[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.

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Details

Case: [2015] FWC 8330
Decision Date: 8 DECEMBER 2015

CaseChat Overview and Summary

Philip Moyle applied for relief from an unfair dismissal after being terminated by MSS Security Pty Ltd. The Fair Work Commission was tasked with determining whether Mr Moyle had been dismissed within the meaning of the Fair Work Act and if so, whether the dismissal was unfair. The central issue before the Commission was whether Mr Moyle had been dismissed despite remaining in his role, and whether the dispute could be resolved under the applicable Enterprise Agreement.

The Commission examined the facts to determine if MSS Security's actions constituted a dismissal. The employer argued that no dismissal occurred because Mr Moyle continued to work and receive pay. The Commission found that there was a repudiation of the contract of employment by MSS Security, which amounted to a dismissal. However, the Commission also considered whether the dispute was covered by the relevant Enterprise Agreement. It concluded that the dispute fell within the scope of the Enterprise Agreement and, therefore, did not have jurisdiction to hear the unfair dismissal claim.

As a result, the Commission dismissed the application for relief from unfair dismissal. The Commission found that although Mr Moyle had been effectively dismissed, the dispute was not one that could be addressed under the Fair Work Act but rather under the terms of the Enterprise Agreement. The Commission's decision highlights the importance of understanding the jurisdictional boundaries when dealing with employment disputes, particularly in relation to Enterprise Agreements.

Orders