Rodrigo Fernandez Cafferata v Compass Group Remote Hospitality Services Pty Ltd

[2021] FWC 5188

[2021] FWC 5188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rodrigo Fernandez Cafferata
v
Compass Group Remote Hospitality Services Pty Ltd
(C2020/8659)

COMMISSIONER WILLIAMS PERTH, 20 AUGUST 2021

Application to deal with contraventions involving dismissal.

[1] Mr Rodrigo Fernandez Cafferata (Mr Fernandez Cafferata or the Applicant) has filed a Form F8 - General protections application involving dismissal on 26 November 2021. The application is made under section 365 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent is Compass Group Remote Hospitality Services Pty Ltd T/A ESS (Compass or the Respondent).

[3] The Respondent’s Form F8A - Response to general protections application raised a jurisdictional objection that the Applicant was not dismissed.

[4] At the hearing of this matter evidence was given by the Applicant and the Applicant’s wife, Ms Fiorela Rocha Reyna (Ms Rocha Reyna or the Applicant’s wife), and for the Respondent by Mr Warren Harrower (Mr Harrower), the People Operations Manager for Compass.

Factual findings

[5] The Applicant had worked for Compass from 22 July 2020.

[6] Shortly before making this application, he had been working as a full-time chef at the Port Haven accommodation village (Port Haven site) in Port Hedland.

[7] His wife worked with him.

[8] The Applicant and his wife are both from Peru and English is their second language.

[9] Ms Rocha Reyna’s evidence was that Compass sponsored their work visas and they were both on temporary bridging visas. Contrary to this, Mr Harrower’s evidence was that Compass did not sponsor Ms Rocha Reyna’s or the Applicant’s working visas rather they were both subject to a bridging visa for the Applicant’s previous Temporary Graduate 485 Visa which had expired.

[10] I accept Mr Harrower’s evidence on this point.

[11] Ms Rocha Reyna’s evidence is that she had applied for a Pandemic 408 Visa and a Temporary Skills Shortage (TSS) 482 Visa and she was waiting for these to be approved. The evidence is that Ms Rocha Reyna had lodged an application with the Department of Home Affairs for a Pandemic 408 Visa which was still being processed. 1

[12] The Applicant and his wife had previously made complaints of bullying in the workplace. In early October 2020 these claims were investigated. The evidence is that on 23 October 2020 the Applicant and his wife were advised by Compass that the investigation had been closed and their claims were not able to be substantiated.

[13] The Applicant from 19 October 2020 onwards was on paid or unpaid leave.

[14] The Applicant has not been present at the Port Haven site since October 2020.

[15] Around 24 October 2020 the Applicant and his wife advised Compass that they were wanting a transfer away from the Port Haven site. 2

[16] On the morning of 9 November 2020, the Applicant and his wife had a phone call with Mr Harrower. Mr Harrower’s evidence was that they informed him that they no longer wished to be considered for any roles with Compass in the Port Hedland region. This had a significant impact on the ability for Compass to proceed with submitting a sponsorship application for a TSS 482 Visa as a chef for the Applicant. The Applicant informed Mr Harrower that he wanted to have a think about his next steps and would let Mr Harrower know. During the phone call, Mr Harrower had informed the Applicant that he had followed up on their initial request on 4 November 2020 about a transfer and had told him there were no current vacancies in Perth. 3

[17] The same day on 9 November 2020 at 12:07 pm, Mr Harrower emailed the Applicant’s wife. Mr Harrower stated he was following up on her query about opportunities for sponsorship and advised her that Compass do not currently have any opportunities for a sponsorship that had her skill set. Six minutes later, the Applicant’s wife replies thanking Mr Harrower and saying there is no problem and that she would like to apply for a catering manager role if there were any vacancies, or to be transferred to a site where she can progress her career. Two minutes later, Mr Harrower replies that he did not think they can achieve that without the Applicant’s wife having current and appropriate work rights for Australia. Nine minutes later, the Applicant’s wife replies asking whether they can legally work.

[18] On 10 November 20 at 9:40 pm, Mr Harrower emailed the Applicant’s wife. Mr Harrower asked her to confirm her current visa status, including the type of visa she is on and the conditions and to advise of the expiry of the visa. He continues to say that unfortunately there is no potential for a sponsored catering manager role on any other site at this time. On the same day at 2:48 pm, the Applicant’s wife replies advising that her and the Applicant’s current independent visas are the Bridging Visa A. Further, they have lodged an application for the Pandemic 408 Visa, and they are waiting for the approval, with a waiting period from three to six months. The Applicant’s wife advises the Bridging Visa A does not expire, it finishes and changes to the Pandemic 408 Visa. The Applicant’s wife thanks him for following up and says they would like to know where they can work with their current positions.

[19] The evidence is that on 12 November 2020 Mr Harrower had attempted to contact the Applicant by telephone but was unsuccessful. Mr Harrower had intended to follow up with him as to whether he had made a decision about wanting to be considered for a regional chef role which would have allowed the possibility of Compass considering his sponsorship. Whether he would consider a regional chef role had been raised by Mr Harrower during their discussion on 9 November 2020. 4

[20] Ms Rocha Reyna’s evidence was that on 12 November 2020 her immigration lawyer had advised her that Compass were not proceeding with the Applicant’s TSS Visa application.

[21] Consequently, on 12 November 2020 at 9:30 am, the Applicant’s wife emailed Mr Harrower. Ms Rocha Reyna says she would like to know why the Applicant’s sponsorship was been cancelled and why the Respondent waited all this time, from 30 September 2020 when they asked for a transfer, to let them know of this outcome.

[22] The same day on 12 November 2020 at around 11:00 am, Mr Harrower, in response to Ms Rocha Reyna’s email, had a phone discussion with her. The Applicant did not participate in this discussion.

[23] Ms Rocha Reyna’s evidence was that during this phone call Mr Harrower said he had tried to call the Applicant, but he had not answered. She says Mr Harrower said to her that he was sorry but the sponsorship for her husband had been removed. She asked him why and she says he said that Compass were following what the immigration lawyers advised. Her evidence was she asked, “When can we come back to site?”. Her evidence was Mr Harrower replied “No, you don’t have jobs anymore”.

[24] Mr Harrower’s evidence was that during this phone call the Applicant’s wife advised that it was not an option for them to go back to the Port Haven site as they did not feel comfortable given the culture on the site. 5

[25] His evidence was that he was not the Applicant’s boss nor his supervisor or manager but rather has a Human Resources role.

[26] Mr Harrower was adamant in his evidence that during the phone call with the Applicant’s wife on 12 November 2020 he did not tell the Applicant’s wife that her or her husband had been dismissed or fired. His recollection was that he informed her that sponsorship for her husband’s TSS Visa would not be going ahead. 6 I accept his evidence that he did not say she or the Applicant was fired or dismissed

[27] The evidence is that after this phone call on 12 November 2020 at around 1:00 pm the Applicant’s wife emailed Mr Harrower asking if he can give her the dismissal document as soon as possible. Her email reads follows,

“Hi Warren,

Can we please have the dismissal document ASAP?

We are very tired of this situation since the 30th of September that we asked for the transfer and we don't understand why we were never told Rodrigo will loose the sponsorship if we didn't comeback to Port Haven... basically speaking up about harrasment and bullying cost us the sponsorship.

As I told you, Gary and Christian told me the sponsorship was with Compass Group not Port Haven.

We understand this has nothing to do with you and we appreciate your help.”

[28] The next day on 13 November 2020 the Applicant’s wife emailed Mr Harrower asking again to have the document, which I believe is a reference to a dismissal document.

[29] On 18 November 2020 the Applicant, on the phone, asked Mr Harrower to dismiss him. Mr Harrower said he would not do that.

[30] On 18 November 2020 at 3:30 pm Mr Harrower emailed the Applicant’s wife as follows,

“Hi Fiorela,

I’m just recapping our phone conversation earlier today. I understand that yourself and Rodrigo don’t wish to talk to me on the phone any further following your requests for a report into the investigation of the previous bullying complaint, and your request for a dismissal letter not being met.

As discussed previously on 09 November 2020, I had checked on the process that occurred for the site based investigation and understand the relevant findings relating to yourself and Rodrigo were shared with you. It is not the Companies current position to meet your request a dismissal letter.

I attempted to contact Rodrigo by phone earlier last week about his situation and hadn’t heard back from him until I called you and briefly spoke with him when he was on the call with you today. Unfortunately I didn’t get the opportunity to ask him as to whether he had landed on a decision as to whether he wanted to consider any regional Chef roles. As you may recall, he had previously said to me in the meeting on 09 November 2020 that he wanted to think about this and would let me know when he had made a decision. I’ve sent him a separate email a short time ago asking him for any further update he has on his decision.

With regard to your sponsorship, following our discussions last week and the week prior, Compass Group were obligated to advise Fragomen that the sponsorship for your 482 visa application would no longer be going ahead.

If your 408 visa application is approved, you are welcome to inform me of this so that we can take this in to consideration.

I understand your 010 bridging visa is valid until 21 December. If there is any ESS position that you decide to apply for under this bridging visa in the meantime feel free let me know so I can assist you in discussing with our recruitment team.

Please let me know if you have any further questions or updates at this stage.”

[31] The same day, Mr Harrower sent a similar email to the Applicant which included a list of potential roles he was welcome to express interest in and apply for. The email explained that there were no guarantees, and it would be subject to successful completion of the recruitment process and meeting work rights requirements. Mr Harrower asked the Applicant if he wished to express interest so that he could inform their recruitment team. The list of vacant roles included five separate Chef positions all at locations other than the Port Haven site.

[32] The Applicant’s wife responded to Mr Harrower’s email on 19 November 2020 repeating, on a number of occasions, that he had fired her already on 12 November 2020.

[33] On 26 November 2020 the Applicant filed this application by email. On 26 November 2020 this application was served on Mr Harrower.

[34] On 30 November 2020 Mr Harrower sent an email to the Applicant’s wife which reads as follows.

“Hi Fiorela,

I am responding to your email below to confirm that your employment was not terminated. I have seen an application come through today which has caused me to revisit your below email. I never said that your employment had been terminated or anything remotely similar and am frankly surprised at this comment.”

[35] Subsequently, on 30 November 2020 and 9 December 2020, Mr Harrower emailed the Applicant advising him of various vacant roles and invited him to apply.

[36] The evidence is that the Respondent’s payroll system shows both the Applicant, and his wife are active employees, meaning they continue to be employed by the Respondent.

Legislation

[37] Section 365 of the Act, under which this application is made, only applies if a person has been dismissed.

“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.”

[38] Section 386 of the Act prescribes when a person has been dismissed. This is set out below.

“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.”

Consideration

[39] The central issue to be determined in this matter by the Commission is the disagreement between the Applicant’s wife and Mr Harrower as to what was said by him during their phone conversation on 12 November 2020.

[40] In short, the Applicant’s wife says that during this phone conversation Mr Harrower told her that she and the Applicant were fired. Mr Harrower however says he did not say this or otherwise advise her that she or her husband were dismissed.

[41] The factual background to the critical conversation on 12 November 2020 was complicated. This was because there were questions about the Applicant and his wife’s visa status, which was unclear, included in that was whether Compass would act as sponsor for the Applicant. In addition, the Applicant and his wife, because of their complaints about bullying, had been absent for an extended period from the Port Haven site and had been requesting a transfer away from that site.

[42] These issues were the subject of multiple interactions between the Applicant’s wife and Mr Harrower on 9 and 10 November 2020. The tone of these interactions is positive with Mr Harrower enquiring of the Applicant’s wife and the Applicant about various matters and the Applicant’s wife responding explaining their concerns and preferences and Mr Harrower suggesting some options.

[43] In the morning prior to the conversation on 12 November 2020, the Applicant’s wife was advised by her immigration lawyer that Compass had decided not to be a sponsor for the Applicant’s TSS Visa. It is apparent that this was the first time the Applicant and his wife were aware of Compass’s decision and Ms Rocha Reyna was upset that they had not been advised earlier about this.

[44] There is nothing in this factual background to the conversation on 12 November 2020 which explains why Mr Harrower would have told the Applicant’s wife that she and the Applicant were fired.

[45] My conclusion in this matter is that what occurred between the Applicant’s wife and Mr Harrower on 12 November 2020 during their phone discussion was a miscommunication or a misunderstanding.

[46] Whilst I accept the Applicant’s wife may have understood she and the Applicant had been fired, I find that that was not Mr Harrower’s statement to her, and Mr Harrower did not dismiss the Applicant within the meaning of section 386 of the Act.

[47] Separately, the evidence is clear that there was no communication between Mr Harrower and Mr Fernandez Cafferata on 12 November 2020 at all.

[48] The principle is that to effect the termination of a contract of employment the employer must communicate to the employee that the contract is terminated. 7

[49] For this reason, I am also not satisfied that there was a termination of the contract by Mr Harrower, given he never spoke to the Applicant on 12 November 2020.

[50] Consequently, the Respondent’s objection is upheld, and this application must now be dismissed. An Order [PR733048] to that effect will now be issued.

Appearances:

A McNamara of WorkHelp Lawyers for the Applicant.
A Chamberlain on behalf of the Respondent.

Hearing details:

2021.
Perth:
June 22.

Printed by authority of the Commonwealth Government Printer

<PR733047>

 1   Exhibit REYNA1, Attachment 1.

 2   Exhibit R1 at paragraph 6.

 3   Exhibit R2 at paragraph 5.

 4   Ibid., at paragraph 5(b).

 5   Exhibit R1 at paragraph 6.

 6   Exhibit R2 at paragraphs 5(a) and 6(d) and Transcript at PN53 to PN63.

 7   Mohammed Ayub v NSW Trains 2016 [FWCFB] 5500 at [17].