Mr Norman Ralston v Bivouc Pty Ltd T/A Darling Towers
[2011] FWA 6907
•7 OCTOBER 2011
[2011] FWA 6907 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Norman Ralston
v
BIVOUC PTY. LTD. T/A Darling Towers
(U2011/7879)
COMMISSIONER ROE | MELBOURNE, 7 OCTOBER 2011 |
Unfair dismissal - Termination at the initiative of the employer.
[1] At the hearing of this matter on 3 October 2011 I advised the parties of my decision and summarised my reasons. I now publish a slightly edited version of the reasons for decision I issued on transcript at that time.
[2] This is an application for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The Application for unfair dismissal remedy was made on 16 May 2011 by Mr Norman Ralston (the Applicant) in respect of his dismissal by Bivouc Pty Ltd T/A Darling Towers (the Respondent).
[3] I am satisfied that the Respondent is covered by the Hospitality Industry (General) Award 2010 in respect of the employment of the Applicant and that they employ more than 15 employees. The Applicant was a casual employee employed on a regular and systematic basis from January 2008 until 4 May 2011 at least.
[4] The Applicant represented himself and gave evidence 1. The Respondent was represented by the employer organisation VECCI and evidence was given by two of the managers, Mr Barrera2 and Mr Richards3. Another manager, Mr Park, submitted a statement4 but due to personal circumstances, which I fully accept, was unable to attend the proceedings. That part of Mr Park's statement which was not in contention was admitted as evidence, and that part which was in contention was excluded.
[5] I am satisfied from the evidence that the Applicant worked four days per week for the first month or so of his employment and then for the rest of his employment period worked regular hours on Tuesday, Wednesday and Thursday. The Applicant had very little time off except for public holidays. There was some issue about underpayment of wages, but both parties agree that this was substantially resolved, and in any case it is not a matter that was before me.
[6] I am satisfied that the Applicant is a regular and systematic casual employee who has been engaged for more than three years and, given the other factors, is protected from unfair dismissal provided he has in fact been dismissed at the initiative of the employer. Neither party suggests that the Applicant has resigned his employment. The Applicant says that he was dismissed by Mr Richards on Tuesday 3 May 2011 when Mr Richards said that: "There was no more work for me." In response the Applicant says he asked Mr Richards if he should look for another job and he says Mr Richards agreed. The Applicant said that this was reinforced on the morning of Wednesday 4 May 2011 by a conversation he had with Mr Park, the Applicant's immediate supervisor. The Applicant says that Mr Park said that: "The owner, York Gerstmann, knew what he was doing and that he doubted there was any more work for me."
[7] The Applicant says that he asked if this was to do with a dispute he was having with York Gerstmann over reimbursement of car expenses, and the Applicant said that Warren Park said, "I think so."
[8] Mr Richards says that in the first conversation on 3 May he did not say that there was "no more work", but rather that there was no work on Wednesday 4 May. It is not contested that the Applicant was told that he was not required to work on the six working days prior to Tuesday 3 May. Mr Richards says that he told the Applicant that he would call him on Wednesday 4 May about work on Thursday 5 May. Mr Richards and Mr Barrera gave evidence that on the afternoon of Wednesday 4 May there was a further conversation with the Applicant which was on the speaker phone and Mr Barrera gave evidence that he heard the conversation.
[9] Mr Richards and Mr Barrera say that in the second conversation, Mr Richards told the Applicant that there was no work for Thursday 5 May and that he would ring on Monday 9 May about what work was available in that week. Mr Richards says that in that conversation the Applicant asked Mr Richards if he should look for alternative work and he replied that he would not stop him from looking for further work. Mr Richards says that the Applicant then said that he felt that they were trying to phase him out of the business as they were not giving him work. Mr Richards said that this was not the case and that it was simply that projects had finished at that time. Mr Richards and Mr Barrera say that the Applicant raised the matter of a groin injury and the dispute over the car invoice at that time.
[10] The evidence of Mr Barrera is unchallenged that the employer has been working on a return-to-work plan since the alleged dismissal. The evidence of Mr Barrera is also unchallenged that the company regard the Applicant as still being employed and continue to act on that basis. The evidence of Mr Richards is unchallenged in that he has endeavoured to organise a counselling interview with the Applicant concerning an incident, subsequent to the alleged dismissal, with Mr Barrera which the Applicant denies occurred on 3 June 2011. This supports the contention that the company still regards the Applicant as being employed. There is no evidence from the Applicant or any of the other witnesses that suggests that the employer has done anything or behaved in any way that is contrary to the Applicant still being employed since the alleged incident on Tuesday 3 May and Wednesday 4 May.
[11] There is no contest that the company had been paying vehicle costs for the Applicant associated with his work, and there is no contest that there was a dispute over a particular vehicle repair bill. There is also no contest that the Applicant has been on workers compensation since around the time of the incidents on 3 and 4 May, and the Applicant raised the injury with Mr Richards for the first time in the 3 May or 4 May conversation. The Applicant concedes that Mr Richards raised the issue of the absence of more work prior to him raising the issue of the injury. I am not satisfied that there is any strong linkage in the evidence between the complaint over the car repair bill and the workplace injury, and there is no strong evidence that links those two events to the alleged dismissal.
[12] There is no contest to the fact that the Applicant is a casual employee and has been receiving a 25 per cent casual loading, and there is no contest that although the Applicant has worked regular hours on Tuesday, Wednesday and Thursday with very limited exceptions, it is open to the employer to advise the Applicant that he is not required for work for certain days due to shortage of work or the absence of the appropriate supervisor. It is understandable that the Applicant may have been alarmed, disappointed and even angry at the fact that after more than three years of very regular work there was first a request to take six days off around Easter and then immediately following that a request to take further time off with no certainty as to when there might be further regular work.
[13] In this circumstance it is understandable in my view that the Applicant may have misunderstood the meaning of the conversations with Mr Park and Mr Richards on 3 and 4 May. It is quite possible that Mr Richards said that there was no work available at that time and the Applicant did not hear or appreciate the meaning of the qualification. The employer does not suggest that there is no work available for the Applicant in the future, and the Applicant has brought no evidence that suggests that the job he has been doing no longer needs to be done. Hence there is no basis for suggesting the Applicant has been made redundant. The employer has not made a decision to dismiss the Applicant in respect to the alleged incident of 3 June which occurred after the alleged dismissal, and the employer has not threatened to dismiss the Applicant in respect of this incident.
[14] I make no finding about the alleged incident of 3 June, and in my view it has no bearing on the decision about whether or not the Applicant has been dismissed, and if dismissed, whether or not the dismissal was fair since the alleged incident happened after the alleged termination and there is insufficient evidence for me to decide about that incident in any case.
[15] Under cross-examination the Applicant suggested that Mr Park had in fact been more definite in stating that the Applicant no longer had a job than what appears in the Applicant’s statement, which is: "He doubted that there was any more work for me." I am not satisfied that this is correct. I am satisfied that the earlier recollections of the Applicant in his F2 application form and in the statement prepared for these proceedings is more likely to be an accurate reflection of his memory than the revised position put under cross-examination.
[16] I am satisfied that the Applicant understandably thought that the future of his employment was in doubt because of the fact that Mr Richards and Mr Park told him that there was no work at that particular time when he had been used to regular employment for more than three years. I am satisfied that Mr Richards did not say that there was no more work, but rather said there was no more work at that time or words to that effect. I am satisfied that Mr Richards reinforced the doubts that the Applicant had by agreeing with the Applicant that it was appropriate for him to look for alternative work. I am satisfied that Mr Richards said this because the Applicant had a right to do so, that is the right to look for alternative work, but the Applicant understood this as reinforcing the precariousness of his employment situation.
[17] I am satisfied that the conversation did in fact take place on Wednesday 4 May with Mr Richards, and Mr Barrera listening in, after the conversation with Mr Park. The Applicant does not exclude the possibility that that conversation took place, he just cannot remember. There are two witnesses to the fact that that conversation took place on the afternoon of Wednesday 4 May, and I find their evidence on this matter convincing. I am satisfied that the Applicant was told that work might be available next week and that there would be a telephone conversation on Monday about the availability of work in the next week. I am satisfied that that did occur in the conversation on the afternoon of Wednesday 4 May. In my view this clearly negates anything that was said in the conversation with Mr Park earlier in the day.
[18] I am also satisfied that what was said by Mr Richards in the conversation on the afternoon of Wednesday 4 May was in fact consistent with the essential facts of the first conversation that the Applicant had with Mr Richards on Tuesday 3 May. In my view, nothing Mr Park could say could throw any light on the two conversations with Mr Richards. I do not believe that we need evidence from Mr Park in order to determine this matter. The Respondent was not obliged to call Mr Park, and even if he was called, it would not change the outcome because of what I have found about the preceding and subsequent conversations the Applicant had with Mr Richards. There is also evidence about a conversation that took place subsequent to Wednesday 4 May concerning pay slips. Those conversations took place shortly after the Wednesday 4 May conversation.
[19] There is some evidence of a conversation on Thursday 5 May and also a conversation on Monday 9 May. There is no suggestion from either the Applicant or the Respondent that the issue of the alleged termination was discussed in those conversations. There is no evidence of any request for a statement of separation and there is no evidence of any termination pay or redundancy pay. I am satisfied, based on the evidence, that in the first conversation that occurred with Mr Richards the employer did not say that there would be no more work, but rather that there would be no more work at that time, that is for that day. The Applicant's own statement leaves this as a possibility.
[20] Based on all of these factors, I conclude that the Applicant has not been dismissed at the initiative of the employer. I accept the evidence that has been produced by the employer that the Applicant is still employed by them, and on that basis I have no alternative but to dismiss the application.
[21] The application is dismissed and an Order will be issued separately to that effect.
COMMISSIONER
Appearances:
Mr N Ralston appeared on behalf of himself.
Ms N Halwells-Schramm and Mr M Ritchie of VECCI appeared on behalf of the Respondent.
Hearing details:
2011
Melbourne
October 3
1 Exhibit R1.
2 Exhibit B2.
3 Exhibit B1.
4 Exhibit B3.
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