Shannon Kirby v Tailored Workforce Pty Ltd
[2020] FWC 3317
•24 JUNE 2020
| [2020] FWC 3317 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shannon Kirby
v
Tailored Workforce Pty Ltd
(U2020/2181)
COMMISSIONER MCKINNON | MELBOURNE, 24 JUNE 2020 |
Application for relief from unfair dismissal – whether termination at the initiative of the employer.
[1] Shannon Kirby is a husband and father of six children under the age of 13. On 29 January 2020, he was at work when he received an urgent call from his wife that she needed him home as she was dealing with an emergency situation. He immediately sought leave and left work for the day. He has not returned.
[2] On 26 February 2020, Mr Kirby applied for a remedy for unfair dismissal from Tailored Workforce Pty Ltd, a national labour hire agency with about 600 casual employees. Tailored Workforce first employed Mr Kirby in early 2018. On 23 July 2019, Mr Kirby commenced a placement through Tailored Workforce as a forklift driver for Hellmann Worldwide Logistics. Mr Kirby liked his work and he was a good worker, efficient and methodical.
[3] Mr Kirby is protected from unfair dismissal because he completed at least the minimum employment period as an employee of Tailored Workforce, was covered by the Road Transport and Distribution Award 2010 and his annual income was less than the high income threshold. As Tailored Workforce is not a small business employer, the Small Business Fair Dismissal Code is not relevant and nor is the question of whether his dismissal was a case of genuine redundancy.
[4] Mr Kirby says after two years of unblemished service, Tailored Workforce cancelled his shifts on 29 January 2020, sent him an Employment Separation Certificate and dismissed him. Alternatively, he says he was forced to resign or accept a repudiation of his contract by Tailored Workforce after he left early for the day. Tailored Workforce denies responsibility for the employment relationship coming to an end. It says Mr Kirby resigned after failing to attend for work on 30 January 2020 and later requesting an Employment Separation Certificate.
[5] This decision is about whether Mr Kirby was dismissed from his employment, and if so, when.
Was Mr Kirby dismissed?
[6] Under section 386(1) of the Act, a person has been dismissed if their employment has been terminated at the initiative of the employer. 1 Ordinarily, that occurs where termination of employment occurs without the agreement of the employee. Sometimes, though, it is the employee who acts to sever the relationship by resigning or accepting the employer’s repudiation of the employment contract.
[7] In cases of forced resignation, the test is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. 2
[8] Where repudiation of contract 3 is alleged, the task is to ascertain the terms of the contract said to have been breached and then to assess whether the conduct of the employer is such as to convey to a reasonable person in the situation of the employee that the employer has renounced either the whole contract, or a fundamental obligation under it. Repudiation does not automatically bring the contract of employment to an end. Instead, it gives an employee who is not in breach the option to decide whether to continue in employment or accept the repudiation and treat the contract as at an end.4
[9] Mr Kirby was scheduled to work at Hellmann on 29 and 30 January 2020 from 6.00am until 2.00pm. Rimon Moussa was his point of contact at Tailored Workforce and Sean Campbell was his manager at Hellmann. If Mr Campbell was away, Mr Kirby reported to another line manager called Naomi for absences and the like.
[10] On 29 January 2020, he attended work. After receiving a call from his wife, he told Mr Campbell and Mr Moussa that there was an unfolding family emergency involving the police and that he needed to leave. He left work at approximately 7.45am.
[11] The next day, Mr Kirby was rostered to work from 6.00am to 2.00pm. He did not attend for work. Mr Kirby had previously failed to attend work without explanation on 16 September 2019. That matter was resolved at the time by discussion between Mr Kirby and Mr Moussa.
[12] Mr Kirby says on the morning of 30 January 2020 he contacted Naomi at Hellmann to let her know he could not work that day. I accept that he did. There is no evidence to contradict Mr Kirby’s evidence to that effect, although it is likely to have been after 8.00am when Mr Campbell called Mr Moussa and told him that Mr Kirby was a ‘no show’. Mr Moussa did not know Mr Kirby was not at work, because Mr Kirby did not tell him.
[13] Mr Campbell instructed Mr Moussa to cancel Mr Kirby’s shift for the following day and to speak with him to find out why he had not turned up for work. He demanded to know if Mr Kirby was committed to work or required to attend to family matters. He asked Mr Moussa not to roster Mr Kirby on for any more work at Hellmann until he had found out what was happening.
[14] There is no explanation for why Mr Moussa then waited almost 8 hours to call Mr Kirby, although call logs suggest that he was busy. At 3.57pm and 3.58pm that afternoon, Mr Moussa called Mr Kirby but was unable to get through. He sent a message saying “Please be advised your shift for Friday 30th has been cancelled. Call me when you get a chance please.” The reference to 30 January was an error and should have read “31st”.
[15] Mr Kirby says he rang Mr Moussa after he got the message on the afternoon of 30 January 2020 and asked why his shift had been cancelled, to which Mr Moussa replied that either that he was “unreliable” or that Hellmann “needed someone who was reliable”. Mr Moussa denies saying words to that effect. I find that he did, most likely in the context of attempting to explain Hellmann’s position to Mr Kirby, but that Mr Kirby is mistaken about the date the conversation occurred. I accept Mr Moussa’s evidence that he did not speak to Mr Kirby after 29 January 2020 until 5 February 2020. I find that the conversation occurred on 5 February 2020.
[16] Returning to the events of earlier that week, Mr Moussa rang Mr Campbell when he could not get in touch with Mr Kirby and asked what he wanted to do. Mr Campbell told him to cancel Mr Kirby’s shifts for now because of the uncertainty. Mr Moussa cancelled Mr Kirby’s shifts in the system. He did not tell Mr Kirby.
[17] On 31 January 2020, Mr Kirby did not receive his regular email from Tailored Workforce with his shifts for the following week. He checked the roster and saw that his shifts had been cancelled.
[18] On 1 February 2020, Mr Kirby became aware that his co-workers at Hellmann had been talking about him, saying his house had been raided by police and that he had been sacked. He was understandably very upset. Prima facie, there had been an unreasonable breach of privacy and one that allowed gossip and speculation at Mr Kirby’s expense. Only two people knew of the reasons for Mr Kirby’s absence on 29 January 2020 and one appears to have been responsible for the unauthorised disclosure of Mr Kirby’s reason for leaving early to his co-workers. It is a matter that warrants further investigation by Tailored Workforce on behalf of Mr Kirby because it occurred in the context of their employment relationship.
[19] At 11.57am on 5 February 2020, Mr Kirby called Tailored Workforce and spoke to Nicole Konstance, personal assistant to Helen Elle, Director of Tailored Workforce. He requested an Employment Separation Certificate. Ms Konstance made a contemporaneous note of the request and I accept her evidence. Mr Moussa was not immediately made aware of the request.
[20] At 12.42pm on 5 February 2020, Mr Kirby sent a message Mr Moussa saying that his manager had told staff his personal reason for leaving work early. He complained of a breach of his privacy and said that he was seeking legal advice. Mr Moussa called Mr Kirby at 12.48pm and again at 1.07pm. In the course of their conversations, Mr Kirby said he did not want to return to work at Hellmann. Mr Moussa offered to meet with him the following day at 12.30pm. He also said if he did not want to return to Hellmann, Mr Moussa would find him other work. Mr Kirby said he would get back to him about that but agreed to meet.
[21] A few minutes after the appointed meeting time on 6 February 2020, Mr Kirby sent Mr Moussa a message saying he had just come from his solicitors and that he could not make it. He asked to reschedule for the following week after he had seen his solicitor again. The meeting was deferred to Tuesday 11 February 2020. Mr Kirby did not attend the scheduled meeting on 11 February 2020 and attempts to contact him after that time were unsuccessful.
[22] I find that Mr Kirby assumed his employment had been terminated on 1 February 2020 after discovering his shifts had been cancelled the day before and once he heard from a co-worker that he had been “sacked”. It was an understandable assumption to make in the circumstances. It explains why Mr Kirby rang and requested an Employment Separation Certificate on 5 February 2020 and why he was so upset when he received the Certificate with reason for separation marked “Employee ceasing work voluntarily”. Most likely, he was urgently seeking alternative income and needed the certificate to apply for Centrelink support but his ability to obtain relief was hindered by the certificate indicating that he had left of his own accord.
[23] However, Mr Kirby had not been dismissed. He was mistaken to think that he had. The last advice Mr Kirby had received from Tailored Workforce was to “call please”. It was unaware of the alleged privacy breach. It was waiting for him to call so that it could understand what had happened on 30 January 2020 and what to do next, whether in terms of restoring the working arrangement with Hellmann or finding another placement.
[24] On 5 February 2020, Mr Kirby finally spoke with Mr Moussa. He did not want to return to work at Hellmann. Mr Moussa offered to find him other work. He said he would get back to Tailored Workforce about that. For whatever reason, Mr Kirby chose not to engage further with Tailored Workforce after that time, despite its subsequent efforts to contact him.
[25] I am unable to conclude that Mr Kirby had no effective or real choice but to resign. He could just as easily have chosen to remain in employment with Tailored Workforce and take up the offer of an alternative placement.
[26] As to alleged repudiation of contract, it is not abundantly clear which terms of the contract are said to have been breached in this case, although the claim relates to cancellation of Mr Kirby’s shifts. The contract of employment appears to comprise a “Temporary Persons Contract of Engagement”, which contemplates continuation of employment with Tailored Workforce despite separate engagements. It includes the following terms:
“1. I will inform Tailored Workforce of any proposed changes to my duties or Contract of Engagement with clients.
2. I agree to be paid at a rate as agreed for each engagement and this may vary from time to time and from engagement to engagement. Where applicable, overtime rates and special allowances will be paid.
…
8. Employment declaration form (Tax Form) and Bank details are required prior to your first engagement, as specified by the Australian Taxation Office for Contractors providing labour.
9. It is expected that each contractor will complete the engagement as agreed…
…
11. Inability to attend an engagement must be notified. If any employee is absent without notification or permission, the management may consider it to be the employee’s intention not to resume work; therefore abandoning employment.”
[27] Tailored Workforce had not been notified by Mr Kirby of his absence on 30 January 2020 or given any reasons. It had asked him to call and it had cancelled his shifts but only on an interim basis. It did not hear from him until 5 February 2020. The evidence establishes that Mr Moussa still considered Mr Kirby an employee when they spoke on 5 February 2020. They discussed working at Hellmann. Mr Moussa told him that if he did not want to return to work at Hellmann, he would find him other work. A meeting was agreed for the following day. Whether considered separately or together, this is not the conduct of an employer who no longer intends to be bound by their contract of employment with an employee.
[28] Objectively assessed, the conduct of Tailored Workforce was not conduct that would convey to a reasonable person in Mr Kirby’s situation that it was no longer willing or able to meet its fundamental contractual obligations to him, either in whole or in part. It was not a repudiation of contract.
[29] It should not go without saying that this unfortunate series of events arose after Mr Kirby took a period of carer’s leave to which he was prima facie entitled under the Act, subject to notice requirements. The end of his employment was the result of a significant breakdown in communication. It is regrettable that more was not done by the parties to restore what was clearly a relationship of value to them both.
Conclusion and disposition
[30] Mr Kirby was not terminated at the initiative of Tailored Workforce. He was not dismissed.
[31] The application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
J O’Hagan for the Applicant
N Tindley for the Respondent
Hearing details:
2020.
Melbourne (telephone hearing):
June 18.
Printed by authority of the Commonwealth Government Printer
<PR720467>
1 Fair Work Act 2009 (Cth), s 386
2 Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941
3 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
4 City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, at [19]
0