Peter Reisenleiter v Mickala Group
[2022] FWC 1827
•16 SEPTEMBER 2022
| [2022] FWC 1827 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Peter Reisenleiter
v
Mickala Group
(C2022/909)
| COMMISSIONER HUNT | BRISBANE, 16 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal
On 3 February 2022, Mr Peter Reisenleiter made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mr Reisenleiter stated that he had been dismissed from his employment with Mickala Group (the Respondent) on 20 January 2022.
The Respondent’s business includes providing labour hire employees to mine sites. Mr Reisenleiter was required by the Respondent to perform work at its client’s premises, a mine site in Queensland operated by BHP.
In its Form F8A – Response to general protections application, the Respondent objected to the application on the jurisdictional grounds that Mr Reisenleiter was not terminated on the employer’s initiative pursuant to s.386(1) of the Act, and that he had abandoned his employment. The Respondent further stated that the timeframe elapsed between Mr Reisenleiter having abandoned his employment and the date he lodged the application was outside the 21-day timeframe as prescribed by s.366 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford (Coles),[1] the Commission must determine whether Mr Reisenleiter was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Reisenleiter was dismissed in contravention of the general protections provision. Further, an application must have been made within 21 days of a dismissal.
The matter was therefore listed for jurisdictional hearing by video using Microsoft Teams before me on 20 June 2022. Mr Reisenleiter represented himself. Leave was granted for the Respondent to be represented by Mr Craig Joy of Craig Joy Workplace Consulting.
This decision deals only with the jurisdictional objections to be determined.
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 s.386 of the Act:
“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.”
Furthermore, section 366 of the Act provides as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Mr Reisenleiter’s evidence and submissions
Mr Reisenleiter commenced work for the Respondent on 10 November 2021, performing work at a mine site in Queensland operated by BHP. He worked three swing shifts before the employment ended.[2]
Whilst at site, on 25 December 2021, he was informed that two cleaners who clean the camp accommodation had tested positive for COVID-19, and all personnel would need to return to camp and undertake a Rapid Antigen Test (RAT) to determine if they were COVID-19 positive.
Mr Reisenleiter refused to undertake any form of test. His position is that any such test constitutes battery where consent is not given. He did not consent to participate in what he considers to be an experimental medical procedure which he described as putting a thing up his nose or on his tongue and placing unknown substances into his body.
BHP had, in November 2021, introduced a COVID-19 vaccination requirement from 31 January 2022, requiring all visitors to site to be double vaccinated by 31 January 2022, with one dose required by 17 December 2021. Mr Reisenleiter refused to be vaccinated. He considered this would constitute slavery in the workplace. It appears to me that Mr Reisenleiter’s failure to have one dose of a COVID-19 vaccine was not challenged after 17 December 2021, but the requirement to have two doses would be enforced from 31 January 2022.
Mr Reisenleiter made numerous objections as to why he did not consider the requirement to be vaccinated to be lawful. Further, he considered that he, personally, had not been named in a Public Health Order.
Mr Reisenleiter was unable to obtain a medical exemption from being vaccinated. He provided, as evidence, the following letter from Dr James McConochie, dated 8 November 2021, which stated as follows:
“Peter has presented today with forms requesting medical exemption from Australian Immunisation Register Medicare Form IM011
and a form “ WARRANTY OF VACCINE SAFETY “
I AM TOTALLY UNWILLING TO SIGN SUCH FORMS
Yours faithfully,
Dr James McConochie
MBBS”
Mr Reisenleiter provided the following text messages, with unidentified mobile phone numbers, however it is undisputed that these text messages were sent by the Respondent:
“25.12.21 mobile number [redacted]401
can I please have marks phone number”
“25.12.21 mobile number [redacted]409
please call me back when you reach camp, thanks, ally
tried calling me back please call be back
Hi Peter
A recap of what we discussed
- due to positive cases by Sodexo cleaners, you are required to undergo by BHP processes a rapid test
- you have refused and were further offered a PCR test which you refused
- you requested a blood test done at Moranbah hospital to which you need to organise yourself as this is not a Mickala or BHP process
- you will be paid for your hours on site this morning however have been stood down without pay 10am due to undisclosed special requirements
- note that we can not pick you up from camp and bring you to town until business reopens and you have a negative result for COVID test
- you will be able to get back out on site until approval from the super intendent or acting super intendent and a negative test”“26.12.21 mobile number [redacted]409
How did you go with your test?
Do not attend site before speaking with me, please call me back”
Mr Reisenleiter advised that he never said to the person of mobile number [redacted]401 or [redacted]409 that he was going to get a test done at all. Mr Reisenleiter said that he had a right to not get any medical procedure done as it is not in his contract. He advised that in his contract, there is a specific requirement to be tested for alcohol and drugs, but not a medical procedure. Mr Reisenleiter alleged that the Respondent had “threatened to cause him injury”, “blackmail, battery or apprehension of battery by forcing him with a poison”. He further alleged extortion of no job. Mr Reisenleiter commented that this was another reason why the Respondent ought to have thought about what they said to him. He was of the view that he should have called the police on the day.
Mr Reisenleiter stated that he had spoken to the camp manager. Mr Reisenleiter considered that he had three options; move rooms, stay in his room or take a RAT. Mr Reisenleiter wanted to talk to a safety representative on site, but this was refused.
Mr Reisenleiter advised that he told the Respondent by way of a telephone conversation that he has the right to stop working under the Coal Mining Safety and Health Act 1999. He referred to section 274 of the referenced Act, where it stipulated as follows:
“274 Where coal mine worker exposed to immediate personal danger
(1) Subject to section 273 (2) and (3), if a coal mine worker (the “original worker”) believes that there is immediate personal danger, the worker has the right—
(a) to remove himself or herself to a position of safety; and
(b) to refuse to undertake a task allocated to the worker that may place the worker in immediate personal danger.
(2) The coal mine operator for the coal mine or the coal mine operator’s representative must not disadvantage the coal mine worker for exercising the workers’ rights under subsection (1).
Penalty—
Maximum penalty—200 penalty units.
(3) Subsection (4) applies if the coal mine operator or the operator’s representative subsequently asks or directs another coal mine worker (the “subsequent worker”) to place himself or herself in the position from which the original worker has removed himself or herself, or to undertake a task that the original worker has refused to undertake.
(4) The operator or the operator’s representative must advise the subsequent worker that the original worker exercised rights under subsection (1) because the original worker believed that there was a serious danger to the original worker’s safety or health.
Penalty—
Maximum penalty for subsection (4) – 200 penalty units.”
Mr Reisenleiter also stated to the Respondent that research should be undertaken by the Respondent relevant to his rights pursuant to the Australian Constitution.
In evidence given during the hearing, Mr Reisenleiter left camp by bus on 29 December 2021. He was taken, with others, to the airport. He was next due to return to site on 5 January 2022.
Mr Reisenleiter considered that he should give the Respondent time to conduct its own research into the things he had told them relevant to why the COVID-19 vaccination was not lawful and was harmful.
I asked Mr Reisenleiter if he informed the Respondent prior to, or on 5 January 2022 that he was not returning to site. He said no, he did not, because of the text message he had received on 25 December 2021 saying he could not return to site until he had a negative test.[3] The following exchange occurred:[4]
Commissioner: All right. So, Mr Reisenleiter, you say this is the text message that was sent to you?
Mr Reisenleiter: Yes.
Commissioner: So it says you've been stood down, without pay?
Mr Reisenleiter: Did you want me to read the rest of it to you?
Commissioner: No, we've all got it in front of ourselves.
Mr Reisenleiter: Okay, yes. Yes, it says, yes, I refused to take the test, had a choice to go to Mirrimbah Hospital and they said that they can't pick me up because of the COVID thing, and 'You'll be stood down and you'll get paid for the hours that you get paid today'.
Commissioner: So it's saying, 'We cannot pick you up from camp and bring you to down until business reopens', because it's the Christmas period, obviously. 'and you have a negative result for COVID test. You'll be able to get back out on site until approval from the superintendent or acting superintendent and a negative test'. So is that what you understood, that you won't be able to go to work until you can demonstrate that you've got a negative test?
Mr Reisenleiter: That's correct.
Commissioner: Then when 5 January came around, you wouldn't have been able to produce a negative test, because you're not prepared to undertake a test?
Mr Reisenleiter: Yes, and I stated that to Ali on the day, that I was not going to take a test at all and then she kept on trying to wiggle me around to actually do the test and I said, 'No'.
Commissioner: Because it's a site requirement, Mr Reisenleiter?
Mr Reiseinleiter: It wasn't a site requirement because it wasn't in a contract or anything like that.
Commissioner: Well, the owner of the site has said it is, whether you like it or not, but in any event, on 5 January you didn't alert anybody to your non attendance, is that right?
Mr Reisenleiter: Yes, because like I said to you before, I gave them two weeks to sort out their stuff, just in case she wanted to do more research, and that was Ali.
Following the Hearing, the Respondent produced a document prepared by the Respondent on 5 November 2021 (which pre-dates Mr Reisenleiter’s employment by five days). The document details the site requirements of BHP, including:
“BHP will also be introducing further COVID-19 controls by implementing Rapid Antigen Testing to complement the PCR testing required prior to traveling to site from a COVID-19 outbreak.”
Mr Reisenleiter’s next correspondence with the Respondent was on 15 January 2022. Included in his correspondence, citing various alleged illegality around the requirement to be vaccinated was the following:
“In your email dated (Covid-19 Vaccination Evidence Upload Instruction) you stated ‘all workers must provide evidence of two doses of COVID-19 to their employer on, or before 31 jan 2022’. According to this statement you are requesting me to be vaccinated as a condition of my employment. Can you please provide me with the Risk Assessment (as that term is used in the context of the WH & S Act) you have completed for me (as an individual) regarding the vaccination you are requiring me to have as a condition of my employment. I note that any such assessment must have been made without considering my individual medical circumstances and without a medical consultation.
Employment Contract
And lastly, can you please refer me to the section of my contract or Enterprise Agreement where you are unilaterally allowed to amend my employment conditions?
RAPID TEST
PCR TEST
VACCINE”
On 18 January 2022, the Respondent emailed the following letter to Mr Reisenleiter:
“PRIVATE & CONFIDENTIAL
Hi Peter
As you are aware, you were required to undergo a Rapid Antigen Test on site, because of two individuals proving positive to Covid. You refused to undertake that test, which rendered you unable to attend site, in accordance with the site policy. You were then offered a PCR test as an alternative, but again you refused, despite being aware that it meant you rendered yourself unable to work. You advised that you only accept a blood test at the hospital, and you left site.
We confirmed with you that you were aware of the requirement to wear masks on site, which you have refused to do, claiming you have a medical exemption. Despite our requests, you have not produced that medical exemption. You confirmed that you were aware of the requirement to undergo Rapid Antigen Tests as a condition of entry to site. You also confirmed your knowledge of the two positive cases on site.
You also confirmed that you are aware of the site vaccination requirement, that employees will not be permitted on site after 31st January 2022 if they are not double vaccinated. You confirmed that you are not vaccinated, meaning you would not be able
to access site after 31st January 2022, in any case.
You subsequently left the site and we followed up by inquiring as to the result of the blood test and requesting that you contact us. You have not provided the result of a blood test, nor any evidence that you attended hospital and underwent a blood test. You have simply absented yourself from site and abandoned your employment, ignoring our request for you to contact us, and without making any further contact with us in over two weeks.
We have subsequently received your email dated 15th January 2022. This is 22 days after you last attended work or contacted us. Your email challenges the right of the site to make rules relating to site access, and the right of the various levels of government to enforce the provisions which we currently live under. As you are aware, none of that is within our control.
Despite the length of your email, you make no mention of any legitimate reason for your absence from site, your failure to return to site, your failure to produce your exemption from wearing a mask, your exemption from being vaccinated, or the result of any blood test you may have undertaken. There is no mention of your intention to return to work with us, nor any reason offered for your prolonged, unexplained, and unauthorised absence.
We therefore accept that you have elected to abandon your employment, and we treat your employment as having concluded when you left site on 25th December 2021. Your outstanding entitlements have been closed out in your most recent pay slip, with no further entitlements due or action required.
We thank you for your time with us and wish you well for the future.
Allysha Bexton
Executive Assistant”
Mr Reisenleiter replied by email dated 19 January 2022, as follows:
“hi hope all is well thanks for the email
like i said in the first email sent to u i cant be forced to have a medical procedure as under law and this is my consutution gaunatree and i said this over and over again but u tried to swing me around and just say just do it this time and that is entrapment
about the mask that was the first day of having a mask on site that it came in play and i said i will show my medical exemption the next day i was happy to do that but i had to go back to my room to get it as i dont carry a a4 piece of paper with every day that is silly,
i went to the camp and asked them dont u have a covid plan when cleaning and they said yes so when a cleaner leaves a room its 100% clean so how can anyone go buy there guide lines and covid clean rooms spread some thing and when i spoke to the camp
manger MATT his name is at the time of day he said u dont have to have a test going buy qld state law he just has to inform us that is it he just had to tell us we had 3 choices move rooms , stay in the room or u can have a test ( this was not mandatory) it was not u have to so where did it get lost between camp manger and site make up 2 different things . not a pcr test or a rapid test i said if i was going to do some thing i would do a blood test i didnt say I was going to as i kept on telling u i cant be forced to have a medical thing blood test have been used for 100s of years and i did not say i would have such thing at all?? so please show me proof of this ??
i asked for marks the supervisor number buy text witch i still have and saved asking for his number to speak to him about the communication between qld state direction what the camp manger said to what he said are 2 different stories so its 3 things if u look at the way u are saying as this was not a contact to contact please show me proof of this as well please also about the 31 jan 2022 double jabbed i have section 51 23a states i am aloud to work as normal and under the mine's enterprise agreement witch u still have not shown at all where the law and on my contract
you STOOD ME DOWN so how can i leave a place of work witch i have text msg proof of this as well and saved to me being absence that makes no sense sorry stood down means u cant go to work doesnt it ???”
The Respondent replied on 20 January 2022 as follows:
“PRIVATE & CONFIDENTIAL
Hi Peter
We wish to address some of the incorrect assertions in your email to us. Firstly, you are not employed under the mine’s Enterprise Agreement, you are employed under ours. The mine’s Enterprise Agreement is not relevant to you and there is no reason why we would provide that to you.
Secondly, you left site having given the impression you were going to attend hospital and have a blood test. Your email confirms that you never had any intention of actually getting a blood test done, and in fact you did not do so. As we have already communicated to you, by failing to comply with site requirements you have rendered yourself unable to work there.
Our instructions to you were that you could not return to site, but were to contact us. You failed to comply with that requirement, and have not contacted us since. You are employed by us through our Mackay premises and should have attended our premises if you could not go to site. There was no instruction that you not attend our premises and a request for you to contact us was made.
Your response to us provides no information as to your compliance with requirements which would enable you to return to site, and indicates that in fact you have not complied and have no intention of doing so. Your response also provides no explanation for your failure to contact us, nor for your absence from work without attending our premises or otherwise communicating with us for in excess of three weeks.
We again refer you to our previous email which advises that we have accepted your abandonment of your employment, and that your employment with us concluded as a result of your actions, effective from 25th December 2021. We do not propose to engage in further debates about government jurisdiction or other matters which are outside our control, and regard the matter as closed.
Allysha Bexton
Executive Assistant”
Mr Reisenleiter contended that he was dismissed on 20 January 2022 on receipt of the letter above.
The Respondent’s evidence and submissions
Evidence of Ms Debbie Pedersen
Ms Pedersen is the General Manager of the Respondent. She denied that the Respondent had dismissed Mr Reisenleiter.
Ms Pedersen advised that Mr Reisenleiter contacted the Respondent’s on-call staff member on Christmas Day advising that there were COVID-19 positive people on site and that he had been required to undertake a RAT and would not comply. Mr Reisenleiter had already declined to comply with the requirement to wear a mask on site. This information was passed on to Ms Pedersen.
Ms Pedersen advised that the Respondent was informed that Mr Reisenleiter had left site without authorisation but was assumed to be for the purpose of attending the local hospital for a PCR test. The Respondent subsequently messaged Mr Reisenleiter that day to ascertain the outcome of the PCR test but received no response from Mr Reisenleiter.
On Boxing Day, the Respondent sent a text to Mr Reisenleiter as follows:
“Hi Peter, do not attend site before speaking with me, please call me back”.
Ms Pedersen noted that Mr Reisenleiter was rostered to work the day shift that day, but did not attend site, did not respond to the message, and nor did he make contact with the Respondent. During the Hearing it was discovered that he was at camp, in his room. There is, of course, a distinction between being at site performing work and being at camp.
Mr Reisenleiter made no attempt to contact the Respondent until he sent an email on 15 January 2022. The email contained demands that the Respondent provide him with various documents and made various assertions about the legality of mandatory vaccinations and testing.
In Ms Pedersen’s view, prior to BHP’s vaccination mandate coming into effect on 31 January 2022, the issue was not Mr Reisenleiter’s refusal to be vaccinated; rather, it was his refusal to comply with the requirement to undertake a RAT to access site. The matter also concerned Mr Reisenleiter’s refusal to wear a mask when required on site, and failure to provide an exemption certificate which he claimed was in his possession.
Ms Pedersen considered that Mr Reisenleiter had abandoned his employment on 25 December 2021, and at the time of sending the email on 15 January 2022, he had missed the remainder of his shifts on the rostered seven-day swing and had then missed the entirety of the following seven-day swing after his seven days rostered off.
Ms Pedersen’s position is that Mr Reisenleiter had no authorisation to absent himself from work, did not respond to the Respondent’s messages and made no contact with the Respondent. In the alternative, it was put that Mr Reisenleiter had abandoned his employment by the time he sent the email on 15 January 2022, being three weeks after he walked off the job.
The Respondent replied to Mr Reisenleiter advising that he had abandoned his employment and that the Respondent has accepted that fact and that his employment had concluded as a result of his decisions and actions. Mr Reisenleiter responded with various contentions about discussions with site personnel but nothing about any discussion with his employer, and again claiming to have a medical exemption certificate. The email included the claim that he had been stood down.
Ms Pedersen advised that the Respondent then again wrote to Mr Reisenleiter reiterating that he had not been stood down, that he had been requested to contact the Respondent and had failed to do so and had since absented himself from work without authorisation. This letter to Mr Reisenleiter confirmed the Respondent’s conclusion that Mr Reisenleiter had abandoned his employment.
It was contended that Mr Reisenleiter did not dispute the Respondent’s position, nor did he propose a return to work or a re-engagement with the company. At no stage did Mr Reisenleiter offer any explanation for his continued unauthorised absence from work or for his failure to contact the Respondent.
Ms Pedersen noted that Mr Reisenleiter has not provided any contention as to how he could continue to work when he refused to comply with site requirements including wearing a mask and undergoing RATs. Mr Reisenleiter has not explained why he refuses to wear a mask on site but is able to commute on a fly in fly out basis, when wearing masks on flights has been compulsory for a considerable time and he does not actually possess a medical exemption.
It is noted that following the hearing, Mr Reisenleiter produced the following medical certificate dated 23 July 2021, but had not earlier provided it to the Respondent or to BHP:
“Medical Certificate
23/07/2021
THIS IS TO CERTIFY THAT
I examined
Mr Peter Reisenleiter
who in my opinion has a medical condition – Difficulty breathing
and
would be beneficial for him not to wear masks.
Dr Vinu Ramnanan
[redacted]”
Submissions
The Respondent submitted that Mr Reisenleiter had not been dismissed by the Respondent, but rather, Mr Reisenleiter had abandoned his employment on 25 December 2021. Accordingly, Mr Reisenleiter’s application is outside of the Commission’s jurisdiction.
The Respondent contended that at no point in Mr Reisenleiter’s material has he challenged the objection that he had abandoned his employment.
Mr Reisenleiter was employed on a seven-on/seven-off roster with the first day of one swing commencing on 23 December 2021. Mr Reisenleiter attended work on 25 December 2021, being the third day of the seven-day swing. It is not in dispute that two other personnel on site tested positive to COVID-19 at the time, and that Mr Reisenleiter was therefore required to undergo a RAT per the site requirements. The Respondent advised that it is also not in dispute that Mr Reisenleiter declined to undertake that test, having already declined to wear a mask, and having claimed possession of an exemption from wearing a mask, but without producing that exemption.
The Respondent asserted that Mr Reisenleiter’s evidence is that he would continue to refuse to wear a mask and would refuse to undergo RAT or PCR tests on this, or any other site. On that basis, the stance taken by Mr Reisenleiter would prevent him from accessing any BHP site so long as the wearing of masks or undergoing tests remained a condition of entry to the site. Mr Reisenleiter had therefore rendered himself unable to fulfil the inherent requirements of his employment, in addition to having simply abandoned his employment by walking off the job.
The Respondent argued that it is further not in dispute that Mr Reisenleiter was offered an alternative PCR test, and that he declined the offer but mentioned that he could make his own arrangements and have the test at a hospital. For clarity, the Respondent noted that Mr Reisenleiter did not actually advise that he was leaving site to have a test done, nor did he seek permission to leave site.
The bulk of the contentions by Mr Reisenleiter at the time (and in subsequent emails to the Respondent) were focussed on “mandatory vaccinations”. Again, for clarity, the Respondent noted that there was no requirement to be vaccinated at that point, however as the situation unfolded, the point at which Mr Reisenleiter would in fact be required to be vaccinated to access site, was drawing nearer, being 31 January 2022.
Mr Reisenleiter did not attend hospital to obtain a test; he absented himself from work and ignored the Respondent’s attempts to contact him. It is submitted by the Respondent that he abandoned his employment at that point. He failed to attend work for the remainder of the scheduled swing, and did not contact the Respondent during that time, nor during his scheduled rostered days off.
The Respondent advised that attempts were made to have Mr Reisenleiter contact the Respondent, but he failed to do so. Mr Reisenleiter then failed to contact the Respondent regarding his next scheduled swing, which was rostered to commence on 6 January 2022, for seven shifts until 12 January 2022. Mr Reisenleiter failed to attend the rostered swing commencing 6 January 2022 and did not provide the Respondent with any reason or justification of his continued absence from rostered duties.
Mr Reisenleiter emailed the Respondent on 15 January 2022 demanding production of various alleged statutory requirements but made no effort to justify his absence from work, his failure to respond to contacts made by the Respondent. Mr Reisenleiter contended that he possessed an exemption from wearing masks but did not carry it around with him because “carrying a sheet of paper would be silly”. Mr Reisenleiter did not provide any evidence to support his claims of having an exemption from wearing masks, from being vaccinated, or from having a RAT or PCR test.
Mr Reisenleiter’s reply offered no explanation for his continued absence from work, nor any explanation for his continued failure to contact his employer, and no proposition that he could or would return to work.
The Respondent referred to the Coles decision, which confirms that the Commission is required to determine antecedent disputes prior to exercising jurisdiction and must determine whether an application is made in accordance with the Act, in order to establish the jurisdiction which would allow the Commission to further deal with the matter, including the power to issue a certificate.
The Respondent contended that the principal aspect of the decision relevant to this
matter is found at [67] of the Coles decision:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”
The Respondent submitted that Coles demonstrated that if an application is not properly made then no actual application is before the Commission. The Commission then has no authority to further deal with it, and the matter must be dismissed. Antecedent disputes as provided in Coles include the dispute as to whether a dismissal has occurred, and the dispute as to whether any workplace right relevant to the application has been identified. It is submitted by the Respondent that Mr Reisenleiter has not attempted to address either of these antecedent disputes in his material.
The Respondent submitted that Mr Reisenleiter has plainly abandoned his employment by walking off the site and missing the remainder of that swing, and the entire next swing, without permission or notification and without making relevant contact with the employer. That abandonment of employment was accepted by the Respondent in a letter to Mr Reisenleiter, and Mr Reisenleiter has provided no justification for abandoning his employment or failing to contact the employer.
The Respondent asserted that the Commission and Courts have consistently accepted that RATs are a legitimate and safe requirement in workplaces throughout Australia and cannot be claimed as a legitimate reason to abandon work. The Respondent further asserted that the fact that Mr Reisenleiter continues to press his “right” to absent himself from work based on the requirement to undertake such tests renders him unable to attend site or to return to work in any event. By his actions and continuing to press his “right” to absent himself from work in this manner, the Respondent submitted that Mr Reisenleiter conceded that he has abandoned his employment.
Consideration
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a 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 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]
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]
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.
In Abandonment of Employment,[8] the Full Bench of this Commission considered the meaning of the “abandonment of employment” in the context of the four-yearly review of modern award. However, the comments of the Full Bench are relevant here:
“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”
Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship.[9] Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.[10] The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[11] as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it... Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”
When did the employment end?
I am not satisfied that the employment ended on 25 December 2021. Mr Reisenleiter was in attendance at the BHP camp, being housed in accommodation until 29 December 2021 when he caught a bus and then a flight home. This should have been within the Respondent’s knowledge, even if Mr Reisenleiter was not making any effort to speak with the Respondent’s on-call employee during the Christmas period. While it is somewhat disturbing that Ms Pedersen did not have this information before her until she learned of it during the Hearing, the on-call employee who is no longer employed with the Respondent ought to have known this on account of the flight Mr Reisenleiter took to return home.
Mr Reisenleiter was next due to return to work on 6 January 2022 but failed to make any contact with the Respondent to advise he would not be commencing his next swing. The Respondent did not make any effort to contact Mr Reisenleiter to see if he would be working that particular swing.
I am satisfied that while there was no work being performed at this time, the employment relationship was on foot. I am not satisfied that either party took a course of action at this time to terminate the employment relationship.
For the reasons that follow, I am satisfied the employment relationship came to an end on 18 January 2022 when the Respondent emailed Mr Reisenleiter following his email to the Respondent dated 15 January 2022. Accordingly, the application has been made within the 21-day time limit.
How did the employment end?
Mr Reisenleiter has made much ado about how he considers that he was stood down from work. In fact, the text message sent to him on 25 December 2021 was in reference to him being stood down from site. He was informed by the Respondent that he would be paid for the hours he had performed at site that morning, but because he was refusing to take a RAT, he was stood down without pay from 10am.
I find that the text message to him was in respect of that day’s circumstances. Once at camp, he was not being paid, but was being accommodated and fed, and ultimately flown home on 29 December 2021 when the next bus was available.
He was informed in that text message that he wouldn’t be able to return to site until he had approval from the Superintendent and returned a negative RAT. They were the lawful site conditions as a result of two positive tests of cleaners having cleaned camp accommodation. I understand that those workers who returned a negative RAT would return to site to perform work.
While I consider that the employment relationship was still on foot as of 6 January 2022, despite neither party contacting the other, on 15 January 2022, Mr Reisenleiter emailed the Respondent, challenging it to demonstrate the lawfulness of the requirement for COVID-19 testing and vaccination. Mr Reisenleiter made it abundantly clear that he would not, under any circumstances, undergo RAT or PCR tests to return to site.
Pursuant to BHP’s site rules, the Respondent was under an obligation to require its employees to be tested, and accordingly, if Mr Reisenleiter was unable and unwilling to be tested it could not permit him to be sent to site or camp.
I find that Mr Reisenleiter’s clear communication that he would not undergo a COVID-19 test to be permitted to return to site to constitute a renunciation of the employment relationship between himself and the Respondent. There was no qualification to his refusal; he would forevermore refuse to undertake such a test that he considered constituted an assault on him.
I am satisfied the Respondent’s letter dated 18 January 2022 conveyed an acceptance of Mr Reisenleiter’s renunciation of the employment relationship. While the Respondent used the expression of abandonment of employment, I consider it was unsophisticated in doing so. The effect of Mr Reisenleiter’s conduct of 15 January 2022 was to insist that he would never undertake COVID-19 testing to return to work, and therefore the Respondent was relying on that information to inform Mr Reisenleiter that because of his actions, the employment was at an end.
I accept that the Respondent’s language was not sophisticated but does not alter its intended response to Mr Reisenleiter’s conduct.
Because Mr Reisenleiter’s conduct amounted to a renunciation of his contract of employment, it is his conduct that terminated the employment relationship. There was no action on the part of the Respondent that was the principal contributing factor which resulted, directly or consequently in the termination of Mr Reisenleiter’s employment.
Mr Reisenleiter did not suggest that he was forced to resign. In any event, I am satisfied on the evidence that the Respondent did not engage in any conduct with the intention of bringing Mr Reisenleiter’s employment to an end, nor was termination of Mr Reisenleiter’s employment the probable result of any conduct by the Respondent such that Mr Reisenleiter had no effective or real choice but to resign.[12]
Accordingly, I am satisfied that Mr Reisenleiter was not dismissed within the meaning of either limb of s.386(1) of the Act.
Conclusion
Mr Reisenleiter was not dismissed within the meaning of the Act. Accordingly, Mr Reisenleiter’s general protections application involving dismissal must be dismissed.
COMMISSIONER
[1] [2020] FCAFC 152.
[2] Transcript PN 476.
[3] Transcript PN 71.
[4] Transcript PN95-108.
[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) 62 IR 200.
[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] [2018] FWCFB 139 [21]-[22].
[9] Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James[2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21].
[10] Abandonment of Employment [2018] FWCFB 139 at [21].
[11] [2007] HCA 61
[12] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47].
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