[2015] FWC 8330 [Note: An appeal pursuant to s.604 (C2015/7670) was lodged against this decision - refer to Full Bench decision dated 3 February 2016 [[2016] FWCFB 372] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Moyle
v
MSS Security Pty Ltd
(U2015/12036)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 8 DECEMBER 2015

Application for relief from unfair dismissal – meaning of dismissal – employee remains employed – repudiation of contract – dispute able to be dealt with under Enterprise Agreement – no jurisdiction.

[1] On 29 September 2015 United Voice lodged an application on behalf of Mr Moyle pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The application advised that Mr Moyle had been dismissed by MSS Pty Ltd (MSS), when he was relocated to a different site and advised of a reduction in his salary and classification. The application contended that the employment termination took effect from 9 September 2015.

[2] In its Employers Response (Form F3) MSS contended that Mr Moyle had not been dismissed and remains an employee. Furthermore, the MSS position was that there was no significant reduction in remuneration and that, at the time the application was lodged, Mr Moyle remained classified at the same level as a consequence of a request to this effect made by United Voice.

[3] Mr Moyle’s application was referred to me for determination. It was the subject of a Determinative Conference on 4 December 2015. Both parties provided submissions and material in support of their respective positions. Ms Smith, of United Voice represented Mr Moyle. Ms Jansen represented MSS.

Background Facts relevant to whether Mr Moyle was dismissed

[4] Mr Moyle commenced employment with MSS in 2013. He was classified as a Level 5 Security Officer under the Security Services Industry Award 2010 (the Award) and worked at the Lyell McEwin Hospital.

[5] On 28 August 2015, MSS advised Mr Moyle that he would be transferred to either the Royal Adelaide Hospital or James Nash House. These transfer arrangements involved differing shifts. The MSS position is that the transfer arrangements reflected an ordinary and customary practice within its business and involved a number of its personnel. I note that this issue is disputed between the parties. I also note that MSS assert that the transfer was not a performance-based decision. Mr Moyle’s position is that this change constituted a demotion such that his employment was terminated.

[6] On 1 September 2015 Mr Moyle advised that he preferred the James Nash House site. He was then provided with a roster commencing on 9 September 2015. Mr Moyle has continued to work in accordance with those rostering arrangements.

[7] Mr Moyle expressed concern about what he regarded as a demotion to United Voice. On 18 September 2015 United Voice wrote to Ms Jansen of MSS on behalf of Mr Moyle and expressed concern over the extent to which MSS had properly consulted in this matter. This correspondence confirmed that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Philip Moyle v MSS Security Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWCFB 372
Decision Date: 8 DECEMBER 2015

CaseChat Overview and Summary

Philip Moyle brought a claim against MSS Security Pty Ltd in the Fair Work Commission, seeking relief from an unfair dismissal. The crux of the dispute was whether Moyle had been dismissed from his employment. Moyle contended that he was dismissed when MSS Security refused to reinstate him to his role after his return from long service leave, while the employer argued that Moyle remained employed and that his absence was due to his own actions in not returning to work. The case came before the Fair Work Commission, which had to determine whether Moyle had been dismissed and, if so, whether the dismissal was unfair.

The legal issues before the court centred on the interpretation of the term "dismissal" under the Fair Work Act. Specifically, the court had to consider whether Moyle's situation constituted a dismissal, given that he was not formally terminated by MSS Security but was instead prevented from resuming his employment. Additionally, the court needed to decide if the dispute fell within the scope of an Enterprise Agreement, which might limit the Commission's jurisdiction over the matter.

The court found that Moyle had not been dismissed within the meaning of the Fair Work Act. It held that there was no dismissal because Moyle had not been terminated; instead, he had effectively resigned by his actions in not returning to work. Furthermore, the court determined that the dispute was capable of being dealt with under the relevant Enterprise Agreement, which meant that the Commission did not have jurisdiction to hear the matter. Consequently, Moyle's application for relief from unfair dismissal was dismissed.

The Fair Work Commission found in favour of MSS Security, holding that there was no dismissal and that the dispute was within the scope of the Enterprise Agreement. As a result, the application for relief from unfair dismissal was dismissed, and no further orders were made.

Orders