Mr Marcus Barlow v Southern Cross Protection Pty Ltd

[2011] FWA 611

[2011] FWA 611

FAIR WORK AUSTRALIA

DECISION

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

Mr Marcus Barlow
v
Southern Cross Protection Pty Ltd
(U2010/1675)

COMMISSIONER DEEGAN CANBERRA, 28 JANUARY 2011

Termination of employment - jurisdictional objection - whether applicant was dismissed

[1] This decision arises from an application pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged by Mr Marcus Barlow (the applicant) on 21 October 2010 for an unfair dismissal remedy in respect of the alleged termination of his employment by Southern Cross Protection Pty Ld (the respondent).

[2] In response to the application the employer claimed that the applicant had not been dismissed and that FWA had no jurisdiction to deal with the application. As a conciliation conference in the matter held on 5 November 2010 did not settle the matter it was listed for a hearing of the jurisdictional objection on 6 December 2010.

[3] The applicant worked for the respondent as a casual security guard from March 2010. He worked weekend day shifts on alternate weekends. On occasion he worked on intervening weekends.

[4] It was the respondent’s position that the applicant’s casual employment with the respondent had not been terminated. Nor had the applicant notified the respondent of any intention to resign from his employment. The applicant had been advised that the shifts he had been performing for the respondent were no longer available. He had been offered other shifts which he had rejected. As a casual employee the applicant was entitled to reject shifts offered to him.

[5] It was the evidence of Mr Ross Brown, a manager for the respondent, that:

• he had been informed by a manager for the respondent that a decision had been taken to contract out a loss-making security “run”;



• he had contacted the various employees who had been engaged on the “run” that had been contracted out to advise them that the shifts were no longer available, and to offer them alternative shifts;



• he had tried to contact the applicant on two or three but the applicant’s mobile telephone had been switched off;



• early in the week commencing 4 October he had contacted the applicant’s manager at the applicant’s weekday employment and left a message for the applicant to contact him; and



• he did not ask the manager to tell the applicant about the shifts being lost as he considered that was his responsibility.

[6] As the applicant had not contacted him by 10 October 2010 and had been scheduled to work on 11 October 2010, Mr Brown phoned the applicant at his home that evening. According to his evidence, Mr Brown informed the applicant that he would not be required for work that weekend as the shift had been given to contractors. Mr Brown told the applicant that the decision to contract out the shift had been made by “higher ups” in the respondent company as a result of losses incurred by the company due to “too many missed calls”.

[7] It was Mr Brown’s evidence that he offered the applicant an alternative shift for the following night but that the applicant refused that shift on the basis that it was unsuitable. Mr Brown also stated that he advised the applicant to complete security clearance documents that the company had given to him, so that other shifts requiring a security clearance could be offered to him. The applicant had stated that he would complete the documents.

[8] Mr Brown stated that he did not suggest to the applicant that the company’s decision to contract out the security run was in any way connected to the applicant’s performance.

[9] When cross-examined Mr Brown noted that the applicant had been given about 12 hours notice that he was not required to work his shift on 11 October 2010. He agreed that the applicant had not been told that his job depended on him obtaining a security clearance but stated that all the employees had been asked to gain security clearances as more runs were available to those with such clearances.

[10] Mr Brown reiterated that he had tried over a two week period to contact the applicant without success. He had contacted the applicant’s supervisor at his day job on at least three occasions in attempts to have the applicant contact him. Mr Brown denied that he had given the applicant any reason to think that his performance was connected with the decision to contract out the “run”.

[11] The applicant’s evidence was given by statement (Exhibit B1) and orally. The applicant claimed that he was rostered to work on the weekend of 10 and 11 October 2010 and the public holiday on 13 October 2010. He stated that during the week prior he had been informed by a manager at his weekday employment that Mr Brown, a manager with the respondent, wished to speak with him. He did not contact Mr Brown until Friday, 8 October 2010 when he received another message advising him that the matter was urgent. He phoned Mr Brown and was told that he was not required for his rostered shifts for either that weekend or his next rostered weekend.

[12] It was the applicant’s understanding that the shifts had been taken off him and given to a contractor as there had been “too many missed calls”. He claimed that he was surprised as there had never been any indication of dissatisfaction with his work.

[13] When cross-examined the applicant agreed that during his conversation with Mr Brown he was not told that his employment was terminated. He also agreed that he had never received any termination paperwork from the company. It was also the applicant’s evidence that Mr Brown had not mentioned his performance during the conversation. According to the applicant when Mr Brown had said there had been “too many missed calls” it had been a “sensitive matter for a long time” because of the pressure in the job. He agreed that everyone on the particular security run was also subjected to the same pressure, and that missed calls were commonplace on the particular run.

[14] According to the applicant he understood why the company may have taken the decision that a particular run was not viable due to the large volume of alarms. He claimed that if he had been given sufficient notice and if the matter had been explained to him in that way he would have understood.

[15] The applicant agreed that during the conversation Mr Brown had made no specific comment about his work performance, but that Mr Brown had just made the general comment that there had been too many missed alarms. He also agreed that Mr Brown had mentioned the possibility of a Saturday night shift and the possibility of other shifts, but that nothing was confirmed. The applicant also conceded that Mr Brown had asked him to complete his security clearance papers and that he had, in fact, completed and signed those documents and provided them to the respondent since his conversation with Mr Brown. The applicant also recalled being offered a number of other shifts by the respondent since that time. He had refused the offer of night shifts as they interfered with his sleeping patterns.

[16] It was the applicant’s evidence that he no longer wished to continue his employment with the respondent “after what happened”. He claimed that he had lost trust in the company.

[17] Section 386 of the Act relevantly provides as follows:

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.

[18] The applicant in this matter was a casual employee of the respondent. It is clear on the evidence of both the applicant and the respondent that the applicant was at no time told that his employment was being terminated.

[19] The applicant, along with a number of other employees, was informed that he was no longer required for a particular security “run”. The applicant was advised that the respondent had taken the decision to give the particular “run” to contractors as it was not otherwise a viable economic proposition, given the high volume of alarm calls and the number of missed calls, which were a cost to the company.

[20] At the time he was advised that his usual shift was not available the applicant was asked by the respondent to gain a security clearance to allow him to be rostered on a greater number of other shifts. The applicant eventually complied with that request. The evidence was that since the loss of his usual shifts the applicant had refused at least six shifts offered to him by the respondent.

[21] The applicant claimed that he interpreted Mr Brown’s notification of the loss of his shifts as a termination of his employment as he understood Mr Brown to be implying that it was his failure to respond to calls that had brought about the situation. It was his evidence that the late notice of the loss of his shifts contributed to that interpretation.

[22] According to the application the applicant is claiming “constructive dismissal”. It is assumed that, in this respect, the applicant is relying on s.386(1)(b) of the Act, and claiming that he was forced to resign because of the employer’s conduct. This matter was not argued in any depth at the hearing but is apparently based on his loss of confidence and trust in the company as a result of the late notice of the lost shifts and his interpretation of Mr Brown’s observations as being an unfair reflection on his performance.

[23] Apart from the fact that there is no evidence before me that the applicant has in fact resigned from his employment with the respondent, I would be unable to find that any such resignation was brought about by the conduct of the employer. I do not consider, on the evidence before me, that the applicant’s characterisation of his phone conversation with Mr Brown is credible. Clearly Mr Brown made considerable effort to give the applicant sufficient notice of the loss of his usual shifts, but the applicant failed to contact him as requested. The inferences supposedly drawn by the applicant from his conversation with Mr Brown are not reasonable in the circumstances. It is unlikely that the applicant would be blamed for the loss of a “run” due to his poor performance but immediately offered an alternative shift and, in addition, asked to gain a security clearance so that other shifts were available to him.

Conclusion

[24] It is apparent in this matter that there is no evidence to support a finding that the applicant has been dismissed from his casual employment with the respondent.

[25] In the absence of a dismissal there can be no application pursuant to s.394 of the Act.

The application is dismissed for want of jurisdiction.

COMMISSIONER

Appearances:

Ms Michaela Barlow for the applicant.

Ms Vikki Hopper for the respondent.

Hearing details:

Monday, 6 December 2010 - Canberra (ACT)

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