Paul Huber v Tfa Pty Ltd

[2018] FWC 2660

[2018] FWC 2660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Huber
v
TFA Pty Ltd
(U2018/1837)

COMMISSIONER WILSON MELBOURNE, 14 MAY 2018

Application for an unfair dismissal remedy. Jurisdictional objections; whether application in time, and whether employee dismissed. No dismissal found.

[1] This decision involves determination of a jurisdictional objection to the continuation of Paul Huber’s unfair dismissal application against TFA Pty Ltd (TFA). The immediate objection is that Mr Huber’s application is made outside of the 21 day time period allowed under s.394 of the Fair Work Act 2009 (the Act) for the making of unfair dismissal applications; however by necessity determination of that matter involves consideration of the questions of whether Mr Huber was dismissed within the meaning of the Act, and if so, on what date.

[2] The relevant background to this matter includes the following:

•  Mr Huber had been employed by TFA Pty Ltd since April 2015. His work for TFA involved working in a call centre servicing a number of clients of the company, and for that work he was paid $25.26 per hour, as well as receiving commission payments. Mr Huber was employed as a casual employee during the period of his employment. The company is relatively small, employing perhaps 20 to 30 people at the time of Mr Huber’s employment.

•  Mr Huber’s work involved interaction with another employee, Manus Lamond, who is indicated by the parties as holding the role of Senior Trainer.

•  On Friday, 22 December 2017 Mr Huber and a number of other employees, including Mr Lamond were drinking socially, out of working hours, after the work Christmas Party, at a hotel and then later at a nightclub. When another employee became inebriated, Mr Huber spoke to them and said some things to that person about Mr Lamond.

•  The company’s office was closed after that date for the Christmas/New Year period and did not reopen until Tuesday, 2 January 2018. Both Mr Huber and Mr Lamond returned to work on that date.

•  On Friday, 5 January 2018:

•  Mr Huber was rostered for and attended work;

•  Text messages were exchanged between Mr Huber and Mr Lamond, which Mr Huber characterised as being threatening toward him.

•  Mr Huber attended for work on Saturday, 6 January 2018 and he says that Louise Bedford, one of the company’s managers, observed him to be visibly upset and too upset to work.

•  On or around Saturday, 6 January 2018 Mr Huber made a complaint about Mr Lamond on a quick handwritten note. Mr Huber is imprecise with his evidence about when and to whom the complaint was made, but estimates it was made on Saturday, 6 January and that he likely discussed it first with another female manager before giving it to Ms Bedford. He reports that Ms Bedford said that “we will look into it”. Mr Huber also says that he reported Mr Lamond’s conduct to the police on Saturday, 6 January 2018, although there is no material before the Commission to support his assertion.

•  On either Monday, 8 or Tuesday, 9 January 2018 Mr Huber telephoned TFA and spoke, it appears, with Ms Bedford and “advised that he had a medical condition and would not be attending the workplace for two weeks”. The generality of the proposition that Mr Huber telephoned and said he would be away for two weeks due to illness is accepted by TFA.

•  Friday, 5 January 2018 was the last day that Mr Huber completed a rostered shift at TFA, with him being unable to complete his rostered shift of Saturday, 6 January 2018 due to illness.

•  On Tuesday, 9 January 2018 Mr Huber attended a medical practitioner who provided him with a medical certificate for absence between Tuesday, 9 and Friday, 19 January 2018, inclusive. The medical certificate was not provided to TFA until these proceedings. TFA viewed literally Mr Huber’s advice that he would be away for two weeks, and claims to have expected him back at work on Monday, 22 January 2018 (being two weeks after the first day of absence on Monday, 8 January 2018).

[3] Mr Huber’s unfair dismissal application was made on Thursday, 22 February 2018. In that application Mr Huber indicates that he was notified of his dismissal on Monday, 19 February 2018 and that it took effect on Saturday, 6 January 2018. Mr Huber puts forward that he was dismissed because he made a complaint to TFA that Mr Lamond had “physically threatened” him at the Christmas drinks on 22 December 2018. 1

[4] The principal question for determination at this time is whether Mr Huber was dismissed within the meaning of the Act. If he was, then consideration will need to be given to whether his application was made within the time period allowed, or whether an extension of time should be allowed for his filing. This is because the asserted date of effect of the dismissal, Saturday, 6 January 2018, is more than 21 days prior to the filing of Mr Huber’s application, on 22 February 2018.

LEGISLATION

[5] A person is dismissed for the purposes of the Act’s unfair dismissal provisions in the circumstances set out on s.386. Relevant to determination of this matter are the provisions in s.386(1), which go to the questions of whether there was a termination at the employer’s initiative, or whether a resignation on the part of the Applicant was forced because of conduct or a course of conduct engaged in by his employer. Subsections 386(2) and (3) do not require consideration in this matter. Section 386(1) is in the following terms:

“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.”

CONSIDERATION

[6] Mr Huber asserts a number of things in support of his claim that he was dismissed within the meaning of the Act. He puts forward that he was simply not given any more shifts and that such is consistent with the pattern of behaviour on the part of TFA when faced with troublesome employees. He also puts forward that there was a failure on the part of TFA to investigate his complaint about Mr Lamond. In relation to the second matter Mr Huber has not explicitly contended that he may have resigned from employment, however in the circumstances of this matter and how it has been progressed, it is appropriate that the question be at least dealt with as a possibility in this decision.

[7] The first contention, of not being given any further shifts, amounts to one that overt actions on the part of TFA are a termination on the employer’s initiative. The second arises because of Mr Huber’s statements to a TFA manager, Louise Bedford on 25 January 2018 that he was not going back if his complaint about Mr Lamond had not been sorted out. It is possible that such could be viewed by Mr Huber as being a forced resignation, because of conduct, or a course of conduct engaged in by TFA.

[8] The evidence before the Commission consists only of the documents filed by each of the parties as well as the affirmed statements of Mr Huber and TFA’s Director, Gerard Maguire in the proceedings conducted by me.

[9] In relation to the first matter of not being given any further shifts, the parties are agreed that Mr Huber was ill and unable to work in the period commencing on Saturday, 6 January and ending on Monday, 22 January 2018. His illness commenced the day after an exchange of text messages between himself and Mr Lamond. The totality of the text messages as presented by Mr Huber to these proceedings is set out below, with it being noted that Mr Huber’s statements to the Commission included that this was not a complete listing of the text messages, as well as that it being noted that the Commission has not had the benefit of Mr Lamond’s evidence on the subject. By way of context, Mr Huber had loaned Mr Lamond a television and as a result of his concerns about what occurred on Friday, 22 December 2017 and thereafter, he wanted Mr Lamond to return it. The text exchange which was put in evidence by Mr Huber is as follows (ME = Mr Huber; ML = Mr Lamond);

“FRIDAY 5th JAN 2018

_____________________

ME: Forgot to tell you that I’ll pick up my tv today or tommorow after work for my son to use again

ML: No worries, thanks for the notice

ME: Are you being a smartarse

ML: No being honest. Chat to you when you get here (work)

ME: A nice person would of said thank-you

ML: Mate..I’ve thanked you enough..doesn’t mean I’m not a nice person..I’m not home tonite or tomorrow so that’s the reason Paul..don’t presume PAUL..it’s organizing time mate

ME: Like I said after work today or after work tomorrow

ML: I’m off tomorrow, doing cleaning for ANDY..you can come in the morning before work..coz I won’t be back till after 4pm up to u

ME: Monday after work, no excuses

ML: Excuses?????..u ok..maybe pik it up tomorrow morning.. 8AM

ME: No Monday got it or are you thick

ML: Thick you sound like you wanna get personal..have you taken your medication..I will be civil..if u wanna get personal and nasty.. I can meet u half way..ur call

ME: it’s personal and you’ll find out when I’ve got my tv in the car before I leave

ML: Bring it...MAKE SURE YOU ARE PREPARED!!!!!!!!We wll be waiting for you

ME: I will be it’s called the force dude

ML: up to you...u made the first call

ME: what? all I asked was for my tv back and your smart ass comment was “ thanks for the notice “after everything I’ve done for you last year. C how you NEED people when I get there. I won’t

ML: WAITING FOR U ON MONDAY!!!!!!>>Nasty is what you want..that’s what you will get..good nite...I’m out with the boys..DEAL WITH YOU MONDAY CUUUUUUNT!!!!!!!” 2

[10] Having left the TFA premises on Saturday, 6 January 2018, Mr Huber saw a medical practitioner on Tuesday, 9 January 2018, who certified him to be unfit for work between Tuesday, 9 January and Friday, 19 January 2018.

[11] While Mr Maguire notes that the medical certificate obtained by Mr Huber was never presented to TFA and Mr Huber agrees that such was the case, there is no dispute between the two that Mr Huber was not required to work in that period. However, Mr Maguire puts forward that since Monday, 22 January 2018 was two weeks after the time that Mr Huber had said to TFA that he would be away for reason of personal illness for two weeks, there was an expectation by TFA that Mr Huber attend for work on that day. Mr Maguire notes that there was then no contact from Mr Huber with any of his staff until a few days later, on Thursday, 25 January 2018. Although Mr Huber initially put forward that further contact was on Monday, 29 January 2018, he accepted in the course of the proceedings before me, that the contact actually occurred on Thursday, 25 January 2018.

[12] The contact made by Mr Huber on Thursday, 25 January was with Ms Bedford, who did not give evidence or provide a statement to these proceedings. Mr Huber says about that conversation that he asked Ms Bedford for further work and that she told him that there were no shifts available but to call back at a later time, either being in two weeks or mid-February. He says that this request came after he had asked her whether TFA had “sorted out with Manus”, being a reference to the complaint he had made in early January, to which Ms Bedford had told him that the matter had not been progressed nor would it be in future.

[13] Mr Huber agrees that the last contact he had with TFA about the prospect of further shifts being offered to him was on Thursday, 25 January 2018. Such was in contradiction with his earlier statement to the proceedings that he had been in contact with TFA about further shifts being offered in February, and likely on Monday, 19 February 2018. He said in his earlier comments that there had been a conversation with Ms Bedford on Monday, 19 February and that this second conversation had come about because, following the first in late January, he had been told by Ms Bedford to call back in two weeks, or perhaps in mid-February to see whether there were shifts at that time. I also take into account statements made by Mr Huber in several parts of the proceedings in which he said that he knew on Monday, 29 January that there would be no more shifts available to him. My Huber submitted that he held this believe as such rhetoric had been used by the company previously, whereby employees ultimately were dismissed as a result of not receiving further shifts.

[14] The several explanations given by Mr Huber about the circumstances surrounding the end of his employment require some reconciliation. Mr Huber has not offered a consistent explanation about what took place and the changes made to the explanations he has given lead to significant difficulty in accepting his overall evidence. In all likelihood there was only the one conversation with TFA about further work after 6 January 2018, with that conversation taking place on Thursday, 25 January 2018. It is more likely than not that in the course of the conversation that Mr Huber’s focus was upon the complaint he had made about Mr Lamond and whether it had been investigated or otherwise progressed. It is more than likely that he asked questions about this as the first matter of business and that he then became upset after an answer from Ms Bedford which did not satisfy him. He interpreted what she had to say as TFA not viewing his complaint either as credible or one which needed investigation.

[15] It is also likely on the balance of probabilities that in the course of the 25 January 2018 conversation that Mr Huber was told there was no work immediately available for him and that he should call back and inquire later. It is also likely in the circumstances that Mr Huber told Ms Bedford in the conversation the words that he repeated in the proceedings before me to the effect that he was not going back if his complaint had not been sorted out. It is unlikely on the basis of the evidence and material before me that in the course of that conversation that Mr Huber was told anything which would indicate he would not be offered further shifts from the company.

[16] The evidence and material before me also allows a finding that there was then no further contact between Mr Huber and any representative of TFA about further work after Thursday, 25 January 2018.

[17] The foregoing considerations do not make available a finding that Mr Huber was terminated on the employer’s initiative. The best that can be said of the discussion on 25 January 2018 is that Mr Huber was told that there was no work immediately available and that he should call back later. While Mr Huber puts forward a suspicion that such words from TFA are consistent with its operating methodology of not making work available to people who raise complaints, there is insufficient direct evidence before the Commission on the subject for that proposition to be accepted as tantamount to a termination of the employer’s initiative. In any event the proposition, at that point of time, on 29 January 2018, is contrary to what Mr Huber was likely informed, which was that he should call back later about further work. The fact that he did not call back at a later time to enquire about further work eliminates to any meaningful degree the possibility that what he was told on 25 January 2018 amounted to a termination on the employer’s initiative.

[18] The second consideration is whether or not Mr Huber may somehow have resigned his employment in the course of the conversation on 25 January 2018 and that such was a forced resignation.

[19] The evidence and material for the Commission also does not allow such a finding.

[20] When Mr Huber put forward that he was not going back if his complaint about Mr Lamond had not been sorted out, he relies upon his concern about the failure of TFA to properly conduct an investigation into the complaint he had raised on Saturday, 6 January 2018 about the circumstances of 22 December 2017. In the course of the proceedings before me Mr Huber requested that TFA provide a copy of his complaint to the Commission, which it did. The document provided by TFA is handwritten and states as follows:

“To Gerard and Louise,

If you don’t have a strong word with Manus tomorrow re:Friday 22^nd I will and you can guarantee a huge problem.

He verbally insulted me, threatened to assault [name removed] and had [named removed] so drunk so he could get her back to his place.

I know [name removed] will be really nervous if he even approaches her.”

[21] At the bottom of the document are notes written in another person’s handwriting, over the signature of L Bedford, Operations Manager, with the notes saying:

“Spoke to [name and employee number removed] has no issue re the event was quite embarrassed with Pauls accusation.

Spoke to 413Hub Paul Huber explained I had spoken to [name removed] and she had no intention of taking anything further.

[unclear] Bedford

Operations Manager”

[22] Mr Huber argues that TFA has not provided a complete document to the Commission saying that,

“7. TFA have not disclosed, to the commission, the full text on the document they sent you. I affirm that I did write and sign, on that or another document to TFA, that if I lose my shifts because I put in a sensitive complaint, against their senior trainer Manus Lamond,,“ I WILL SUE THEM”. I said this, to protect myself, because I know their style of “getting rid of pests that dare to challenge them”.

8. In their eyes, I am a trouble maker. Therefore I received no shifts.” 3

“TFA are definitely not disclosing the full content of all my written complaint/complaints to you. They have no protocol in place for complaints made to them.

Wouldn’t one think that after a serious complaint, they would at least question Manus Lamond.

Mr Maguire makes out that he conducted the interview with [NAME REDACTED], the young girl involved in the incident.

I am almost certain that he did not conduct any interview, that it was his manageress that conducted the interview.” 4

[23] Whether or not the document provided by Mr Maguire is complete is, for the purposes of these proceedings, less important than Mr Huber’s response following being told by Ms Bedford on 25 January 2018 that the complaint would not be progressed. Having been told that was the case, Mr Huber appears to have been greatly and personally upset about TFA’s disposition on the matter. Those feelings of concern and upset may well have been magnified because of his complaints about Mr Lamond however, what was told to Mr Huber does not reasonably rise to the level of conduct or a course of conduct on the part of TFA that would force a resignation.

[24] The reports made by Mr Huber to the Commission about his conflict with Mr Lamond do not reasonably give an apprehension of violence from Mr Lamond to Mr Huber. There may well have been tension; there may well have been dislike; there may well even have been prospect of further conflict, but it can hardly be said that the fact TFA chose to make a decision against progression of his complaint would leave him Mr Huber no choice other than to resign from the company. In any event it must be noted that there is no evidence before the Commission that Mr Huber ever said anything to Ms Bedford or any other representative of TFA that he would resign or no longer be able to work for the company. To the contrary, the evidence is that Mr Huber asked about the prospect of further work, was told there was not available at the time and was invited to call back in a few weeks and then did not do so.

[25] As result, I am unable to find that Mr Huber was dismissed within the meaning of the Act. An order dismissing Mr Huber’s unfair dismissal application will be issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr Paul Huber on his own behalf

Mr Gerard Maguire on behalf of the Respondent.

Hearing details:

2018.

Melbourne:

4 May.

Printed by authority of the Commonwealth Government Printer

<PR607017>

 1   Exhibit A1, Applicant’s Outline of Submissions, p.4.

 2   Exhibit A3, Content of communication between Manus Lamond and Paul Huber.

 3   First email to Commission, 10 May 2018.

 4   Second email to Commission, 10 May 2018.