Mr Trent Jowett v Idrilling Australia
[2023] FWC 2017
•13 NOVEMBER 2023
| [2023] FWC 2017 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Trent Jowett
v
Idrilling Australia
(U2023/2700)
| DEPUTY PRESIDENT BINET | PERTH, 13 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 30 March 2023, Mr Trent Jowett (Mr Jowett) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Idrilling Australia (Idrilling).
On 14 April 2023, Idrilling filed a Form F3 - Employer Response to an unfair dismissal application (Form F3). In answer to Question 2.1 on the Form F3 Idrilling indicated that it did not assert any that it had any jurisdictional objection to the Application however, it is clear from its answers to other questions in the Form F3 that it asserted that Mr Jowett had not been dismissed and was in fact still in the employ of Idrilling (Jurisdictional Objection).
On 18 May 2023, the Application was allocated to my Chambers. The Application was initially listed for a conciliation conference on 2 June 2023 and was rescheduled to 26 June 2023 at the request of the Idrilling. Following the conference on 26 June 2023 the parties were granted a period of seven days to continue settlement negotiations. During this period Idrilling’s legal representatives wrote to Mr Jowett regarding Idrilling’s concerns about his prospects of success given the Jurisdictional Objection. Attached to this communication was documentary evidence upon which Idrilling relied in support of the Jurisdictional Objection. On 6 July 2023, Mr Jowett’s legal representatives sought a further extension to consider the materials received from Idrilling in relation to the Jurisdictional Objection.
On 12 July 2023, Mr Jowett’s legal representatives sought a further adjournment to discuss the Jurisdictional Objection and settlement options with Idrilling’s legal representatives. On 13 July 2023 the parties were directed to file a summary of agreed facts and law (SAFL) attaching any jointly tendered documents on 20 July 2023 to further assist settlement negotiations. The SAFL was ultimately not filed until 21 July 2023.
In the absence of agreed settlement terms directions for the filing of materials in advance of the Hearing were issued to the parties on 25 July 2023 (Directions).
On 27 July 2023, Mr Jowett’s legal representatives sought an extension of a further seven days to file Mr Jowett’s materials. The adjournment was declined given the extensive time the parties had already been given to consider the relevant evidence and legal arguments.
The parties participated in a second conciliation conference on 28 July 2023 during which the Jurisdictional Objection and settlement terms were again discussed. The parties did not reach a resolution at the conference. In order to enable the Application to be heard prior to commencing an extended period of leave, the Directions were amended (Amended Directions) and the Application was listed for determination on 15 August 2023.
Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application.
At the commencement of Day One of the Hearing, Mr Jowett’s legal representatives sought a further adjournment on the grounds that the directions had not expressly invited the parties to file submissions with respect to the Jurisdictional Objection and that it was not until Idrilling filed its materials on 8 August 2023 that Mr Jowett became aware of the nature of the Jurisdictional Objection. Mr Jowett’s legal representatives also sought to file two additional items of evidence relevant to the Jurisdictional Objection (Additional Evidence). Idrilling sought an adjournment in order to take instructions and file further submissions and evidence in relation to the Additional Evidence.
Given the extensive period of time whereby the legal representatives of both parties had numerous exchanges in relation to the Jurisdictional Objection prior to the Hearing, and that the written submissions of the parties filed prior to the Hearing both dealt with the Jurisdictional Objection, it is difficult to understand how Mr Jowett could be said by his legal representative to have not been on notice of the Jurisdictional Objection. However, given that an adjournment would also allow Idrilling a proper opportunity to respond to the New Evidence, in an abundance of caution, I adjourned the Application to allow the parties a further opportunity to file materials. The Application was listed for a further day of hearing on 29 September 2023 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Both Mr Jowett and Idrilling sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Mr Jowett was represented by Mr Abdul Al Asadi, a lawyer from MKI Lawyers (Mr Al Asadi) and Idrilling was represented by Mr James Parkinson a lawyer from Kingston Reid (Mr Parkinson).
Evidence
The Directions required the parties to file their witness and documentary evidence in advance of the Hearing.
Mr Jowett filed three witness statements setting out his evidence in chief.[2] At the hearing Mr Jowett gave further oral evidence in chief and was cross examined by Mr Parkinson.
Idrilling filed a witness statement setting out the evidence in chief of Mr Shannon Harding (Mr Harding).[3] Mr Harding is the Managing Director of Idrilling. At the hearing Mr Harding gave further oral evidence in chief and was cross examined by Mr Al Asadi.
In accordance with the Directions, a Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as Exhibit DCB1 at the Hearing.
Idrilling filed written closing submissions on 30 October 2023 and Mr Jowett filed written closing submissions on 23 October 2023.
In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for the decision.
Background
Idrilling operates as a “campaign-style” drilling company supplying drilling crews to attend its clients’ sites to conduct drilling activities on a campaign basis.[4]
Typically, once Idrilling is notified by its clients of the job requirement, it will contact its employees either by phone call or text message to confirm their availability and willingness to accept employment for the campaign.[5]
Idrilling then puts together the crew of employees (usually comprising drillers and offsiders, subject to their licenses and qualifications) who attend Idrilling’s yard for a few days of preparation before travelling to the client site to undertake the drilling campaign in accordance with the client’s roster pattern.[6]
To retain employees and encourage professional development, Idrilling offers formal traineeships to obtain a Certificate in Drilling (Level 3) to employees who have been the with business for at least three months and show promise in terms of their career prospects with Idrilling.[7]
The traineeships are facilitated by external training providers and the Department of Training and Workforce Development (Department). The Department registers and administers training contracts and regulates the apprenticeship system in Western Australia consistent with Part 7 of the Vocational Education and Training Act 1996 (WA) (Training Act) and associated regulations.[8]
On 2 January 2021, Mr Jowett commenced employment with Idrilling as a casual driller’s offsider.[9]
On the day he commenced employment Mr Jowett signed a driver’s licence advice declaration (Declaration).[10]
On 28 January 2021, Mr Jowett signed a Rig Induction which he declared that he has “… the correct and current licence to drive the required vehicles”.[11]
As a casual driller offsider, Mr Jowett performed labouring duties as and when required by Idrilling.
On or around 8 April 2023, Mr Jowett requested that Idrilling provide him with a separation certificate. The Separation Certificate dated 12 July 2021 records the date that his employment ceased as 1 April 2021 and the reason for separation being “employee ceasing work voluntarily”.[12]
Between 8 April 2021 and 18 March 2022, Mr Jowett did not accept or perform any work with Idrilling.[13] Mr Jowett says that between 8 April 2021 and late May 2022 he worked for other drilling employers.[14]
Mr Jowett recommenced accepting and performing work for Idrilling as a casual driller’s offsider from 18 March 2022.
On or around 27 May 2022, Mr Jowett entered into a training contract with Idrilling dated 27 May 2022 for a traineeship as a Driller (Level 3) commencing 30 May 2022 (Training Contract). The Training Contract (a form templated by the Department) was completed by a Apprenticeship Network Provider. There is no evidence that Idrilling or Mr Jowett ever signed the Training Contract.[15]
The Training Contract describes itself as a:[16]
“… legally binding agreement between an employer and employee for the training of Apprentices and Trainees leading to a nationally recognised qualification …”
The Training Contract sets out a nominal term of eighteen months (expiring 30 November 2023) and provides that it may only be terminated earlier “... in accordance with the requirements of the relevant State/Territory legislation” or if the trainee completes the required competencies earlier. The Training Contract contains a probationary period expiring on 15 July 2022.[17] The Training Contract describes the anticipated number of hours of employment and training per week as 54 hours.
On 27 June 2022, Mr Jowett signed a Training Plan Outline which detailed what training he required to become a fully trained driller. [18]
Mr Jowett says that he ceased employment with Idrilling on 8 April 2021 and asserts that as of 27 May 2022 he commenced a new and separate period of employment the terms of which were that he would be employed on a full time basis for 54 hours per week as an driller’s offsider for a fixed term of eighteen months expiring on 30 November 2023 while he received training and mentoring by a driller-trainer. Mr Jowett says that he understood that 38 of these hours would be ordinary hours and the remainder of the hours would be worked as overtime. [19]
Idrilling say that Mr Jowett has been continuously employed by Idrilling as a casual drillers offsider since 2 January 2021. As evidence of this Idrilling tendered pay records for the period 18 March 2022 until 25 May 2022. [20]
In one section the Training Contract indicates that Mr Jowett has not previously been employed by Idrilling and in another section states that Mr Jowett was employed by Idrilling from 31 March 2022 until 29 May 2022 as a casual employee working 54 hours per week.[21]
Payslips tendered by Mr Jowett reveal that he was employed by Idrilling prior to 27 May 2022 and from at least 13 May 2022. [22] The pay records tendered by Idrilling reveal employment from the pay period beginning 18 March 2023. In cross examination, Mr Jowett conceded that he was engaged by Idrilling from the pay period commencing 18 March 2023.
It is possible that the discrepancy between the pay records which indicate employment from 18 March 2022 and the Training Contract prior employment dates can be explained by the explanatory note contained in the Training Contract which provides as follows:[23]
“Question – Is the apprentice/trainee an existing worker?
An existing worker is defined as a person who has been employed by the applicant employer continuously for more than 3 months full time or 12 months casual or part time or a combination of both, immediately prior to the commencement of the Training Contract.”
Mr Jowett alleges that he rang Mr Harding on multiple occasions seeking to be rostered for work. He says Mr Harding assured him that he would be get back in touch with offers of work but often failed to do so.[24]
Mr Harding says that Mr Jowett was offered work but would often decline offers of work for reasons such that his car was broken down, he was unable to secure a lift to work or he had missed the train. Mr Harding says that on some occasions Mr Jowett would simply not respond to offers of work. According to Mr Harding, apart from often being unwilling or unavailable for work Mr Jowett generally performed his duties well. However, Mr Harding also says that over time it became clear that towards the end of a swing Mr Jowett would lose interest in work and elect to stay in camp, remain in the truck or return to camp early rather than work.[25]
Mr Jowett denies he was uncontactable or unwilling to work during his employment with Idrilling.[26]
Mr Jowett says that he was informed by Mr Harding that Idrilling had no work available in the period from 5 October 2022 until 9 November 2022. Mr Harding tendered evidence that he contacted Mr Jowett on 14 October 2022 asking him to attend a medical for new campaign of drilling and Mr Jowett informed Mr Harding that he was unable to attend the medical because, he was at that time, in Melbourne attending a funeral and did not plan to return to Perth until 20 October 2022. [27]
Mr Jowett performed work for Idrilling between 10 November until 29 November 2022. Mr Harding informed Mr Jowett on 29 November 2022 that Idrilling had no work available until early 2022 during its client’s Christmas shutdown.[28]
The payslips and pay records reveal that Mr Jowett worked and/or was on paid leave for in every pay period between 18 March 2022 and 8 December 2022. The hours of work/paid leave per fortnight ranged between 18 and 156.5 hours. In only one pay period (25 November 2022 to 8 December 2022 was no work performed and all hours recorded were for paid leave).
On 9 January 2023, Mr Jowett contacted Mr Seaman asking when he could recommence work. He was informed that the earliest work available post the Xmas shut down was likely to be on 23 January 2023.[29]
On 17 January 2023, Mr Jowett sent Mr Harding a text message asking if there was any work available and querying the number of hours of work he was entitled to work under the Training Contract. Mr Harding responded the same day confirming that he would check and respond to Mr Jowett. Mr Harding did so the following day inviting Mr Jowett to a meeting to discuss these matters. On 19 January 2023, Mr Harding again contacted Mr Jowett to arrange a time to discuss the matters Mr Jowett had raised. On 20 January 2023 Mr Jowett contacted Mr Harding to inform him that he had contacted the Fair Work Ombudsman (FWO). Mr Harding again endeavoured to arrange a time to meet with Mr Jowett to discuss his queries. A meeting was subsequently arranged for 23 January 2023, however Mr Jowett subsequently failed to attend the meeting.[30]
On 27 January 2023, Mr Jowett attended the Idrilling yard to prepare for a drilling campaign commencing on 30 January 2023. Mr Harding took the opportunity to speak to Mr Jowett and explained that he thought the reference to 54 hours in the Training Contract was an error but that he was clarifying this with the Department.[31]
Mr Harding subsequently liaised with the FWO to resolve Mr Jowett’s queries, and, on or about 15 February 2023, the FWO ultimately assessed that while the Training Contract provided for additional hours, the award required an average of 38-hours per week and this requirement was likely to have been fulfilled on average based on the statements provided to the FWO by Idrilling and Mr Jowett.[32]
Mr Jowett performed work for Idrilling at a remote site between 28 January 2023 and 8 February 2023.
Mr Jowett says that he endeavoured to contact Mr Harding on 6 and 7 February 2023 to discuss being rostered for more work but his calls were not returned.[33]
On 4 February 2023, it was reported to Mr Harding that Mr Jowett had hit a road sign and damaged a company vehicle. The following day Mr Harding telephoned Mr Jowett to discuss the incident and inform Mr Jowett that he would be required to attend a meeting with Mr Harding on his return to Perth and complete an incident report.[34]
Mr Harding says that on 8 February 2023, when Mr Jowett returned to the Idrilling yard he endeavoured to discuss the incident with Mr Jowett, however, Mr Jowett said his concerns were ‘bullshit’ and walked out of the meeting. Mr Jowett denies making such a comment or walking out. He says that they spoke only briefly about the incident and that he confirmed that he had completed an incident report on 5 February 2023.[35] Mr Harding says that Idrilling have no record of such an incident report ever being completed.[36]
Mr Jowett says that during the same conversation Mr Harding informed him that he was aware that Mr Jowett’s driving licence was not active. Mr Jowett says he made inquires with the Department of Transport and became aware that his licence had expired because he had forgotten to renew it. Mr Jowett concedes that he did not in ultimately renew the licence until July 2023.[37]
Mr Harding says he called Mr Jowett on 9 February 2023, however, Mr Jowett did not return his call. Mr Harding says he again tried to contact Mr Jowett on 16 February 2023 by text however he did not receive a response until 27 February 2023 when Mr Jowett forwarded to him a medical certificate certifying Mr Jowett unfit for work from 27 February 2023 until 6 March 2023.
Interestingly while the evidence is that the medical certificate was forwarded on 27 February 2023, the medical certificate is dated 2 March 2023.[38]
In his email attaching the medical certificate Mr Jowett states “I am writing this to inform you that I won’t be returning to work due to health reasons”. The email described the reasons for his absence as follows: [39]
“I've been under a fair bit of stress the past few months with bills stacking up and worrying about my traineeship and the hours lost at work. I've been a trainee for close to 12 months now and still no plan or program and to top it off I was robbed 2 weeks ago loosing various items in the home plus my car was taken and burnt out and now I'm looking at the possibility of loosing my land in meckering.
I will be in touch but for now I need to take leave due to stress.…
Also attached is doctors certificate, I will continue to send these through and update you on my progress.”
Mr Jowett sent an email to Mr Harding (and to Idrilling’s then Managing Director, Mr Seaman) on 2 March 2023 requesting that he be paid within 14 days of the sum of $48,392 as unpaid wages he alleged he was not paid by Idrilling for the period from 27 May 2022 to 1 March 2023 or which was made to him in the form of annual leave. In the same email Mr Jowett also sought “a redundancy type payment/settlement”. Mr Harding did not reply given that the medical certificate provided by Mr Jowett indicated that he was unfit.[40]
Mr Harding says that late in 2022 and early in 2023 he became aware of problems with the training contracts to which Idrilling was a party for example, some of the training contracts were dormant as the trainee had left the employ of Idrilling and others contained errors such as Mr Jowett’s contract which provide for 54 hours of work per week instead of 38. On 7 March 2023 Mr Harding contacted the Chamber of Commerce and Industry (CCI) for guidance as to how to resolve these issues. Based on the advice of the CCI Mr Harding instructed Ms Dannielle Dover, the Contracts and Business Development Associate of Idrilling (Ms Dover) to apply to the Department to terminate the training contracts of those individuals who were no longer employed by Idrilling and correct the training contracts with errors.[41]
On or around 7 March 2023, Ms Dover contacted the CCI and provided a list of employees whose Training Contracts required amendment or cancellation. On 7 March 2023, Ms Dover was informed by the CCI that individual forms would need to be completed for each employee.
Ms Dover completed individual forms as instructed and on 8 March 2023, Ms Dover sent an email to the Department attaching a Notice to Terminate Contract in relation to Mr Jowett (Notice to Terminate).[42] The proforma Notice to Terminate states: [43]
“Following the expiry of a training contracts probation period, an employer cannot terminate a training contract without the consent of the apprentice or the prior approval from the Department of Training and Workforce Development…
Situations where the attached form should be used:
1. When both the employer and the apprentice have agreed to the termination of the signed form.
2. When an apprentice has consented to the termination but the employer is unable to obtain the apprentice’s signature. By signing the form, the employer confirms that the apprentice (and parent/guardian if applicable) consents to the termination.
3. When an apprentice wishes to terminate the training contract and has signed the form. The apprentice is encouraged to speak to the employer before completing and submitting the form.…
Please note: Do not use this form if the apprentice/traininee does not consent or has abandoned the workplace.
…
By signing this form, I hearby confirm that I have read and understood the information contained in the cover sheet and that the apprentice has consented to the termination of the training contract between the parties above.”
The form was signed only by Ms Dover. The data fields for apprentice name, signature and date were left blank. [44]
The following reasons for termination were selected: “business downturn”, “performance/progression issues”, and “other”. Handwritten next to the word “other”, Ms Dover had added the words “uncontactable during January/December, no drivers licence and incidents.”[45]
On 9 March 2023, Mr Jowett received an email from the Department informing him that the Department had received notification of the termination of his Training Contract and that the termination had been processed by the Department. The email recorded the termination type as “With Apprentice Consent” and informed Mr Jowett that: [46]
“If you agreed to end your apprenticeship, you do no need to do anything.
If the training contract termination occurred after the probation expiry date and you did not request or agree to end your apprenticeship, please contact the Apprenticeship Office …”
Later on 9 March 2023, Mr Jowett sent an email to the Department, in which he stated that he did not agree to the termination of his Training Contract:[47]
“I have recently sent my employer a breach of contract notice but have not heard back from them regarding the terms.
I have not agreed to a termination of my contract as we have not discussed the issue at all nor have I received anything stating that my apprenticeship will be cancelled.”
The same day Ms Anne Smargiassi, Senior Apprenticeship Officer Compliance, Apprenticeship Office (Ms Smargiassi) contacted Mr Harding to discuss the response the Department received from Mr Jowett. Mr Harding says that he was surprised by this call and told Ms Smargiassi that it was not Idrilling’s intention to terminate Mr Jowett’s Training Contract rather it wished to terminate the training contracts of the individuals it no longer employed and amend Mr Jowett’s training contract to remove the reference to 54 hours of work per week. Mr Harding says that Ms Smargiassi told him she would contact Mr Jowett to confirm if he wished to proceed with the Training Contract and that in the interim it would be ‘suspended’. Mr Harding says that he understood this to mean that Idrilling would not be required to provide the hours of work stipulated in the Training Contract until the suspension was removed.[48]
Having not heard back from Ms Smargiassi on 20 March 2023, Mr Harding sent an email to Ms Smargiassi following up on their prior discussion:[49]
“Do you have an update on your follow up with Trent, I would love to find a resolution once I know where we stand thank you?”
Ms Smargiassi responded to the email from Mr Harding on 21 March 2023 by stating that: [50]
“I have reached out to Trent, at this stage he has not returned any of my phone calls. Will keep you updated when I have as little more information.”
On 30 March 2023, Mr Jowett lodged the Application. [51]
At 12 noon on 6 April 2023, the FWC sent an email to Mr Harding advising him that the Application had been made and that it had been listed for a conciliation conference with a staff conciliator.[52] Mr Harding says that he was surprised to receive the Application because he says it was never iDrilling’s intention to terminate Mr Jowett’s employment. Mr Harding says that he therefore called Ms Smargiassi to reconfirm that it was not iDrilling’s intention to terminate the Training Contract.[53]
At 1:46pm on 6 April 2023, Mr Harding sent an email to Ms Smargiassi that stated the following: [54]
“Thank you for taking my call re Trent Jowett training contract. As discussed, their last batch of names to be cancelled from employees included incorrectly Trent Jowett. Trent is still employed with us but currently uncontactable by us. This is not a training issue and not a reason to cancel. Please reinstate his contract and I will advise if there is to be any changes down the track. I agree with the process changes suggested to prevent this reoccurring and apologies for the error.¶”
Ms Smargiassi responded to the email from Mr Harding on 6 April 2023, by stating the following: [55]
“I have re-activated the WAAMS record as requested. A systems generated email has been sent to all parties.”
On 6 April 2023, Mr Jowett received an email from the Department that notified him that the change to the Training Contract that it notified to him on 9 March 2023 had been reversed by the Department, based on advice from one or more parties of the Training Contract.[56]
On 4 May 2023, the Department contacted Mr Harding to enquire as to whether Mr Jowett had returned to work yet.[57]
Since filing the Application, Mr Jowett says that he has applied for 20-30 jobs in the butchering, drilling and landscaping industries. He was successful in eventually obtaining employment as a truck driver. He has received $620 a fortnight from Centrelink since 11 May 2023.[58]
Mr Jowett submits that his dismissal was unfair and seeks an order for an order for compensation. Mr Jowett says that reinstatement is not appropriate because during his employment with Idrilling he was made to work unreasonable hours, he was provided with unclean accommodation, he worked in unsafe conditions and Idrilling failed to comply with lawful requests to obtain his employment records.
Consideration
An order for reinstatement or compensation may only be issued if Mr Jowett was unfairly dismissed.
The term ‘dismissed’ is defined in section 386 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.”
(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 persons employment, to avoid the employers obligations under this Part.”
It is agreed by the parties that Mr Jowett was an employee to whom a training arrangement applied. The Explanatory Memorandum to the Fair Work Bill 2008 states that:
“1538. Paragraph 386(2)(b) does not prevent trainees and apprentices from seeking a remedy if they are dismissed during the life of their traineeship or apprenticeship.”
Mr Jowett does not contend that he resigned from his employment.
According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
A termination is at the employer’s initiative when the employer’s action ‘directly and consequentially’ results in the termination of employment and had the employer not taken this action the employee would have remained employed.[59] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[60]
In determining whether a termination is at the employer initiative, it is necessary to examine all the circumstances including the conduct of the employer and the employee.[61] The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.[62]
The analysis of whether there has been a termination at the initiative of the employer for the purposes of section 386(1)(a) is to be conducted by reference to the termination of the employment relationship, not by reference to the contract of employment operative immediately before the cessation of the employment.[63]
The evidence in this matter is consistent with an employment relationship of casual driller’s offsider existing separate to, and independent of, a contractual agreement by Idrilling to provide Mr Jowett with training opportunities.
A history of employment by Idrilling of Mr Jowett as a casual driller’s offsider has existed since 2 January 2021.[64] The irregular nature of this work is a function of the ‘campaign’ style nature of the work that Idrilling is engaged to perform by its clients.[65] The behaviour of the parties throughout Mr Jowett’s employment with Idrilling has been consistent with both sides accepting the irregular nature of the rostering of work. There is no evidence of Idrilling ever informing Mr Jowett that it had terminated his employment at the end of any rostered period of work or at all.
The Separation Certificate was issued in April 2021 and was only issued because Mr Jowett requested that Idrilling do so. The Separation Certificate records that the reason for separation as “employee ceasing work voluntarily”.[66] There is no evidence that iDrilling intended to terminate Mr Jowett’s employment. Rather, it appears that the document was sought by Mr Jowett to allow him to access certain Centrelink entitlements. In the circumstances in which it was issued, the issuing of the Separation Certificate is not inconsistent with ongoing casual employment where a casual employee has made themselves available for a period of time. The fact that there is no evidence of Idrilling requiring Mr Jowett to sign any of the employment documentation he signed when he first commenced employment with them in 2 January 2021 and when he recommenced performing shifts in March 2022 is consistent with Idrilling treating Mr Jowett’s employment as continuous casual employment since January 2021, notwithstanding the issuing of the Separation Certificate.
The evidence is clear that Mr Jowett recommenced performing work for Idrilling on a regular basis in the pay period commencing 18 March 2022 two months before the Training Contract was entered into. The evidence is that he worked or was on paid leave in every pay period between then and 27 February 2023 when he commenced a period of sick leave which he indicated would be of an uncertain duration.
The evidence of both parties is that they contacted each other to offer and seek rostered shifts both prior to and during the term of the Training Contract.[67] The evidence is that during the term of the Training Contract Mr Jowett made himself unavailable to perform shifts without first seeking approval for leave (for example when he attended a funeral in Melbourne).[68]
The evidence does not support Mr Jowett’s assertion that the Training Contract was a contract of employment for a new and separate period of employment. The uncontested evidence is that Idrilling offers the traineeships to existing employees to further their careers with Idrilling.[69] The evidence is clear that Mr Jowett was regularly working for Idrilling in months before the Training Contract was entered into. The Training Contract clearly states that it is a contract for the provision of training (as opposed to a contract for employment).[70] The evidence of Mr Harding was that Mr Jowett was required to perform additional duties than those set out in the training contract. It is apparent from Mr Jowett’s correspondence with the Department that he understood that his employment with Idrilling and the Training Contract were separate when he stated:[71]
“I have not agreed to a termination of my contract as we have not discussed the issue at all nor have I received anything stating that my apprenticeship will be cancelled.”
I do not accept that the action of Ms Dover in forwarding the Notice to Terminate had the legal effect of terminating the employment relationship between Idrilling and Mr Jowett or arguably even the Training Contract.
The Training Contract sets out a nominal term of eighteen months (expiring 30 November 2023) and provides that it may only be terminated earlier “... in accordance with the requirements of the relevant State/Territory legislation”.[72]
Section 60G(2) of the relevant State legislation, the Vocational Education and Training Act 1996 (WA) (VET Act) provides as follows.
“60G. Terminating training contracts
…
(2) An employer who is a party to a training contract the probation period of which (if any) has expired must not terminate the contract unless —
(a) the apprentice has consented to the termination; or
(b) the chief executive has approved the termination…”
Section 60G(2)(b) does not apply in this case.
The proforma Notice to Terminate clearly states: [73]
“Following the expiry of a training contracts probation period, an employer cannot terminate a training contract without the consent of the apprentice or the prior approval from the Department of Training and Workforce Development…
…
Please note: Do not use this form if the apprentice/traininee does not consent or has abandoned the workplace.
…
By signing this form, I hearby confirm that I have read and understood the information contained in the cover sheet and that the apprentice has consented to the termination of the training contract between the parties above.”
The form was signed only by Ms Dover. The data fields for apprentice name, signature and date were left blank. [74]
The Department were clear in its correspondence to Mr Jowett on 9 March 2023 that termination of the Training Contract required his consent.
It is not in dispute that Mr Jowett did not consent to the termination of the Training Contract. In fact, the evidence is that Mr Jowett clearly and expressly indicated that he did not consent to the termination of either the Employment Contract or the Training Contract.
In the absence of confirmation that Mr Jowett consented to the termination of the Training Contract the Department confirmed that the Training Contract remained on foot.[75]
There is no evidence that Mr Jowett’s employment relationship was terminated.
It is not in dispute that Idrilling never informed Mr Jowett that it had terminated his employment with Idrilling. Nor is it disputed that Idrilling did not inform Mr Jowett that it had terminated the Training Contract. For example, Mr Jowett acknowledges in his correspondence with the Department that he and Idrilling have not discussed either the termination of his employment or the termination of his traineeship. [76]
“I have recently sent my employer a breach of contract notice but have not heard back from them regarding the terms.
I have not agreed to a termination of my contract as we have not discussed the issue at all nor have I received anything stating that my apprenticeship will be cancelled.”
Critically the evidence is that Mr Harding sought to correct the information provided to the Department and that he did so prior to the Application being filed.
The evidence is that at no time since April 2021 has Idrilling taken any administrative steps consistent with termination of employment such as issuing a separation certificate. To the contrary the evidence is that throughout January and February 2023 Mr Harding took multiple steps to engage with Mr Jowett to preserve his employment. For example endeavouring to resolve Mr Jowett’s claims about his hours of work and to resolve the issues concerning Mr Jowett’s driving incident.
Mr Jowett submits that the Notice to Terminate was repudiatory conduct which was accepted by him when he filed the Application. This submission proceeds on the erroneous proposition that the Training Contract constituted a new and separate employment relationship. In any event repudiation requires clear renunciation. The Notice to Terminate did not amount to clear renunciation because it was both incomplete and ineffective at law to terminate the Training Contract.
For repudiatory conduct to be accepted, communication of acceptance is essential. Mr Jowett did not accept the alleged repudiation. To the contrary, he immediately contacted the Department and clearly stated to the Department that he rejected the purported termination of the Training Contract and confirmed that no intention to terminate either the Training Contract or the Employment Contract had been communicated to him by Idrilling.
Furthermore, if genuine attempts to cure any breach are made there is no repudiation.[77] The evidence is that as soon as Mr Harding became aware that the Notice to Terminate had been received by the Department he took multiple actions to correct the information contained in the Notice. A number of these actions occurred before the Application was filed.
The Application itself does not constitute clear communication of acceptance of the alleged repudiation because it challenges the lawfulness of the termination of the Training Contract and the dismissal from employment. In any event its filing occurred after Mr Harding took steps to correct the information contained in the Notice to Terminate.
Mr Jowett submits that an adverse inference should be drawn from Idrilling’s decision not to call Ms Dover as a witness and I should presume that Ms Dover’s evidence would have been that Idrilling did intend to terminate both the Training Contract and the Employment Contract. I do not accept that such an adverse inference should be drawn on the basis that Idrilling provided a reasonable explanation for its decision not to call her as a witness. Namely that:
a.Mr Harding was in a position to provide evidence in relation to the entire factual circumstances of this case.
b.Ms Dover’s involvement in the factual matrix was narrow.
c.Ms Dover’s evidence would have simply duplicated Mr Harding’s.
d.Ms Dover was no longer employed by Idrilling.
The witness statements were filed well in advance of the proceedings. It was clear that Idrilling did not propose to call Ms Dover. If Mr Jowett believed that Ms Dover’s evidence would have assisted him he could have approached her to provide a witness statement or could have sought orders for her attendance at the Hearing.
Similarly, Mr Jowett submits that I should not accept the evidence of Mr Harding that he contacted the Department to confirm that the Notice of Termination was sent in error prior to the Application being filed. I accept Mr Harding’s evidence for the following reasons. Having observed Mr Harding during several conferences and at the Hearing Mr Harding appeared to be a credible witness. Mr Harding confirmed his written evidence in relation to this issue orally under cross examination.
The witness statements were filed well in advance of the proceedings and it was clear that iDrilling did not intend to call any witness from the Department. Mr Jowett could have approached the Department to seek a witness statement in relation to the Departments’ dealings with Mr Harding and/or could have sought production of the Department’s records.
Mr Jowett also submitted that I should find in his favour based on the outcome in other cases dealing with the termination of traineeships. Mr Jowett’s circumstances can be differentiated from the applicants in the authorities relied upon by Mr Jowett. In Sutton v Solar Batteries Direct Pty Ltd[78] the employer was found to have directly communicated to the apprentice an intention to dismiss the apprentice. To the contrary in this matter Mr Jowett concedes that he was never informed by Idrilling that his employment or his training contracts had been terminated. Mr Jowett’s circumstances can also be differentiated from those of the applicant in Turner v Mindar Holdings[79]. In the Turner Case the counter signing by the apprentice and the employer of a pro forma Applicant to Cancel Apprenticeship was held to be insufficient to terminate the apprentice’s employment. Rather it was a subsequent statement by the Employer in a meeting with the apprentice that it did not want the apprentice to return to the workplace several days later that was found to have effected the dismissal.
In all the circumstances, I am not satisfied that Mr Jowett was dismissed for the purposes of section 385 of the FW Act. He is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act.
In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. Idrilling’s jurisdictional objection to the Application is upheld and the Application is dismissed.
Accordingly, an order[80] dismissing the Application will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr A Al Asadi, for the Applicant.
Mr J Parkinson, for the Respondent.
Hearing details:
15 August and 6 October
PERTH
2023
Final written submissions:
Applicant’s final written submissions filed 23 October 2023.
Respondent’s final written submissions filed 30 October 2023.
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) at 1-9, Digital Court Book Volume 2 (DCBv2) at 2-7. , DCBv2 at 51-52.
[3] DCB (n 2) 610-617.
[4] Ibid 610.
[5] Ibid 610.
[6] Ibid 610-611.
[7] Ibid 611.
[8] Ibid 1731.
[9] Ibid 2, 1732.
[10] Ibid 1732, 1753-1754.
[11] Ibid 1732, 1755.
[12] DCBv2 (n 2) 8, 2.
[13] DCB (n 2) 611.
[14] DCB v2 (n 2) 2.
[15] DCB (n 2) 1737-1751.
[16] Ibid 1738.
[17] Ibid 1737-1751, 28.
[18] Ibid 1732.
[19] DCBv2 (n 2), 2, 8
[20] Ibid 1744, 618-619.
[21] Ibid 1745.
[22] Ibid 62-76.
[23] Ibid 1747, 1756-1759.
[24] DCBv2 (n 2) 3.
[25] DCB (n 2) 612.
[26] DCBv2 (n 2) 3.
[27] DCB (n 2) 4, 62-76, 612, DCBv2 (n 2) 3.
[28] Ibid 4, 62-76, 612.
[29] DCBv2, 3, 10.
[30] DCB (n 2) 613, 621-623.
[31] Ibid 613.
[32] Ibid 625.
[33] Ibid 4.
[34] Ibid 1732, 4, 612.
[35] Ibid 5, 36,632-633, DCBv2 (n 2) 5.
[36] Ibid 5.
[37] Ibid 5-6.
[38] Ibid 5.
[39] Ibid 5, 36,632-633.
[40] Ibid 1732, 5, 1760-1761, 614.
[41] Ibid 615.
[42] Ibid 1732, 1762.
[43] Ibid1762-1765.
[44] Ibid 1763-1765.
[45]Ibid 1763-1765.
[46] Ibid 1732, 1766-1767, 5.
[47] Ibid 1733, 1768.
[48] Ibid 616.
[49] Ibid 1733, 1769, 616.
[50] Ibid 1733, 1769.
[51] Ibid 1733.
[52] Ibid 1783, 1781.
[53] Ibid 617.
[54] Ibid 1733, 1786.
[55] Ibid 1733, 1786.
[56] Ibid 1734, 1788.
[57] Ibid 1734, 1789.
[58] Ibid 6-7.
[59] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645;
[60] Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 at [24].
[61] O’Meara v Stanley Works Pty Ltd (PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at. [23].
[62] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[63] Khayam v Navitas English Pty Ltdt/a Navitas English[2017] FWCFB 5162 at [75].
[64] DCB (n 2) at [4] of SOAF.
[65] Ibid 610-611.
[66] DCBv2 (n 2) 8, 2.
[67] DCBv2 (n 2) 3, 612, 4, 62-76, 612, DCBv2, 3, DVBv2 3, DCBv2 10, 613, 621-623.
[68] DCB (n 2) 4, 62-76, 612, DCBv2, 3.
[69] Ibid 611.
[70] Ibid 1738.
[71] Ibid 1733, 1768.
[72] Ibid.
[73]Ibid 1762-1765.
[74]Ibid 1763-1765.
[75] Ibid 1734, 1788.
[76] Ibid 1733, 1768.
[77] Sheville v Builders Licensing Board (1982) 149 CLR 620; see also Rainbow Spray Sales Pty Ltd v Sanders
[1964-65] NSWLR 422; Sunstar Fruit Pty Ltd v Cosmo [1995] 2 Qd R 214 at 224; Casinos Austria International
(Christmas Island) Pty Ltd v Christmas Island Resort Pty Ltd [1998] WASC 387 at [29]; Aclaw Pty Ltd v Fullston
[2000] SASC 440 at [19].
[78] [2019] FWC 2924.
[79] [2011] FWA 8087.
[80] Print PR768218.
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