Narthaniel David Hornby Watts v Gby Co. Pty Ltd
[2024] FWC 2061
•1 AUGUST 2024
| [2024] FWC 2061 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Narthaniel David Hornby Watts
v
Gby Co. Pty Ltd
(C2024/1847)
| COMMISSIONER SCHNEIDER | PERTH, 1 AUGUST 2024 |
Application to deal with contraventions involving dismissal
Mr Narthaniel David Hornby Watts (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving his alleged dismissal by Gby Co. Pty Ltd (the Respondent).
The Respondent has raised a jurisdictional objection to the application stating that the Applicant was not dismissed as required under the Act.
Accordingly, the Commission must determine if the Applicant was dismissed before the matter may proceed.
Background
The Applicant commenced employment with the Respondent on 25 January 2024.
The Applicant was employed on a casual basis at the Respondent’s hospitality venue in Canning Vale.
The Applicant alleges that he made enquiries regarding his employment and the reduction of shifts he had been receiving in late February 2024.
The Applicant submits that, following his enquiry, the Respondent took adverse action against him by terminating his employment on 18 March 2024.
The Respondent submits that the Applicant was a casual employee, and as operational requirements changed the Applicant was no longer required to perform work for the Respondent.
Legislation
Section 365 of the Act provides as follows:
“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.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and
(ii) he or he 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.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence
Respondent
The Respondent highlights that the Applicant was employed on a casual basis.
The Respondent states that the venue commenced operations in early 2024 and they had initially employed additional staff to ensure the venue was “over staffed”.
The Respondent submits that the Applicant and other employees formed part of a pool of casual employees to work various shifts at the Respondent’s business.
The Respondent submits that the Applicant was part of the casual labour pool for approximately seven weeks and, following a review of operations (including the hiring of additional permanent employees), the Respondent determined that it no longer had any shifts available for the Applicant in the foreseeable future.
The Respondent submits that it notified the Applicant that there was no upcoming work for him so that he could seek alternative employment.
The Respondent submits that the email it sent to the Applicant on 18 March 2024 was not a dismissal of the Applicant’s employment rather it was the Respondent being courteous by confirming that there were no shifts in the foreseeable future.
The Respondent denies that the Applicant was dismissed for making an enquiry in relation to his rostered shifts.
Applicant
The Applicant submits that the Respondent terminated his employment on 18 March 2024 when it sent the Applicant the following email:
“Hi Narthaniel,
I just tried calling a little earlier and unfortunately I wasn’t able to catch you.
I’ve attached PDF copies of your payslips, not sure why you weren’t able to see them on the app.
We have also re-assessed our casual worker roster and have made some changes moving forward.
Unfortunately I’m afraid we won’t be requiring you for our shift pool effective immediately.
Ordinarily pays would go through in the fortnightly cycle however I recognise you’ve only just completed shifts on the weekend and our next pay run isn’t until next week so I’ll make an early payment on those shifts.
I wish you all the best with your future employment endeavours.
Regards,
John Lewis
Co-Founder"
The Applicant submits that the above correspondence from the Respondent was a notice that his employment had been terminated.
The Applicant submits that he had previously been rostered to work, on 22 March 2024, however following the Respondent issuing the above correspondence on 18 March 2024 his remaining shift was cancelled.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act.
The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
This definition contains two elements.
The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
In determining whether there has been a termination at the Respondent’s initiative, the reference to termination is in reference to that of the employment relationship, not the contract.[2]
Having considered the submissions and materials of the parties, I find that the Applicant was dismissed at the initiative of the Respondent consistent with the test under the first limb, at section 386(1)(a) of the Act.
It is clear that the intended purpose of the email issued by the Respondent to the Applicant in mid-March 2024 was to communicate the end of the employment relationship.
Such conclusion is clear upon reading the email, notably the following passages:
· “We have also re-assessed our casual worker roster and have made some changes moving forward.”
· “Unfortunately I’m afraid we won’t be requiring you for our shift pool effective immediately.”
· “I wish you all the best with your future employment endeavours.”
The language used by the Respondent in the email of 18 March 2024 reflects that there was a clear intention to notify the Applicant that he would no longer be working at the business. Effectively, this correspondence communicates that the Applicant was dismissed at the initiative of the Respondent.
I understand the Respondent’s submission, it is a matter of courtesy to advise a casual employee that they may not be receiving shifts for some period from their employer due to a downturn in business. However, I am not satisfied the email in question was simply communicating that there are limited to nil shifts that will be allocated for any insignificant or specified period of time.
Further, it is understandable that an employer seeks to reduce shifts allocated to excess casual staff during periods of operational downturn. However, if an employer seeks to do, such intention should be clearly communicated in a manner that could not, as it so clearly is in this matter, be construed as a notice of termination.
In summary, I am not satisfied the Respondent merely communicated that there were temporarily no shifts for the Applicant but instead it communicated a termination upon its own initiative.
Conclusion
Having determined that the Applicant was dismissed at the initiative of the Respondent, the jurisdictional objection is dismissed.
The parties will be contacted regarding the future programming of the matter in due course.
COMMISSIONER
Appearances:
N Watts, Applicant.
J Lewis, Respondent.
Hearing details:
2024.
Perth (by video):
June 18.
[1] [2017] FWCFB 3941.
[2] [2023] FWC 1352, [44].
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