Phillip James Curry v Mackellar Excavations Pty Ltd
[2023] FWC 3140
•28 NOVEMBER 2023
| [2023] FWC 3140 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Phillip James Curry
v
Mackellar Excavations Pty Ltd
(C2023/4828)
| COMMISSIONER DURHAM | BRISBANE, 28 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed
On 10 August 2023 Phillip James Curry made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Curry alleges that he was dismissed by Mackellar Excavations Pty Ltd (the Respondent) on 4 August 2023 in contravention of his workplace rights.
The Respondent opposed the application, by way of raising a jurisdictional objection that the Applicant was not dismissed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by the Respondent before Mr Curry’s application can proceed.
For the reasons outlined below, I find that Mr Curry was terminated on the employer’s initiative, and as such he has been dismissed within the meaning of section 386.
Hearing of the Jurisdictional Objection
I issued directions on 14 September 2023, for the parties to file their material.
The question of whether Mr Curry was dismissed was dealt with at a hearing on 9 November 2023. Materials in support were filed by both Mr Curry and the Respondent. Mr Curry represented himself and leave was granted in accordance with section 596 for the Respondent to be represented by Mr Schwalbach.
Mr Curry gave oral evidence and was cross examined but did not call any witnesses. Mr Carl Denhard, General Manager of the Respondent, provided oral evidence but was not cross examined by Mr Curry.
Evidence of the Respondent
The Respondent’s evidence can be summarised as follows:
Mr Curry was not dismissed, because he was employed on a casual, “as needed” basis.[2]
Mr Curry was never told that he would be offered full-time employment after two weeks, rather, he was told that he would be offered full-time employment if he passed the probationary period of between three (3) and four (4) months.[3]
Mr Curry had signed an Individual Flexibility Agreement (IFA) prior to commencement. This agreement outlined his employment conditions and could not have been construed to have been in any way an offer of full-time employment.
The IFA included reference to a requirement to provide at least 13 weeks' notice of termination, however this is a reference to the termination of the IFA, not termination of employment.
That Mr Curry had been overheard saying that he was going to resign.
Mr Denhard spoke with Mr Curry on 4 August 2023 to advise him that he had formed the view that he was not the right fit for the business and that they would no longer require his services.[4]
Mr Denhard subsequently received a text message from the Applicant stating that he was thankful to be out of the job as he had secured a better position elsewhere.[5]
Mr Denhard received further text messages from Mr Curry over the coming days which he found both threatening and abusive.
The Respondent considers the application to be frivolous.
Evidence of the Applicant
Mr Curry’s evidence can be summarised as follows:
He commenced employment with the Respondent on 28 June 2023.[6]
Prior to commencing employment, he signed an IFA which he believed was an offer of full-time employment and entitled him to at least 13 weeks’ notice of termination.[7]
Conversely, Mr Curry also submits he was given the impression that after two weeks in the role, he would be offered full-time employment, which did not subsequently happen.[8]
Shortly after making inquiries with the Respondent about becoming permanent, he was advised that he had been let go.[9]
Fact Not in Contention
The following factors are not in contention:
Mr Curry commenced employment with the Respondent on 28 June 2023.
Mr Curry was employed as a casual and was paid casual loading.
On 4 August 2023, the Respondent advised Mr Curry that he would no longer be required.
Relevant Legislation
Section 365 of the Act provides:
“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.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which provides:
“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.”
The IFA and “offer of permanent employment”
Both parties made submissions regarding whether Mr Curry had been promised permanent employment and the extent to which the IFA impacted on the employment relationship. Whilst these matters may be relevant to the furtherance of Mr Curry’s General Protections claim, they are not integral to determining whether or not Mr Curry has been dismissed. As such, I make no findings with respect to these matters.
Consideration
The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer, and which is not agreed to by the employee.[10]
The analysis of whether there has been a termination at the initiative of the employer for the purpose of section 386(1)(a) is to be conducted by reference to termination of the employment relationship.[11]
It was not contended by either party that Mr Curry had or had not resigned from his position. Therefore, section 386(1)(b) of the Act does not relevantly arise for consideration in this matter. As such, the Commission must determine, pursuant to section 386(1)(a) of the Act, whether the applicant was dismissed at the initiative of the employer.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[12] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[13]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[14] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[15]
All the circumstances – including the conduct of both the employer and employee – must be examined.[16] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[17]
There are additional factors that need to be considered when dealing with repudiation of casual employment. The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB 5 at 24 states:
“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.
It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a casual employee does not repudiate that contract when it fails to offer another shift.”
Repudiation of the employment relationship still occurs in casual employment if the employer intends for the employment relationship to end. Deputy President Young’s decision in Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 notes at [33]:
“a dismissal takes effect when the employment relationship has ended.[18] The termination of the employment relationship is a different concept from the termination of an employment contract.[19]”
Casual employees are not dismissed when they do not receive a shift from the employer. There are valid reasons why a casual may not be offered a shift, and this mainly arises from operational requirements. Examples include availability of the casual employee, downturn of the business because of seasonal requirements or amount of work that is available to name a few. In such instances, the employment relationship remains intact as the casual employee is still “kept on” and is willing and able to work if and when work is available.
Throughout these proceedings, the Respondent has sought to rely on the nuances of casual employment to establish that there has not been a dismissal. The Respondents submissions are somewhat contradictory in this regard. When explaining the reason Mr Curry was not offered any further shifts, the Respondent, initially stated that Mr Curry had been overheard saying that he was going to leave within the next two days and that “for continuity of business”, they had decided not to re-engage him.[20] However, the Respondent later relies on the fact Mr Curry “was not a good fit” as the reason he was not offered any further shifts.[21]
During the hearing, I sought clarification from Mr Schwalbach regarding this point. Mr Schwalbach's attention was drawn to section 386(1)(a), which provides that a person has been dismissed if their employment has been terminated on the employer’s initiative. Mr Schwalbach was asked to further explain why he says what happened to Mr Curry does not fit within this meaning of dismissal. Mr Schwalbach explained that as a casual employee, Mr Curry was no longer required and to ensure that he understood he was no longer required, a separation certificate was provided. Curiously, the issuance of the separation certificate leads me to believe that Mr Curry was terminated as such certificates, by their very nature, provide information for terminated employees.
Mr Schwalbach’s later reliance on Mr Curry “no longer being needed” as the reason for the employment relationship coming to an end does seem at odds with the Respondents earlier assertions that Mr Curry was terminated due to not being “a good fit” or “to ensure continuity”.
Mr Schwalbach also raised a range of other factors in support of the argument that Mr Curry was not dismissed including that:
· Mr Curry was dismissed within the probationary period;
· that he had not met the minimum employment period;
· that Mr Curry had not been coerced into signing the IFA.
I questioned the relevance of these points, given the purpose of the hearing was to determine whether Mr Curry was dismissed, suggesting that these may well be considerations if this were an unfair dismissal proceeding, but it was not. Mr Schwalbach agreed with my observation.
I also suggested that many of these arguments may be more relevant to determining the merits of Mr Curry’s General Protections application should it proceed. Mr Schwalbach agreed with this observation as well.
To that end, the only matter to be determined as a result of the Respondent’s Jurisdictional Objection is whether or not Mr Curry’s employment relationship came to an end at the employer’s initiative. Taking all the material before me into consideration, I have formed the view that the Respondent clearly intended to bring the employment relationship to an end, even though Mr Curry was still willing and able to work. This was communicated to Mr Curry at the meeting held 4 August 2023 and confirmed by the issuing of a separation certificate on 3 October 2023.
Having determined that Mr Curry’s employment with Mackellar Excavations Pty Ltd has been terminated on the employer’s initiative, he has been dismissed within the meaning of section 386.
Conclusion
Given my findings, Mr Curry has been dismissed within the meaning of the Act, the jurisdictional objection is dismissed, and the application is to proceed. As such, there is jurisdiction for the Commission to convene a conference in this matter and, if satisfied that all reasonable attempts to resolve the matter have been, or are likely to be unsuccessful, issue the certificate as provided in section 368(3) of the Act.
As a result, I will convene a conciliation conference with the parties to explore the resolution of the matter. A notice of listing will be provided to the parties.
COMMISSIONER
Appearances:
P. Curry for the himself
W. Schwalbach for the Respondent
S. Dundas for the Respondent
Hearing details:
2023
Brisbane
9 November
[1] [2020] FCAFC 152.
[2] P.38 of the DCB – Respondent’s Submissions.
[3] P.28 of the DCB – Form F8A.
[4] P.38 of the DCB – Respondent’s Submissions.
[5] Ibid.
[6] P.5 of the DCB – Form F8.
[7] P.13 of the DCB – Applicant’s Submissions.
[8] Ibid.
[9] Ibid.
[10] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.
[11] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at para. 75.
[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[13] Ibid.
[14] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[15] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
[16] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[17] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].
[18] Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21].
[19] Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50].
[20] P.25 of the DCB – Form F8A.
[21] P.40 of the DCB – Statement of Carl Denhard.
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