Ross Mortensen v MLG Oz Pty Ltd

[2020] FWC 3821

[2020] FWC 3821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Mortensen
v
MLG OZ Pty Ltd
(U2020/2122)

COMMISSIONER WILLIAMS PERTH, 22 JULY 2020

Termination of employment - jurisdiction - whether termination on the employer’s initiative.

[1] This decision concerns an application made by Mr Ross Mortensen (Mr Ross or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 25 February 2020. The Respondent is MLG OZ Pty Ltd (MLG or the Respondent).

[2] At the hearing of this matter Mr Mortensen gave evidence on his own behalf and did not call any other persons to give evidence. For the Respondent evidence was given by Mr Jeffery Thomas (Mr Thomas), a Site Manager for the Respondent, Mr Lionel Roberts (Mr Roberts), also a Site Manager for the Respondent and Mr Vincent Fisher (Mr Fisher), the General Manager – Operations for the Respondent.

Factual findings

[3] At the time of his dismissal the Applicant had been employed for five years and three months.

[4] The Respondent provides road train services in the mining industry.

[5] The Applicant was working at the Respondent’s Mount Magnet site.

[6] The Applicant’s evidence is that in November 2019 one of the site managers told him that they no longer needed a supervisor and when they needed someone on road trains he would have to fill in. He says he did some fill-in work driving road trains but was also still doing supervisor work when they had a full crew.

[7] The Respondent’s witness refer to the Applicant as being the Leading Hand.

[8] The Applicant had not normally worked at Kalgoorlie which was 800km away from Mount Magnet.

[9] The evidence of the parties is somewhat confusing about the sequence and timing of a number of phone calls that occurred between Mr Thomas and the Applicant on Monday, 17 February 2020.

[10] The Applicant says that he felt unwell when he awoke that morning and rang his doctor in Victoria who told him he probably had the flu.

[11] The Applicant says that around 2.30 p.m. Mr Thomas on this day rang him and told him to pack a bag and leave for Kalgoorlie at 500 a.m. the following day and that he would be taking truck number 21 and another driver with him.

[12] This particular day was the transition day between dayshift and nightshift and the Applicant was annoyed by being woken by Mr Thomas’s phone call.

[13] The Applicant says he told Mr Thomas he did not want to go to Kalgoorlie. He said he was getting too old to be moved around at a moments’ notice, and that he was the Supervisor and so they should send somebody else.

[14] Mr Mortensen’s evidence in chief was that he also said to Mr Thomas that he can fly him home because he was sick. His evidence is that is the common practice if somebody is sick.

[15] The Applicant lives in Victoria.

[16] The Applicant says Mr Thomas then said he would speak to Mr Roberts and hung up. His evidence was that about an hour later Mr Thomas called back with Mr Roberts on a conference call.

[17] The Applicant says they told him they had emailed Mr Fisher, the General Manager – Operations, and he had emailed back straight away to say if the Applicant did not want to go then to “fuck [him] off”.

[18] The Applicant says he was then asked again if he wanted to go to Kalgoorlie and he said no he was sick.

[19] The Applicant’s evidence was that Mr Roberts then said, “okay I’ll book a plane tomorrow.”

[20] The Applicant says he went back to sleep and one hour later he woke and rang Mr Thomas, which was the third phone call, and asked if he could rescind his decision not to go to Kalgoorlie.

[21] He says Mr Thomas told him no, it was too late now he could not change his decision not to go to Kalgoorlie as now Mr Fisher was involved.

[22] The Applicant says he subsequently received a text from Mr Thomas asking for a resignation letter. The Applicant said the text read as follows,

“Hey Rosco as we discussed mon with myself and Lionel via conference call could you please supply resignation letter to finalise and make sure you receive all of your entitlements thanks”  1 (sic)

[23] The Applicant replied with the following text message which Mr Thomas agrees he received,

“Hi Jeff. No I will not be supplying a letter of resignation because I have not told you or Lionel that I have resigned. In the case of the first conversation between you and I I told you I will not go t kal because I'm sick and I'm getting too old t get moved all over the place and you can fly me home because of being sick. If I had told u I resign in that conversation why would u then email vinnie and also get Lionel and conference call me back if I had resigned to ask if I was going to kal telling me Vinnie was notified and emailed back to say if I did not want to go to fuck me off. That to me is a termination. On our third conversation that day wen I asked if there was any way back if I decided to go you said no because vinnie was involved thanks” 2 (sic)

[24] The Applicant denies that in the first telephone conversation with Mr Thomas that he told him that he was resigning. 3

[25] Mr Thomas also gave evidence, he is a Site Manager at Mount Magnet.

[26] His evidence about the discussion on the phone was that when he told the Applicant that they would be sending him to Kalgoorlie he said something like “I’m getting to old for this shit” and “you might as well book me a flight, I’m resigning.”

[27] He remembers replying to the applicant something like, “there’s no need to be like that”, and the Applicant saying something like “nah, I’m too old for this shit. Book me a flight.” 4

[28] Mr Thomas rejected under cross examination that during this conversation the Applicant had said he was sick. 5

[29] Mr Thomas was uncertain about exactly which phone call on his phone records was which conversation.

[30] Mr Thomas says he went back into the office to tell Mr Roberts what had happened, and that the Applicant had said he was “too old for this shit” and they should “book him a flight”.

[31] He says he then called Mr Fisher and told him what had happened. His evidence was that Mr Fisher said something like, “well if he wants to go, he can go”.

[32] His evidence was that Mr Roberts and he later spoke to the Applicant with the phone on loudspeaker. He says he told the Applicant on the phone that he had spoken to Mr Fisher, and told him that the Applicant had resigned, and that Mr Fisher had told him that if the Applicant wanted to go they should let him go.

[33] Mr Thomas says he remembers the Applicant’s main concern during that telephone conversation was that he would lose money by going to Kalgoorlie. He thought he would lose a shift by having to take the time to drive to Kalgoorlie.

[34] Mr Thomas says he told the Applicant “it is all good” and “you will get looked after”. He says he made it clear to the Applicant that he would not lose any money by having to go to Kalgoorlie and also said something like, “it is only for a week”.

[35] He says he remembers Mr Roberts saying something like, “if he wants to go, let him go because we need to organise other drivers”.

[36] Mr Thomas’s evidence was that he remembers the Applicant replying “Book me a flight, I am outta here” (sic) and then the Applicant hung up.

[37] Mr Thomas says that later that Monday he told the Applicant that he would not have to work out his notice, but that he would have to give the Respondent a letter of resignation. During that conversation he asked the Applicant if he wanted to fly out that afternoon, Monday, or on a later flight, and the Applicant said a later flight, so Mr Thomas organised a flight for him on Wednesday, 19 February 2020.

[38] Mr Thomas says that at no time during any of the discussions with the Applicant on 17 February 2020, did he say that he wanted to stay at MLG, or that he did not resign or that he had been terminated.

[39] On Wednesday, 19 February 2020 as Mr Thomas was driving the Applicant to the airport, he says he asked the Applicant if he had done anything about his resignation letter. The Applicant replied no and said this was because he had been sacked.

[40] Mr Thomas’s evidence was that this was the first time the Applicant had ever said anything to him about being sacked. Mr Thomas says he said something like “Ross you told me on the phone, and you told me and Lionel on the conference call that you resigned. You weren’t sacked”. The applicant replied, “We’ll see where this all goes”.

[41] At 4.36 p.m. on 19 February 2020 Mr Thomas got a text message from the Applicant referred to at [23] which said,

“Hi Jeff. No I will not be supplying a letter of resignation because I have not told you or Lionel that I have resigned. In the case of the first conversation between you and I I told you I will not go t kal because I'm sick and I'm getting too old t get moved all over the place and you can fly me home because of being sick. If I had told u I resign in that conversation why would u then email vinnie and also get Lionel and conference call me back if I had resigned to ask if I was going to kal telling me Vinnie was notified and emailed back to say if I did not want to go to fuck me off. That to me is a termination. On our third conversation that day wen I asked if there was any way back if I decided to go you said no because vinnie was involved thanks” (sic)

[42] Following making his first witness statement Mr Thomas obtained a copy of his telephone records for 17 February 2020 from the IT department at MLG. These were provided to the Commission. 6

[43] Those records show:

a. He did not telephone the Applicant between 8.00 a.m. and 9.00 a.m. on Monday, 17 February 2020.

b. He telephoned the Applicant at 2.33 p.m. on 0498 767 726.

c. He telephoned Mr Fisher at 2.42 p.m. on 0427 615 785.

d. He telephoned the Applicant again at 2.51p.m.

e. He then telephoned the Applicant at 3.24 p.m.

[44] Mr Thomas has checked with the Site Medic and confirmed there is no record that the Applicant visited the Site Medic in the week prior to 17 February 2020, or on 17, 18 or 19 February 2020.

[45] Mr Roberts’ evidence was that on Monday, 17 February 2020 Mr Thomas went outside of the office to speak to the Applicant and when he returned told Mr Roberts that the discussion had not gone well. Mr Roberts says that Mr Thomas explained the Applicant had refused to go and had said that he was “too old for this shit” and they should “book him a flight out of there”.

[46] Mr Roberts and Mr Thomas then spoke with Mr Fisher on the phone who said that if the Applicant wants to go he can go.

[47] After this Mr Thomas and Mr Roberts spoke together with the Applicant on speakerphone. He remembers the Applicant was worried he would lose money going to Kalgoorlie because he thought he would lose a shift. Mr Roberts recalls Mr Thomas telling the Applicant he would not lose any money and that they would look after him.

[48] He says after a while in the discussion the Applicant would not change his mind and so Mr Roberts said something like, “If he wants to go, let him go because we need to organise other drivers.” He then recalls the Applicant’s saying something like, “Book me a flight, I’m outta here” (sic) and then the Applicant hung up.

[49] Mr Roberts’ evidence also was that at no time during the phone conversations he was involved in with the Applicant did he say was sick and that if the Applicant had of said that they would not have just flown him home. Anyone who reports in sick is assessed by the Site Medic and they recommend if the person should fly out or is given a shift off and reassessed before they start work the next shift.

[50] He says there have been many occasions when employees have spent time off in camp and have returned to work the next day.

[51] The evidence of Mr Fisher, the General Manager - Operations, was that he got a telephone call from Mr Thomas and Mr Roberts on Monday, 17 February 2020. They told him the Applicant refused to come to Kalgoorlie and had resigned.

[52] Mr Fisher does not do not remember whether they use the word “resigned”, but he was in no doubt after the conversation that the Applicant had resigned.

[53] His evidence was that he told them they should speak to the Applicant and find out why he did not want to come to Kalgoorlie, that it is a reasonable request and will only be for a week or two and then he will be back at Mount Magnet. He asked them to try and talk him around but that if the Applicant is not happy and wanted to leave, they should just let him go.

[54] Mr Thomas and Mr Roberts phoned Mr Fisher back and said that they had tried to talk the Applicant around, but he told them that he would not go to Kalgoorlie, that he was finishing up and wanted a flight booked out of there.

[55] Mr Fisher says he did not tell them that if the Applicant did not want to come to Kalgoorlie then we should terminate his employment and he did not say to them if he did not want to come to Kalgoorlie they should “fuck him off”.

[56] Mr Fisher says he did not receive an email from Mr Thomas or Mr Roberts about the Applicant not wanting to go to Kalgoorlie and he did not email them back saying that if the Applicant did not want to go to Kalgoorlie we should “fuck him off”.

[57] Mr Fisher says that he has known the Applicant for about five years since he started working for MLG and has spent a lot of time at the Mount Magnet site. Mr Fisher feels he knows the Applicant quite well.

[58] Mr Fisher says the Applicant could have talked to him about any issues.

[59] His evidence was that as far as he was aware, based on Mr Thomas and Mr Roberts told him the Applicant had resigned.

[60] On Wednesday, 19 February 2020 at 4.30 p.m. the Respondent’s Human Resources Coordinator forwarded the following letter signed by Mr Fisher to the Applicant.

“Termination of your employment (resignation)

I am writing to you to confirm your resignation on the 17 February 2020 with MLG Oz Pty Ltd in the role of Road Train Operator located at Mt Magnet effective on the 19 February 2020.

Based on your length of service your notice period is 4 weeks. As you are not required to work your notice period, this will be paid out to you. You will receive payment for your notice period, accrued entitlements, and outstanding remuneration, including superannuation, up to and including your last day of employment.

Once again thank you for your contribution to MLG Oz and we sincerely wish you well in your future endeavours.”

[61] I note this email with the letter confirming the Applicant’s resignation was sent before the Applicant sent the text message set out in [23] and [41] above to Mr Thomas denying he had resigned.

[62] Importantly there is a direct conflict in the evidence between the Applicant and Mr Thomas as to whether he said to Mr Thomas on the Monday words to the effect that he was resigning or instead that he wanted to be flown home because he was sick. 7

[63] The facts are Mr Mortensen did not fly off site until the Wednesday. The evidence is Mr Thomas offered him a flight on the afternoon of the Monday but the Applicant opted for a later flight instead. The Applicant choosing to delay his departure from site as he did seems to be inconsistent with the Applicant wanting to fly off site because he was sick. 8

[64] The evidence is that employees who are sick are seen by the Site Medic. There is nothing in the evidence to explain why the Applicant would have thought he was able to tell his employer that he should be flown home because he was sick without having any confirmation of this necessity by the Site Medic first.

[65] It is also surprising that both the site managers, Mr Thomas and Mr Roberts, would together ring the Applicant back just to try to persuade him again to drive to Kalgoorlie, when on the Applicant’s version he had already said he needed to leave site because he was sick. 9

[66] However, if the Applicant in the first conversation did say he was resigning then both site managers, Mr Thomas and his back to back Mr Roberts, ringing the Applicant to persuade him firstly not to resign and secondly to then drive to Kalgoorlie would not be surprising. Attempting to prevent a resignation, which would be disruptive for the Respondent, would warrant both site managers speaking to the Applicant.

[67] It is also incongruous the Applicant would ask Mr Thomas and Mr Roberts about losing a nights’ pay if he agreed to drive to Kalgoorlie if he truly was sick and wanted to be flown off site. 10

[68] There is no doubt that after the first conversation on the Monday between Mr Thomas and the Applicant Mr Thomas requested the Applicant to provide a letter of resignation, either during a phone conversation or by text message. This request for a letter of resignation is entirely consistent with Mr Thomas’s evidence that the Applicant told him he was resigning in their first phone conversation. This request would be inexplicable if in fact in their first conversation the Applicant did not mention resigning at all.

[69] Having considered all of the witness evidence and having had the opportunity to hear each of the witnesses give their evidence I prefer the evidence of Mr Thomas as to what the Applicant said to him in the first phone conversation on Monday, 17 February 2020. I find that the Applicant did tell Mr Thomas that he was resigning, and so Mr Thomas should book a flight for the Applicant.

Consideration

[70] The Applicant advised the Site Manager Mr Thomas on Monday, 17 February 2020 that he was resigning.

[71] Therefore, I am satisfied that Mr Mortensen’s employment was not terminated on the employer’s initiative.

[72] Mr Mortensen was not dismissed.

[73] Consequently, this application must be dismissed and an order [PR721158] to that effect will now be issued in conjunction with this decision.

Appearances:

G. Dircks of Just Relations - Consultants for the Applicant.
G. Smith on behalf of the Respondent.

Hearing details:

2020.
Perth (by Telephone):
May 11.

Final written submissions:

Applicant, 1 June 2020.
Respondent, 25 May 2020.

Printed by authority of the Commonwealth Government Printer

<PR721157>

 1   Statement of R. Mortensen at para 56, FWC Court Book at page 33.

 2   Ibid., at para 30, FWC Court Book at page 30 and First statement of J. Thomas at para 55, FWC Court Book at page 61.

 3   Transcript at PN403.

 4   Ibid., at PN271 to PN276.

 5   Ibid., at PN176 to PN177 and PN240.

 6   Second statement of J. Thomas, Attachment JT1, FWC Court Book at page 76.

 7   Statement of R. Mortensen at paras 19 and 44, FWC Court Book at pages 29 and 31.

 8   Ibid., at paras 44 and 48, FWC Court Book at pages 31 and 32 and Transcript at PN350.

 9   Statement of R. Mortensen at para 46, FWC Court Book at page 32.

 10   Ibid., at paras 46 and 48, FWC Court Book at page 32.