Ryan La Haye v PFi Installations Pty Ltd
[2024] FWC 576
•5 MARCH 2024
| [2024] FWC 576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ryan La Haye
v
PFi Installations Pty Ltd
(C2023/5909)
| DEPUTY PRESIDENT LAKE | BRISBANE, 5 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.
Ryan La Haye (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 27 September 2023. The Applicant claimed that adverse action was taken against him by PFi Installations Pty Ltd (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed. The Applicant is only eligible to make a claim under s.365 of the Act if the Applicant is dismissed in accordance with s.386 of the Act.
Directions were issued to determine the jurisdictional objection and the matter was heard via Microsoft Teams on 6 December 2023.
Background
The Applicant commenced as a Trades Assistant with the Respondent on 26 June 2023. The Applicant states that he was dismissed on 8 September 2023.
The Applicant was asked to clean out the work refrigerator on 29 August 2023. The refrigerator is a household French door refrigerator in the lunch breakroom. The Applicant was asked to clean it as some fruit went bad.
The Applicant requested a full body suit, a mask and gloves to clean the fridge. The Respondent offered gloves and a mask, however the Applicant refused to clean out the refrigerator. The Applicant claims that he had an allergy to mould as the reason why he did not clean the refrigerator. There was no evidence to support the Applicant’s allergy. The Applicant states that he refused to clean the fridge to stand up to bullying and intimidation.
The Applicant alleges that there was bullying, threats and intimidation by Mr Steve Nguyen. The Applicant states that asking to clean the fridge was one example of bullying. Other examples that were provided include Mr Nguyen having issues with the Applicant’s timesheets, which the Applicant noted that he has learning difficulties which affect his ability to write, was asked to carry steel bars weighing 60kgs, and that Mr Ngyuen demands that the Applicant to ask him for work.
The Applicant messaged Mr Clint Harbot on 5 September 2023. The Applicant stated he wanted to talk about how he was treated in the workplace. The Applicant messaged:
“My agenda is how I was treated in the work place. In attendance, I would recommend urself, a HR representative, myself and my father as I am still a minor”
Mr Clint Harbot stated he would talk with HR and will let the Applicant know how they would proceed.
On 9 September 2023, the following text messages were sent:
MR EMILIO BARLIN: Hi Ryan, its Emilio, Group Operations Manager at PFi. Can you give me a call when you have 5 min free?
MR LA HAYE: Hi Emilio, As per our conversation today you informed me that I wasn’t a good fit for PFI and that I should find work somewhere else – Does that mean I have been terminated from PFI?
On 13 September 2023, the Applicant sent the following message:
MR LA HAYE: Hi Emlilio, I haven’t heard back from since our conversation last Friday. You said to give you a couple of days, I would appreciate a response in writing by close of business tomorrow (Thursday 14th September)
On 14 September 2023, the Respondent sent the following message:
MR BARLIN: Hi Ryan, I am away preparing for a PFi external accreditation audit the week after next. I have spoken with Steve and will speak with Clint when I get back. I am the person that will be dealing with this matter so will contact you once I have all the facts together.
The Applicant did not receive a response in two weeks and lodged his general protections claim on 27 September 2023.
The Respondent noted the Applicant’s a lack of work ethic, and passive avoidance of work. The Respondent states that the Applicant was not dismissed as he was asked to leave work near the end of his shift on the day of the refrigerator incident to deescalate the situation. The Applicant did not return to work after this incident. The Respondent stated if the Applicant was dismissed, they would have written a response and asked the Applicant to return his security pass.
The Applicant states that he was dismissed based on Mr Barlin’s conversation on 9 September 2023 and that Mr Barlin was delaying communicating with the Applicant to delay the 21-day timeframe to lodge an application for dismissal.
I have considered all the evidence provided before me and provide my consideration below.
Was the Applicant dismissed under s.368 of the Act?
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
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.
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 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]
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]
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] A dismissal takes effect when the employment relationship has ended by the employer, rather than the termination of the employment contract.[7]
The bulk of the evidence provided is oral evidence by the Applicant and Respondent. As a result, there are a lot of contentious facts. I reiterate the Briginshaw principle and the assessment of fact on the balance of probabilities, Dixon J said:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[8]
In the determination of the evidence provided by the Applicant and the Respondent, I find that the employment relationship did not end at the initiative of the Respondent.
The Applicant was doing intermittent work as he attends Australian Industry Trade College which contains both unpaid work placements and paid work placements. The Applicant has choice as to how he undertakes the work placement. In the Applicant’s employment contract, it states the Applicant works as a casual position.[9] It is a process for the Applicant to figure out his future career options.
In the Applicant’s employment contract, it was clear that it was a casual arrangement and that during the probation period, the employee will receive advice, training and guidance to help them become familiar with, and competent in performing the required work. In my view, this is what the Respondent did.
The Respondent did not directly or consequentially end the employment relationship. It is acknowledged that Mr Barlin could have consequentially ended the employment relationship when he was providing an insight into the Applicant’s work performance at his role as a trade’s assistant noting his lack of work ethic or passion in his current role which led to discussions with the Applicant about seeking a role elsewhere on 13 September 2023.
However, Mr Barlin’s subsequent response on 14 September 2023 indicated that he would be dealing with this matter and would contact the Applicant once he had all the facts together after an audit which would take place in two weeks. This indicates that the Applicant was not dismissed. Mr La Haye lodged the application exactly two weeks after this message. The subsequent conduct from Mr Barlin did not indicate that the Applicant was dismissed.
The Respondent does not need to provide the Applicant shifts considering the nature of his employment. There was no indication that the Applicant was dismissed by the Respondent besides hearsay of what the Applicant heard from others in his trade school. No one from his trade school or PFi had substantiated the Applicant’s claim.
The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB 5 states at 24:
“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”
It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a causal employee does not repudiate that contract when it fails to offer another shift.”
The Applicant also does not meet the standard of constructive dismissal. The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.
The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.
The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”[10]
(emphasis added)
In Pawel v Australian Industrial Relations Commission,[11] the Full Bench noted:
“Mere "causation" or "motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
Forced resignation has been interpreted by the Commission though the following meanings:
its actual conduct, forced to do so, such that there was an element of compulsion present[12]
a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship”[13]
Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect.[14]
The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[15]
Constructive dismissal is a high standard, and if the Applicant had felt bullied and could not return to the workplace, the Applicant could have made an Anti-Bullying application to the Fair Work Commission.
It appeared that a lot of the requests that were made to Mr La Haye were instructions of the things he needed to do. Given the nature of the industry that the Applicant was working in, communication could have been more robust or direct than the Applicant was used to. These would generally not be considered bullying as they would be called ‘reasonable management action.’
The Applicant is new to the workforce. The Respondent could have been more mindful in managing potential tension in the workplace given Mr La Haye’s age, lack of work experience, and sensitivities in communicating with him. However, there is nothing indicating a constructive dismissal.
The claim made by the Applicant stating that the Respondent did not follow up with the Applicant as to whether he was safe or well, or that the Respondent did not take the Applicant’s work grievances have not been substantiated enough to be accepted as evidence of constructive dismissal.
For instance, there was an incident on 23 August 2023 regarding Mr Ngyuen being frustrated with Mr La Haye using explicit language, and Mr Nguyen had to attend a disciplinary meeting took place on 13 October 2023. The Respondent did take action to address the situation.
The Applicant could have waited until a response was received from Mr Barlin to determine whether he had been dismissed or not.
Conclusion
It did not appear that the Respondent took critical actions which intended to bring the employment relationship to an end.
The Applicant has not demonstrated constructive dismissal and is not dismissed within the definition of s.386 of the Act. As a result, 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] Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 at [33].
[8] (1938) 60 CLR 336 per Dixon J, at pp.362-363
[9]
[10] (1996) PRN6999.
[11] (1999) FCA 1660 at 58 (Pawel J).
[12] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[13] Boulic v Robot Building Supplies[2010] FWA 6905, [16].
[14] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.
[15] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
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