Parsons v R Collie Excavation Pty Ltd (Trustee)
[2022] FedCFamC2G 815
Federal Circuit and Family Court of Australia
(DIVISION 2)
Parsons v R Collie Excavation Pty Ltd (Trustee) [2022] FedCFamC2G 815
File number: MLG 2047 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 6 October 2022 Catchwords: INDUSTRIAL LAW – Adverse action – dismissal – whether employment was terminated by employer or employee – whether employment was terminated because of an exercise of a workplace right. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 361, 368, 370 Cases cited: Workpac Pty Ltd v Rossato (2021) 271 CLR 45 Division: Fair Work Division Number of paragraphs: 52 Date of hearing: 12-13 September 2022 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Ms L. Hansen (Leonie J Hansen) ORDERS
MLG 2047 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SCOTT PARSONS
Applicant
AND: COLLIE EXCAVATION PTY LTD AS TRUSTEE FOR THE RC BUSINESS TRUST
Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
6 October 2022
THE COURT ORDERS THAT:
1.The time for bringing this proceeding be extended to 16 August 2021.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
Introduction
The applicant, Mr Parsons, was employed by the respondent, R Collie Excavation Pty Ltd as trustee for the RC Business Trust (“Collie Excavation”), in November 2020 as a casual dump truck driver. Mr Parsons alleged that his employment was terminated by Collie Excavation on 24 January 2021. On 16 August 2021 Mr Parsons filed an originating application in which he alleged that he was dismissed by Collie Excavation because he had exercised his workplace right to make inquiries regarding Collie Excavation’s compliance with the Building and Construction General On-site Award 2010 (“Award”). Mr Parsons sought compensation and the imposition of pecuniary penalties.
Before commencing this proceeding, Mr Parsons had brought a related claim in the Fair Work Commission (“FWC”). In that clam, a copy of which was annexed to the affidavit he filed in this proceeding on 17 December 2021, he alleged:
Following a discussion into a wage review, my employer expressed that the amount discussed was not appropriate and that I should not return to work. There was an agreement that I would be employed casually on a construction site for the construction of water recyle [sic] dams, this work was expected to continue until at least april [sic] and that the only reason for my dismissal was in regard to an enquiry into an amount of wages.
APPLICATION
In his originating application filed on 16 August 2021, Mr Parsons alleged:
The applicant relies on section 340(1)(a) and 342(1) of table of the Fair Work Act 2009.
1.Dismissal was due to inquiry of compliance of modern award.
2.No-response of initial inquiry.
3.Verbal agreements of periods, of employment undertaking, not in compliance with said agreements.
4.Advertisements placed on job board to replace or discriminate between applicant and other employees.
Mr Parsons repeated those allegations in his form 2 claim form as the grounds of his claim to have been dismissed in contravention of a general protection provided by the FW Act. In an attachment to the form 2 claim form, Mr Parsons also set out his alleged losses, and the compensation sought, as follows:
The Applicant asks the Court for compensation.
Calculated as follows:
As per agreement maximum earnings $3030.64 per week.
26 Weeks - $78,796.64
Average earnings - $23,936 over 11 weeks - $2176 per week
Loss of employment to date 29 weeks.
Earning in current arrangements over 29 weeks - $28, 282.99
Lost earning $34,822 minimum
Lost wages during period of employed $7604.75
Total losses to application $42,426.75 = 14 weeks
Seeking 26 weeks / $78,797.64
Filed with the application and form 2 claim form was a certificate under s.368 of the FW Act, which satisfied a precondition to the Court having jurisdiction over this dispute as prescribed by s.370 of the FW Act. That section relevantly provides:
370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
…
The s.368 certificate is dated 27 July 2021 and, as recorded earlier, this proceeding was commenced on 16 August 2021. It is therefore out of time. Mr Parsons satisfied the procedural precondition to the grant of an extension of time by seeking one in his initiating application, saying:
The Applicant seeks for an extension of time to lodge this application because; due to financial hardship, access to legal assistance was not obtainable, filling of this matter was only possible upon my own application and unforeseen complexities involved in the application process had unforeseen delays.
Collie Excavation did not contest the application for an extension of time. Given that Mr Parsons has satisfied the procedural requirements for an extension of time to be granted and has provided a sufficient explanation for the slight delay involved, I conclude that the time for the bringing of this proceeding should be extended to 16 August 2021.
RESPONSE
No response or defence was filed but no point was taken concerning this. Collie Excavation’s position on Mr Parsons’s allegations was clear from:
(a)its response in the FWC proceeding, a copy of which was annexed to Mr Parsons’s affidavit of 17 December 2021, in which it replied to Mr Parsons’s allegations quoted earlier at [2] saying:
1.The respondent denies taking adverse action against the applicant because the applicant sought to exercise a protected workplace right or at all.
2.The respondent did not dismiss the applicant as alleged or at all.
3.The applicant instigated the termination of and terminated the employment relationship between the parties solely by his own actions.
4.The applicant repudiated the employment relationship with the respondent by filing this application alleging dismissal on or about 29 January 2021. At that time the respondent had taken no steps to terminate the employment relationship with the applicant and in fact regarded the applicant as a continuing casual employee of the respondent.
5.Further, the respondent says that the applicant’s subsequent request that the respondent issue to the applicant an employment separation certificate was an action instigated by the applicant which separated the applicant as an employee from the respondent’s employment.
6.In issuing the employment separation certificate specifically at the request of the applicant, the respondent understood that the applicant was resigning from his casual employment at that time.
7.The applicant was engaged specifically as a casual employee for the purpose of driving a dump truck to move excavated materials on a particular work site where the respondent was carrying out work.
8.At the commencement of the employment the respondent informed the applicant that ongoing work was not assured, that the specific work task being undertaken by the applicant was a finite task; in other words, as the excavation progressed towards completion the need for the applicant’s services would abate.
9.Further, the respondent informed the applicant that when work being undertaken had reached a stage where the workload could be adequately managed by the respondent’s permanent full-time workforce, his casual employment on that site would cease.
10.The respondent says that the applicant’s work engagement abated and the applicant sought a wage review in the following circumstnces [sic]: During a telephone conversation on 24 January 2021 between the applicant and Robert Collie, director of the respondent the parties had a conversation in words to the following effect:
Applicant: Am I working tomorrow?
Respondent: No. The site is closed tomorrow and Tuesday is the Australia Day public holiday so the site is non-operational now until Wednesday 27 January 2021. Our Stage 1 work there is almost finished and at this time we don’t have a go-ahead for Stage 2. I don’t need you right now. I will let you know when we need you again”.
Applicant:I think you owe me money. I want my wages reviewed. I don’t think I’ve been paid enough for weekends and overtime.
Respondent: Perhaps we can get back to you on that. I know you’ve been paid what you asked for during the week plus an extra $10 an hour for Saturdays. I’ll have to look into it and get back to you.
11.The respondent further says that the applicant did not attend for work as expected on 22 January 2021. Had he done so he would have been aware of the stage to which the work had progressed on site and that there was an abatement of the casual work then available for him.
12.On or about Thursday, 28 January 2021, the respondent’s office manager instigated an award and wage review for all employees including the applicant;
and from
(b)its written outline of opening submissions filed in this proceeding on 8 September 2022. There, it:
(i)denied taking adverse action against Mr Parsons involving dismissal or taking any such action against him for a prohibited reason;
(ii)submitted that it had taken no steps to terminate the parties’ employment relationship, Mr Parsons being regarded as a continuing, casual, “as needed” employee who was simply not required at that time and who would be called to return to work at the site when work was available for him; and
(iii)said that Mr Parsons’s request in early February 2021 for an employment separation certificate was an action he instigated and that it would not have precluded his the re-engagement at a future time.
Legislation & AWARD
The FW Act relevantly provides:
340Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
341Meaning of workplace right
Meaning of workplace right
(1)A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
…
(ii)if the person is an employee—in relation to his or her employment.
…
During the relevant period the Award provided relevantly:
…
14. Casual employment
14.1 A casual employee is one engaged and paid in accordance with the provisions of this clause.
14.2 A casual employee is entitled to all of the applicable rates and conditions of employment prescribed by this award except annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.
14.3 An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, the actual or likely number of hours to be worked, and the relevant rate of pay.
14.4 A casual employee is entitled to payment for a minimum of four hours’ work per engagement, plus the relevant fares and travel allowance and expenses prescribed by clauses 24—Living away from home—distant work and 25—Travelling time entitlements on each occasion they are required to attend work.
14.5 A casual employee must be paid a casual loading of 25% for ordinary hours as provided for in this award. The casual loading is paid as compensation for annual leave, personal/carer’s leave, community service leave, notice of termination and redundancy benefits and public holidays not worked.
14.6 A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 36—Overtime, and 37—Penalty rates, provided that:
(a) where the relevant penalty rate is time and a half, the employee must be paid 175% of the ordinary time hourly rate prescribed for the employee’s classification; and
(b) where the relevant penalty rate is double time, the employee must be paid 225% of the ordinary time hourly rate prescribed for the employee’s classification.
14.7 A casual employee required to work on a public holiday prescribed by the NES must be paid 275% of the ordinary time hourly rate prescribed for the employee’s classification.
…
19. Minimum wages
19.1 General
(a) An employee within a level specified in the following table will be paid not less than the rate per week assigned to the appropriate classification, as defined in Schedule B—Classification Definitions, in which such an employee is working:
Level Minimum weekly wage Minimum hourly wage $ $ Level 9 (ECW 9) 1026.70 27.02 Level 8 (CW/ECW 8) 1009.00 26.55 Level 7 (CW/ECW 7) 985.10 25.92 Level 6 (CW/ECW 6) 957.70 25.20 Level 5 (CW/ECW 5) 932.80 24.55 Level 4 (CW/ECW 4) 905.20 23.82 …
Schedule 2
…
B.2.4 Construction worker level 4/Engineering construction worker level 4 (Engineering construction tradesperson level II and Engineering construction technician level I) (CW/ECW 4)
…
(d) The CW/ECW 4 classification incorporates the following broadbanded award classifications:
…
Dumper, rear and bottom (above 2 cubic metres up to and including 30 cubic metres struck capacity)
…
Excavator up to and including 0.5 cubic metre capacity
…
Applicant’s Evidence
Scott Parsons
Mr Parsons filed two affidavits in this proceeding. Annexed to his affidavit of 17 December 2021 was what appears to be a copy of the FWC file relating to the complaint he made to that body in which he alleged he had been dismissed in breach of protections provided by the FW Act and from which many of the particulars of his allegations can be distilled.
Mr Parsons alleged that he started work with Collie Excavation in November 2020. His evidence was that he was engaged to drive an articulated haul truck at a dam excavation site in Kyneton, Victoria, (“Kyneton Stage 1”) at a rate of $34/hr on weekdays and $44/hr on Saturdays. The job was intended to last until February 2021. In his statement of evidence to the FWC, Mr Parsons said:
I asked if there was any further works following February and I was told in response that there had been no confirmation of any further works at this stage.
In contrast, in his oral evidence Mr Parsons also said that he would be retained beyond February 2021 and employed on a second stage of the dam project.
Mr Parsons stated that he had anticipated that he would be working for Collie Excavation for much longer than in fact he did. In this regard, Mr Collie had stated in his own FWC statement of evidence:
18.The respondent did not do anything to encourage or instill [sic] any expectation in Mr Parsons of continuous or ongoing work. The fact is that the respondent has tendered for work on a second Stage of the Kyneton project. However, the respondent remains unaware of whether or not it will secure a contract for the Stage and is aware that at this time design work and necessary approvals have not yet been obtained
and Mr Parsons had responded as follows:
To my best recollection it was at some time in December that this had in fact been communicated directly from the contracting company that this contact had been awarded and that works would commence with no break from completion of the first contract. To which a general site expectations were that only three or four weeks further would be needed to complete the first contract.
On 9 January 2021 Mr Parsons texted Collie Excavation seeking a review of his wage rates for Saturday work but did not receive a reply. In his FWC response to Mr Collie’s FWC statement, Mr Parsons referred to a conversation he said he had had with Mr Collie on 23 January 2021, stating:
I told the respondent I had made a calculation using the Ombudsmans [sic] pay calculator and details found in the on-site building and construction award.
I said that my flat rate of $34 was close to award but factoring over time [sic] I made a request for an increase.
I made a request for penalty rates or that should a flat rate be more appropriate we should continue to discuss and finalize a rate in a discussion in the near future.
This discussion became unwelcoming as the respondent said ‘But I give you ten dollars extra on Saturdays’.
I attempted to explain my understanding of the penalty rates across Monday - Friday and Saturdays, at which point the respondent replied with ‘Don’t bother coming in’.
I asked if I should come in Monday, to which the respondent said it is a public holiday, I asked about Tuesday, to which the respondent said it would be a site shut day, I asked about Wednesday to which he said ‘we will call you when we need you’. I had never had a telephone call from the respondent, and my understanding was that I would not be able to fulfill [sic] my agreement of employment with the respondent, due the his response.
In contrast, in his complaint to the FWC, Mr Parsons described that conversation in the terms quoted above at [2] and in his oral evidence said that Mr Collie had told him that his pay rate had been “adjusted” to reflect correct pay rates and, before telling him not to come in, had said that he would call him when he needed him. Mr Parsons complained that Mr Collie changed his mind during the conversation.
On 3 February 2021 Mr Parsons sent an email to Collie Excavation seeking reimbursement of underpayments. On Friday 5 February 2021 in a conversation with Ms Schiavon, Collie Excavation’s administration officer, he requested an employment separation certificate which he received the same day. He said that he had hoped, by requesting the certificate, to prompt an invitation for him to perform more work for Collie Excavation.
On Monday 8 February 2021 Mr Parsons made his general protections application to the FWC alleging that he had been dismissed by Collie Excavation on 23 January 2021. Mr Parsons said in his FWC statement of evidence that at the time of his alleged dismissal there remained about 4 weeks’ work on the current dam project with further work on another stage of the project in prospect.
Mr Parsons stated that while looking for jobs after had had been dismissed, he found an advertisement for a truck operator at the Kyneton job. He contacted Collie Excavation regarding applying for the job but never received a response. In order to support himself he applied to Services Australia for benefits and, implicitly, in that connection sought a separation certificate.
Respondent’s Evidence
Robert Collie
Mr Collie is the sole director of Collie Excavation, which operates an excavation and earth moving business. He deposed that Collie Excavation had a small permanent workforce which it supplemented from time to time with casual employees.
Shortly before November 2020, Collie Excavation started work on the Kyneton Stage 1 dam project and Mr Parsons was employed in November 2020 as a casual dump truck driver at a wage of $34/hr on weekdays and $44/hr on Saturdays. Mr Collie deposed that he told Mr Parsons during his job application interview that the position was a casual one and that he did not know how long the project would last. At that point he had not yet priced or tendered for the next stage of the dam project.
Mr Collie deposed that Mr Parsons worked for Collie Excavation until 21 January 2021 and that his work was restricted to driving dump trucks and water carts under supervision as he did not have formal qualifications permitting him to do other tasks. On about 11 January 2021, Mr Parsons said to him that he thought he was not being paid correctly and so Mr Collie passed the query on to Collie Excavation’s company administration and payroll officer, Ms Schiavon, who told him that Mr Parsons was being paid correctly.
Mr Collie deposed that on 15 January 2021 excavation revealed significant rock deposits at the Kyneton site. The rock had to be removed by a slow and difficult process which significantly slowed the progress of the project which led over the following several weeks to minimal work for, in particular, compactors, dump trucks and water trucks. Mr Collie deposed that at the Kyneton Stage 1 site after 22 January 2021, there was minimal need for a dump truck operators and that any work which was required in this respect was able to be undertaken by the permanent employees on-site.On 21 January 2021 Mr Collie and the site foreman, Ms Pearce decided that:
(a)Collie Excavation’s permanent workers would be required to work across all areas of the site according to their skills and expertise;
(b)Mark Honeychurch, another casual compactor operator and dump truck driver would be retained temporarily because his versatile skill-set could be utilised at the time;
(c)Mr Parsons, the remaining casual dump truck driver, would be notified that Collie Excavation had no work available for him for the following couple of weeks; and
(d)Collie Excavation would contact Mr Parsons when he was again needed on the Kyneton Stage 1 worksite.
Staff were reallocated on Friday 22 January 2021 but as Mr Parsons did not attend work that day, he was not notified of the decision then. Mr Collie annexed to his affidavit graphs depicting what he described as the “overall machinery operations at Kyneton Stage 1 Site from commencement to completion”. They showed a steep reduction in heavy machinery usage from 23 January 2021.
Mr Parsons was told of the new arrangements when he called Mr Collie on Sunday 24 January 2021 enquiring about work around the Australia Day holiday. Mr Parsons was also told that his pay enquiry had been followed up by Collie Excavation and its correctness confirmed. During that conversation Mr Parsons made a further enquiry about his pay.
Mr Collie said that although he had told Mr Parsons during their 24 January 2021 conversation that there was no work for him and he would be advised when there was, he did not say that he should not come back to work. He said that he had said something like:
We’ll call you when we need you.
On 5 February 2021 Mr Collie was told by Ms Schiavon that Mr Parsons had requested a separation certificate and he directed that he be given one.
Mr Collie referred to the employment advertisement seeking truck drivers referred to by Mr Parsons in his evidence and deposed that he had not directed that it be posted. Rather, he had asked that an advertisement for a laser operator be posted.
The Kyneton Stage 1 project was completed on 26 or 27 February 2021. On 20 February 2021 Collie Excavation had been notified that it had been awarded a contract to work on a further stage of the project (“Kyneton Stage 2”). A dump truck was used at the Kyneton Stage 2 project for two and a half to three weeks from 10 March 2021 but because the second stage was much smaller than the first stage, Collie Excavation used only its permanent staff.
Ms Schiavon
Ms Schiavon has been Collie Excavation’s part-time administrative officer since July 2019. She maintains its human resources records and prepares and processes its payroll. She deposed that when Mr Parsons was recruited, Mr Collie told her that he was to be paid hourly rates of $34 on weekdays and $44 on Saturdays.
Ms Schiavon deposed that after referring to the Award and based on the size of the vehicle he drove, she classified Mr Parsons as a level 4 employee and stated that he was entitled to the hourly rate for that classification, casual loading, industry allowance, fares and travel allowance. After checking the relevant Award-based wage rate schedules she determined that Mr Parsons’s award entitlements were less than what he had been offered by Collie Excavation.Ms Schiavon deposed that in mid-January 2021, Mr Collie told her that Mr Parsons had queried his wages and asked her to check whether they were correct. She did check and confirmed that the hourly rate Mr Parsons was being paid was at least the minimum payable for his classification and allowance for fares/travel.
Because he was working at a location distant from where Ms Shiavon worked, Mr Parsons sent her his timesheets by text or email with the original following some time later. Ms Schiavon described in the following terms the procedure she followed when calculating pays:
14.It is the company’s practice that all employees are paid from the time they sign-on at the start of the day until they sign-off at finishing time. Adjustments are made for overtime hours in addition to ordinary hours but no deduction is made for meal breaks which the award specifies are unpaid breaks.
15.In accordance with my usual practice, I proceeded to pay Scott Parsons for the on-site hours specified on timesheets he submitted to me in accordance with the company’s usual practice and at the agreed rates.
Ms Shiavon deposed that on 25 January 2021, in response to a further request from Mr Collie that she conduct a review of Mr Parsons’s pay because he had complained of being underpaid, she advised that she would check all the then-current wage rates over the following week. She continued:
20.On Friday, 29 January 2021 I received an email from Scott Parsons attaching his timesheet information for the previous fortnight; Annexure JS-2 is copy [sic] of the timesheet information. I processed Scott Parsons’ pay for the previous fortnight as part of the payroll run, in the usual way.
21.29 January 2021 was wage payment day for the company. As I had not yet commenced the review for all employees, I reviewed Scott Parsons’ records again and confirmed that the previous position had not changed. I commenced the general wage review during the following week.
Ms Schiavon said that Mr Parsons rang her on 1 February 2021 complaining that he should have been on a higher hourly rate and paid allowances for travel, meals and clothing. Ms Schiavon said in that regard:
I told him that it had been checked and that the rate was what he had agreed upon, upon employment. I couldn’t understand why there was a problem. The award had actually just increased roughly a week before he commenced employment, so I knew that it was up to date. He had also asked for other allowances that he felt he was entitled to, and he was going to send through a claim. So, yes, I said, “Well, send through your claim, and I will, you know, speak to Rob and we will have a look at it.”
On 3 February 2021 Mr Parsons made an underpayment claim of $6,687.82 and on 5 February 2021 he sent a text message requesting a separation certificate which was sent to him later that day.
Benjamin Collie
Benjamin Collie is Mr Collie’s nephew and, relevantly, helped to source skilled workers for Collie Excavation’s operations by placing advertisements on social media. Benjamin Collie deposed that in November 2020, at his uncle’s request he published a Facebook advertisement seeking a dump truck operator following which Mr Parsons was hired on a casual basis.
In January 2021, while rocks were being excavated at Kyneton Stage 1, not many workers were on site and equipment was not being used. Shortly after, Mr Collie asked him to place an advertisement on Facebook for a laser bucket operator for the Kyneton Stage 1 project. Benjamin Collie deposed that on 26 January 2021 he cut and pasted a previous advertisement and inadvertently published an advertisement that sought a dump truck operator instead of a laser bucket operator. On 12 February 2021, having realised his mistake because he had received some job applications, Benjamin Collie notified Mr Collie of the mistake and was instructed to “pull the ad … down and advertise for laser operators” for a different site. He deposed that on 14 February 2021 he placed an advertisement on Facebook for laser bucket operators for the other site.
Taylah Pearce
Taylah Pearce is employed by Collie Excavation and was the site foreman at the Kyneton Stage 1 site from mid-November 2020. Mr Parsons was already working on the site as a casual dump truck driver and occasional water card driver when she arrived. Ms Pearce deposed that the excavators encountered a large amount of rock on 18 January 2021. Mr Collie told her it was “essential that the rocks are completely removed from the dam bed to ensure that there’s no risk of any rock rubbing on the plastic lining” otherwise it could “rupture and compromise the whole dam”.
Ms Pearce deposed that the process of removing the rock was “slow and arduous” and other work was “immediately dramatically slowed”. She deposed that there was little alternate work to be allocated to the other machinery and duties had been re-allocated in an attempt to keep workers gainfully occupied. Mr Parson was moved from his primary role of operating a dump truck and tasked to drive a water truck.
Ms Pearce deposed that on 21 January 2021 she had a conversation with Mr Collie about the problems with the Kyneton job. Mr Collie said that the rock had slowed them down “tremendously” and was costing Collie Excavation “a fortune” to have workers “sitting around doing nothing”. She deposed that Mr Collie said that something had to be done to reduce costs and that she suggested:
We could park the equipment that isn’t being used or needed for the moment and stand casuals down until the rock is removed or we get a go ahead on the Stage 2 project.
It was Ms Pearce’s evidence that she analysed Collie Excavation’s needs and decided that:
(a)the permanent workers would work across all areas of the site according to their skills;
(b)Mark Honeychurch, a casual compactor operator and dump truck driver would be retained temporarily because of his versatile skill-set; and
(c)Mr Parsons would be notified that there was no work for him in the following week and he would be contacted when he was needed on the Kyneton Stage 1 job again.
Mr Parsons did not attend work on 22 January 2021, so she was unable to implement the decision as far as it related to him.
Ms Pearce deposed that on 11 February 2021 she informed Mr Honeychurch that there was no further work for him and on 24 February 2021, another worker also finished working at the site. She deposed that there was no need for dump trucks at the Kyneton State 1 site during the finalisation process.
Ms Pearce deposed that on 20 February 2021 Collie Excavation was told that its tender for the Kyneton Stage 2 project had been successful. Mr Ruggi was relocated to that site to commence preparation work, which did not require a dump truck. 10 March 2021 was the first occasion when a dump truck was used at Kyneton Stage 2 and it was only needed for two and a half to three weeks.
Antonio Ruggi
Mr Ruggi works for Collie Excavation as a full-time excavator and plant operator. He deposed that in November 2021 he began working at the Kyneton Stage 1 job where the site foreman was Ms Pearce.
Mr Ruggi deposed that in November and December 2020 and in the first half of January 2021, Collie Excavation had two excavators and three dump trucks of its own operating on a daily basis as well as an additional contracted driver with truck. He deposed that in mid-January 2021 large rock deposits were encountered in the area of excavation and that from 18 January 2021 he worked exclusively for at least three weeks on removing them. His evidence was that during this time there was no work for the dump truck drivers. When the rock removal process was complete, two permanent employees and two dump trucks were used to complete the dam’s last bank.
Mr Ruggi deposed that on 1 March 2021 Mr Collie informed him that Collie Excavation was going to be involved in Kyneton Stage 2 and instructed him to head over and commence work there. He deposed that when he finished working at Kyneton Stage 1, there was one earthmoving machine working on finishing-up processes and that no dump trucks were required.
Consideration
By and large I believe the witnesses in this case to have given what they understood to be truthful accounts of relevant matters. However, Mr Parsons’s evidence was less than completely clear and on occasion he could not provide a reasonably straightforward answer to a comparatively simple question. I found him less reliable as a historian than the other witnesses and, to the extent that there were differences between their accounts, I prefer the other witnesses’ versions of events to Mr Parsons’s.
It appears that Mr Parsons had an expectation that the work he would be doing for Collie Excavation would extend beyond the first stage of the Kyneton project and into the second. It was also apparent from his oral evidence that he had hoped to further his experience and expand his skills by working for some time with Collie Excavation. Although that might have been the case, his evidence did not go so far as to suggest that he was employed other than on a casual basis: see Workpac Pty Ltd v Rossato (2021) 271 CLR 45 at 478 [61], 488 [96]. Casual employment is employment whose contractual arrangements do not include a mutual commitment to an ongoing working relationship between the parties after the completion of each assignment: Workpac Pty Ltd v Rossato at 491 [105] [106]. The Collie Excavation witnesses contended that Mr Parsons was employed on a casual basis and Mr Parsons’s own conversation with Mr Collie on 24 January 2021 indicates that he was aware of and accepted his casual status. I find him to have been a casual employee.
The finding that Mr Parsons was a casual employee has significance for the allegation that his employment came to an end because he was dismissed, although that is not the only issue relevant to that question.
On Mr Parsons’s case, he was dismissed by Mr Collie during their conversation on 24 January 2021 when it was made clear to him that there would be no work for him in the immediate future. He said that Mr Collie at first said that he would call him when he was needed, only to go on and tell him not to come back (at all) after the question of pay rates was raised. The implication that Mr Parsons was dismissed because he complained of underpayment would have some weight if it had been demonstrated that he was in fact being underpaid. However, that was not demonstrated as a matter of fact and the Collie Excavation witnesses, in particular Ms Schiavon, persuade me that, in all probability, it was not the fact. That being so, it seems unlikely that the enquiry Mr Parsons made would have motivated the sort of response for which he contends.
However, even if he was dismissed, the evidence that Mr Parsons was not being underpaid helps to persuade me that he was not dismissed because he made an enquiry about his pay. Also persuasive is the fact that Mr Collie and Ms Schiavon were, I accept, prepared to investigate the complaints when they were made on two separate occasions. Indeed Ms Schiavon undertook a pay review of all employees. The company’s willingness to undertake those enquiries indicates to me that they were of no concern to it and would have been addressed if found to be well-founded. In those circumstances, I find that if Mr Parsons was dismissed as he says, he was not dismissed because he made a complaint or enquiry about his pay. Thus, to the extent that it is relevant, the s.361 presumption has been rebutted.
But in any event, the Collie Excavation witnesses expressly rejected the allegation of dismissal on the basis, they say, that Mr Parsons was never dismissed at all, then or later. Their evidence persuades me that until the employment separation certificate was requested they believed Mr Parsons to still be in a casual employment relationship with the company, albeit a relationship dormant for lack of work. I conclude that whatever words Mr Collie used in his conversation with Mr Parsons on 24 January 2021 were relevantly to the effect that he should not come to the site for the time being and that he would be called when needed. The fact that he was not, in fact, called in before he requested an employment separation certificate is not, in the circumstances of casual employment and the unavailability of relevant work at the Kyneton Stage 1 site, proof that he was dismissed.
I find that the conclusion of Mr Parsons’s employment with Collie Excavation came about because he indicated a disinclination to prolong it, by seeking the employment separation certificate and by then bringing a FWC proceeding alleging its conclusion.
Conclusion
For the above reasons, I find that Mr Parsons was not dismissed by Collie Excavation.
Consequently, the application will be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 October 2022
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