Mr Matthew Clinton Buckley v JPA Offroad Group Pty Ltd
[2022] FWC 1290
•25 MAY 2022
| [[[2022] FWC 1290 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Clinton Buckley
v
JPA Offroad Group Pty Ltd
(U2021/9410)
| COMMISSIONER WILLIAMS | PERTH, 25 MAY 2022 |
Application for an unfair dismissal remedy
This decision concerns an application by Mr Matthew Buckley (Mr Buckley or the Applicant) made under section 394 of the Fair Work Act 2009 (the Act). The Respondent is JPA Offroad Group Pty Ltd (JPA Ground or the Respondent).
The Respondent objects to the application on the grounds that the Applicant was not dismissed but rather, it is asserted, he resigned from his employment.
At the hearing of this matter evidence was given by Mr Buckley and by Mr James Bartlett, the manager and operator of the Respondent’s business.
Factual findings
It is not in dispute that the Applicant’s employment with the Respondent commenced in September 2020.
The Applicant’s evidence is that he was employed as a sales professional/operations manager to sell the Respondent’s products in Western Australia.
His evidence under cross examination is that he on occasions assisted Mr Bartlett with mechanical work Mr Bartlett was undertaking. The Applicant explains he is not a qualified mechanic but is knowledgeable about such matters.
His evidence was that prior to October 2021 there had never been any discussions with him about his performance and that he had not received any warning letters, notwithstanding Mr Bartlett’s evidence that Mr Buckley did receive warning letters.
His evidence was that on the evening of Friday 1 October 2021 Mr Bartlett asked him to stay back past 6 PM to work unpaid on a customer’s vehicle. The Applicant says he advised Mr Bartlett that he would be able to assist him until 6:30 PM however he would then have to leave because he had personal commitments at 7 PM.
His evidence was that at 6:30 PM he told Mr Bartlett he would have to leave. He was asked again to stay and work on the vehicle. He advised Mr Bartlett he was unable to stay as he had commitments and Mr Bartlett told him that if he was to leave then ‘… don’t bother coming back”.
The Applicant then left the workplace.
His evidence was that on the following Monday, 4 October 2021 he rang Mr Bartlett about 9 AM but could not get through. Mr Bartlett returned his call around 10 AM and after a short discussion with regards to a severance payment of holiday pay and two weeks notice, the Applicant told Mr Bartlett he was happy to work out a notice period. Mr Bartlett told him he would need to look into it and would get back to him.
On 5 October 2021, the Applicant says he received a text message at 2:12 PM from Mr Partlow advising he was not liable to pay out a notice period.
He then had to follow up the payment of his holiday entitlements pay-out, which wasn’t done until 14 October 2021.
Since his employment ended, Mr Buckley has applied for 42 jobs unsuccessfully. He is undertaking training to obtain his white card and his truck license.
It was put to him in cross examination that the same situation had occurred in December 2020 and he had resigned then. The Applicant denied that he had resigned and said it was the same situation of being told he had to stay and work late which he was not able to do. He then came back to work the following week but had not been paid for one week. On that occasion he says they had civil discussions and resolved the issue between themselves
The Applicant denied he put in a resignation in October 2021. He never said he was leaving. He simply chose to finish after he had worked beyond his normal hours and declined to do further unpaid work. The work he was assisting Mr Bartlett on was installing a drivetrain differential. He had been assisting Mr Bartlett by passing tools to him.
The Applicant’s evidence was that on this occasion there had been no prior notice given by Mr Bartlett that he would need him to work late on Friday after work.
Under cross-examination the Applicant denied ever receiving two warning letters that Mr Bartlett alleges was given to the Applicant previously.
He does agree that in the past, issues had been raised with him by Mr Bartlett which were discussed with him, but no letters were given, nor discipline occurred.
Mr Bartlett’s evidence was that the Applicant had received two written warnings in the past. Copies of these were provided to the Commission.
His evidence was that on 1 October 2021 the Applicant was asked to stay on the premises to complete his required work tasks. Mr Bartlett’s evidence is that Mr Buckley refused to do so and departed the workplace without completing the required work.
He says the Applicant had been issued with prior warning letters and had previously said he was resigning and so Mr Bartlett determined that the Applicant’s actions were consistent with a resignation.
His evidence was that the Applicant’s employment was not terminated at his initiative. He says Mr Buckley resigned and so was not entitled to any notice and is paid up to 1 October 2021.
Under cross examination his evidence was that on the evening of 1 October 2021 the Applicant had been asked to give him a hand to pass tools to him for a short period but the Applicant ‘cracked the shits’ and said he had other commitments which is something that had happened in the past. He was not following directions and said he had to leave.
Under cross examination Mr Buckley’s evidence was that he told the Applicant that if he would not follow directions and stay and do the job and then the Applicant shouldn’t come back to work.
With respect to the two warning letters, he says he prepared these after verbal warning discussions he had with the Applicant. He says these two letters have the same date, 20 September 2021, because one was done in the morning and the other in the afternoon after more issues had come to light.
His evidence was that he gave the two warnings letter to the Applicant at the same time on 20 September 2021.
His evidence was consistent with the Applicant’s that on a previous occasion the Applicant had left his employment and then returned. He says the Applicant was taken back on that occasion by the Respondent.
Under cross examination his evidence relevantly was that the Applicant did not have set hours and he was on a salary. He agrees on 1 October 2021 it was after 6 PM when the Applicant was assisting him. He agrees the Applicant had told him he would have to leave at 6:30 PM and he had told him that he had commitments.
He agrees he told the Applicant that if he didn’t stay to do the job as he was being directed then ‘don’t bother coming back’.
His evidence was that the normal finish time for the Applicant was 6 PM but that he had previously happily worked past 6 PM.
He says that the Applicant left work on 1 October 2021 at 6:30 PM. He says there was another staff member present who then assisted Mr Bartlett to complete work on the vehicle.
His evidence was the Applicant resigned on the Monday morning on the phone when the Applicant told Mr Bartlett he was not coming back.
He agrees the Applicant was not paid in lieu of notice. He says this was because the Applicant resigned.
I note the direct conflict between the two witnesses as to whether the warning letters dated 20 September 2021 were given to the Applicant or not. I note these two written warnings were provided by Mr Bartlett when he filed the form F3 response.
Considering the evidence of the two witnesses my conclusion is that the written warnings were given to the Applicant on 20 September 2021.
The first warning concerns complaints about the Applicant’s sales performance and customer service and being contactable by Mr Bartlett. The second warning complained about how the Applicant interacted with Mr Bartlett and referred to him when speaking to staff and customers and handled cash.
Neither warning touched on Mr Bartlett requiring the Applicant to assist him work on vehicles, noting that the Applicant was employed as a sales professional, nor does either warning mention a requirement for the Applicant to work after the normal finish time of 6 PM.
The Applicant’s salary was $75,000 per annum.
At the time of the Applicant’s dismissal the Respondent had three employees.
The legislation
Section 386 of the Act defines when a person has been dismissed. This section is set out below.
“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.
(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; or
(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.
(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
Section 387 of the Act prescribes criteria the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable. This section is set out below.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Consideration
In this case for the Respondent it is submitted that what occurred was not a dismissal by the Respondent of the Applicant but rather was a case of the Applicant resigning from his employment.
The relevant facts as to what occurred on the evening of Friday, 1 October 2021 are generally not in dispute.
It is not disputed that on 1 October 2021 Mr Bartlett had told the Applicant he needed him to work back on Friday evening beyond 6 PM, which was the normal finishing time, to assist him work on a vehicle.
In response the Applicant advised Mr Bartlett that he had commitments after work and could only stay to assist him until 6:30 PM.
At around 6:30 PM the Applicant told Mr Bartlett that he now had to leave. Mr Bartlett again told him he needed the Applicant to stay and assist him work on the vehicle. The Applicant replied that he was unable to stay because he had commitments at which point Mr Bartlett said that if he was to leave “.. don’t bother coming back.”
The Applicant then left the workplace.
Mr Bartlett then continued on with the work assisted by another staff member.
The Commission must determine whether on these facts the Applicant’s employment was terminated on the employer’s initiative.
Mr Bartlett knew that the Applicant for personal reasons was not able to work beyond 6:30 PM and knew he intended to leave at that time. When it was 6:30 PM the Applicant told Mr Bartlett again he could not stay any longer and was leaving. In response to this Mr Bartlett told him that if he left he should not come back.
This statement by the Applicant’s employer clearly meant that if the Applicant then left the workplace his employer’s position was that the Applicant no longer had a job, his employment was terminated.
The Applicant never in any way indicated that he intended for his employment to end. If Mr Bartlett did not say “....don’t bother coming back.” the Applicant would have resumed work the following Monday and would have remained employed.
Self-evidently Mr Bartlett’s actions directly and consequently resulted in the termination of the Applicant’s employment. Mr Bartlett’s statement demonstrated an intention to bring the relationship to an end or had that probable result.
I find that Mr Buckley’s employment has been terminated on his employer’s initiative. Mr Buckley was dismissed within the meaning of section 386.
I will turn to consider whether Mr Buckley’s dismissal was harsh, unjust or unreasonable.
Valid reason
The reason the Applicant’s employment was terminated was because he refused to work past 6:30 PM on Friday evening.
The Respondent employer had only told the Applicant that day that he required him to work past the normal finishing time of 6 PM.
The Respondent’s position is that the Applicant was not following the employer’s direction which warranted dismissal.
Recently a five-member bench of the Commission in the decision, Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal - [2021] FWCFB 6059 (the Mt Arthur decision) considered at length the duty on employees to obey lawful and reasonable directions.
“[65] The seminal decision concerning the requirement of employees to follow their employer’s lawful and reasonable directions is R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday50 (Darling) in which Dixon J summarised the common law position as follows:
‘Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.’
[66] Recently the Full Federal Court in One Key Workforce Pty Ltd v CFMEU51 adopted a slightly different formulation of the implied term:
‘the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.’
[67] Whether expressed as a ‘lawful and reasonable’ direction or a ‘lawful’ direction in which the test for determining lawfulness is whether the direction is reasonable, may simply be a matter of semantics. In each case the direction must be ‘lawful’ and ‘reasonable’. The weight of authority supports the use of the expression ‘lawful and reasonable’; it is the expression used in the arbitral question posed by the Applicants and acceded to by the Respondent; and it is the formulation we have decided to adopt.
4.2 Some general observations
[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.
[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.
[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.
[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.”
With respect to whether a direction is reasonable, the Full Bench went on to explain as follows,
[80] We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd:
‘The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms:
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.
Footnotes omitted
So it is in this case when considering whether the Respondent’s direction to the Applicant was reasonable. The Commission must consider the relevant context and specifically the nature of the employment, the established usages affecting it and common practices which exist.
In this case the Applicant’s employment was apparently not covered by an employment contract or other instrument.
However, given the direction to the employee in this instance concerned working additional hours, section 62 (Maximum Weekly Hours) of the Act, set out below, should be considered because this section prescribes criteria for determining whether additional hours are reasonable.
“62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full time employee—38 hours; or
(b) for an employee who is not a full time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
Considering all of these matters the relevant context in this case was that Mr Bartlett for reasons unexplained needed someone to assist him work on a vehicle beyond normal working hours on the Friday evening. The Applicant did not have fixed hours of work however his working hours normally finished at 6 PM. The Applicants employer did not give the Applicant any forewarning or notice prior to the day in question that he would be required to work beyond 6:30 PM. When asked the Applicant immediately advised Mr Bartlett that he had commitments that evening so could only work through to 6:30 PM. There was another member of staff present that evening who was able to and in fact did assist Mr Bartlett complete the work on the vehicle after the Applicant left at 6:30 PM and there was no apparent detriment to the Respondent. Mr Buckley would not have received overtime payments for these hours as he was employed on a salary.
The Commission’s decision is that whilst the direction to Mr Buckley from Mr Bartlett that he continue working after 6:30 PM on Friday, 1 October was a lawful direction it was not a reasonable direction.
Consequently, this was not a direction Mr Buckley was obliged to obey and so his failure to do so was not a valid reason for his dismissal.
Notification of the reason
Mr Bartlett notified Mr Buckley of the reason that he was being dismissed, albeit this was not a valid reason, at the same time the dismissal occurred when he told him that if he left the workplace to not bother coming back.
Opportunity to respond
It could be said that Mr Buckley had the opportunity to speak to Mr Bartlett about his decision to dismiss him at the same time this occurred, but there certainly was no opportunity to respond to the decision before Mr Bartlett had made this decision to dismiss the Applicant.
Refusal of the support person
There was no refusal to allow Mr Buckley to have a support person.
Warnings about unsatisfactory performance
It could be said that the Applicant was dismissed because his performance was unsatisfactory in not remaining at work when the Respondent directed him to, notwithstanding this direction was unreasonable.
Considering the dismissal in this way, there had been warnings to the Applicant about his performance being unsatisfactory. Those warnings however did not concern complaints that were in any way similar to what occurred on this Friday evening.
Size of the employer’s enterprise and absence of human resource management specialists or expertise
The Respondent’s enterprise is a very small business. This fact and the absence of Human Resource Management specialists or expertise I have no doubt negatively impacted on the procedures followed in effecting the Applicant’s dismissal.
Other matters
The Applicants at the time of his dismissal had been employed for just over one year.
Whilst the Commission appreciates the Respondent viewed Mr Buckley as having resigned, he was in fact dismissed and indeed summarily dismissed. Mr Buckley received no notice or any payment in lieu of notice.
Conclusion
Considering all the criteria above my decision is that the dismissal of Mr Buckley was unjust and unreasonable. Mr Buckley was unfairly dismissed.
Remedy
Considering the option of reinstatement, given the animosity between Mr Buckley and Mr Bartlett and the very small size of the business I am satisfied that reinstatement would not be in either party’s interest and so would be inappropriate.
I do however consider an order for the payment of compensation in all of the circumstances is appropriate.
Turning to consider the statutory provisions regarding compensation prescribed in section 392 my decision is as follows.
There is no evidence before the Commission that an order of compensation would affect the viability of the Respondent’s enterprise.
The Applicant has been employed for a relatively short period of a little over one year.
Considering the history of warnings and evidence of some other past conflicts between Mr Buckley and Mr Bartlett my view is that had Mr Buckley not been dismissed when he was then in all likelihood his employment would not have continued for longer than a further six weeks.
I am satisfied on the evidence that Mr Buckley has made appropriate efforts to attempt to mitigate the financial loss he has suffered because of the dismissal.
Mr Buckley has not earned any other remuneration which should be taken into account.
Consequently, an order for compensation in the amount of six weeks wages will be issued. Given Mr Buckley’s salary of $75,000 per year this amounts to a gross figure of $8,653.85.
An order to that effect will now be issued.
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