Ms Stephanie Pettingill v Tasmanian Freight Services (Tasfreight)

[2021] FWC 1199

[2021] FWC 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - General protections

Ms Stephanie Pettingill
v
Tasmanian Freight Services (Tasfreight)
(C2020/9244)

COMMISSIONER WILSON MELBOURNE, 4 MARCH 2021

Application to deal with contraventions involving dismissal - jurisdiction– whether dismissed– dismissal not found – no jurisdiction established

[1] On 24 December 2020 Ms Stephanie Pettingill (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 her alleged dismissal.

[2] Tasmanian Freight Services (Tasfreight or the Respondent) opposes the application. It filed a response in a Form F8A – Response to General Protections Application on 11 January 2021 raising a jurisdictional issue. The jurisdictional issue is that the Respondent contend that Ms Pettingill was not dismissed.

[3] 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 Ms Pettingill’s application to proceed further.

[4] I issued directions on 19 January 2021. Materials were filed by the parties in accordance with those directions.

[5] I heard the jurisdictional matter by way of telephone on 18 February 2021. At the hearing Ms Pettingill appeared on her own behalf. The Respondent was represented by Mr Kerry Gibson, the Respondent’s General Manager. At the conclusion of the hearing I asked each party whether they may be prepared to conciliate their differences, and each agreed. That in turn led to me facilitating the provision of a proposal for settlement from the Applicant to the Respondent, which was considered, but did not lead to agreement to resolve Ms Pettingill’s application. Conciliation ended on 3 March 2021. As a result. it is necessary to now determine the Respondent’s jurisdictional objection.

[6] This decision deals only with the jurisdictional objection by Tasfreight, namely that Ms Pettingill was not dismissed.

[7] There is no contest between the parties that:

•  Ms Pettingill received a “Letter of Employment” from Tasfrieght dated 7 December 2020 for a position of administration/reception clerk. The letter was signed by Mr Ben Cooper, the Respondent’s Launceston Branch Manager and Ms Pettingill; and

•  The Respondent issued Ms Pettingill with a letter dated 15 December 2020 withdrawing the offer of employment. The letter was also signed by Mr Ben Cooper, the Respondent’s Launceston Branch Manager.

[8] The “Letter of Employment” which was signed by both parties stated the following:

“Dear Stephanie

Congratulations on your new position with Tasfreight as an administration/ reception clerk. We have set out the terms and conditions of your permanent part time position at our Launceston depot.

Commencement: First day for starting in your new position is Monday the 21'' December 2020 for a twelve week period as discussed. This twelve week period will be a trial period with a review being undertaken at its conclusion.

Hours: Your working hours are 0930am - 1430pm or as required Monday thru Friday as discussed for a minimum of 25 hours per week. Note these hours may increase as time goes by due to operational requirements.

Salary: Your rate of pay is $24.39 per hour. Superannuation will be paid additional at a rate of 9.5%.

You are entitled to ten (10) personal days per 12 month period. Tasmanian Freight Services reserves the right to request a Medical certificate for all sick days taken.

Tasmanian Freight Services reserves the right to conduct random Drug and Alcohol screening tests.

Responsibility: A complete job description will be discussed on commencement of employment.”

[9] The 15 December 2020 explained the “letter of employment” had been withdrawn since Mr Cooper had received advice from Tasfreight’s management with him summarising the advice in these terms:

“This advice has been made as a result of past and current situations within Tasmanian Freight Services depots here in Tasmania and on the mainland where spouses and close family members of existing employees have been employed in the same depot, and the ensuing stress and tension in some cases has caused disruption in the workplace. It has been decided that the employment of spouses of current employees will not be continued with at this time.”

[10] Mr Gibson’s submissions to the Commission endeavoured to walk-back this advice, offering an entirely different view of why Ms Pettingill’s prospect of employment had been withdrawn:

“[s]enior management was unaware that a position was being offered to Mrs Pettingill until after a letter of employment was given.

Senior managements view was that there was no position to offer.

A recent resignation from our Launceston depot had been kept employed with work directed to her from the Latrobe head office.

It was not our intention to replace the lady who resigned.

As soon as senior management became aware of the job offer to Mrs Pettingill, Launceston management was instructed to withdraw the job offer, which was duly carried out.” 2

[11] Having been offered and accepted an offer of employment, Ms Pettingill made forward caring arrangements for her two young children. She incurred considerable costs when she had to cancel those arrangements because the Tasfreight offer was withdrawn.

Consideration

[12] Tasfreight’s objection is to an application made under s.365 of the FW Act which 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.”

[13] 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. 3 “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.”

[14] Having raised the jurisdictional issue, Tasfreight bear the onus of establishing that Ms Pettingill was not dismissed. 4

[15] The Respondent submits that the Applicant was not dismissed since she was never employed. The person who offered the employment was not authorised to do so, and the company withdrew its offer as soon as it became aware the offer had been made.

[16] The Respondent submits that Ms Pettingill was therefore not dismissed within the meaning of section 368 of the FW Act and as such, the Commission does not have jurisdiction to deal with the dispute.

[17] An application under s.365 is within Part 3 – 1 of the FW Act, with the Part defining the terms “employee and employer” as having their ordinary meanings (s.335). Section 386 of the FW Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such situation refers to a termination that is brought about by an employer and which is not agreed to by the employee. 5 When analysing whether there has been a ‘termination at the initiative of the employer’ for the purpose of s.386(1)(a) of the FW Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.6

[18] A ‘termination at the initiative of the employer’ is when two criteria are satisfied:

•  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. 7

[19] For there to be a ‘termination at the initiative of the employer’ there must be action by the employer that either intends to bring the relationship to an end or has that probable result. 8 Whilst the question of whether the action of an employer results 'directly or consequentially' in the termination of employment is an important consideration it is not the only consideration.9 All of the circumstances must be examined including the conduct of the employer and the employee.10

[20] The question s.386(1)(a) requires answering is whether the person’s “employment with his or her employer has been terminated on the employer’s initiative”. The references to “employment” and “employer” in s.386(1)(a) mean that an employment relationship needs to have existed at the time of dismissal so as to classify the “person” having been in the “employment” of the “employer”. I must therefore determine was there an employment relationship between Tasfreight and Ms Pettingill?

[21] The requirements of an employment relationship are drawn from contractual principles: the existence of offer, acceptance, valuable consideration and intention to create legal relations. 11 In determining whether an employment relationship exists, the courts look to the real substance of a relationship to determine if an employment relationship exists.12

[22] On the evidence before me, the offer of employment was withdrawn prior to the commencement date of the employment contract. Ms Pettingill’s position was to commence 21 December 2020 for a twelve-week trial period.   The offer of employment was withdrawn on 15 December 2020.  13 Inescapably though the relationship between the parties was, at the point it was withdrawn, a future one. An offer had been made of future employment; an acceptance had been made of performing work in the future; and there was to be payment made for time worked, but only in the future once the work was performed.

[23] It follows that I must find that Ms Pettingill was not an employee of Tasfreight when it withdrew its offer of employment. She was not an employee in the ordinary meaning of the term, and she was not dismissed from employment. At that time, there was no employment relationship; albeit that one had been promised to start on 15 December 2020.

[24] Ms Pettingill’s application as presently made therefore fails for lack of jurisdiction, and an order must be issued by me dismissing it.

[25] This is despite the provisions both of s.342(1) which amongst other things defines as adverse action the conduct of “a prospective employer against a prospective employee” if they refuse to employ the prospective employee. It is also despite s.351(1) which requires that an employer must not take adverse action against a prospective employee including for reason of their marital status. And it is despite the provisions of s.372 which permits the making of a general protections application if a person alleges a contravention of Part 3 – 1 and they are not entitled to make an application under s.365 for the Commission to deal with their dispute.

[26] In dismissing Ms Pettingill’s application under s.365 there is no impediment to her making a general protections application under s.372.

COMMISSIONER

Appearances:

S Pettingill on her own behalf

K Gibson on behalf of the Respondent

Hearing details:

2020
Melbourne (by telephone):
18 February.

Printed by authority of the Commonwealth Government Printer

<PR727526>

 1 [2020] FCAFC 152.

 2   Exhibit R1, Email from Respondent to the Fair Work Commission, 1 February 2021.

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

 4   Australian Hearing v Peary (2009) 185 IR 359 at [30].

 5   Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

 6   Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].

 7   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

 8   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 at [24]; citing O'Meara v Stanley Works Pty Ltd, PR973462 at [23].

 9   Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

 10   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23];citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.

 11   Re Advanced Australian Workplace Solutions Pty Ltd Print S0253 (AIRCFB, 25 October 1999).

 12   On call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 206 IR 252 at [89].

 13   Exhibit A1, Applicant Document Bundle, Letter of Employment and Withdrawal of Offer.