispute about the fact of a dismissal under s.365 of the FW Act before the Commission can exercise powers conferred by s.368 of the FW Act. It is thus necessary to determine the jurisdictional issue to proceed further.
Legislative scheme
Section 365 of the FW Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly s.365 of the FW Act provides that a person or an industrial association may apply to the Commission to deal with the 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;
Section 386 of the FW Act provides the meaning of the word dismissed:
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.
To defeat the jurisdictional objection, the Applicant must satisfy the requirements of s.386(1)(a) or (b) in order to establish that he has been dismissed.
The Applicant’s submissions did not directly engage with which limb of s.386 he relied upon. Instead, the Applicant submitted that he was dismissed as he was not provided with any further shifts by his manager (Altona Store Manager) following his period of unfitness for work which were supported by medical certificates. The Applicant further submitted that he had no intention of leaving the Respondent and that even if he did, he would have given a resignation notice.[2]
The Respondent submitted that the Altona Store Manager made every effort to contact the Applicant but was unable to reach him, and nevertheless, the Applicant himself did not make any contact with the Altona Store Manager. Therefore, it contended that it never dismissed the Applicant as alleged.
In light of the same, only s.386(a) of the FW Act is enlivened by the Applicant given his express submission that he did not resign.
The proceedings
On 17 August 2023, I issued Directions and listed the matter for a jurisdictional hearing.
The jurisdictional hearing was conducted in-person at the Fair Work Commission on 11 September 2023.
In advance of the hearing the parties filed materials which were compiled in a Digital Tribunal Book (DTB). For completeness I set out below the documents relied upon by the parties. I have had regard to all this material in coming to this decision:
| Exhibit | Document title | Date |
| 1 | Form F8 | 28-06-2023 |
| 2 | Employment Separation Certificate | 26-05-2023 |
| 3 | Form F8A | 28-07-2023 |
| 4 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 5 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 6 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 7 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 8 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 9 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 10 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 11 | Email from the Applicant attaching various screenshots | 10-08-2023 |
| 12 | Email from the Applicant providing a statement in email format | 10-08-2023 |
| 13 | Email from the Applicant attaching WhatsApp Chat history with Deb | 10-08-2023 |
| 13.1 | WhatsApp Chat with Deb | 10-08-2023 |
| 14 | Email from the Applicant attaching WhatsApp Chat history with Cindy | 10-08-2023 |
| 14.1 | WhatsApp Chat with Cindy | 06-09-2023 |
| 15 | Email from the Applicant attaching WhatsApp chat history | 10-08-2023 |
| 15.1 | WhatsApp Chat with Staff Altona IGA | 10-08-2023 |
| 16 | Statutory Declaration of Joanne Natoli | 10-08-2023 |
| 17 | Email from the Respondent attaching various documents in reply | 11-08-2023 |
| 17.1 | Screenshot 1 | 11-08-2023 |
| 17.2 | Screenshot 2 | 11-08-2023 |
| 17.3 | Document titled "Nishi" | 11-08-2023 |
| 17.4 | Document titled "To whom this may concern" | 11-08-2023 |
| 18 | Email from the Applicant attaching WhatsApp chat with Nishi | 17-08-2023 |
| 18.1 | WhatsApp Chat with Nishi IGA | 17-08-2023 |
| 19 | Email from the Applicant attaching various employment policies | 17-08-2023 |
| 19.1 | Company policies | 12-02-2023 |
| 20 | Email from the Applicant attaching various screenshots | 17-08-2023 |
| 21 | Email from the Applicant providing a statement in email format | 17-08-2023 |
| 22 | Email from the Applicant attaching WhatsApp chat | 17-08-2023 |
| 22.1 | WhatsApp Chat with +61 416 074 882 | 17-08-2023 |
| 23 | Email from the Applicant attaching WhatsApp chat | 17-08-2023 |
| 23.1 | WhatsApp Chat with +61 416 074 882 | 17-08-2023 |
| 24 | Email from the Applicant attaching WhatsApp chat with Cindy | 17-08-2023 |
| 24.1 | WhatsApp Chat with Cindy | 17-08-2023 |
| 25 | Email from the Respondent attaching its submissions | 25-08-2023 |
| 25.1 | Document titled "paval" | 25-08-2023 |
| 25.2 | Screenshot | 25-08-2023 |
| 25.3 | Screenshot | 25-08-2023 |
| 25.4 | Screenshot | 25-08-2023 |
| 25.5 | Screenshot | 25-08-2023 |
| 25.6 | Document titled "To Whomever It May Concern" | 25-08-2023 |
| 25.7 | Document titled "leon statment" | 25-08-2023 |
| 26 | Email from the Applicant providing a statement in email format | 31-08-2023 |
| 26.1 | Screenshot | 31-08-2023 |
| 26.2 | Screenshot | 30-08-2023 |
| 26.3 | Screenshot | 30-08-2023 |
Factual findings
The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact based on the evidence:
a)On 26 September 2022, the Applicant commenced his employment with the Respondent at the Altona IGA store.[3]
b)On 1 May 2023, the Applicant was issued a medical certificate noting unfitness for work between 1 – 5 May 2023.[4] The Applicant sent a photo of the certificate to the Altona Store Manager on the same day.
c)On 2 May 2023 at 12:02AM, the Applicant blocked the Altona Store Manager on WhatsApp.[5]
d)On 2 May 2023 at 9:39AM, the Altona Store Manager sent a text message to the Applicant noting he may also have 6 May off work.[6] The Applicant did not respond to this message.
e)On or around 2 May 2023, the Applicant exited the Altona store group chat where employee rosters were distributed due to alleged “bullying and harassment”.[7]
f)On 2 May 2023 at 5:17PM, the Altona Store Manager sent a text message to the Applicant noting: “Leon how are you going to see the roster if you deleted yourself out of the work group chat?”.[8] The Applicant did not respond to this message.
g)On 6 May 2023, the Applicant was issued a second medical certificate noting unfitness for work between 7 – 12 May 2023.[9]
h)On 7 May 2023, the Applicant sent a photo of the second certificate to the Altona Store Manager.
On 7 May 2023, the Altona Store Manager sent a text message to the Applicant requesting the store keys be returned while he is on sick leave so that other employees are able to close the store.[10]
j)On 7 May 2023, the Applicant unblocked the Altona Store Manager on WhatsApp.[11]
k)On 18 May 2023, the Respondent received a request from Centrelink for a separation certificate.[12]
l)On 26 May 2023, the Respondent signed the separation certificate and within that noted that the reason for separation to be “Employee ceasing work voluntarily”.[13]
m)On 26 May 2023 at 2:58PM, the Applicant blocked the Altona Store Manager on WhatsApp.[14]
n)On 2 and 7 June 2023, the Applicant attempted to contact Mr Bob Boppana (Operations Manager at the Respondent) via telephone but was unable to reach him.[15]
o)On 22 June 2023 at 10:59AM, the Applicant was contacted by Mr Boppana offering him a casual role at the Pascoe Vale IGA with the likelihood of about 20 hours a week.[16]
p)On 22 June 2023 at 11:09AM, the Applicant was contacted by the Pascoe Vale Store Manager to discuss the position.[17]
q)On 27 June 2023, the Pascoe Vale Store Manager contacted the Applicant via text message and noted that “I got a memo to cut my hours back so I might not have anything for you yet”.[18]
r)On 28 June 2023, the Applicant filed the current application before me.
Applicant’s submissions
The Applicant submitted that following his exit out of the Altona store WhatsApp group chat and the provision of his two medical certificates, the “manager stopped or didn’t attempt to forward a roster and didn’t put me on or advise me why”.[19]
The Applicant also submitted various grievances against the Respondent and the Altona Store Manager relating to its workplace practices and his treatment at the workplace.
Respondent’s submissions
The Respondent rejected the Applicant’s submission that he was dismissed on the basis that the Altona Store Manager attempted to contact the Applicant to ascertain when he is fit to come back to work to no avail. And that in fact the separation certificate was the first time it was made aware of the Applicant’s unwillingness to come back to work.
The Respondent also submitted various grievances against the Applicant.
Consideration
After having considered all the material, it is readily apparent that the Applicant was not dismissed at the initiative of the Respondent.
The chronology of the matter as set out above indicates that the Applicant made no attempt to return to work following the end of his period of unfitness on 12 May 2023. This is implied by his own candour admissions during the hearing:[20]
“THE COMMISSIONER: - - - 'on 10 May. I had no reply. I wasn't put on the roster again.' How do you know you weren't on the roster?
MR DE VERE: One of the team members had sent me a copy of the roster.
THE COMMISSIONER: How?
MR DE VERE: On WhatsApp chat.
THE COMMISSIONER: And what is the rostering week, how does it go normally?
MR DE VERE: It's usually Monday to Sunday.
THE COMMISSIONER: But you had a medical certificate through until the 12th. So why would you be on the roster?
MR DE VERE: Well, that's a fair call actually. I didn't think of it like that, unless I've got my dated mixed up, but I did message Oliver and he did send me a copy of it through. The following week I spoke to him again. He told me I wasn't on the roster, and then I actually went into the store physically and spoke to Emma and she brought up the roster and I wasn't on it after the third week, and at that point was when I - - -
THE COMMISSIONER: You're putting the medical certificate through to the 5th. You put in a second medical certificate through until the 12th. When did you contact Debra and say, 'Hey, I'm ready to come back to work now'?
MR DE VERE: Yes. Look, unfortunately - - -
THE COMMISSIONER: No, answer my question. When did you contact your store manager - - -
MR DE VERE: I have no record of that, no.
THE COMMISSIONER: Well, you didn't, did you?
MR DE VERE: No. Well, that's what I'm saying, I have no record of it, no.
THE COMMISSIONER: It's not that you have no record of it, you actually never did it, did you?
MR DE VERE: No, that's true. Personally I've never - every time I had a certificate I usually just start back up as soon as it finished, and that's what I was thinking was going to happen.
THE COMMISSIONER: And when you weren't on the roster you didn't call Debra and say, 'Hey, I'm not on the roster. My medical certificate ran out on the 12th. I'm ready to come back to work. I'm not on the roster.' You never made that call, did you?
MR DE VERE: No, I didn't confront anything. No, that's true.
THE COMMISSIONER: You didn't raise it with Mr Bappana.
MR DE VERE: I tried to later on, but - - -
THE COMMISSIONER: When?
MR DE VERE: I think it was the 10th. I tried to call - - -
THE COMMISSIONER: No, we have just dealt with the 10th. You tried to call him on the 10th, you had no reply. You weren't on the roster. But that was the week you had the medical certificate of.”
There is simply no evidence that the Respondent took any action to dismiss him. The Applicant took no steps to get back on the roster. He had taken active steps to block the Altona Store Manager and to remove himself from the Altona store group chat.
Nevertheless, despite no evidence to suggest that the Applicant was dismissed he contacted Centrelink leading to the separation certificate being forwarded to the Respondent on 18 May 2023, some six (6) days following the expiry of his medical certificate. The Applicant’s submission that he was not rostered and thus dismissed is untenable and cannot be accepted. This is especially in light of the Applicant’s own concession during the hearing that he didn’t contact the Altona Store Manager:[21]
“THE COMMISSIONER: What is the definite date of dismissal do you say?
MR DE VERE: Well, I thought it was about three weeks after, so around about - - -
THE COMMISSIONER: No, no, I want the exact date. I want you to tell me exactly what date you say you were dismissed. In your application you said the dismissal was notified on 7 June.
MR DE VERE: Yes.
THE COMMISSIONER: And you said it took effect on 15 May.
MR DE VERE: Yes. That's basically the week following that I've come back. I approached Centrelink to try to get onto Centrelink. So when there was no separation certificate I thought to myself I don't know what's going on here, because I was just under the impression that she just didn't want me there. So that's when I went to Centrelink. I don't know really where to start, other than it sounds like I've made a mistake, but I should have at least called her and I didn't, and I have to accept that I've made that mistake. But I thought that - - -
THE COMMISSIONER: What happened on 15 May that you say that's the date they dismissed you; what happened on that date?
MR DE VERE: Well, I wasn't put on any roster, and as I say I thought I was - after I'd be ready to work - come the 12th I thought I'd be ready to work. This has happened to somebody else and I didn't want to be in the same situation where I'm waiting, so that's why I approached Centrelink, because I had no income.”
I also reject the Applicant’s allegation that he left the work group chat for reasons of “bullying and harassment”.[22] The Applicant filed the entirety of the work group chat in his submissions.[23] During the hearing, I provided the Applicant with an adjournment to identify examples of these alleged behaviours.[24] However, none of the examples identified could be characterised as bullying behaviour nor harassment.
Whilst such a submission was not advanced by the Applicant, I have also considered whether the return of the separation certificate to Centrelink by the Respondent constituted termination of the employment at its initiative.
However, the difficulty with such an argument is that termination at the employer’s initiative necessitates the termination of the employment relationship, and not the contract of employment.[25] Therefore, it becomes manifestly clear that the return of the separation certificate could not be termination at the Respondent’s initiative within the meaning of s.386 of the FW Act, because the employment relationship had by then already ended by the Applicant alone and no agitation of the Respondent. This is cemented by the Respondent’s express indication on the form that the Applicant’s reason for separation to be “Employee ceasing work voluntarily”.[26]
And lastly, I make the observation that whilst it is likely that the relationship between Applicant and his colleagues at the Altona store deteriorated over time, it was not a relevant consideration for this decision as I am satisfied that the Respondent was ready and willing to offer further shifts to the Applicant if he had merely contacted the Altona Store Manager. However, he chose not to do so.
Conclusion
For the above reasons I am not satisfied that the Applicant was dismissed as alleged.
Consequently, I find that there was no dismissal pursuant to s.386 of the FW Act. The Application is therefore dismissed.
An order to this effect will be issued with this decision [PR766084].
COMMISSIONER
Appearances:
Mr L De Vere on his own behalf
Mr B Boppana on behalf of the Respondent
Hearing details:
2023
Melbourne (in-person)
11 September.
[1] [2020] FCAFC 152.
[2] Digital Tribunal Book (DTB), Exhibit 26, p 264.
[3] DTB, Exhibit 2, p 16.
[4] DTB, Exhibit 4, p 34.
[5] DTB, Exhibit 13.1, p 144.
[6] DTB, Exhibit 11, p 126.
[7] DTB, Exhibit 1, p 11.
[8] DTB, Exhibit 11, p 126.
[9] DTB, Exhibit 4, p 31.
[10] DTB, Exhibit 11, p 125; see also DTB, Exhibit 17.4, p 198.
[11] DTB, Exhibit 13.1, p 144.
[12] DTB, Exhibit 25.6, p 262.
[13] DTB, Exhibit 2, p 17.
[14] DTB, Exhibit 13.1, p 144.
[15] DTB, Exhibit 12, p 136; see also DTB, Exhibit 20, p 237.
[16] DTB, Exhibit 12, p 136; see also DTB, Exhibit 20, p 237.
[17] DTB, Exhibit 20, p 239.
[18] DTB, Exhibit 12, p 136; also see DTB, Exhibit 20, p 236.
[19] DTB, Exhibit 1, p 11.
[20] Transcript of the proceedings, PN168-PN190.
[21] Transcript of the proceedings, PN205-PN212.
[22] DTB, Exhibit 1, p 11.
[23] DTB, Exhibit 15.1.
[24] Transcript of the proceedings, PN221-PN280.
[25] Searle v Moly Mines Limited [2008] AIRCFB 1088, [22].
[26] DTB, Exhibit 2, p 17.
Printed by authority of the Commonwealth Government Printer
<PR766083>
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