Robert Comerford v Railtrain Services Pty Ltd
[2022] FWC 2673
•4 NOVEMBER 2022
| [2022] FWC 2673 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Comerford
v
Railtrain Services Pty Ltd
(U2022/6051)
| COMMISSIONER MCKINNON | SYDNEY, 4 NOVEMBER 2022 |
Application for an unfair dismissal remedy – whether dismissed – casual contract of employment – jurisdictional objection dismissed
Robert Comerford was employed by Railtrain Services Pty Ltd (Railtrain) under a casual labour hire contract for the role of Second Person, working in Pacific National’s Sydney Freight Terminal (SFT). His last working day was 16 May 2022. On 6 June 2022, Mr Comerford applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).
A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[1] Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.[2] This requires analysis as to whether there has been a termination of the employment relationship at the initiative of the employer for the purpose of section 386(1)(a).[3]
Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. It requires that the action of the employer be the principal contributing factor which led to termination of the employment relationship.[4]
The question is whether Mr Comerford was dismissed.
I find that Mr Comerford was dismissed from his employment with Railtrain and these are my reasons.
Was Mr Comerford dismissed?
Mr Comerford has a heart condition. On 10 December 2021, he underwent a “Category 1” Safety Critical Worker Health Assessment, which is a requirement for Safety Critical Workers in the rail industry under the Rail Safety National Law and the National Standard for Health Assessment of Rail Safety Workers. The assessment was conducted by Dr Mahadevan of Sonic HealthPlus. His Assessment Report certified Mr Comerford as “Fit for duty, subject to review”. This meant Mr Comerford did not meet all relevant medical criteria but could perform his current duties if his condition was sufficiently under control and he was more frequently reviewed than would otherwise be required. For Mr Comerford, this meant a 12-monthly review of his medical condition instead of one each 2 years.
On 4 February 2022, Mr Comerford’s medical practitioner certified that he had recovered well from his medical condition and had been reviewed by his cardiologist. Mr Comerford was cleared to return to his usual duties. This was not a medical assessment for the purposes of the Rail Safety National Law.
On 23 March 2022, Mr Comerford entered into a contract of employment with Railtrain. Clause 1 of the contract of employment describes Mr Comerford’s “Position” as:
“1.1 You acknowledge and agree that you are engaged on a casual basis in the position, and at the work site referred to in Schedule A. You may also be required to work at other locations from time to time as necessary.
1.2 Work may not be available each week or work cycle and the Company provides no guarantee of on-going employment. As a casual employee, work may be offered to you when available and you will be required to work flexible hours to meet operational requirements.”
As contemplated by clause 1.1 of the contract of employment, Schedule A to the contract specifies the “Site” at which Mr Comerford was engaged as “SFT – this is your designated home depot”.
Clause 2 of the contract of employment deals with “Commencement” and says:
“Your casual employment will commence on the date referred to in Schedule A (Commencement Date) and will continue until terminated in accordance with this Letter of Offer.”
Clause 12 of the contract of employment deals with “Termination”:
“12.1 Either you or the Company may terminate your employment at any time by giving notice in accordance with Item 15 in Schedule A.
12.2 At its discretion, the Company may substitute pay in lieu of notice for some or all of the notice period.
12.3 The Company may, at its absolute discretion, for all or any part of the notice period, not require you to carry out your duties and attend the Company’s premises.
Serious misconduct
12.4 Despite clauses 11.1 to 11.3, if you engage in misconduct or otherwise commit a serious or persistent breach of a term or condition of this Letter of Offer, the Company may terminate your employment immediately without notice.
For the purpose of this clause, misconduct includes, but is not limited to:
(a) any act of dishonesty, theft or fraud;
(b) breach of the Company’s policies and procedures on e-mail use and internet access;
(c) breach of the Company’s policies and procedures on equal opportunity and sexual harassment;
(d) fighting or aggressive or intimidating conduct;
(e) being intoxicated at work (under the influence of drugs or alcohol);
(f) wilful or deliberate behaviour by you that is inconsistent with the continuation of the terms of your employment;
(g) conduct that causes serious and imminent risk to health and safety of a person or the reputation, viability or profitability of the Company’s business; or
(h) refusing to carry out a lawful and reasonable direction that is consistent with the terms of your employment.
Abandonment
12.5 In the event that you are absent without authorisation for more than three consecutive days without notifying the Company and you are unavailable for contact by Company representatives, then the Company will assume that you have abandoned your employment and will consider your employment to have been terminated at your initiative effective from the last day worked.”
Despite clause 12.1, there is no period of notice of termination specified in Schedule A to the contract of employment. Presumably this is because Mr Comerford was employed as a casual employee to whom notice of termination did not apply either under the Act or the Rail Industry Award 2020.
On 25 March 2022, Mr Comerford was advised by Sonic HealthPlus that the recommendation that he “work under supervision” had been removed months earlier and was no longer “visible” on his “fit slip”. However, as Dr Mahadevan later confirmed on 5 September 2022, this did not change the assessment that Mr Comerford was “Fit for duty, subject to review”.
On 13 May 2022 Mr Comerford received a call from Kevin Armstrong, Service Delivery Manager NSW South for Railtrain, to say that he had been removed from the working roster because “working under supervision” was still on his Assessment Report. Mr Comerford thought this was a misunderstanding based on incomplete information. He contacted Sonic HealthPlus and asked for his clearance to be expedited as his extension was “running out soon”. Sonic HealthPlus responded, including by confirming that his medical had been “updated and sent off to the company”. Mr Comerford also emailed Mr Armstrong to advise that his medical had been updated, that it was “good till Dec 2022” and that if he was not wanted at SFT, he was happy to go to “Bulk”.
On 16 May 2022, Mr Comerford emailed Sonic HealthPlus and asked for Dr Mahadevan to remove the restriction on his report. He then reported for work. He was told that his name was not on the roster, but that he should continue with his shift and they would sort it out. At the end of his shift, he was told by Pacific National that he had been removed from the roster and that he would need to follow up with Railtrain. Later that day, Mr Armstrong rang Mr Comerford and angrily told him that he was not to report for any more shifts and that he should not have worked his shift that day.
On 18 May 2022, Mr Comerford sent an email to Mr Armstrong “seeking confirmation that [my] employment with SFT has been terminated” because of what was stated on his medical. He forwarded the email to Shane Smith, Railtrain Operations Manager on 20 May 2022, seeking clarification. He did not receive a response to either email.
On 23 May 2022, Railtrain wrote to Mr Comerford in a letter with the subject matter “Re: Employment Status – Active”. The letter advised the end of his placement with Pacific National for medical and safety reasons and stated that it was working to identify alternative opportunities for him. Among other things, the letter stated:
“Further to our conversation earlier today, this letter confirms in writing that Railtrain Services Pty Ltd (RTS) are unable to continue with your job placement at Pacific National Sydney Freight Terminal (SFT).”
It is by this letter that Mr Comerford asserts he was dismissed. On 6 June 2022, he applied for an unfair dismissal remedy.
After 23 May 2022, there is no evidence that Railtrain took any active steps to identify further employment opportunities for Mr Comerford until 19 July 2022 at the earliest. By this time, efforts to resolve the unfair dismissal claim had failed and the prospect of arbitration was becoming real. Railtrain contacted Mr Comerford to let him know about “opportunities” it had identified for him in relation to potential future employment, but in each case the opportunities were illusory because they were attached to a requirement for an unrestricted Category 1 medical assessment which Railtrain considered Mr Comerford not to hold.
On 5 August 2022, Mr Comerford sent an email to Railtrain stating that the medical issues needed to be resolved before Railtrain continued looking for alternative employment for him. After this email, Railtrain submits that it stopped looking for work for Mr Comerford.
Ordinarily in the context of a casual labour hire engagement, advice that a job placement had come to an end would not be sufficient to establish the termination of the employment relationship. This is because contracts of employment of this kind often make plain the nature of the engagement on a labour hire basis, including that the employment relationship will endure even if a particular placement comes to an end. In this case, however, the terms of the contract of employment point to a different conclusion.
The position in which Mr Comerford was engaged was both casual and “at the work site” as referred to in his contract of employment – that is, the SFT. While his contract provided for Mr Comerford to be required to work at other locations “from time to time as necessary”, his home depot was designated as the SFT. The contract of employment did not contain any terms to the effect that the employment relationship would continue if, or when, he was no longer required to work at the SFT. As he was a casual employee, Railtrain made no guarantee of on-going employment to Mr Comerford.
For this reason, when Railtrain notified Mr Comerford on 23 May 2022 that it was unable to continue with his placement at SFT, Railtrain acted to terminate its casual employment relationship with Mr Comerford. Mr Comerford was no longer required to perform the position in which he had been engaged. The absence of further steps by Railtrain to find alternative employment for Mr Comerford in the period from 23 May 2022 to 19 July 2022 reinforces my conclusion in this regard.
Arguably, the termination of employment might have occurred earlier on 16 May 2022, when Mr Comerford worked his last shift and then was told he was not to report for any more shifts. However, at this stage, what Mr Comerford had been told was that he had been removed from “the working roster” because of a restriction on his medical assessment. This was not sufficiently clear to bring the employment relationship to an end, as his subsequent attempts to clarify the position show.
Railtrain’s description of Mr Comerford’s employment status as “Active” in the letter of termination does not alter my conclusion in the absence of any evidence to the effect that Railtrain considered itself in a continuing employment relationship with Mr Comerford after 23 May 2022 except in connection with, or for the purpose of, this proceeding. At best, assertions to the effect that Railtrain was working to identify “if any alternative opportunities within New South Wales would be suitable considering” his skillset were an indication of its willingness to enter into a further casual employment relationship with Mr Comerford in the future, should the opportunity arise.
For these reasons, I find that Mr Comerford was dismissed by Railtrain on 23 May 2022.
The jurisdictional objection is dismissed. Directions will issue separately in relation to the further programming of the matter.
COMMISSIONER
Appearances:
R Comerford on his own behalf.
P Pager for the respondent.
Hearing details:
2022.
Sydney (by video):
October 5.
[1] Fair Work Act 2009 (Cth), s 385(a).
[2] Fair Work Act 2009 (Cth), s 386.
[3] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162.
[4] Ibid.
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