Stamatis Pates v Norseman Great Western Unit Trust T/A Great Western Motel
[2023] FWC 2004
•11 AUGUST 2023
| [2023] FWC 2004 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Stamatis Pates
v
Norseman Great Western Unit Trust T/A Great Western Motel
(C2023/3492)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 11 AUGUST 2023 |
Application to deal with contraventions involving dismissal
Dispute
Mr Stamatis Pates (the Applicant) was employed by Norseman Great Western Unit Trust T/A Great Western Motel (the Respondent) as a cook. Having started work on a casual basis on or around 21 September 2022, on 20 May 2023, he was found unconscious by a kitchenhand between the oven and the pass in the Respondent motel. Initially, he was transported by ambulance to a local hospital, only to be subsequently airlifted to a hospital in Perth. On 22 May 2023, the Respondent processed wages for the fortnight and deducted from the Applicant’s wages $1,744.65, which the Respondent claimed the Applicant owed it. The Applicant was said to have subsequently sent a text message to ‘Julz Barton’ (Manager of the Respondent) on 22 May 2023, asking if he had been ‘fired’. According to the Respondent, the Applicant was informed that he was unable to be rostered for work because he was in hospital and his belongings in the staff accommodation were packed up and placed in his car, as the motel was fully booked. On or around 25 May 2023, the Applicant was said to have presented to the Respondent motel, and was informed that the Respondent could not have him working until such time as his health was ‘100%’. The Respondent said that the Applicant replied that could take months, to which Ms Barton is said to have replied ‘exactly!’. The Applicant claims he was dismissed. The Respondent contends he was not and has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly 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.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.
For the reasons that follow, I have found that the Applicant was ‘dismissed’ by the Respondent and therefore the jurisdictional objection is dismissed. Accordingly, the matter will now be referred to a case manager for the listing of a conciliation conference.
Background
The Applicant’s evidence in chief was provided in the form of four handwritten documents. One document outlined a chronology of events and the three other documents were responsive statements to what had been said in the witness statements of the Respondent’s employees, Julie Barton, Manager of the Respondent, Teresa Hay, Payroll, and the Respondent’s owner, Terry Cornelius.
It is observed that both parties were self-represented and notwithstanding directions provided prior to the hearing and instruction provided during the course of the hearing, it was evident that neither party was prepared in respect to the cross-examination of witnesses and challenging the evidence of the other party. This inevitably made the assessment of credibility a somewhat vexed exercise. However, I would simply observe that the Applicant demonstrated an inclination to make inferences or otherwise paraphrased what had been purportedly said by others; at times he also struggled to provide temporal references in respect of statements he was making and was accordingly prompted to do so.
2.1 Applicant’s evidence
The Applicant confirmed that on 20 May 2023, whilst working in the kitchen of the Respondent motel in Norseman, Western Australia, he collapsed and was subsequently taken by ambulance to Norseman Hospital. The Applicant said he was airlifted to a hospital in the Perth metropolitan area where he was treated for a stroke. The Applicant gave evidence that he remained in hospital until 26 May 2023 and was then discharged. The Applicant reports having taken a train back to Norseman at that time, and that Ms Barton arranged for him to be picked up. The Applicant stated he arrived back at the Respondent motel at 6:00 PM on 26 May 2023.
It was the Applicant’s evidence that upon arrival at the Respondent motel, he was informed by Ms Barton that all his belongings had been packed into his car and that a new chef had been employed.
The Applicant said that his wages for the previous fortnight had been withheld because of money he owed on a van. The Applicant said he had purchased the van and entered an agreement with the Respondent to pay it off. However, as he had no money, Mr Cornelius loaned him $500 so he could return to Sydney.
The Applicant said that on or around 27 May 2023 he returned to Perth, which cost him $350.00 in fuel. Thereafter he spent the next 29 days sleeping in his car until he could accumulate sufficient funds to return to Sydney. At hearing, the Applicant stated that he was required in Victoria on 26 June 2023 for court proceedings and had pre-arranged with the Respondent to attend those proceedings at that time.
The Applicant claims his employment was terminated and when he spoke to Ms Barton, approximately two weeks after he was last at the Respondent motel, he was told it was the decision of Mr Cornelius and not her decision.
2.2 Respondent’s evidence
Ms Barton gave evidence that the Applicant was employed as an ‘all-rounder’; that is, an employee who performs kitchenhand, restaurant, and laundry duties.[3] It is uncontroversial that as part of his remuneration the Applicant was provided with free food and accommodation.[4]
It is noted that whilst the Applicant started employment with the Respondent on a casual basis, the Applicant was, according to the Respondent, offered a permanent part-time position on 30 November 2022. The Applicant declined the offer of permanent employment and therefore the Applicant was purportedly given a further casual contract. The Respondent considered that the Applicant fell under the classification of a ‘Level 3 Guest Service Grade 2/ Level 3 Cook Grade 2’ under the Hospitality Industry (General) Award.[5]
Ms Barton detailed issues with the Applicant’s attendance at work during the course of May 2023.[6] Some of those attendance issues were said to relate to the purported ill health of the Applicant (9 May 2023, 16 May 2023, and 17 May 2023) and others concerned the Applicant claiming he had quit or threatening to quit unless provided with a permanent contract (13 May 2023 and 15 May 2023).[7]
Ms Barton said that on 20 May 2023, at approximately 4:45 PM, the Applicant was found lying on the ground between the oven and the pass, unconscious.[8] Ms Barton said that she and another staff member placed the Applicant into the recovery position and called for an ambulance.[9] Ms Barton confirmed he was taken by St John Ambulance and then airlifted to Sir Charles Gardiner Hospital in Perth.[10]
Ms Barton gave evidence of text messages passing between her and the Applicant over the course of 21 May 2023. Ms Barton said on 22 May 2023, the Applicant asked her whether he had been fired.[11] Ms Barton said the text messages between her and the Applicant were to the effect:
He replied: Have I been fired Julz
I replied: You need to look after your health, and make it a priority! Obviously I can’t roster you, because of where you are. So for now you need to get well and be well. That is all x
So I have a job to come back to
I replied: Not until your health is 100%
Steve replied: That might take a while mate how do I get home now
I replied: That’s exactly what I mean, I can’t continue working you whilst your health is deteriorating. You must make it a priority to get better! I will pack your room up –
everything is safe xSteve replied: What about my pay can’t believe she’s with held my pay.
I replied: Not sure at the moment, will let you know when I know x
On May 23rd at 8:28am I text Steve: Good Morning Teresa said she sent you an email??? I’m off to Esperance- best of luck for results x
He replied : No email, just bullshit[12]
Ms Barton said that on 25 May 2023, the Applicant arrived back at the motel and explained to her that he was given the wrong medication for his diabetes. Ms Barton said she informed the Applicant that he had not been looking after himself since Christmas and that his health needed to be his priority.[13] Ms Barton said that she further explained to the Applicant that she could not put him on the roster until his health was ‘100%’.[14] Ms Barton said the Applicant replied: ‘that could take months’, and she replied ‘exactly’.[15]
Ms Barton denies having informed the Applicant some two weeks after he was last at the motel that Mr Cornelius had made the decision to terminate his employment. According to Ms Barton, she informed the Applicant that his health was a priority and that he needed to look after it.
Mr Cornelius gave evidence that the Applicant befriended everyone and that he loved his job, the motel, Norseman, his boss, and the motel’s guests. However, following the Applicant’s collapse, Ms Barton had to work on the assumption that the Applicant’s health was his most important issue and that his personal disregard for it had placed him in a position where he was not forced to prioritise it and take care to adequately rehabilitate.[16]
Ms Hay explained that the reason for deducting monies from what was to be the Applicant’s final pay, was that the Applicant owed the Respondent money for a van that had been purchased by the Respondent. Ms Hay said she was aware that the Applicant had already sold the van and received money for it. As the Respondent was unsure that the Applicant would return to work, the Respondent deducted the balance he owed for the van from his wages for the fortnight. Ms Hay said that the Applicant advised that he was returning to Sydney and on 2 June 2023 requested a separation certificate.[17] At hearing, Ms Hay said that a separation certificate was provided on 6 June 2023, and that it referred to the Applicant as having resigned.
Consideration
3.1 Relevant principles
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. However, that section is relevant for present circumstances. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386. Section 386 reads:
(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.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘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’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[18] in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here 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. Unlike the situation in (1), the requisite employer conduct is the essential element.[19]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) gave further consideration to the operation of s 386(1)(a), expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[20]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[21] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[22]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[23] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
3.2 Termination at the Respondent’s initiative
The question for determination in this application is whether the Applicant was dismissed by the Respondent. This is an antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368. In this respect, it is necessary only to consider the Applicant’s primary position, being that he was dismissed withing the meaning of s 386(1)(a) of the Act.
It is not in dispute that s 386(1)(a) of the Act refers to a dismissal occurring where a person’s employment has been ‘terminated on the employer’s initiative.’ There may be a dismissal pursuant to s 386(1)(a) where the action of the employer is the principal contributing factor leading to the employment’s termination.[24]
It is an indubitable fact that having suffered ill health for which he was hospitalised between 20–25 May 2023, the Applicant returned to the Respondent motel on or around 26 May 2023. Prior to his return on this date, the Respondent had removed his personal belongings from the motel accommodation (that was provided as part of his remuneration) and had failed to place him on the roster.
There is evidence of text message dialogue between Ms Barton and the Applicant occurring on 22 May 2023. In that dialogue the Applicant asks whether he has been ‘fired’ and Ms Barton replies to the Applicant ‘Let me find out whats [sic] going on!’. The Applicant again asks the question, and text messages pass between the Applicant and Ms Barton as detailed at paragraph [16] of this decision. Whilst the text messages do not include an express reference to the Applicant’s employment having been ‘terminated’ or that he had been ‘dismissed’, it is evident that what was communicated to the Applicant was that he was not rostered to work because of where he was (the hospital), that he was to make his health a priority (the inference being not work), that he did not have a job to come back to until his health was 100% and that Ms Barton could not continue working the Applicant whilst his health was deteriorating. Ms Barton further communicated that she would pack up his room.
Ms Barton and Ms Hay gave evidence that the aforementioned action was taken in light of the Applicant’s health problems and the Respondent being unclear as to when the Applicant would return to work.
When the Applicant presented to the Respondent motel on or around 26 May 2023, Ms Barton gave evidence that she informed the Applicant that she was concerned and that his health needed to be his priority, and that she could not put him on the roster until his health was one hundred percent. When the Applicant suggested that could take months, Ms Barton said she responded ‘exactly’.
Having regard to the evidence and surrounding circumstances, I do not consider that it was reasonably open to the Respondent to conclude that the Applicant had terminated his own employment. Whilst the Respondent was aware of the Applicant’s health issues, there was no suggestion by the Applicant that he no longer sought to be employed by the Respondent. It was in fact the Applicant who had asked whether he had been ‘fired’ and it was the Respondent who communicated to the Applicant that he could not be rostered (until such time as his health was one hundred percent), that his belongings in this accommodation had been packed into his car and the Respondent motel was full therefore there was nowhere for him to stay, and that he was to make his health a priority.
Whilst the Applicant is said to have asked for a separation certificate, and Ms Hay informed the Commission that such certificate referred to the Applicant having resigned, the evidence before the Commission points to a different conclusion.
I am satisfied, and I find, that the Respondent’s actions in removing the Applicant from the roster from 26 May 2023, communicating to him that he could not be placed on the roster until he was ‘100%’, informing him he was to make his health the priority, and removing his belongings from the employer provided accommodation, were, in culmination, the principal contributing factor which brought the employment of the Applicant to an end on 26 May 2023. Having regard to my findings at paragraph [34] of this decision, I do not accept the Respondent’s contention that it did not dismiss the Applicant.
I note that there was a discrepancy between the date when the Applicant is said to have presented to the motel after his hospitalisation. The Applicant contends it was 26 May 2023 and the Respondent 25 May 2023. For the purpose of the issue to be determined, little turns on the discrepancy. However, in the circumstances, I consider that Ms Barton and Ms Hay are likely to have a better appreciation of the date given the Applicant’s difficulty with temporal preciseness.
3.3 A forced resignation
In light of the findings reached, it should be evident that I do not consider that the Applicant resigned from his employment. It is further noted that the Applicant did not press that he had resigned from his employment.
Conclusion
I find that the Applicant has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, at the time the Applicant made the application under s 365, the Applicant was a person who had been dismissed for the purposes of s 365 of the Act. The Respondent’s jurisdictional objection is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
S Pates, Applicant
T Hay for the Respondent
Hearing details:
2023.
Perth (by video):
10 August.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[2] Ibid 602 [51].
[3] Witness Statement of Julie Barton (Barton Statement).
[4] Ibid; Digital Hearing Book Part 2, 9 (DHB Part 2).
[5] MA000009.
[6] Barton Statement (n 3); DHB Part 2 (n 4) 9.
[7] Barton Statement (n 3); DHB Part 2 (n 4) 9.
[8] Barton Statement (n 3); DHB Part 2 (n 4) 10.
[9] Barton Statement (n 3); DHB Part 2 (n 4) 10.
[10] Barton Statement (n 3); DHB Part 2 (n 4) 10.
[11] Barton Statement (n 3); DHB Part 2 (n 4) 10.
[12] Barton Statement (n 3); DHB Part 2 (n 4) 11.
[13] Barton Statement (n 3); DHB Part 2 (n 4) 11.
[14] Barton Statement (n 3); DHB Part 2 (n 4) 11.
[15] Barton Statement (n 3); DHB Part 2 (n 4) 11.
[16] Witness Statement of Terry Cornelius; DHB Part 2 (n 4) 17.
[17] Witness Statement of Teresa Hay; DHB Part 2 (n 4) 15.
[18] (2017) 271 IR 245.
[19] Ibid 268–9 [47].
[20] (2018) 273 IR 126, 129–30 [10]–[11].
[21] (1995) 62 IR 200 (Mohazab).
[22] (2016) 262 IR 221, 228 [23].
[23] Mohazab (n 21) 205.
[24] Ibid 206; Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 69 [50]. Cf NSW Trains v James (2022) 316 IR 1, 20 [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect, see Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37, [33].
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