Mr Shane Frerichs v Cary Struckle (Phoenix NQ) T/A Phoenix NQ

[2020] FWC 91

[2020] FWC 91

FAIR WORK COMMISSION

DECISION

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

Mr Shane Frerichs
v
Cary Struckle (Phoenix NQ) T/A Phoenix NQ
(U2019/6310)

DEPUTY PRESIDENT LAKE BRISBANE, 7 JANUARY 2020

Application for an unfair dismissal remedy – Jurisdictional objection – Application dismissed – Applicant not terminated – Resignation

[1] On 6 June 2019 Mr Shane Frerichs (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Phoenix NQ (the Respondent) was harsh, unjust and unreasonable. Phoenix NQ is owned by Mr Cary Struckle who is also the Respondent in this proceeding.

Background and jurisdictional objections

[2] The Respondent provides a potable water delivery service to Peabody Energy in Moranbah, Queensland. A truck owned by the Respondent is used to deliver the water three to four days per week, depending on water usage.

[3] The Applicant commenced employment with the Respondent on 7 February 2018 1 as a casual truck driver. The Applicant initially worked three days per week - Monday, Wednesday and Friday. Water is required to be delivered on Friday’s to ensure that water is available to Peabody Energy on weekends. In 2018, the Respondent also commenced providing its service on Tuesdays, which resulted in the Applicant working four days per week. This averaged to 40 hours of work per week.

[4] It is not in dispute, and I so find that the Respondent is a small business employer in accordance with s. 23 of the Act, as they employ only three employees. 2

[5] In the Form F3 – Employer Response to Unfair Dismissal Application, the Respondent objected to the application on the basis that the Applicant had not been dismissed in accordance with s. 386 of the Act.

Determinative Conference

[6] The matter was listed for hearing before me on 10 December 2019. The Applicant appeared on his own behalf. The Respondent appeared on his own behalf, with his wife, Mrs Tetiana Struckle. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.

The Legislative Framework

[7] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[8] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“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.”

[9] Section 388 of the Act provides:

“The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[10] The Small Business Fair Dismissal Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009, and states:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.”

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. [original emphasis]”

[11] It is first necessary to determine if the Applicant was dismissed pursuant to s. 386 of the Act. If I find he was not dismissed pursuant to s. 386 of the Act, the application will be dismissed. If I find that he was dismissed, it is then necessary to determine if the dismissal was in accordance with the Code.

[12] If I determine the Applicant’s dismissal was not in accordance with the Code, it is necessary for me to consider if the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states:

“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.”

Evidence and submissions of the Applicant

[13] The Applicant stated that had been applying for permanent positions and had also been in contact with Stellar Recruitment.

[14] On 6 May 2019, the Applicant spoke to the Respondent and requested that his casual employment be converted to permanent employment. The Respondent advised the Applicant that he would ‘have a think about it’. On the following day, 7 May 2019, the Respondent contacted the Applicant and stated that his employment could be converted to permanent employment, and that the difference would be that the Applicant would now receive sick leave and annual leave entitlements.

[15] In early May 2019, the Applicant informed the Respondent that he would not be working Friday 17 May 2019 and Monday 20 May 2019 as he was attending his goddaughter’s wedding in Rockhampton.

[16] The Respondent requested that the Applicant check his competencies at Coppabella mine to ensure that the Respondent could get through the entry gate, as it had been sometime since the Applicant had been on the mine site.

[17] On 14 May 2019, the Applicant received a phone call from Ms Amy Battishall, a consultant from Stellar Recruitment. During this phone call, Ms Battishall asked the Applicant if he was interested in a position with one of their clients. The Applicant stated that he advised Ms Battishall that his employment had recently became permanent with the Respondent and that he was happy to continue working with the Respondent.

[18] On 15 May 2019, the Applicant sent a text message to the Respondent to remind the Respondent that he would not be at work on Friday 17 May 2019 and Monday 20 May 2019.

[19] On 16 May 2019, the Applicant was attending an appointment at his medical practitioner with his wife, when he stated he received a phone call from Mr Struckle. The Applicant stated that due to him being hard of hearing, he had put the phone on loudspeaker, and that the Respondent said words to the effect of: [he] was no longer required and that he will pay two weeks’ severance pay. In response, the Applicant advised that he would work the two weeks, however, the Respondent stated words to the effect of: “no don’t come in you are finished”.

[20] Forming part of the Applicant’s evidence was a two-page extract of his phone record from 13 May 2019 to 21 May 2019. The two-page extract contains a table with four columns titled item, date, time and number. Each row contains a separate entry. On top of the document, it states “SMS (continued)”. The Applicant relied upon the phone record to establish that a phone call, itemised as 464, was received from the Respondent at 11:15:33 am on 16 May 2019. During the determinative conference, the Applicant stated that the phone record only showed incoming calls, not outgoing calls.

Evidence and submissions of the Respondent

[21] In the Respondent’s Form F3, the Respondent raised a jurisdiction that the Applicant had not been dismissed on 16 May 2019. In advancing his jurisdictional objection, the Respondent submitted that the Applicant had called him on 15 May 2019 at approximately 6:30pm and resigned from his employment.

[22] During the determinative conference, the Respondent agreed, to an extent, of the Applicant’s version of events. The Respondent submitted that on 13 May 2019, a discussion occurred between the Respondent and Applicant. During this discussion, the Respondent said that the Applicant raised the idea of working Monday to Thursday, instead of the usual work days of Monday, Tuesday, Wednesday and Friday. The Respondent said that the Applicant stated instead of performing work on Friday, the work could be performed from Monday to Thursday. Although the Monday to Thursday arrangement could be permissible on a weekend where the Applicant was unavailable, the Respondent asserted that this was not a good idea on the basis that their clients would not receive water on Friday, Saturday and Sunday, due to the Respondent not operating on the weekend. The Respondent stated that the Applicant would not take no for an answer.

[23] It was the Respondent’s evidence that he called the Applicant at 6:29 pm on 15 May 2019. The Respondent’s recollection of the discussion is as follows:

•  The Respondent said to the Applicant that he was worried about the water and that the delivery had to be done on Fridays;

•  The Applicant said it would be fine, in which the Respondent said that it won’t be, and referred to the crib in a nearby town. In response, the Applicant stated that he will go out on the weekend to deliver the water should it run out;

•  The Respondent said that it would be too late, and whether the Applicant liked it or not, he wanted the truck to deliver on Fridays; and

•  The Respondent submitted that the Applicant stated words to the effect of “I will go to Thiess then”, in which the Respondent said, “okay go”.

[24] The Respondent agreed that the Applicant sent him a text message the morning of 16 May 2019 informing him that the Applicant will be away the upcoming Friday and Monday. However, the Respondent submitted that he called the Applicant at 11:23am and advised him of the previous night’s discussion, in which the Applicant stated he was leaving. The Applicant said that he would work the two weeks, however, the Respondent stated words to the effect of, “don’t bother – here is two weeks’ pay”.

[25] The Respondent provided evidence of his phone records. The Respondent’s evidence is a screenshot of a Microsoft Excel spreadsheet that Respondent received from his service provider. Two rows were highlighted, indicating phone calls with the Applicant. The first row indicates a phone call was made at 6:29 pm on 15 May 2019 and the second row indicates a phone call was made at 11:23 am on 16 May 2019 to the Applicant’s mobile number.

[26] Mrs Tetiana Struckle gave written and oral evidence on behalf of the Respondent. Mrs Struckle stated that she was present when the Respondent made a phone call to the Applicant on 15 May 2019, and overheard the Mr Struckle tell the Applicant that he wanted the truck to deliver on Friday’s as the crib huts would run out of water. Mrs Struckle stated that the conversation ended with the Respondent stating, “Ok, good. You go then”. Following this, Mrs Struckle stated that she queried what the conversation was about, in which the Respondent stated that the Applicant had advised Mr Struckle that he was leaving for Theiss. Mrs Struckle stated that she had asked why, and Mr Struckle replied that the Applicant no longer wished to work Friday’s.

Was there a dismissal in accordance with s.386(1) of the Act?

[27] I find that the termination was at the employee’s initiative and should properly be characterised as a resignation. Further, I find that the Applicant’s resignation was not forced, but rather offered by the employee to avoid undertaking a reasonable management direction. Mr Struckle had requested that the tanks be topped up on Friday and, for whatever reason, the employee did not want to comply with this direction. On the balance of probabilities, I find that the Applicant then voluntarily offered his resignation.

[28] The Applicant claimed that he could not recall that conversation, but then further stated that he did not resign. The evidence provided by the Respondent (and the Respondent’s wife), however, painted a more credible and compelling view that the Applicant did indeed resign. At no stage did the Applicant provide any evidence that he was forced to resign. The Applicant offered a view that because he did not follow a management instruction he was let go.

[29] Even if I was to believe the Applicant’s version of events, which I do not, the employer would still possibly have a valid reason for termination.

[30] The Applicant did not provide evidence of his phone calls. Rather, the evidence that was before me, at least from the Applicant’s material, was a list of text messages. The Respondent, however, provided me with a list of calls which validated a call at the time of the alleged conversation in which the Applicant was said to have resigned. Further, I accept the Respondent’s wife’s evidence that she heard the call and had a conversation immediately following the telephone with Mr Struckle about the nature of that call. Mr Struckle and his wife purportedly discussed the Applicant’s resignation. Mrs Struckle’s evidence corroborates the evidence of Mr Struckle.

[31] In the absence of any evidence that would lead me to the view that the dismissal was at the initiative of the employer, I find that the Applicant, who cannot recall the phone call (but can recall that he did not resign), did, on the balance of probabilities, refuse a reasonable management direction and then offered his resignation to the Respondent.

Conclusion

[32] Considering all of the facts, I find, on the balance of probabilities, that the Applicant resigned. The Commission therefore lacks jurisdiction to hear this matter, pursuant to s. 386 of the Act. The Applicant has not been dismissed.

[33] The application is therefore dismissed for want of jurisdiction. An Order to this effect is to be published with this Decision.

DEPUTY PRESIDENT

Appearances:

The Applicant: Mr Shane Frerichs

The Respondent: Mr Cary Struckle

Hearing details:

Tuesday, 10 December 2019 (via telephone)

Printed by authority of the Commonwealth Government Printer

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 1   Applicant’s outline of submissions, 9 October 2019.

 2   Form F3 – Employer response to unfair dismissal application, 19 June 2019, Part 1.7.