Rodney Collins v Services of Top Cut Foods Pty Ltd T/A Top Cut Foods

[2020] FWC 2157

[2020] FWC 2157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Collins
v
Services of Top Cut Foods Pty Ltd T/A Top Cut Foods
(U2019/14713)

COMMISSIONER SIMPSON BRISBANE, 6 MAY 2020

Application for an unfair dismissal remedy - whether the applicant was dismissed at the initiative of the employer – no jurisdiction – application dismissed.

[1] On 24 December 2019, Mr Rodney Collins made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Services of Top Cut Foods Pty Ltd T/A Top Cut Foods (the Respondent).

[2] In the Form F3 – Employer Response to unfair dismissal application, the Respondent objected to the application on the basis that Mr Fox has not been dismissed in accordance with s.386 of the Act.

[3] The matter did not settle at conciliation and was allocated to me. I issued directions for filing of material, and the matter was listed for Jurisdiction only Hearing by telephone on 21 April 2020.

The Legislative Framework

[4] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[5] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee. 1

Background

[6] Mr Collins took annual leave from his employer for the period of 16 November 2019 to 3 December 2019. Mr Collins said that part way during his annual leave, his father became ill and was hospitalised. Mr Collins said he decided to take some further time off work as personal leave to spend time with his father.

[7] Mr Collins obtained a medical certificate from his father's doctor for the period 27 November to 26 December 2019. Mr Collins provided a copy of this medical certificate to the Commission.

[8] Mr Collins said that at lunch time on 27 November he went to work and gave the medical certificate to Darren Langham, Production Manager at Top Cut. Mr Collins said he explained his personal circumstances to Mr Langham, where Mr Langham told Mr Collins to take as much time as he needed.

[9] Mr Collins said he then made attempts to contact his direct supervisor Mr Jarrod Cassidy, however was unsuccessful.

[10] Mr Collins said he believed that Mr Langham had passed on the medical certificate to the company because when his annual leave ran out, he was sent pay slips which showed him as receiving sick pay, and when that ran out, showing that he was on "sick leave no pay."

[11] Ms Tori Macklin, HR Coordinator of the Respondent gave evidence that on the 16 December 2019 Jarrod Cassidy advised the Human Resources team that Mr Collins had not showed up for work in 10 days. Prior to this Mr Collins had a history of taking excessive sick leave and not following company policy by calling in to work each day he was absent or providing a medical certificate.

[12] Mr Collins had received two written warnings regarding this which were provided in Ms Macklin’s statement. Ms Macklin said that given the circumstances and information provided it was concluded by the Respondent that Mr Collins had abandoned his employment.

[13] Ms Macklin said she was instructed by Stacey Reynolds, Human Resources Manager, to draft an abandonment of employment letter and send it to Mr Collins. Ms Reynolds supported this evidence.

17 December 2017

[14] On the morning of 17 December, Ms Macklin sent the abandonment of employment letter to Mr Collins which read as follows:

“Dear Rodney,

Re: Abandonment of employment

You have been absent from your role of Packer/Labourer without approval since Friday, 15 November 2019. The company has been trying to contact you regarding your unapproved absence on a number of occasions, and to confirm a return to work date. The Company has not had success in reaching you and we have not heard from you since Friday 15 November 2019.

As per Company Policy, you are required to notify us of any absences in an appropriate timeframe which you have failed to do.

As you have failed to notify or contact us we will assume that you have abandoned your employment. These absences will be unpaid as there has been no approval for this time period.

Please contact myself by close of business tomorrow on (phone number redacted) otherwise, we will consider that you have abandoned your employment, and your employment will be terminated effective immediately.

Regards,

(Signature)

Stacey Reynolds”

[15] At approximately 10:30am, Ms Macklin called Mr Collins about the letter however Mr Collins missed the call. Mr Collins advised he called the number back but did not receive an answer.

First phone call

[16] Mr Collins said that at approximately 12:47pm on 17 December, he received a call from the same number, and was advised the caller was Ms Tori Macklin from the HR department at Top Cut.

[17] Mr Collins said Ms Macklin asked if Mr Collins was ringing about her email. Mr Collins said he told her he did not know anything about an email. Mr Collins said Ms Macklin said she had sent an email about Mr Collins abandoning his employment because the company had not heard from him.

[18] Mr Collins said he told Ms Macklin this was not true because he had seen Mr Langham and given him a doctor's certificate and explained the situation regarding his father. Mr Collins said Ms Macklin said she would have to talk to Mr Langham and Mr Greg Batch, the Plant Manager, to see what they wanted to do.

[19] Ms Macklin gave evidence that during this phone call Mr Collins explained he had handed in a medical certificate earlier to Darren Langham which she said the Human Resources Department did not have on file at the time. Ms Macklin said she informed Mr Collins that the Respondent did not have this on file and that further investigation was required before a formal decision was made.

[20] Mr Collins said after the call ended he checked his emails and saw the abandonment of employment letter that had been emailed to him earlier that day.

[21] Ms Macklin said that at 1:30p.m. she consulted Ms Reynolds and Greg Blatch, Plant Manager, to investigate what had happened. Ms Macklin said it was discovered that the medical certificate had been misplaced.

Second phone call

[22] The question of whether or not Mr Collins was dismissed at the initiative of the employer turns on the events that occurred during the second telephone conversation between Mr Collins and Ms Macklin on 17 December 2019.

[23] At approximately 2:23pm, Ms Macklin again phoned Mr Collins.

[24] Mr Collins’ evidence was that during this call, Ms Macklin said she had spoken to Darren and Greg and that they had come to the decision that his employment had been terminated.

[25] Mr Collins said he got upset about this, and swore at her, saying words to the effect of “You can get fucked and you'll be hearing from the union."

[26] Ms Macklin gave evidence that after speaking to Mr Blatch and Ms Reynolds about finding the medical certificate, she was instructed by Ms Reynolds to call Mr Collins and apologise for sending the abandonment of employment letter and confirm that the medical certificate was in fact handed into Darren Langham. Ms Reynolds’ evidence supported this.

[27] Ms Macklin said she proceeded to make this phone call at 2:23 p.m. to Mr Collins, and that Ms Reynolds was sitting next to her when she made the call. Ms Reynolds confirmed this in her evidence.

[28] Ms Macklin said Mr Collins was understandingly distressed considering his personal circumstances. Ms Macklin said she was sympathetic to his situation which was expressed over the phone. Ms Macklin said Mr Collins became hostile on the phone and did not accept the misunderstanding and threatened he would go to the union before hanging up on her. Ms Macklin said Mr Collins swore at her saying "You can go and get fucked".

[29] During cross-examination it was put to Mr Collins that Ms Macklin apologised for the mistake made by the Respondent. Mr Collins’ evidence was that at no point during the conversation did Ms Macklin apologise for the error. Mr Collins maintained in his oral evidence that Ms Macklin told him the decision was made to terminate his employment.

[30] During cross-examination Ms Macklin was asked if at any stage during the 2:23pm phone call whether she told Mr Collins his employment was terminated, or whether he was fired. Ms Macklin said she did not. Ms Macklin said it was Mr Collins who raised termination with her in the phone call as he was worried he would lose his job. Ms Macklin said that she reiterated on the call that his employment was not terminated and that there had been a mistake.

[31] Ms Macklin’s oral evidence was also consistent with that in her statement that Mr Collins was rude and abrupt in the second phone call.

[32] Ms Stacey Reynolds’ evidence was that she was present in the office whilst Ms Macklin made this call to Mr Collins. She said Ms Macklin explained to Mr Collins that he was not being terminated and apologised for the mistake. Ms Reynolds stated in this conversation she heard Ms Macklin state that Mr Collins had every right to contact the union for representation if that was his preference.

[33] Mr Collins said after the second phone call, he proceeded to call the union to inform them he had been fired from Top Cut. Mr Collins said after speaking to the union at 2:31pm Ms Macklin called him again where he advised her he had spoken to the union and that Top Cut could deal with them.

[34] Following the phone calls with Ms Macklin, Mr Collins sent an email to the Union at 2:44pm that read as follows:

“hi there I spoke to you on the phone my name is Rodney Collins I work at top cut meats QLD ormeau (sic)

I had 2 weeks holiday from the 16th of November till the 3rd of December in that period my father was hospitalized and has nearly died 5 times since i (sic) handed a doctors certificate to Darren longham (sic) on the 26th of November and it was until 26th of December and I received a call today that my employment was terminated as I had not made contact with them which is a lie I tried calling my superviser (sic) but his SIM card was not working as I was told by peter davies (sic) an employer there and also the phones at top cut was not working as simplot previous owners took the phones back

thankyou Rodney Collins…”

[35] At 3:04pm Ms Macklin sent Mr Collins an email that read as follows:

“Hi Rodney,

I am sending this email to follow up after our phone conversation. I would like to apologise for not being aware a medical certificate was provided by you for the period you have been absent from work. This was not received and filed in your personnel file.

I will follow this up with Darren in the morning and give you a call to discuss.

Your employment has not been terminated because you contacted me via phone today which is explained in the letter emailed to you.

Kind Regards,

Tori Macklin”

[36] Mr Collins said that at the end of the email where Ms Macklin says that his employment was not terminated is not true. Mr Collins said Ms Macklin definitely told him his employment was terminated. Mr Collins said he believed Top Cut was trying to backtrack on its decision when they realised he was going to the union.

Consideration

[37] It is clear that there is completely conflicting evidence from the parties on what was said during the second phone call on 17 December 2019. Mr Collins’ evidence is that Ms Macklin directly communicated to him that his employment was terminated, where as Ms Macklin and Ms Reynolds both gave evidence that Ms Macklin did not tell Mr Collins he was terminated, but rather reiterated that it was not terminated and apologised a number of times for the error.

[38] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 2A dismissal can be communicated orally.3

[39] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab), 4 a termination is at the employer’s initiative when:

•  the employer’s action ‘directly and consequentially’ results in the termination of the employment; and

•  had the employer not taken this action, the employee would have remained employed.

[40] In O’Meara v Stanley Works Pty Ltd (O’Meara), 5 a Full Bench of the Australian Industrial Relations Commission considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[41] I have determined that I prefer the evidence of Ms Macklin and Ms Reynolds on this occasion. Both Ms Macklin and Ms Reynolds gave consistent and reliable evidence in their statements and their oral evidence. Ms Macklin’s email sent to Mr Collins also supports Ms Macklin and Ms Reynolds’ version of events that took place during the 2:23pm phone call.

[42] Ms Reynolds’ evidence corroborated Ms Macklin’s that the medical certificate was found before 2:23, and the instruction was to call Mr Collins to apologise.

[43] Whilst I did find Mr Collins to be a credible witness, there is evidence in this case that does not necessarily support his version of what was said on the phone call. As mentioned above, Ms Macklin sent an email shortly after their telephone conversation that explicitly outlines that Mr Collins’ employment was not terminated.

[44] Further, in his email to the union Mr Collins says ‘I received a call today that my employment was terminated as I had not made contact with them (emphasis added) which is a lie…’

[45] It appears on the evidence that it is likely Mr Collins formed the view that his employment had already been terminated shortly after discovering the abandonment of employment letter. It is likely he formed the view at that time that because his employer felt he had failed to contact them, his employment was terminated. This is consistent with the reason he gave the union in his email.

[46] Further, this would be consistent with the evidence that Mr Collins was upset and emotional during the second phone call at 2:23pm and cut Ms Macklin off while she was speaking.

[47] I find it is likely that after receiving the first phone call and finding the abandonment of employment letter, Mr Collins became very understandably upset due to the circumstances with his father, and the fact he was being told he’d abandoned his employment despite providing a medical certificate to his employer that they had then lost.

[48] I am of the view that because Mr Collins was so rightfully angry and distressed due to the Respondent’s clear and significant mistake, that he didn’t properly understand what was being said to him during the 2:23 call because in his mind the horse had already bolted. 

[49] I therefore find that Mr Collins was not told by his employer that his employment had been terminated and there was no termination at the initiative of the employer. As such, the Commission does not have jurisdiction to determine the matter and it must be dismissed.

[50] I also make the observation that during the course of the matter, the Respondent indicated early on that it was willing to continue the employment relationship, including after Mr Collins filled his unfair dismissal claim. Mr Collins indicated that he was not prepared to accept an offer of reemployment and only sought compensation.

[51] Whilst I have found there to be no jurisdiction, given all the facts of this case and that the Respondent had offered reemployment, had it been found that jurisdiction did exist, any prospect of a remedy may well have been minimal if anything.

[52] For the reasons outlined above, the application is dismissed.

COMMISSIONER

Appearances:

Mr C. Buckley of the Australasian Meat Industry Employees' Union appearing for the Applicant
Ms S. Reynolds of Services of Top Cut Foods Pty Ltd appearing for the Respondent

Hearing details:

2020,
Brisbane:
April 21

Printed by authority of the Commonwealth Government Printer

<PR718569>

 1   Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 2   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496.

 3   Plaksa v Rail Corporation NSW[2007] AIRC 333.

 4   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) [1995] IRCA 645.

 5   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).