Scott Parsons v R Collie Excavations Pty Ltd
[2021] FWC 4162
•15 JULY 2021
| [2021] FWC 4162 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Scott Parsons
v
R Collie Excavations Pty Ltd
(C2021/618)
COMMISSIONER CIRKOVIC | MELBOURNE, 15 JULY 2021 |
Application to deal with contraventions involving dismissal – casual employee – jurisdictional objection of no dismissal – jurisdictional objection dismissed Application to deal with contraventions involving dismissal.
[1] On 8 February 2021 Mr Scott Parsons (Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (Act) alleging contraventions of the Act associated with his alleged dismissal.
[2] His former employer, R Collie Excavations Pty Ltd (Respondent) opposes the application. It filed a response on 24 February 2021 raising a jurisdictional issue.
[3] The jurisdictional issue is that Respondent contends that the Applicant resigned from his employment and was not dismissed.
[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368. 2 It is thus necessary to determine the jurisdictional issue for the Applicant’s application to proceed further.
[5] I issued directions on 17 March 2021.
[6] The matter was listed for hearing on 6 May 2021; however, technical issues prevented the matter being heard past appearances and the Respondent’s request for permission to be legally represented. The Respondent sought permission, under s.596 of the Act. Following receipt of the Respondent’s submissions, the Applicant confirmed that he did not oppose the Respondent being represented. I was satisfied having regard to the complexity of the matter that the matter would be dealt with more efficiently if the Respondent was allowed to be represented. Accordingly, I exercised my discretion pursuant to s.596(2)(a) of the Act to grant permission to the Respondent.
[7] I heard the jurisdictional objection on 25 May 2021. I heard evidence from both the Applicant and from four witnesses called by the Respondent:
• Mr Robert Collie (Director);
• Ms Julianne Schiavon (Administration officer);
• Ms Taylor Pearce (Plant operator); and
• Mr Benjamin Collie (Earth moving operator).
[8] All witnesses were examined on statements filed in advance of proceedings,3 except for Mr Benjamin Collie who was called during the course of the hearing and who appeared via telephone. Documentary material was annexed to the statements and related documents were brought into evidence.
[9] Additionally, the Respondent filed a “joint” statement of agreed facts, 4 reproduced below, noting that the document represents only the Respondent’s position. That said, much of the background is not seriously in contest and where it has been necessary to do so, I have made appropriate findings:
“1. In early November 2020 the applicant attended an initial interview meeting (recruitment interview) with Robert Collie, director of the respondent. The meeting was pursuant to an appointment made through Ben Collie.
2. At the recruitment interview between the applicant and director of the respondent, the applicant and the respondent agreed that the respondent would engage the applicant as a casual dump truck driver on an “as needed” basis on works then being undertaken by the respondent on a site at Kyneton.
3. At the recruitment interview general terms and conditions of employment discussed and agreed were:
a. as to the applicant’s hourly pay rate;
b. as to the usual site hours and site procedures;
c. that the applicant’s work was to be undertaken under specific supervision of either the site controller Dave Holden or the respondent’s director;
4. At the recruitment interview the respondent’s director specifically informed the applicant that when the respondent’s work on the site reached the stage where it could be undertaken by the company’s full-time workforce or as it neared completion requirements for a dump truck driver would slow down and cease.
5. The applicant completed an induction process and commenced work for the respondent at the Kyneton site on the same day as the recruitment interview.
6. Thereafter the applicant worked as and when required by the respondent.
7. The applicant did not work for the respondent on the following dates:
12 November 2020
3 December 2020
4 December 2020
5 December 2020
12 December 2020
21 December 2022 2 January 2021 (site Christmas shut down period)
22 January 2021.
8. In the week commencing 18 January 2021 the respondent deployed the applicant to drive a water cart from 18 January 2021 to 21 January 2021 inclusive.
9. The last day on which the applicant actually undertook work for the respondent was 21 January 2021.
10. The applicant did not attend the Kyneton site on Friday, 22 January 2021.
11. The applicant did not communicate with the respondent’s director, site foreman or administration officer on Friday, 22 January 2021.
12. Shortly after the resumption of work in January 2021 the applicant requested that the respondent’s director review his wage rate against award rates.
13. The applicant and the respondent’s director Robert Collie had a telephone conversation on the weekend of 23 – 24 January 2021.
14. Between 29 January 2021 and 8 February 2021 the applicant communicated with the respondent’s administration officer on several occasions by telephone and SMS.
15. On Wednesday, 3 February 2021 the applicant sent an email to the respondent claiming $6687.82.
16. On Friday, 5 February 2021 the applicant initiated via SMS a request that the respondent provide the applicant with an employment separation Certificate.
17. On 5 February 2021 the respondent provided to the applicant an employment separation Certificate citing “shortage of work” as the reason for separation.
18. On Monday, 8 February 2021 the applicant filed application dated 29 January 2021 to commenced this proceeding.
Submissions
Respondent
[10] The Respondent submits that the Applicant was not dismissed from his employment on 23 or 24 January 2021.
[11] The Respondent states that the Applicant resigned or in the alternative, repudiated his employment contract on 5 February 2021 by requesting an employment separation certificate. 5
[12] As no dismissal occurred, the application under section 365 of the Act is not within jurisdiction and should be dismissed.
Applicant
[13] The Applicant submits that he was dismissed from his employment on or about 24 January 2021 during a telephone conversation with Mr Collie that the Applicant instigated to inquire into his wages.
[14] Further, he did not resign or repudiate his employment by requesting a separation certificate, this was simply for his welfare. Accordingly, his application is within jurisdiction and must proceed to a conference under section 368 and, if unresolved, the Commission must issue a certificate to that effect enabling further proceedings.
Consideration
[15] Section 365 of the FW Act provides:
“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.”
[16] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.6 “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:
“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.”
[17] Having raised the jurisdictional issue, the Respondent bears the onus of establishing that the Applicant was not dismissed.
Resignation
[18] Section 386(1)(a) states that a person has been dismissed, for the purposes of the unfair dismissal provisions in Part 3-2 of the Act, if the person’s employment has been terminated ‘on the employer’s initiative.’ It is necessary for me to decide whether the Applicant was dismissed by the Respondent within the meaning of s 386(1)(a), or whether he resigned from his employment. A resignation can be oral or in writing. Whether a person has resigned is a question of fact and is not assessed by reference to the parties’ subjective intentions or understandings. It depends on what a reasonable person would have understood to be the objective position, taking into account what was done and said, and the surrounding circumstances. Where a resignation exists as a matter of fact, it is capable of being a dismissal for the purposes of the Fair Work Act if it was a forced resignation within the meaning of section 386(1)(b). There is no suggestion that the present matter involves a forced resignation.
[19] For convenience, I note the following background matters that are not seriously contested:
• The Applicant attended an initial interview meeting with the Respondent on or around November 2020, following which he was engaged as a casual dump truck driver operator at the Respondent’s Kyneton site;
• That ongoing work was not assured; 7 During cross examination, the Applicant concedes that he was engaged as a casual “to work until a minimum of near completion;”8
• At the recruitment interview the parties discussed the Applicant’s hours of work and payrate;
• Following the recruitment interview, the Applicant commenced an induction process and commenced work with the Respondent on the same day;
• The Applicant made an enquiry as to his rate of pay sometime “around Christmas” 2020, although there is some contest between the parties as to whether that query was resolved;
• The Respondent was close to completion of stage 1 of the project in January 2021;
• The site was non-operational on Monday 25 January 2021 and Tuesday 26 January 2021;
• The Applicant was required to be on site at 7am for a 7:30 am start; 9
• The Applicant did not attend work on the following dates:
12 November 2020
3 December 2020
4 December 2020
5 December 2020
12 December 2020
21 December 2022 2 January 2021 (site Christmas shut down period)
22 January 2021.
• The Applicant and the Respondent’s director Robert Collie had a telephone conversation on the weekend of 23 – 24 January 2021. The parties disagree as to what was said during the conversation;
• On 28 January 2021 the Applicant commenced drafting his general protections application;
• On Wednesday, 3 February 2021 the Applicant sent an email to the Respondent claiming $6687.82; 10
• On Friday, 5 February 2021 the Applicant initiated via SMS a request that the Respondent provide the Applicant with an employment separation certificate 11 which the Respondent provided the same day citing “shortage of work” as the reason for the separation.
[20] The contest between the parties relates to the telephone discussion between the Applicant and Mr Collie on or about 24 January 2021 and the appropriate characterisation of the surrounding events. The Applicant states that he was dismissed by Mr Collie which Mr Collie denies. As stated above, the characterisation of that conversation knowing the surrounding circumstances, taking into account what was said and done, is to be judged objectively, not subjectively. In the present matter, I prefer Mr Parson’s version where there is a factual contest between his evidence and Mr Collie for the following reasons.
[21] There is no dispute that following an exchange between Mr Collie and the Applicant on or about 24 January 2021, instigated by the Applicant, to discuss amongst other things his query regarding his rate of pay the Applicant asked about his return to work. As to that conversation Mr Collie states in his witness statement filed in the proceeding that “I informed him that the site was non-operational until Wednesday the 27 January 2021 because of the Australia day holiday, that he was not required for the coming week. I said to him that I would let him know when he was next needed for work.” 12 During the hearing Mr Collie states that he said to the Applicant that “there was no work on the Monday or the Tuesday and I would get back to him when there would be work”13 and that he did not speak to the Applicant again.14 He also confirms that he gave instructions to Ms Schiavon on the Wednesday that he had been speaking to Mr Parsons and asked “could she have another look at where his wage rate is at.”15
[22] During the following exchange 16 between the Applicant and Counsel for the Respondent, the Applicant gives the following evidence:
“So there was a conversation between you and Mr Collie?---Had a conversation via telephone.
Yes, via telephone, and during the course of that conversation Mr Collie said to you, because you had not been at work on Friday and you were querying whether or not you were required for work on Monday, that he didn't need you - - -?---I'm sorry, I'm sorry - apologies.
During the course of that conversation Mr Collie said to you that he did not need you for the next week or so?---No.
During the course of the conversation do you agree that Mr Collie said to you words to the effect that your services were not required in the next week?---I believe my recollection was, 'Well, do not bother coming in.'
Did you seek to clarify what he meant? If we accept that for the moment, and it's not accepted, but if we accept that for the moment what was your response to that?---My response to the best of my recollection is - I discussed either Monday or Tuesday. I asked - to the best of my recollection it might have been, 'Oh, not Monday, what about Tuesday', to which his response is, 'Tuesday's a site closure day' - we discussed work arrangements. Obviously there was a consensus amongst the employees that Monday, Tuesday, Wednesday would not be required, and following the conversation of the site shutdown of Monday, Tuesday, Wednesday Rob Collie said he'll call me when he needs me.
So you agree that he said he would call you when he needed you?---That's my recollection.
Did you ask him if you'd been dismissed or terminated?---It was my understanding that was - - -
No, I am not asking about your understanding, I'm asking you what you did, what you said?---Nothing. No.
So you didn't question it at all, you simply accepted that Mr Collie would call you when your services were next required?---Which I never got a phone call for.
When did you complete your application in this matter, when did you actually fill out the form?---January 29.
How many days after the weekend is that? Could I help you there, it was a Friday?---Yes, like - so that would have been a Friday of the weekend following 23rd, 24th.
Right. And in your application you allege that you had been dismissed. That's the basis of your current application, is that you were dismissed. So as of 29 January 2021 you have prepared an application that says you'd been sacked, and yet you've just said to us that Mr Collie said to you, 'I'll call you when I need you', or 'We will call you when we need you.' That's right, isn't it?---That's what Mr Collie said.
He said that he would call you when he needed you?---That's my - that's my recollection.”
…
“Mr Parsons, I was asking you, or putting to you that in fact you were not terminated by Mr Collie. In the telephone conversation between you and Mr Collie on 23 or 24 January he said to you words to the effect of, 'I' or 'We will contact you when we need you', and within a matter of five days from that conversation, and in fact three trading days you'd completed an application to the Commission alleging that you had been dismissed. When he said, 'We'll call you again, or we'll call you when we need you', that he didn't dismiss you, did he, he didn't terminate your employment?---No, I dispute that. There was - there was an agreement for my services from November through to the completion of the Kyneton job.” 17
…
“And he said - according to you Monday is a public holiday. In fact it wasn't, Tuesday was the public holiday - and he said, 'We will call you' or 'I will call you when we need you again.' That's correct, isn't it?---That's - that's my - so he's - I asked if I should come in on Monday, to which he said, 'Monday is a site shutdown, Tuesday's a public holiday, Wednesday' - and I said, 'What about Thursday', and he said, 'We'll call you when we need you.” 18
[23] I accept the Applicant’s account that Mr Collie said words to the effect of “we will call you when we need you” in response to his question “what about Thursday”. There is also no dispute that Mr Collie did not call the Applicant any time prior to 5 February 2021 when the Applicant sent in a request for his employment separation certificate.
[24] I have considered the Facebook post adduced in evidence by the Applicant reproduced below:
[25] There is no contest that the reference in the post to the position of “moxy operator” is a reference to a position held by the Applicant and that the post was placed via a Facebook post by Mr Collie’s nephew Mr Benjamin Collie, who gave evidence as to the post and confirmed that:
• The advertisement was posted on or about 26 January 2021; 19
• It mistakenly sought “two moxy operators and a possible excavator operator”; 20
• It was meant to seek “one or two laser bucket operators” 21
• The add was taken down when “people started responding and he realised he had “made a boo boo”; 22
• The add was “copied” from a previous post; 23
• That he placed the add to help his 70 year old uncle who “at 70 years old … shouldn't have to be jumping in a laser bucket at that age, and I made a bugger up myself and copied the post from a previous post and put it up.” 24
• Mr Collie states that he removed the post when he realised the error and further that he saw no need to re post the correct advertisement as by then there was “probably three weeks max. Like three, four weeks max” 25 of bucket operator work left to be done on the site.
[26] I have also considered the evidence of Mr Benjamin Collie that the post was placed by him on or about January 26 2021 26, at Mr Collie’s request, but that effectively the post was an inadvertent “cut and paste” of a previous advertisement. I do not accept this evidence as plausible. The placing of the add advertising a position of moxy driver, shortly after the relevant conversation between the Applicant and the Respondent on the 24 January favours the version of events presented by the Applicant as to the content of the conversation. Further, Mr Benjamin Collie has not provided a convincing explanation for not readvertising the correct position once it became apparent to him that an error had been made and in light of the fact that there was at least 3 or 4 weeks of bucket operator work left to be done on the site.
[27] The Applicant’s evidence that he completed drafting his general protections application on 29 January 2021 27, is compatible with this conclusion. In the present matter, a reasonable person would have understood, taking into account what was said and done that Mr Collie was advertising the Applicant’s position, having advised him on 24 January that “we will call you when we need you”. Further, the Applicant’s request for an employment separation certificate was met with no objection.
[28] I have considered the Respondent’s submission that “there were problems” 28 with the job which necessitated the closure of the site and do not consider it alters my overall finding.
[29] I have formed the view that the Applicant did not indicate his intention to resign either during the conversation between him and the Respondent on or about 24 January 2021 or by virtue of his request for a separation certificate on or about 5 February 2021.
Repudiation of contract
[30] An employee is not dismissed if their words or conduct are such that they repudiate their employment contract, for example by abandoning their employment. Given my findings above, I do not accept the Respondent’s submission that the Applicant repudiated his employment contract. The reality in this case is that the Respondent terminated Mr Parson’s employment and sought to re- advertise his position by way of Facebook post on 26 January 2021. 29 Having taken that course, it is not surprising that Mr Collie took no steps to contact the Applicant following the 24 January conversation and further took no steps to question the Applicant’s request for an employment separation certificate on 5 February 2021.
Was the Applicant’s employment terminated on the employer’s initiative?
[31] It follows that I find that the Applicant’s employment was terminated at the initiative of the employer.
[32] The casual nature of the Applicant’s employment does not alter this conclusion. The Respondent did not seriously contest that the Applicant’s casual employment was regular. As to whether the Applicant has a reasonable expectation of ongoing employment, I accept the Applicant’s evidence that he considered his employment with the company was ongoing until the conclusion of stage 1 of the project and that this expectation was reasonable.
Conclusion
[33] Having determined the Applicant was dismissed, he is entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute. It is therefore worth outlining s.370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of Mr Parson’s application:
“A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.”
[34] The precursor to the issuing of the required certificate under s.368(3)(a) is that the Commission must deal with the dispute by conducting a conference and reach a level of satisfaction “that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.”
[35] Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford 30 made observations of the following nature regarding s.370 of the Act and the making of a general protection court application:
• The Act establishes multiple alternate pathways for an Applicant and prospective litigants;
• Section 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
• This is because a Court may ultimately decline to recognise an “application” or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s.370 of the Act.
[36] For present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution.
COMMISSIONER
Appearances:
Mr S Parsons, on his own behalf
Ms L Hansen, of Counsel on behalf of R Collie Excavations Pty Ltd, with permission
Hearing details:
6 May 2021, 25 May 2021, Melbourne, via video
Final written submissions
Respondent, 7 April 2021, 28 April 2021.
Applicant, 21 April 2021.
Printed by authority of the Commonwealth Government Printer
<PR731716>
1 [2020] FCAFC 152
2 See Yi Zhang v Medlab Clinical Ltd[2021] FWCFB 2453 [1]
3 A1 Statement of Scott Parsons; R1 and R2 Statements of Robert Collie, R3 and R4 Statements of Julianne Schiavon, and R5 Statement of Taylor Pearce.
4 Transcript of proceedings, 25 May 2021, PN600.
5 Transcript of proceedings, 25 May 2021, PN77
6 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
7 Applicant’s outline of submissions [8]
8 Transcript of proceedings, 25 May 2021, PN 626
9 Witness statement of Mr Robert Collie, [16d]
10 Witness Statement of Julianne Schiavon paragraph 23.
11 Transcript of proceedings, 25 May 2021, PN77
12 Witness Statement of Robert Collie [24]
13 Transcript of proceedings, 25 May 2021, PN154
14 Ibid PN159
15 Ibid PN163
16 Transcript of proceedings, 25 May 2021, PN524-546
17 Transcript of proceedings, 25 May 2021, PN560
18 Ibid PN570
19 Transcript of proceedings, 25 May 2021, PN896
20 Ibid PN898-902
21 Ibid PN900
22 Ibid PN903-907
23 Ibid PN897
24 Ibid
25 Ibid PN926
26 Ibid PN896
27 Ibid PN543
28 Transcript of proceedings, 25 May 2021, PN154
29 Ibid PN896
30 [2020] FCAFC 152
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