Mr Michael Field v Kleencut Solutions Pty Ltd

[2021] FWC 1799

[2021] FWC 1799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal

Mr Michael Field
v
Kleencut Solutions Pty Ltd
(C2021/850)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 1 APRIL 2021

Application to deal with contraventions involving dismissal - jurisdiction– whether dismissed – whether resigned – dismissal found – jurisdiction established

[1] On 16 February 2021 Mr Michael Field (Mr Field or the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.

[2] His former employer, Kleencut Solutions Pty Ltd (Kleencut, the Respondent or the Employer) opposes the application. It filed a response on 19 February 2021 raising a jurisdictional issue.

[3] The jurisdictional issue is that Kleencut contend that Mr Field resigned from his employment and was not dismissed.

[4] 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 section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Mr Field’s application to proceed further.

[5] I issued directions on 10 March 2021.

[6] I heard the jurisdictional matter by video conference on 31 March 2021.

[7] Mr Field was self-represented. So too was Kleencut, through the agency of its director Mr Tomas Burnie.

[8] I heard evidence from both Mr Field and from three witness called by Kleencut:

•  Mr Burnie (Director);

•  Mr Beau Stanborough (Production Manager); and

•  Mr John Fell (Site Installation Team Leader).

[9] All witnesses were examined on statements filed in advance of proceedings. 2 Documentary material was annexed to the statements and related documents were brought into evidence.

[10] The evidence of Mr Field was clear, plausible and given with generally good recall. There were some areas of dispute between the evidence of Mr Field and that of Kleencut’s witnesses.

[11] Mr Stanborough’s evidence was largely unembellished. A critical issue in this matter is a conversation between Mr Field and Mr Stanborough in the workshop on 1 February 2021. On this, there are slight differences in the evidence between Mr Stanborough and Mr Field. The differences are the product of recall, not credit; unsurprising given the lapse of time between the conversation and the hearing, and the informality of the conversation.

[12] Mr Fells’s evidence was straightforward though only tangentially relevant to the jurisdictional issue.

[13] The evidence of Mr Burnie was direct but combative; somewhat understandable given that Mr Burnie was also advocate for Kleencut.

[14] The evidence of all witnesses strayed into fact and opinion concerning non-jurisdictional matters – such as the reason why Mr Field was moved from dayshift to nightshift and then back to dayshift, the nightshift payrate Mr Field did or should have received and matters of workmanship. Should this matter proceed further, these matters may be relevant. However, this decision confines itself to findings of fact relevant to the jurisdiction issue.

Facts

[15] I make the following findings.

[16] Kleencut is a relatively small (17 employees) privately owned business based in Brisbane, Queensland, specialising in the design and manufacture of decorative laser cut privacy and garden metal screens. Mr Burnie is a working director.

[17] Mr Field was employed by Kleencut as a casual tradesman from 7 December 2020. 3 Prior to that he had worked for an associated business (Inspired Built) since July 2020. He had also briefly worked for an unrelated business (via a labour hire agency) in November 2020.

[18] He worked both in the workshop and also on-site at customer premises when product needed to be installed. Commonly a team of three tradespersons were required on jobs.

[19] Rosters were set by the Production Manager Mr Stanborough. Work for the next day by casual employees was usually advised between 4pm and 5pm the previous day or (for Monday’s work) the previous Friday afternoon.

[20] Mr Field worked day shifts. These generally commenced at 6am. There was no specific finishing time though commonly he worked about an eight to nine hour day (finishing between 230pm and 330pm).

[21] There was also a nightshift roster operating. Due to another employee’s absence, Mr Field was offered and accepted nightshift work commencing 10pm Wednesday 27 January 2021. He was also rostered on nightshift for 28 and 29 January. He was keen to maximise his earnings. Mr Fell managed the nightshift.

[22] On about 27 January 2021 Mr Field asked Mr Stanborough and Mr Fell about his nightshift rate. He was not satisfied that he was being paid the correctly loaded rate. Neither Mr Stanborough or Mr Fell dealt with wage issues. They referred Mr Field to Mr Burnie.

[23] At 5:30pm on Friday 29 January 2021, upon waking and preparing for nightshift scheduled to start at 10pm that evening, Mr Field rang Mr Burnie. Mr Burnie was at a function. He was surprised Mr Field had his mobile number. Mr Field left a message saying he was inquiring about his nightshift rate. They then exchanged texts: 4

“Mr Burnie: Hey Michael, just at a function mate, can it wait till Monday? Or do I have to walk out and call.

Mr Field: Don’t walk out mate, if you get a spare moment just call me then.”

[24] Mr Burnie took time out of the function to call Mr Field. A difference of view arose about payment. Mr Burnie suggested that if Mr Field was a team player he would work the rostered nightshift and allow the matter to be sorted out the following week. There is a factual dispute about the full nature of that discussion and whether Mr Field also expressed concern about being weary as a result of nightshift.

[25] Shortly after the call, Mr Field replied by text: 5

“Mr Field: Sorry about the disagreement Tom, I will still go in tonight. I am a team player.

Mr Burnie: Ok mate, cheers. We can chat Monday, I frigging hate this stress on a Friday, can’t focus now.

Mr Field: I totally understand.”

[26] That Friday evening, Mr Burnie called Mr Stanborough to alert him to the issue. A decision was made to move Mr Field off nightshift and revert to dayshift the following week. It being a Friday evening, Mr Stanborough did not immediately advise Mr Field.

[27] Mr Field worked nightshift on Friday 29 January 2021. As far as he was concerned, he was next rostered to work nightshift the following week.

[28] At 9.13pm on Sunday evening 31 January 2021 Mr Stanborough sent Mr Field the following text: 6

“Mr Stanborough: Hi mate, sorry for the late notice. I need you back on sheeting tomorrow at the workshop from 6am with Lucas. Nic will be moved to night shift to push things along.

[29] Mr Field turned up for the dayshift at 6am Monday 1 February 2021. He worked in the workshop that day. He was tired, not having expected to be back on dayshift and starting at 6am. He was not happy with the way his wage query had been dealt with and the way he had been moved back onto dayshift at short notice. He decided he would look for another job. He made arrangements to go to the labour hire agency after work that day. He kept this to himself, and worked as usual that day.

[30] Mr Field had a brief and unremarkable encounter with Mr Stanborough that morning (1 February). As Mr Stanborough did his usual walk through the workshop and after a polite ‘hello, how are you going?’ from Mr Stanborough, Mr Field said he was ‘okay but tired’.

[31] At 2:30pm 1 February 2021 work had not concluded. Mr Field decided he would leave at around that time (before the workshop closed) because he was tired and because he wanted to get to the job interview.

[32] At around that time (it is not clear from the evidence whether Mr Field was packing up or about to pack up) Mr Stanborough came into the workshop to check on Mr Field’s work. A discussion ensued. Recognising that both Mr Field and Mr Stanborough were witnesses of credit but neither could or can be expected to have exact recall of each precise word used, I find, on the balance of probabilities, that the discussion went as follows:

Mr Field: I am going to finish for the day now and leave. I’ve done my eight hours. I’m not feeling rested because of the nightshift patterns. I’m not happy with the way my pay issue has been handled. I am going to get another job. I have a job interview to go to.

Mr Stanborough: Will you be providing us a week’s notice?

Mr Field: I don’t have to. I’m a casual.

Mr Stanborough: That’s disappointing.

Mr Field: (shrugged his shoulders and left the workshop)

[33] Mr Stanborough immediately informed Mr Burnie of the discussion and that Mr Field had left early and was getting a job elsewhere.

[34] Mr Burnie instructed Mr Stanborough to formally advise that Mr Field’s employment had ceased.

[35] At 330pm that afternoon, 1 February 2021 Mr Stanborough sent Mr Field the following email: 7

“Kleencut – Employment cancellation

Hi Michael,

This is a formal correspondence to let you know your services will no longer be required at Kleencut Solutions. We thank you for your time with us and wish you all the best for the future.”

[36] Mr Field did not return to the workplace nor was he further rostered. He was paid for his work up to and including 1 February 2021.

[37] Mr Field found alternate employment from 8 February 2021. He also received a job offer from Kleencut’s associated company on 16 March 2021.

Submissions

Kleencut

[38] Kleencut submit that Mr Field was not dismissed from his employment on 1 February 2021. He resigned or in the alternative, abandoned his employment.

[39] As no dismissal occurred, the application under section 365 of the FW Act is not within jurisdiction and should be dismissed.

Mr Field

[40] Mr Field submits that he was dismissed from his employment by Kleencut by the letter sent to him at 3:30pm on 1 February 2021. He did not resign or abandon his employment. Accordingly his application is within jurisdiction and must proceed to a conference under section 368 and, if unresolved, the Commission must issue a certificate to that effect enabling further proceedings.

Consideration

[41] Section 365 of the FW Act provides:

“365 Application for the FWC to deal with a dismissal 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;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[42] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact. 8 “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:

“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.”

[43] Having raised the jurisdictional issue, Kleencut bear the onus of establishing that Mr Field was not dismissed.

Resignation

[44] Whether an employee has resigned from their employment is a question of fact. A resignation can be oral or in writing. Where a resignation exists as a matter of fact, it is capable of being a dismissal for the purposes of the FW Act if it was a forced resignation within the meaning of section 386(1)(b).

[45] I do not find that Mr Field resigned from his employment. There is nothing in writing to that effect. Nor do the words used or conduct of Mr Field during his discussion with Mr Stanborough on the afternoon of 1 February 2021 support that contention. At its highest, Mr Field told his employer that he was unhappy, that he was looking for another job and that he was intending to leave. That does not constitute a resignation.

Abandonment of employment

[46] An employee is not dismissed if their words or conduct are such that they repudiate their employment contract, for example by abandoning their employment.

[47] Mr Field left before the workshop closed on 1 February 2021.

[48] This was not abandonment of employment. Though Mr Field had not been given permission to leave at 2:30pm before all work for that day had concluded, he told Mr Stanborough that he was leaving and why. Even though Mr Stanborough did not give express permission for Mr Field to leave, Mr Field was not advised not to do so.

[49] In circumstances where Mr Field had already worked an eight hour shift and where there was no set rostered finishing times that day it cannot be said this was abandonment of employment, even if Mr Field was leaving earlier than the employer wanted. This is especially so taking into account that Mr Field’s eight hours that day had been rostered at short notice.

Was Mr Field’s employment terminated on the employer’s initiative?

[50] The letter sent to Mr Field at 3:30pm on 1 February 2021 was a termination of his employment at the employer’s initiative.

[51] It was not confirmation of a resignation or even an expression of a belief on the employer’s part that he had resigned. It made no reference to resignation or abandonment (not that a subjective belief can establish an objective fact). The letter was headed “Kleencut – Employment cancellation”. The word “cancellation” carries a strong inference that the sender of the letter was actioning a termination. The content of the letter and in particular the reference to “your services will no longer be required” is language that clearly points to termination on the employer’s initiative.

[52] I conclude that Mr Field’s employment was terminated on Kleencut’s initiative.

[53] Accordingly there was a dismissal within the meaning of section 386(1)(a) of the FW Act.

[54] The casual nature of Mr Field’s employment does not alter this conclusion. He had a reasonable expectation of being rostered to work in the days that followed had his employment not ceased that afternoon, notwithstanding his contract 9 enabling Kleencut to roster casual shifts without guarantee of hours in any given week.

Conclusion

[55] There having been a dismissal, Mr Field’s application under section 365 of the FW Act is within jurisdiction.

[56] That being so, and as Mr Field’s application was made within 21 days of the dismissal taking effect, the Commission is required to further deal with the matter.

[57] I will deal with the dispute by conducting a conference of the parties under section 368(2) of the FW Act.

[58] I issue a direction that the conference be held by telephone at 4.00pm ACST (4.30 AEST) Thursday 8 April 2021. A Notice of Listing accompanies this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Field, on his own behalf

Mr T Burnie, for and on behalf of, Kleencut Solutions Pty Ltd

Hearing details:

2021
Adelaide (with video connections to Queensland)
31 March

Printed by authority of the Commonwealth Government Printer

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 1 [2020] FCAFC 152

 2   A1 Statement of Michael Field; A2 Statement in Reply of Michael Field; R1 Statement of Tomas Burnie; R3 Statement of Beau Stanborough; R4 Statement of John Fell

 3   A6; A7

 4   A9; A10

 5   A11

 6   A12

 7   A13

 8   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]

 9   A7