Pablo Rojas v Ryde Automotive Group Pty Ltd

[2020] FWC 3979

[2020] FWC 3979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pablo Rojas
v
Ryde Automotive Group Pty Ltd
(U2020/2679)

DEPUTY PRESIDENT BOYCE SYDNEY, 5 AUGUST 2020

Application for an unfair dismissal remedy — jurisdictional objection — whether there was a “dismissal” within the meaning of s.386 of the Fair Work Act 2009 — Applicant resigned in writing — Applicant not terminated at “employer’s initiative” — Applicant not forced to resign — no dismissal – no jurisdiction to determine Applicant’s claim — application dismissed.

Introduction

[1] On 8 February 2020, Mr Pablo Rojas (Applicant) lodged an application for unfair dismissal with the Fair Work Commission (Commission). The Applicant did so by filing a Form F2 with the Commission’s Registry in Sydney (Application). The Applicant alleges that he was to be dismissed from his employment with Ryde Automotive Group Pty Ltd (Respondent) on 20 February 2020, and that this dismissal was unfair within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 19 February 2020, the Respondent filed a Form F3 (Response) with the Commission. By way of that Response, the Respondent says that the Applicant resigned from his employment. While not expressly stating so, I work on the basis that the Respondent raises a jurisdictional objection to the Application, being that there was no “dismissal” within the meaning of s.386 of the Act.

[3] On 22 May 2020, I held a hearing (via telephone) to determine the jurisdictional objection. The Applicant appeared for himself. Ms Linda Akkaoui (Human Resources Manager, Ryde Automotive Group) appeared for the Respondent.

[4] Having considered the submissions of the parties, and the evidence provided prior to and during the hearing, I have determined that the Applicant was not “dismissed” within the meaning of s.386 of the Act. Accordingly, the Commission is without jurisdiction to progress the Application, and it must be dismissed. My reasons follow.

Background

[5] The relevant facts are disclosed by the witness statements and documentary evidence filed by both parties.

[6] On 19 September 20218, the Applicant commenced employment with the Respondent. The Applicant’s job was that of a “Parts Sales Representative”.

[7] The terms and conditions of the Applicant’s employment were subject to a written employment contract dated 20 August 2018. Relevantly, clauses 3 and 20 of that employment contract read:

“3. The work provided under the contract will be performed for and on behalf of the Company or any entity associated with the Company for which the Company may direct work to be performed or services rendered within the overall scope of this contract, at any place reasonably required by the Company.

…

20. Variations to Contract

Any variations to the terms and conditions of your employment will be required in writing and annexed to this agreement”.

[8] On 21 October 2019, the Applicant was verbally told by Mr George French (Parts Manager) that the Respondent had resolved to transfer the Applicant to the role of a “Parts Interpreter” for a period of three months, and that this change was “effective immediately”. The Applicant told Mr French that he could not take on this role as it felt like a “demotion”, and that the location and hours of the role would not allow the Applicant to pick up his child from childcare three days per week.

[9] Based upon a need to realign business labour resources, on 24 October 2019, the Respondent issued the Applicant with correspondence, which (relevantly) reads:

“This is to confirm the terms and conditions of the offer of employment made to you, and payable as of Thursday 24th October 2019 ….

1. The employer referred to in this offer, referred to as the Company, shall be Ryde Automotive Group Pty Ltd.

2. Your new position will be Parts Interpreter, reporting to the Parts Manager. This role is fixed term for a period of three (3) months. The remainder of your conditions of employment remain unchanged.

3. The work provided under the contact will be performed for and on behalf of the Company …

4. Renumeration

Your renumeration will remain the same”.

(my emphasis)

[10] On 28 October 2020, the Applicant sent an email to Mr French, whereby the Applicant asserted, inter alia:

(a) the change to his job was “unreasonable”;

(b) he had not been consulted about this change as required under the “award”;

(c) that there was no contractual mechanism to change the Applicant’s duties without his consent; and

(d) the Applicant was considering a range of applications available to him under the Act, and would progress one of those applications before the Commission.

[11] On 29 October 2019, Ms Akkaoui contacted the Applicant by telephone. The short summary of the Applicant’s and Ms Akkaoui’s witness evidence regarding this event is that:

(a) the Applicant reiterated that he did not “agree” to the changes to his employment contract;

(b) Ms Akkaoui told the Applicant that he was still employed under his original agreement, and could continue in that role if he chose to. The Applicant contested this, saying that he had been told by Mr French and Mr Scott Long (Dealer Principal, Ryde Automotive Group) that the decision to transfer the Applicant to the role of “Parts Interpreter” was a final decision, and that the Applicant had no choice in the matter. Ms Akkaoui attempted to correct the Applicant’s view in this regard, but the Applicant maintained that Ms Akkaoui was wrong, and that he did not “want” to change his job; and

(c) when Ms Akkaoui inquired as to whether the Applicant intended to return to work, the Applicant stated “Absolutely not”.

[12] On 18 November 2019, the Applicant filed a Form F8 with the Commission’s Registry (being an application for general protections involving dismissal). This application was subject to conciliation before the Commission on 31 January 2020. However, the parties were unable to resolve their dispute.

[13] On the same day as that conciliation, the Applicant emailed the Respondent as follows:

“I should be getting my full wages, not sure why I haven't been getting paid my full wage — I need to pay rent! Can you please process this for me asap. Can you do it today?”.

[14] On 5 February 2020, Ms Sarah Shylan (Payroll Manager, Ryde Automotive Group), wrote to the Applicant as follows:

“I believe you have been off work.

I just wanted to confirm with you if you would like it paid from your Annual Leave or continue as Unpaid Leave?”

[15] On 6 February 2020, the Applicant wrote to Ms Shylan as follows:

“Can you please respond to my email below and advise the HR manager that I need to get my wages and why I have been given any duties re my sales position to date”?

[16] On 11 February 2020, Ms Shylan wrote the Applicant as follows:

“I emailed you on 5th November with no response.

As you have not been at work and I have not received a leave form I have been unable to make payment.

I am unsure of anything else and I have CC’d Linda in on this email”.

[17] On 12 February 2020, the Applicant withdrew his general protections application. As stated above, the Applicant lodged this Application for unfair dismissal on 8 February 2020.

[18] On 20 February 2020, the Applicant wrote to Ms Akkaoui as follows:

“I refer to my emails dated 6th February 2020, requesting for instructions regarding my usual duties which I have still not received a response.

I understand we have been unable to resolve the dispute regarding my position and duties as I refused to sign the variation, despite this I have no received instructions to continue my usual duties as such, you have left me with no choice but to resign effective immediately”.

[19] It is not in dispute between the parties that the Applicant’s employment with the Respondent ended on 20 February 2020. This is despite the Applicant not performing any work, or otherwise attending the workplace, since late October 2019.

Relevant law regarding the meaning of “dismissal”

[20] Section 394(1) of the Act provides that a person who has been “dismissed” may apply to the Commission for an unfair dismissal remedy. It stands to reason that a person who is has not been “dismissed” cannot apply for an unfair dismissal remedy.

[21] Section 386 of the Act defines “dismissed” 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 person's employment, to avoid the employer's obligations under this Part.”

Consideration

Was the Applicant’s employment with the Respondent terminated at the Respondent’s initiative?

[22] The phrase “terminated on the employer's initiative” may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. 1 It is unnecessary in these proceedings to formulate an exhaustive description of the meaning of “termination at the initiative of the employer”, but an important feature is that an act of the employer results “directly or consequentially” in the termination of the employment. That is, had the employer not taken the action it did, the employee would have remained employed.2

[23] The Applicant referred me to Bender v Raplow Pty Ltd. 3 Having reviewed that decision, I consider it to be of no assistance to the matter at hand. That decision is limited to its own facts and circumstances, being facts and circumstances that are not on all fours with the Applicant’s case in this matter.

[24] Returning to first principles, the question before me is whether the Applicant’s employment was terminated at the Respondent’s initiative. The answer to that question must be ‘no’. On the evidence, the decision to resign was entirely that of the Applicants. That decision was unequivocally communicated the Applicant’s email to Ms Akkaoui on 20 February 2020 (sent after the Applicant had not been at work since late October 2019).

[25] There is no evidence that the Applicant’s resignation was at the Respondent’s “initiative”. At all times, the Respondent had communicated the opposite of termination: it sought to keep the employment relationship ongoing, whether it be on the terms presented in its correspondence to the Applicant on 24 October 2019, the verbal discussions between the Applicant and Ms Akkaoui as to an agreeable means of maintaining the Applicant’s employment, or the offering of the Applicant the option to take unpaid or annual leave. The Applicant repeatedly rejected the Respondent’s options. In this regard, the termination came about at the Applicant’s initiative.

Did the Applicant resign from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer?

[26] Section 386(1)(b) offers an alternative meaning of “dismissal”. The test to be applied here is whether the Respondent (employer) engaged in conduct with the intention of bringing the employment to an end, or whether termination of the employment was probably the result of the Respondent’s conduct (such that the Applicant (employee) had no effective or real choice but to resign). Under this limb, the essential element is the Respondent’s (employer’s) conduct. 4

[27] I am unable to identify any conduct of the Respondent that can be described as demonstrating an intention to bring about the end of the employment. Again, the evidence does not show that the Respondent intended anything other than to maintain the employment relationship (albeit in a changed form). Further, the Respondent made inquiries with the Applicant about whether he wanted to remain employed, and if so, under what conditions. The Applicant has not pointed to any contrary conduct of the Respondent to support his position.

[28] Furthermore, I am unable to identify any conduct of the Respondent that might be said to bring about a “probable” end to the Applicant’s employment. As soon as the Applicant was told of the Respondent’s decision to change the Applicant’s role on 21 October 2019, the Applicant’s reaction was to refuse the changes made. It is not “probable” that the Applicant would go so far as to resign in response to a temporary fixed term reassignment (given that all his entitlements, remuneration and conditions were to remain the same). To put the situation in the most candid language possible, the Applicant overreacted upon being told his role was changing, and only sought to escalate tensions from that moment on. If anything, in my view, the Respondent’s initiating conduct, and all conduct following, was more likely to have the opposite outcome (i.e. being that the Applicant would accept ongoing employment and not resign).

[29] Finally, by reference to the terms of the employment contract between the parties (as set out at paragraph [7] of this decision), the change to the Applicant’s role, for a three month fixed term period with no reduction in remuneration (or other terms and conditions), was not a “variation” to the employment contract (in the legal sense). The change did not give rise to a variation to the employment contract (clause 3), and thus did not require the agreement of the Applicant. Rather, it was a change that was within the scope of the work that the Respondent was able to direct the Applicant to perform (clause 20), and not a “demotion” (see s.386(2)(c) of the Act).

The applicant resigned of his own volition and was not dismissed

[30] On the evidence, and in the facts and circumstances of this case, I do not accept that s.386(1)(a) or (b) of the Act are enlivened (under either limb) in these proceedings. The Applicant resigned. He chose to do so himself. He was not compelled or coerced to do so by the conduct of the Respondent. Consequently, the Applicant was not “dismissed” within the meaning of the Act.

[31] For completeness sake, I note that whilst “demotion” under s.386(2)(c) of the Act was not pressed or otherwise argued by the Applicant as a basis to support his claim of dismissal, the change to the Applicant’s role did not involve a “significant reduction” in his remuneration or duties. Section 386(3) of the Act does not arise for consideration.

Submissions as to other matters

[32] The Applicant made written and oral submissions going to whether his dismissal was a “genuine redundancy”, with particularly lengthy submissions going to matters of consultation (or the alleged absence of same). The Applicant appears to have ‘hung his hat’ on the consultation provisions of the (now superseded) Vehicle Repair, Services and Retail Award 2010, alleging that the Respondent failed to properly consult with the Applicant prior to attempting to change his role. According to the Applicant, this lends towards a finding that the Applicant was dismissed, and that this dismissal was not a case of “genuine redundancy” within the meaning of s.387 of the Act.

[33] Whilst I note that the Applicant feels genuinely aggrieved by the decision and process undertaken in changing his role at the Respondent, there is no factual or legal basis to characterise this change in role as a redundancy (let alone inquire as to whether it is a “genuine redundancy” within the meaning of the Act). The evidence clearly demonstrates that the Applicant’s change in role was temporary, and despite the Applicant’s protests to the contrary, the Respondent’s stated intention was to return him to his former position after three months.

[34] All in all, the Applicant’s submissions as to the issue of redundancy are misplaced. They are not relevant to whether the Applicant was “dismissed” within the meaning of the Act.

Conclusion

[35] My findings yield no jurisdiction to progress the Applicant application for unfair dismissal. Accordingly, this matter is to be dismissed. An order to that effect will follow the publication of this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Ms Linda Akkaoui (Human Resources Manager, Ryde Automotive Group) appeared for the Respondent.

Hearing details:

A hearing was held by telephone on 22 May 2020.

Printed by authority of the Commonwealth Government Printer

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 1   Mohazab v Dick Smith Electronics (2005) 62 IR 200 at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [19] to [23]; Mahony v White [2016] FCAFC 160 at [23]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75].

 2   Mohazab v Dick Smith Electronics (2005) 62 IR 200 at 205 to 206.

 3   [2011] FWA 3407.

 4   Bupa Aged Care Australia Pty Ltd v Tavassoli (2015) 235 FCR 370 at [47].