Robert Forrester v Growers Market Express Pty Ltd
[2015] FWC 8874
•22 DECEMBER 2015
| [2015] FWC 8874 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Robert Forrester
v
Growers Market Express Pty Ltd
(C2015/1499)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 22 DECEMBER 2015 |
Application to deal with contraventions involving dismissal – jurisdictional objection alleging that application was lodged outside the statutory time extension of time on the basis that the applicant abandoned his employment – applicant advised on 9 January 2015 that his employment had been terminated – jurisdictional objection dismissed.
[1] Mr Robert Forrester (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 30 January 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Growers Market Express Pty Ltd (GME - the Respondent) on 9 January 2015 in contravention of the general protections provisions of the Act. GME submitted there was no dismissal as Mr Forrester had abandoned his employment by leaving the workplace without telling anyone on 14 December 2014. GME requested that the jurisdictional issue be addressed.
[2] The Commission subsequently issued Directions on 18 February 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding GME’s jurisdictional objection.
[3] The matter was heard by the Commission on 24 April 2015. At the hearing, Ms Elissa Speight appeared with permission on behalf of Mr Forrester while Mr Sat Pal Singh, a Director of GME, together with Mr Deep appeared on behalf of the Respondent.
[4] For the reasons set out below, I have concluded that Mr Forrester did not abandon his employment and that he was dismissed on 9 January 2015. Accordingly, his general protections application was made within the 21 day statutory timeframe specified in s.366(1)(a) of the Act. The application will now be listed for a conference aimed at resolving the issues in dispute.
Background
[5] Mr Forrester commenced employment with GME in 2013 when it acquired the business, a fruit and vegetable shop at the Belconnen Markets. Mr Forrester submitted that he had been employed by the two previous owners of the business for many years.
[6] Mr Forrester submitted that on 14 December 2014 he asked Mr Singh about when he would receive his outstanding wages dating back to September 2014. Mr Forrester further submitted that after doing so he was called into a meeting with Mr Singh in which he was informed that he was not his “type of person” and that he would be replaced by someone more affordable. Following this exchange, Mr Forrest was asked to leave the shop by Mr Singh’s brother.
[7] On 17 December 2014 Mr Forrester visited the doctor and was issued a medical certificate stating that he was unfit for work for the period 17-22 December 2014. Mr Forrester personally gave the medical certificate to Mr Singh later that day. Mr Forrester contended that at some point in the ensuing conversation he was told by Mr Singh that GME’s bookkeeper, Mr Mirze Alan, would contact him. Following the expiry of his medical certificate, Mr Forrester submitted that he made a number of unsuccessful attempts to call Mr Singh.
[8] On 4 January 2015 Mr Forrester contacted GME’s shop and spoke with Mr Singh’s brother.
[9] On 9 January 2015, Mr Forrester submitted that he contacted GME’s bookkeeper and was advised that he had been sacked. GME disputes that Mr Forrester was dismissed and contended that he abandoned his employment as he did not return to work after his medical certificate expired on 22 December 2014.
[10] As previously noted, Mr Forrester lodged his application on 30 January 2015. In his application, Mr Forrester alleged among other things that he was dismissed due to his age, pursuing workplace entitlements and rights, and his literacy problems. More particularly, Mr Forrester contended that his dismissal was in contravention of ss.340, 343, 344, 346, 348, 351 and 358 of the Act which deal with workplace rights, protection in respect of industrial activities, discrimination and dismissing to engage as an independent contractor.
[11] To determine whether Mr Forrester’s application was made within the statutory timeframe specified in s.366 of the Act it is first necessary to form a view as to when Mr Forrester’s employment ceased.
Mr Forrester’s case
[12] Mr Forrester submitted that the date of dismissal was 9 January 2015 when he was advised by GME’s bookkeeper that he had been dismissed. Mr Forrester further submitted that, in addition to not receiving his full wage payments for the period October to December 2014, he was not given any notice of termination or payment in lieu of notice nor has he been paid his accrued but untaken annual leave. Mr Forrester also contended that Mr Singh had previously threatened on many occasions to terminate his employment, including on 14 December 2014.
[13] Mr Forrester disputed GME’s contention that he had abandoned his employment, submitting that based on his actions it was clear that he intended to return to work. Further, he submitted that GME did not prior to 9 January 2015 advise him that his employment had been terminated or take steps to do so.
[14] Mr Forrester submitted that after the incident with Mr Singh on 14 December 2014 he was told to leave the store by Mr Singh’s brother. Mr Forrester also submitted that he obtained a medical certificate on 17 December 2014 which stated that he was unfit for work for the period 17-22 December 2014 and that he personally delivered that medical certificate to Mr Singh on that day. When his medical certificate expired on 22 December 2014, Mr Forrester stated that he still felt too scared to attend the workplace, though he did try to call Mr Singh on his mobile phone and Mr Singh’s bookkeeper on a number of occasions to establish whether he could return to work. Mr Forrester contended that when he was unable to contact Mr Singh he called GME’s shop on 4 January 2015 and spoke with Mr Singh’s brother who took a message but did not indicate to Mr Forrester that his employment had been terminated.
[15] As noted above, Mr Forrester contacted GME’s bookkeeper on 9 January 2015 and was advised that he had been dismissed. Relying on that date as the date of dismissal, Mr Forrester submitted that his application had been filed within the statutory timeframe specified in s.366(1)(a) of the Act.
[16] Mr Forrester gave evidence on his own behalf. In his witness statement 1, Mr Forrester deposed that:
- on 14 December 2014 he confronted Mr Singh asking for his back pay from September 2014;
- Mr Singh responded saying that he did not have the money and asked Mr Forrester to come into the cool room where he berated Mr Forrester for several minutes saying “you’re not my type of person”, “you can work until I find someone to take your place”, and “as soon as I find someone else you’re gone”;
- after the incident he went back to work but was very upset and stressed;
- Mr Singh’s brother later told him that he should leave the store;
- he visited the doctor on 17 December 2014 and was provided a medical certificate which he personally delivered to Mr Singh on the same day;
- after the expiry of his medical certificate on 22 December 2014 he was still very upset and felt that GME didn’t want him there anymore;
- that evening he called GME’s bookkeeper but could not recall what was discussed;
- he tried to call Mr Singh’s mobile phone a few times after Christmas to find out what was happening and whether he still had a job and could come back to work, but Mr Singh did not answer and Mr Forrester did not leave a message as he did not know how to;
- on 4 January 2015 he contacted GMA’s shop and spoke with Mr Singh’s brother; and
- on 9 January 2015 he contacted GME’s bookkeeper and was advised that he had been sacked.
[17] Mr Forrester’s oral evidence reiterated many of the points made in his witness statement. Mr Singh did not cross examine Mr Forrester.
GME’s case
[18] GME submitted that Mr Forrester did not contact it after his medical certificate expired on 22 December 2014, adding that Mr Forrester should have contacted either his manager or Mr Singh to let them know that he was not returning to work. GME also acknowledged that there were a couple of telephone calls made to its shop by Mr Forrester’s son in which he used threatening and racist language. GME further submitted that no statement was given by Mr Singh about Mr Forrester’s termination on, before or after 9 January 2015. GME also disputed that Mr Forrester had been underpaid.
[19] Mr Singh in his witness statement 2 deposed that Mr Forrester intentionally left GME in a busy trading period “to do some loss at that busy time” and then in January was trying to come back for his few hours. Mr Singh further deposed that after Mr Forrester’s medical certificate expired he had tried to contact Mr Forrester on one occasion but that Mr Forrester’s mobile phone was turned off. As to the alleged underpayments, Mr Singh contended that Mr Forrester was paid cash in hand as he did not want his pay to go into his bank account.
[20] Under cross-examination key aspects of Mr Singh’s evidence were that:
- GME did not dismiss Mr Forrester on either 14 or 22 December 2014 3;
- he accepted that Mr Forrester would not have provided his medical certificate to him on 17 December 2014 if he did not intend to return to work 4;
- he had tried to call Mr Forrester once on or around 20 or 21 December 2015 5;
- acknowledged that Mr Forrester had tried to contact GME in January 2015 6;
- he was aware that Mr Forrester had contacted GME’s bookkeeper in January 2015 as the bookkeeper had informed him that Mr Forrester had called 7;
- he was aware that Mr Forrester had called in early January 2015 to see if he still had some hours 8;
- he was informed by his brother that Mr Forrester had phoned the shop 9;
- GME’s bookkeeper had not informed him of Mr Forrester’s phone call to him before Christmas 10;
- he had expected that Mr Forrester would return which is why he waited for six weeks to replace Mr Forrester 11;
- he had not said to Mr Forrester on 14 December 2014 that he would replace him or give him two weeks notice 12;
- he disputed that Mr Forrester had complained to him about anything 13; and
- he had not intended to dismiss Mr Forrester 14
Consideration of the issues
[21] A number of points emerge from Mr Singh’s evidence. They are that he expected Mr Forrester to return to work which is why he did not replace Mr Forrester for a period of six weeks and that he knew that Mr Forrester had contacted GME’s shop and bookkeeper in early January 2015. Further, Mr Singh acknowledged that Mr Forrester would not have provided his medical certificate on 17 December 2014 had he not intended to return to work and that he only made one attempt to contact Mr Forrester after that certificate had expired. That evidence does not point to Mr Forrester having abandoned his employment. To the contrary, it suggests that he was keen to establish what the situation was regarding his employment.
[22] Beyond this, it is noteworthy that GME’s bookkeeper was not called to give evidence regarding the two conversations he had with Mr Forrester and in particular to either refute or confirm that he had told Mr Forrester on 9 January 2015 that he had been dismissed. Also noteworthy is that Mr Forrester’s evidence was not challenged by GME.
[23] Against that background, it is difficult to sustain the view that Mr Forrester abandoned his employment. A number of aspects of Mr Forrester’s unchallenged evidence further support a finding that he did not abandon his employment. For instance, Mr Forrester’s evidence that on 14 December 2014 he was told to leave the shop by Mr Singh’s brother and his evidence about his attempts to contact Mr Singh and his bookkeeper.
[24] In J Searle v Moly Mines Limited (Moly Mines) 15 a Full Bench of the then Australian Industrial Relations Commission when considering whether or not the applicant in that case had abandoned their employment contrary to the contract of employment observed:
“[36] … Any breach of contract can be waived by the other party. In this case if the respondent had received the medical certificate on 29 November it might well have decided to treat the employment as ongoing, even though three days had passed. Indeed it might have good reason for doing so. In those circumstances it could not be said that the employment relationship had terminated after three days. It is no doubt for reasons such as these that the respondent referred in its letter of termination to accepting the appellant’s repudiation.
…
[38] … The question is whether the respondent initiated the termination … Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.”
[25] The material before the Commission points to Mr Forrester first being advised that his employment had ceased on 9 January 2015 by GME’s bookkeeper. Drawing on Moly Mines, this supports a finding that GME initiated the termination.
[26] Taken together, the circumstances in this case support a finding that Mr Forrester did not abandon his employment and that his employment ceased on 9 January 2015 at GME’s initiative. As previously noted, Mr Forrester’s application was lodged with the Commission on 30 January 2015 which, relying on 9 January 2015 as the date on which Mr Forrester’s employment ceased, is within the 21 day timeframe specified in s.366(1)(a).
Conclusion
[27] For all these reasons, I find that Mr Forrester did not abandon his employment and that his employment ceased on 9 January 2015 at GME’s initiative. Accordingly, his general protections application was made within the 21 day statutory timeframe specified in s.366(1)(a) of the Act. The application will now be listed for a conference aimed at resolving the issues in dispute.
Appearances:
E. Speight for the Applicant.
S.P. Singh for the Respondent.
Hearing details:
2015.
Canberra:
April 24.
1 Exhibit S1
2 Exhibit P1
3 Transcript at PN76
4 Ibid at PN80
5 Ibid at PN90-93
6 Ibid at PN110
7 Ibid at PN121-129
8 Ibid at PN130
9 Ibid at PN143-146
10 Ibid at PN140-142
11 Ibid at PN164-165
12 Ibid at PN180-182
13 Ibid at PN193-194
14 Ibid at PN237
15 (2008) 174 IR 21
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