Scott Spearpoint v East Coast Freight Specialists
[2022] FWC 655
| [2022] FWC 655 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Scott Spearpoint
v
East Coast Freight Specialists
(C2021/8012)
| Deputy President Lake | BRISBANE, 24 MARCH 2022 |
Application for general protections – whether the Applicant was dismissed – whether the application was made outside of statutory timeframe – Applicant dismissed – application made on 21st day – Jurisdictional objection dismissed – Application upheld
Scott Spearpoint (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by East Coast Freight Specialists (the Respondent).
Both parties agreed that the Applicant was employed by the Respondent since around September 2017. What is in contention is how his employment came to an end.
The Respondent raised two jurisdictional objections. First, that the Applicant was not dismissed and second, that his application was lodged in the Commission outside the requisite time. These matters were the subject of a video hearing on 15 March 2022.
Representation
The Respondent sought to be represented at the hearing, which the Applicant opposed. Granting permission to be represented under s.596 requires the satisfaction of two elements.[1] First, that one of the criteria under s.596(2) is present. That said, the existence of one such factor does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] If that is overcome, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3]
The Respondent submitted that representation would enable the matter to be dealt with taking into account the complexity of the matter, both in terms of the factual matrix and the legal test. The Respondent noted that the provision does not require a finding that a matter is highly complex, but rather that given the complexity of the matter, it will be dealt with more efficiently by permitting legal representation. The Respondent submits that this matter involves a number of legal and factual complexities that would be dealt with more efficiently if the Respondent was legally represented, and further, it would be unfair not to allow the Respondent to be represented by legal representative. Finally, the Respondent submits that allowing the legal representation would ensure that the matter is dealt with more effectively by making concessions on the facts and law as appropriate, confining cross examination of the Applicant and ensuring the Commission is pointed to relevant authorities both for and against its case.
The Applicant objected to the Respondent being represented on the grounds that at this time he was unable to obtain and brief any legal representation at such short notice, and even if he was able to obtain legal representation, his current employment and financial status would not allow this to occur. He disputes the assertions that this is a “complex legal matter” and “appropriate use of the commission’s time” would be to allow for legal representation. While he accepts that it is a matter for the Commission, the Applicant asserted that allowing the Respondent to be represented would place him at a disadvantage.
Given the complexity and sensitive nature of some of the matters to be discussed, I was satisfied that it was appropriate to grant the Respondent permission to be represented. Accordingly, the Respondent was represented by Anthony Britt of counsel, instructed by Cooney Harvey Doney.
The Respondent’s case
The Respondent asserts that the Applicant’s employment ended by way of resignation on 28 October 2021.
The Respondent relies on the evidence provided by Dean Rodney Mulvey, the director of the Respondent. He has been involved in the transport industry as a truck driver, owner and operator for about 25 years. He began with the Respondent in 2015. He had met the Applicant prior to that when the Applicant worked for his father’s company as a truck driver. On 29 September 2017, the Applicant commenced working for him as a line haul driver. In that role, the Applicant’s job was to drive between Sydney and Brisbane. Throughout his employment, Mr Mulvey had multiple issues with the Applicant’s performance. He regularly did not meet deadlines and so regular conversations were had about his underperformance.
Mr Mulvey says that when he spoke to the Applicant about the issue and asked if local work would better suit him, the Applicant told him that, “I cannot come off the highway. My partner has bought a new car, and I will not be able to afford the repayments on it and our house if I am not earning the better wage on the highway.”
Mr Mulvey said that the Applicant was typically a good communicator, and they would speak either over the phone or by text at couple of times a day. That is fairly typical of his communication with his drivers. Mr Mulvey says that in addition to checking on their progress, he tries to ask a few personal questions about their wellbeing.
In the morning of 27 October 2021, Mr Mulvey received a call from a customer asking when the goods will arrive. The Applicant was delivering the load. Mr Mulvey checked where the Applicant was using the GPS tracker in the truck and saw that he was at Coffs Harbour when he should have been in Brisbane. Mr Mulvey called the Applicant and said, “why you taking so long to get to Brisbane? I cannot understand what is taking so long”, to which the Applicant responded “it is just how long it takes to do this drive”.
Mr Mulvey then sent the Applicant a text message stating the time breakdowns of what he could see on the GPS tracker which indicated that he was taking far longer than what it should take. That data was annexed to Mr Mulvey’s affidavit.
At 6:36am on 27 October 2021, Mr Mulvey texted the Applicant to try and understand what the issue was. He wrote:
“I can’t work you out hey and I’m tired of trying
Now I have to ask you what time you may feel like loading tomorrow as you have the same delivery as yesterday and the time you take to do one leg has me fucked, I can’t commit my truck to provide an overnight service because your unpredictable
Please help me out here your killing me”.
Not long after sending the text, the Applicant spoke with Mr Mulvey on the phone and advised as follows:
“I know I have not been performing for a long time. I cannot continue to do this job and I need to get out. Line haul truck driving is not working for me anymore. I cannot keep working for you.”
Mr Mulvey says that he responded, “that is ok Scott. I understand. I have loads booked for the truck until tomorrow. Could you finish that run before you finish?” According to Mr Mulvey, the Applicant said he could. Mr Mulvey then told the Applicant as follows:
“we can always employ you as a local driver Scott. Have a think about it and let me know if you could cope with that work. We can re-employ you in that role if you want to come back.”
Mr Mulvey understood that this conversation was the Applicant’s resignation, effective immediately.
Shortly after the phone call, the Applicant sent another text saying, “I’m sorry for dropping that on you first thing this morning”. Mr Mulvey assumed this referred to the Applicant having quit early in the morning and causing him more stress.
Mr Mulvey responded, “I’ve been waiting for your to except it I’m here to help you, you will have a job here if you want it.” Mr Mulvey clarifies that he was referring to the offer to employ him in a different role as a local driver.
The Applicant responded, “thank you I want to keep working for you as I like the job I just have to sort out my fucked up self”.
Mr Mulvey says that whenever the drivers start work they must verify that they are safe to do so. On 27 October 2021, the Applicant had verified that he was safe to drive. At no time during their conversations on 27 October 2021 had the Applicant indicated that his mental health was suffering. The Applicant had checked that his mental wellbeing was fine as part of the daily log process.
The Applicant returned the truck after hours on 28 October 2021. When Mr Mulvey got to the yard on the morning of 29 October 2021, he saw that the Applicant had taken his personal belongings out of the truck. This included his phone accessories, bedding, logbook and personal protective equipment. Mr Mulvey took this as confirmation of his resignation. Partly, that is because during his employment when the Applicant would go on leave or was away on workers compensation, the Applicant would not unpack it as he did on this occasion. During Mr Mulvey’s time at the company, he always understood that a driver who unpacked their personal belongings from a truck means they have resigned. If the Applicant was intending to come back to his truck, that is if he had not resigned, Mr Mulvey would have expected that some items would be left behind.
On or around 28 October 2021, Mr Mulvey informed his bookkeeper, Cate Madden, of the Applicants resignation and asked her to process the Applicant’s final pay, which she did.
Mr Mulvey did not hear from the Applicant for a couple of days, therefore he sent the Applicant a message to see how he was on 31 October 2021. He had expected that the Applicant would have come to speak to him about working locally by that time.
On 1 November 2021, Mr Mulvey received a text message from the Applicant with a copy of a doctor’s certificate and a message which said the Applicant was being put on a mental health plan. Mr Mulvey was confused because he had not spoken to the Applicant in the intervening period.
The Applicant sent Mr Mulvey a message on 4 November 2021 asking if he had been terminated. Mr Mulvey did not reply as he was of the view that the Applicant had resigned.
The Respondent asserts that on the evidence, there were no steps taken by them which resulted in the termination of the Applicant’s employment. The Respondent says that when viewed objectively its conduct did not have the probable result of bringing about the end of the Applicant’s employment or leaving the Applicant with no effective or real choice but to resign.
The Applicant’s case
The Applicant accepts the text messages produced by Mr Mulvey, however he describes the events as follows.
On 27 October 2021, the Applicant called and sent text messages to Mr Mulvey stating that he was suffering from a medical episode and required some time out of the truck so that he could attend a doctor. He did not at any time that day state that he no longer wished to work for the Respondent.
On 28 October 2021, the Applicant followed Mr Mulvey’s instructions and parked the truck at the business yard at Southwest Rocks and removed his personal belongings, as is the normal practice when handing over a truck.
On 29 October 2021, the Applicant made an appointment to see his doctor. That appointment was scheduled for 1 November 2021.
On 31 October 2021, Mr Mulvey sent the Applicant a message asking how he was. However, because the Applicant’s home had little or no phone service he did not see this message until 1 November 2021.
On 1 November 2021, the Applicant attended the doctor and received a medical certificate covering him for a week. He was told to come for a follow up consultation in about 7 days. A copy of that certificate was sent to Mr Mulvey.
On 4 November 2021, while travelling the Applicant received pay advice from the Respondent of about $470 as a weekly payment. Confused, he sent a text message questioning why that had been paid. Shortly afterwards he received another pay advice for approximately $3600 with a reference to “wages – final”. At that time, the Applicant asked whether this meant that his position had been terminated but he received no reply either in writing or verbally.
On 8 November 2021, the Applicant attended another appointment with his doctor and was told by his doctor that Mr Mulvey had contacted the surgery and advised that the Applicant was no longer employed by the Respondent. That was the first he had heard that his employment had been terminated. The Applicant still has not received any formal correspondence from the Respondent indicating that his employment had been terminated (apart from the final payment of wages). The Applicant was given a certificate until 30 November 2021.
Later that day, the Applicant commenced correspondence with the Fair Work Ombudsman and the Commission. He was advised at that time that any application had to be lodged within 21 days.
On 13 November 2021, the Applicant sort advice from the Fair Work Ombudsman and was told to write to Mr Mulvey seeking clarification on his employment status. The Applicant did so on 15 November 2021. No reply has been received.
Consequently, the Applicant lodged his application on 25 November 2021.
The Applicant asserts that on that basis his application was lodged within 21 days. However, if the Commission takes the view that he was in fact terminated on 27 or 28 October as suggested by the Respondent, he says exceptional circumstances exist because he was not notified of his dismissal until his doctor told him on 8 November 2021. He then acted promptly to seek advice from the Commission and the Fair Work Ombudsman about the claims he may be able to pursue and what action he should take. It was on the advice of the Ombudsman that he wrote to the Respondent on 13 November 2021 questioning the status of his employment. After he received no response from the Respondent, he made the decision to lodge the application anyway.
Was the Applicant dismissed?
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’s employment to be terminated at the initiative of the employer.[4] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[5] 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.[6] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[7] Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?[8]
It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.[9] All the circumstances – including the conduct of both the employer and employee – must be examined.[10] 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.”[11]
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[12] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”[13]
There was significant communication breakdowns between the parties that led to the confusion over what happened. Unfortunately, each party had the opportunity to clarify their position at various times following the initial text on the 27th but did not do so. The Respondent was left in the belief that the Applicant had resigned and was going to sort himself out and the Applicant believed that he had told the Respondent that he needed some time out and had been granted it.
In this matter, and given the medical issue flagged by the Applicant, I consider that he was of the belief that he had indicated that he needed time out and that he did not resign. I am persuaded by this version. He stated that he needed time out “to sort out his fucked-up self”. I can understand the confusion facing the Respondent when receiving this text, however a day later he gave instructions to terminate the Applicant. It would have been prudent in these circumstances to clarify with the Applicant what was the understanding of was meant by sorting himself out. I have some sympathy for the Respondent as some of the messages sent by the Applicant would on face indicate he wanted to leave the business. There was an opportunity to clarify this when the Applicant sent a text on the 4 November asking if he had been terminated. The Respondent did not reply.
As I must determine a date for the purposes of the application and whether there was a dismissal, based upon the testimony and evidence from the parties, I consider that the Applicant would have understood on 4 November when he received his final pay that meant he had been terminated. He may not have been aware that the termination date by his employer was days earlier. However, by at least 4 November 2021, it should have been clear to the Applicant that a termination had been effected.
In this case, I determine that the Applicant first knew about the termination on this date and therefore I regard this date as the date of dismissal and for the purposes of determining if he made the application in time. As the Application was made on the 25 November, I find that the application was made on the 21st day. Therefore, extension is not required.
For the reasons set out above, I favour the Applicant’s evidence and submissions to the effect that his employment was terminated on 4 November 2021 by the Respondent.
I order that the jurisdictional objection be dismissed. I will set down a date for a conference on the matter at the earliest convenience.
DEPUTY PRESIDENT
<PR739656>
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48].
[4] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[5] Ibid.
[6] 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; Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[7] 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 [31].
[8] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 [23].
[9] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[10] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[11] 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 [28].
[12] Australian Hearing v Peary [2009] AIRCFB 680 [30]; Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews[2019] FWC 1539 [109].
[13] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
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