Scott Anthony Aisthorpe v Glenn & Judith Ogden Family Trust and anor
[2024] FWC 637
•11 MARCH 2024
| [2024] FWC 637 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Scott Anthony Aisthorpe
v
Glenn & Judith Ogden Family Trust and anor
(C2024/250)
| COMMISSIONER SIMPSON | BRISBANE, 11 MARCH 2024 |
Application to deal with contraventions involving dismissal – Jurisdictional Objection no dismissal – Objection Upheld – Application dismissed.
On 12 January 2024, Scott Anthony Aisthorpe (Mr Aisthorpe / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (FW Act) for an application to deal with contraventions involving dismissal. The First Respondent in the matter was named as Glenn & Judith Ogden Family Trust (the First Respondent) and the Second Respondent was Mr James Hart (the Second Respondent). The Form F8 application advised that the Applicant was represented by Gorval Lynch Lawyers. The Applicant said he commenced employment with the First Respondent in September 2022 as a Farm Hand/Truck Driver, and said in his application that he was notified of his dismissal on 13 December 2023 and his dismissal had effect from 22 December 2023. The Applicant said his role included driving a tractor.
The First Respondent raised a jurisdictional objection on their Form F8A Employer Response that the Applicant was not dismissed. The Respondents were represented by Mr Warren Turner of Turner IR Qld Pty Ltd.
Section 386(1) of the Fair Work Act 2009 defines “dismissed” as follows:-
“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.”
I issued directions on 15 February 2024 for the filing of material relating to the jurisdictional objection. The Respondents were to file material on 22 February 2024 and the Applicant by 29 February 2024. The matter was listed for hearing on 11 March 2024. The Applicant’s lawyer filed a Form F54 ceasing to act for the Applicant on 29 February 2024. The Applicant, who had been served separately with the directions and notice of listing, failed to file any material in response to the Respondents evidence and submissions. On the 6 March 2024 the First and Second Respondent’s representative sent an email to chambers advising that it had not received the Applicant’s submissions or evidence and asking if chambers had been served with the material.
On 6 March the parties were sent an email from chambers advising that it was noted that no material had been received from the Applicant in accordance with the Directions, and that I intended to address this at the hearing listed at 10:00AM Monday 11 March 2024. The following day the Respondent’s representative sent email correspondence asking whether the witnesses would be required to attend and email correspondence was sent to the parties confirming witnesses were required to be available for the hearing on 11 March.
On the morning of the hearing, the Applicant failed to join the Microsoft Teams Hearing by the listed commencement time of 10am. Three separate attempts were made by chambers to contact the Applicant by telephone prior to the commencement of the hearing without success. As the Applicant had failed to file any evidence or submissions as directed in response to the jurisdictional objection, failed to appear at the hearing, and could not be contacted after several attempts to do so after the commencement time of the hearing had passed, I determined to proceed to conduct the hearing in the Applicant’s absence. At the conclusion of the hearing I issued a brief decision that the jurisdictional objection was upheld and the application was dismissed, and that written reasons would follow later in the day. Below are those reasons.
Evidence and Submissions
The Form F8 application filed on behalf of the Applicant by his legal representatives at the time, outlined a number of alleged workplace rights exercised by the Applicant including complaints about requesting a copy of his employment contract and alleged denial of access to personal leave, and alleged bullying and sexual harassment. Mr Hart said in his witness statement of 6 February 2024 that the Applicant never advised him of his medical condition or that it was due to his excessive workload. Further he said at no time did the Applicant ask for a break from driving the Tractor. Mr Hart also refuted that he had ever rejected a request for personal leave. Mr Hart said that the Applicant regularly attended medical appointments and no requests to attend were refused. Mr Hart attached to his first statement copies of timesheets setting out the times when the Applicant worked which refuted the Applicant’s claims about his workload.
The Applicant said that in or around October 2023, he was subjected to sexual harassment by three employees of the First Respondent in the nature of comments directed at him by these employees, and that he raised these concerns to Mr Hart. Mr Hart said the Applicant never advised him of any sexual harassment, and the Applicant himself had a ‘foul mouth’ and he had spoken to the Applicant about that and his attitude to others. In his first statement Mr Hart also rejected the submission in the Form F8 application that the Applicant was refused leave for his wedding, saying to the contrary that at the time the Applicant was seeking more work hours to pay for the wedding.
The Applicant said in the Form F8 application that on 11 December 2023, the First Respondent requested an informal meeting with the Applicant. The Applicant said that during the meeting, the First Respondent requested the Applicant to visit his medical practitioner to ‘sort his health out’. The Applicant said in the Form F8 application that on 13 December 2023, the Applicant visited his medical practitioner. The Applicant’s doctor advised the Applicant that he was unfit for work from 13 December 2023 to 22 December 2023. The Applicant also said he sent a copy of the medical certificate to the First Respondent. The Applicant said that the First Respondent responded to the Applicant’s text message with words to the effect of ‘Take this as my formal notice. We no longer wish to have you employed once your medical certificate runs out’. The Applicant submits that as a result, the Applicant was terminated on 22 December 2023.
The Respondents contended that the First Respondent did not terminate the Applicant’s employment. The Respondents rely on the statements of Glenn Ogden on behalf of the First Respondent, James Hart (the Second Respondent) and David Jones (Employee) supporting this contention. It is also contended that neither the First or Second Respondent engaged in conduct, or a course of conduct, which forced the Applicant to resign.
Mr Glenn Ogden, a Trustee of the First Respondent in the matter, said that on 12 December 2023 his Farm Manager James Hart, advised him that Mr Aisthorpe had resigned. Mr Ogden said that later that afternoon he and Mr Aisthorpe had a discussion relating to his resignation and Mr Ogden said he stated “You have resigned to James so you’re done. Go and get your health sorted out”. Mr Ogden said he accepted Mr Aisthorpe’s resignation and advised him by text stating:
“Scott I think you should use this period to get your health right and use the week of sick leave as notice. I am not interested in continuing your employment beyond that. Your holiday benefits will be paid up then also. As explained, you staying on at Parraweena is ok for a period until you work out what’s next. Happy to meet with you when you want.”
Mr Ogden said Mr Aisthorpe then forwarded him a medical certificate saying he was unfit for work for the period 13 December to 22 December 2023. Mr Ogden said that he advised Mr Aisthorpe that he would be paid eight days sick leave up to 22 December 2023 notwithstanding that his leave accrual balance was 6.5 hours and that the Medical Certificate was produced after he had resigned. Mr Ogden said that Mr Aisthorpe then stated that he’d start packing and move out of the accommodation. Mr Ogden said that there was no need for him to do that straight away and he said Mr Aisthorpe replied that the sooner they were out the better. Mr Ogden said that at no point did he tell Mr Aisthorpe that his employment had been terminated.
In his second statement of 22 February Mr James Hart said that he is a Farm Manager employed by the First Respondent, and on 12 December 2023 he received a text from Mr Aisthorpe asking him to come to the silo to help Mr Aisthorpe. Mr Hart said that on arrival Mr Aisthorpe launched a tirade of abuse at Mr Hart, following which Mr Hart said Mr Aisthorpe told Mr Hart that he was “finished and didn’t want to work here anymore”. Mr Hart said he advised Mr Aisthorpe to let Glenn Ogden know. Mr Hart said that at no point did he tell Mr Aisthorpe that he was sacked.
Mr David Jones gave evidence that he is a Farm Hand/Maintenance worker employed by the First Respondent. Mr Jones said that on 12 December 2023, he was with James Hart, the Farm Manager, travelling between farms when Mr Hart received a message from Mr Aisthorpe, and Mr Hart informed him that they needed to go and help Mr Aisthorpe at the silos. Mr Jones said that immediately on their arrival Mr Aisthorpe was agitated, disgusting, intimidating and aggressive. Mr Jones said as they were coming to help Mr Aisthorpe this behaviour was unexpected, however not surprising as this was standard behaviour for him.
Mr Jones said that as the ranting and raving started Mr Aisthorpe said that he had “had enough” and was taunting Mr Hart saying “just sack me then”. Mr Jones said after more ranting and raving, Mr Aisthorpe said he “was finished” and Mr Hart told him he better go and speak with Mr Ogden and inform him of his decision. Mr Jones said he felt relieved that Mr Aisthorpe had resigned and that he didn’t have to work with him again.
Mr Ogden gave oral evidence at the Hearing on 11 March 2024 that at no time did the Applicant seek to retract his resignation.
CONCLUSION
On the basis of the evidence before the Commission I am satisfied that the Applicant communicated his resignation to the Second Respondent, and the First Respondent confirmed with the Applicant that the Resignation was accepted, and also proceeded to pay the Applicant for the subsequent period of personal leave and treat it as notice. I accept that the First Respondent did not communicate a termination to the Applicant, and that the Applicant did not make a request to withdraw his resignation. I am also satisfied that neither the First or Second Respondent engaged in conduct, or a course of conduct that forced the Applicant to resign. On that basis the jurisdictional objection is upheld and there is no jurisdiction for the Commission to deal with the section 365 application and the application is therefore dismissed. An order to this effect with be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Warren Turner of Turner IR Qld Pty Ltd for the Respondent.
Hearing details:
2024
By Microsoft Teams Video
11 March
Printed by authority of the Commonwealth Government Printer
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