Stacy Langdon v Prestige Universal Mining Pumps Pty Ltd
[2024] FWC 3365
•3 DECEMBER 2024
| [2024] FWC 3365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 365—General protections
Stacy Langdon
v
Prestige Universal Mining Pumps Pty Ltd
(C2024/7471)
| COMMISSIONER LIM | PERTH, 3 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – was the employee dismissed – employee was dismissed – objection dismissed – application to proceed.
Introduction
Mr Stacy Langdon has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth). Mr Langdon alleges that his former employer Prestige Universal Mining Pumps Pty Ltd dismissed him in contravention of Part 3-1 of the Act. PUMP objects to Mr Langdon’s application on the basis it did not dismiss him.
Before Mr Langdon’s application can proceed, I must determine whether PUMP dismissed him. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where there is a question over jurisdiction – as is the case here – the Commission must determine the jurisdictional issue before exercising its powers under s 368 of the Act.[2]
I conducted a determinative conference to hear evidence on the jurisdictional issue on Thursday 28 November 2024. Mr Langdon represented himself and gave evidence in support of his case. PUMP was represented by its Managing Director, Mr Andy Grigg. Mr Grigg and Ms Stacey Bernard, an employee of PUMP, gave evidence.
At the conclusion of the determinative conference, I informed the parties of my decision that that Mr Langdon had been dismissed and that Mr Langdon’s application is within the Commission’s jurisdiction. I then proceeded to conduct a conference to deal with the matter as required by s 368.
My detailed reasons for my decision follow.
What were the events that led to the end of the employment relationship?
There was no contest on the facts of the matter.
PUMP manufactures and services submersible pumps for the mining industry. Mr Langdon has worked for PUMP on and off over several years. Mr Langdon’s most recent period of employment with PUMP started in December 2023 where he was employed as a Company Manager.
Over September 2024, Mr Langdon and Mr Grigg disagreed over the payment of an outstanding invoice. This led to Mr Langdon emailing Mr Grigg his resignation and two weeks’ notice on the morning of Friday 27 September 2024.
After receiving this email, Mr Grigg called Mr Langdon to discuss his resignation. Mr Grigg requested that Mr Langdon continue to fill in the vacant store’s manager position during his notice period. Mr Langdon did not say anything in response to this. After the phone call, Mr Grigg sent Mr Langdon an email summarising the phone call and repeating the direction to fill in the store’s manager position. Mr Langdon replied to Mr Grigg with, “No I’m not confirming that”.
After this communication with Mr Grigg, Mr Langdon told Ms Bernard that he had resigned but that he would be at work on Monday 30 September 2024.
At the end of the workday on Friday 27 September 2024, Mr Grigg’s son dropped Mr Langdon home. Mr Grigg’s son asked Mr Langdon if he would be attending work on Monday. Mr Langdon replied with words to the effect, “that’s up to your dad, he can contact me and let me know what he wants to do”.
Mr Langdon did not attend work on Monday 30 September 2024. Mr Langdon says that he did not attend as he was not in the right head space and was seeking help. Mr Langdon also did not attend work on Tuesday 1 October 2024. He did not notify anyone of PUMP of his absences. PUMP also did not contact Mr Langdon.
In the evening of Tuesday 1 October 2024, Mr Langdon sent the following email to Mr Grigg:
“Hello Andy,
In light of our last conversation on Friday 27/9/2024, I did not confirm to your request to work out my notice period in a role that was different to what I was employed under, that being said, and moving forward, I have made some enquiries with fair work and another institution (no company details were mentioned in the conversation) we have a few options in front of us, that I would be willing to discuss over email,
1 we can come to a mutual agreement between us
2 You have the option to payout my notice period.
3 as a last resort we both have the option of taking this to another forum.
That being said, I will leave the ball in your court in regards to the 3 options above,
As always all pump uniforms will be returned cleaned Thursday this week, I also have two person items that I would like to be given to Neil or Kym,”
On Wednesday 2 October 2024, Mr Grigg replied to Mr Langdon with the following:
“Mr Stacy Langdon,
See attached your signed letter of offer that clearly states, “The below responsibilities consist of but are not limited to the following” This is included in all offers,
1: A manager’s role is also to assist in all areas of the business which includes assisting with the duties of vacant roles until that role is assigned to another person or new starter where you would then be required to train them in that role,
2: Put simply you were given a lawful and reasonable directive to assist in the vacant position,
3: More importantly a role that you had already been assisting in for the last 4 weeks since the position has been vacant
4: While during this time you did not raise any concerns with the role,
5: I fail to see your issue with continuing to assist in that role for a further 2 weeks as there was no change in your pay rate
6: As an employee you have a responsibility to follow all lawful and reasonable directives, of which this request falls squarely under that banner,
Due to your absence from your workplace with no communication to advise you employer of your nonattendance you are deemed to have Abandoned your employment, with the last paid day worked will be taken as Friday 27/9/2024,
I wish you all the best with your future endeavours,”
Did PUMP dismiss Mr Langdon?
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“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.”
The definition of dismissal in s 386(1) of the Act has two parts. The first deals with ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’.
In Mohazab v Dick Smith Electronics Pty Ltd,[3] a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.
and at 5: -
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
Mr Langdon says that PUMP dismissed him. PUMP says that Mr Langdon abandoned his employment, and PUMP did not dismiss him.
The principles regarding abandonment of employment were examined by the Full Bench in Bienias v Iplex Pipelines Australia Limited T/A Iplex Pipelines Australia.[4] At [41], the Full Bench noted:
“[41] In truth, once an employee is deemed pursuant to clause 21 of the Award to have abandoned his or her employment, the employment of the employee does not come to an end nor is the employer required to end the employment by terminating it. In order to do so, we consider the employer must take the additional step of terminating the employment and if it does not do so the employment continues.”
Though PUMP does not rely on a deeming provision in an award or contract in this case, I find that the Full Bench’s remarks are applicable here.
Considering the evidence, I find that though Mr Langdon did not attend work for two days, he did show a willingness to continue the employment relationship for the duration of the notice period. I reach this finding through his comments to Ms Bernard and his email on Tuesday 1 October 2024, which conveyed that he wanted to reach an agreement with PUMP on how his notice period was to be worked or paid out. I find that Mr Grigg’s email on Wednesday 2 October 2024 was an act of the employer that resulted directly in the termination of Mr Langdon’s employment.
As noted in [4] of this Decision, as a conference has been conducted in accordance with s 368 of the Act, the Commission’s function in this matter is now concluded.
COMMISSIONER
Appearances:
S Langdon, Applicant.
A Grigg for the Respondent.
Determinative Conference details:
2024.
Perth by Video using Microsoft Teams:
28 November.
[1] [2022] FCAFC 152.
[2] Ibid [51].
[3] [1995] IRCA 625.
[4] [2017] FWCFB 38.
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