Ronald Williams v The Trustee for the Cia Unit Trust

[2023] FWC 2641

[2023] FWC 2641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ronald Williams
v

The Trustee For The Cia Unit Trust

(C2023/4508)

DEPUTY PRESIDENT LAKE BRISBANE, 16 OCTOBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – heat of the moment resignation – jurisdictional objection upheld – application dismissed.

1. Mr Ronald Williams (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 27 July 2023. The Applicant claimed that adverse action was taken against him by The Trustee For The Cia Unit Trust (the Respondent) under ss.340 and 344 of the Fair Work Act 2009 (Cth) (the Act). The Respondent raised a jurisdictional objection that the Applicant was not dismissed.

1. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

Background

1. The Applicant commenced employment with the Respondent on 13 February 2023. The Applicant was engaged as a Dogman/Rigger. The Respondent operates a crane hire business.

1. The Applicant submitted that on 20 July 2023 around 9:30am, he was called into the office for a meeting with the Respondent. The Applicant states that he was told he was not a good fit for the company, that his heart was no longer in it, and that he was no longer required. The Applicant states he was told to leave without any notice. The Applicant had called his partner at 10am explaining what happened. The Applicant’s partner contacted the Respondent regarding this event. The Applicant and his wife were invited to come into the office to discuss the matter by the Respondent instead of having a conversation over the phone. The Applicant stated he was not comfortable with this process.

1. Mr Charlie Camilleri is the Managing Director for the Respondent. The Respondent noted that the Applicant was involved in a serious safety breach on 4 April 2023. Sometime around June 2023, the Respondent had received complaints from two senior crane operators about the Applicant not having his mind on the job, and his attitude towards safety. Given that there were concerns about the Applicant’s wellbeing, the Respondent had called a meeting on 20 July 2023.

1. The Respondent states that the Applicant told him that the job was not working for him as his wife had a new placement as a nurse at hospital with two young children. The Applicant’s role required him to be prepared for on call work, 24 hours a day, 7 days a week which conflicted with his personal life. The Applicant also moved from Dawin to undertake his role with the Respondent which was away from his family.

1. Upon these events, the Respondent asked if the Applicant had wanted to resign if the job is not working for him. The Respondent stated that the Applicant was happy to resign and that they would pay his notice and write a reference for the Applicant to find a new role.

Consideration

1. Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.

1. Section 386(1) of the Act relevantly provides that 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.

1. 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’s to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2]

1. 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.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4]

1. All the circumstances – including the conduct of both the employer and employee – must be examined.[5] 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.”[6]

1. The events of the Respondent provide a more detailed account of the incident on 20 July 2023 and provide a clearer picture of the events surrounding the resignation. I accept that there was a resignation on the evidence provided. An employer is generally able to treat a clear and unambiguous resignation as a resignation.[7]

1. Given that the Applicant appeared to be in an emotional state, I also consider the issue of whether the resignation was made in the heat of the moment.

1. Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. In special circumstances an employer may be required to allow a reasonable period of time to pass. The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[8]

1. When the Applicant’s wife had called the Respondent regarding the events of 20 July 2023, both the Applicant and his wife were invited into the office to discuss the Applicant’s wellbeing along with his resignation or alleged dismissal. Instead, the Applicant and his wife did not accept this process indicating that the resignation was not made in the heat of the moment. This was acknowledged in the Applicant’s own summary of events.

1. I am not satisfied that there was termination at the initiative of the employer and therefore the Applicant was not dismissed.

Conclusion

1. I find that the Applicant was not dismissed in accordance with s.386(1) of the Act. The jurisdictional objection is upheld, and the Application is dismissed. I order accordingly.

DEPUTY PRESIDENT

[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[2] Ibid.

[3] Ibid; 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.

[4] 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 at [31].

[5] Whirisky v DivaT Home Care[2021] FWC 650at [77].

[6] 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 at [28].

[7] Ngo v Link Printing Pty Ltd, Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375] ; citing Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995), [(1995) 63 IR 357 at pp. 361‒362] ; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

[8] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375] ; citing Kwik-Fit (GB) Ltd v Lineham [1991] UKEAT 250_91_2410 (24 October 1991), [[1992] ICR 183 at p. 191] .

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