Stephen Hutson v Marker Aviation Services Pty Ltd

[2020] FWC 1194

[2020] FWC 1194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Hutson
v
Marker Aviation Services Pty Ltd
(U2019/9164)

COMMISSIONER HUNT BRISBANE, 17 MARCH 2020

Application for an unfair dismissal remedy – jurisdictional objection – was dismissal at the initiative of the employer – applicant assumed he had been dismissed which was denied by the employer in writing

[1] Mr Stephen Hutson has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with Marker Aviation Services Pty Ltd (Marker Aviation or the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] Mr Hutson commenced employment with Marker Aviation as a Supervising Licensed Aircraft Maintenance Engineer (LAME) on 2 August 2018. His employment came to an end on 5 August 2019.

[3] Marker Aviation is a small business, and accordingly the minimum employment period required in order to be able to bring an unfair dismissal claim is 12 months. In a decision dated 26 November 2019, 1 I determined that Mr Hutson had service of at least 12 months and 1.1 days, and he had met the required minimum employment period.

[4] Marker Aviation raised a further jurisdictional objection to Mr Hutson’s application on the basis that he was not dismissed by Marker Aviation on 5 August 2019, or at all.

Determinative Conference

[5] The matter was listed for a determinative conference before me on 31 January 2020. Mr Sean Morgan, Solicitor, Australian Licenced Aircraft Engineers Association (ALAEA) appeared for Mr Hutson. Mr John Salter, Director, Accord HR was granted leave to appear for Marker Aviation. Mr Peter Gough, Owner and Managing Director gave evidence. Ms Stacey Gough, Director, attended.

Overview of Mr Hutson’s evidence and submissions

[6] Mr Hutson is a LAME, and he was employed as a Supervising LAME. He worked five days per week, Monday to Friday.

[7] On 29 July 2019 and 31 July 2019, Mr Hutson attended upon a local medical centre as he was unwell with a chest infection. On 1 August 2019 he emailed Marker Aviation two medical certificates, certifying that he was unfit for work from 29 July 2019 to 2 August 2019 inclusive.

[8] On Sunday, 4 August 2019, he returned to the medical centre and obtained a further medical certificate certifying him unfit for work from 5 – 9 August 2019 inclusive. He emailed Marker Aviation on 4 August 2019 stating that he was unfit to attend for work.

[9] On 4 August 2019, Mr Mgarrayi Marrie, a LAME colleague attended upon his home and collected training manuals. Mr Hutson gave to Mr Marrie the medical certificate.

[10] Mr Hutson spoke with a friend that evening, and it is Mr Hutson’s evidence that his friend suggested to him that he was being ‘stitched up’; that is, he was going to lose his job. His friend told him about other employment in Cairns, and Mr Hutson sent a text message that evening enquiring about employment. The prospective employer sent a return text the following morning.

[11] On 5 August 2019, at approximately 10:30am, Mr Marrie and Mr Ethan Walden, another LAME colleague attended upon his home. They had with them his toolbox which was ordinarily kept at work. When he inspected his toolbox he noticed:

(a) The toolbox is ordinarily locked and it had been accessed without his permission;

(b) His Commonwealth Government Aviation Security Identification Card (ASIC) had been removed;

(c) The keys for Marker Aviation’s lockable cupboards had been removed; and

(d) Marker Aviation approval books, and other stationery belonging to Marker Aviation had been removed.

[12] Mr Hutson considered that the removal of his ASIC meant that he could no longer work at the Mount Isa airport.

[13] The two employees requested from Mr Hutson the key to the hangar where he worked. He gave it to them. His evidence is that they each appeared extremely sad and disappointed. He asked them what it was like in the hangar, to which they replied that it was ‘hostile’.

[14] It is Mr Hutson’s evidence that he formed the impression, based on his observation from his colleagues that his employment was ‘all over, red rover’. He said to them, “I guess that’s it, then”, or alternatively, “Well it seems as if I don’t have a job at Markers anymore”, and they said, “Yes” and nodded. He told them that they’d go to the pub the following Friday and they said yes, but that did not happen.

[15] Mr Hutson considered that his employment had come to an end. At approximately 4.15pm, Mr Gough sent Mr Hutson a text message confirming his email address. At 4:26pm, Mr Gough sent to Mr Hutson the following email:

“Stephen,

As you are aware we have had several conversations about your work performance which for some time now has not met the expectations I have for a licensed aircraft engineer and hangar supervisor. I planned to have another discussion with you this morning regarding those issues and other important urgent operational matters, however, yet again, you have chosen to ignore established protocols by not attending for work, failing to notify me of your impending absence and inappropriately asking another staff member to submit an unspecific medical certificate on your behalf.

You are to call me immediately on [number] so that we can make suitable arrangements to meet as soon as possible and discuss the current situation, which is totally unacceptable to me. Unless you comply with this reasonable request from your employer by 0900 AEST tomorrow, I will regard that as a clear indication you no longer wish to be bound by your contract of employment with Marker.

I trust you will respond to this email promptly Stephen and with due consideration of the serious nature of the matters contained herein.”

[16] During the determinative conference, Mr Hutson stated that he considered the period between approximately 10:30am, when the toolbox was returned to him, and 4:30pm when the email was sent to him to be demonstrative that the employment had ended. He considered that if Mr Gough had contacted him around 10:30 when the toolbox was returned to his home, he might have taken a different view of the matter. He felt that receiving correspondence six hours later was ‘too late’. By that time, he considered that there was nothing that could have been said to have changed his mind that he had been dismissed. He considered it to be ‘pretty clear, cut and dry’.

[17] At 7:14pm, Mr Hutson sent the following email to Mr Gough:

“I have read your email. I will forwarding it on for review to the ALAEA 1st thing in the morning for their review. Your late response to issuing me an email will require a later response to these matters. I emailed last night that I would not be in due to the illness. I supplied the dr certificate that was given to me. I have no idea what was on these. I also have no control on what the dr issues. If you had a problem with what they had issued I should have ben told this earlier not at 4:20pm today.

You sent my tool box home to me with no notification until it arrived here. You have already made your mind up by sending it home and removing my asic and hangar key.

Your inference that you trying to place on me is not warranted not correct.

I will have the ALAEA representative call you tomorrow.

I will no longer respond till I have representation.

I was and still am unwell on serious medication.

And btw you sent Narri around on Sunday. I did not ask him around. I gave him the dr cert in good faith as the medication I was on prevents me from driving.

Steve”

[18] On 6 August 2019 at 12:56pm, Mr Morgan sent the following email to Mr Gough:

“Dear Peter,

This morning the ALAEA was contacted by its member Steve Huston (Steve) in relation to the termination of his employment with Marker Aviation. As a result, can you please pay Steve his lawful termination to ‘Notice’ in accordance with clause 13 of Steve’s contract of employment, in addition to all other accrued entitlements.”

[19] Mr Salter, on behalf of Marker Aviation replied to Mr Morgan at 5:43pm as follows:

“Without prejudice

I represent Marker Aviation as its authorised IR adviser.

Contrary to what you appear to have been advised, Marker has not terminated the employment of your member Stephen Hutson.

Stephen has not worked since 26 July 2019 and since then Marker has made several unsuccessful attempts to contact him, as it wants him to attend a meeting with its MD Peter Gough to discuss a number of negative aspects of his work performance. He did however respond yesterday to Marker’s latest email regarding its request to meet, indicating inter alia, that ALAEA would be contact Marker on his behalf.

Meeting with Stephen regarding his future employment remains Marker’s intention at this point in time, however, should it be prevented from completing appropriate due process, then it will obviously need to consider all its options. Notwithstanding that, Marker notes that, on the information it currently has before it, your member gives every indication he no longer wishes to be bound by his contract of employment with Marker and confirmation of his intentions in that regard would be appreciated.

Marker will also consider any reasonable proposal from the ALAEA or Stephen to enable resolution of any and all issues considered to be of relevant dispute.

Please forward any response and future correspondence in relation to this matter to me.”

[20] Mr Morgan responded to Mr Salter at 8:09pm as follows:

“Hi John,

Thank you for your timely response.

In light of what you state in your email about ‘no termination’ being effected, is your client able to explain why he made the decision to have Steve’s toolbox delivered to his home by two other employees? It is also pertinent to add that Steve’s ASIC had been removed from his toolbox. Such actions are unmistakeably congruent with a termination and/or repudiation of a contract of employment, and Steve has treated it as such.”

[21] Mr Hutson considered that the employment opportunity in Cairns went ‘cold’ on account of Mr Gough’s stated interference in the opportunity. He later commenced work on 16 September 2019 in Sale, Victoria as a LAME. The offer of employment from the new employer to Mr Hutson is dated 30 August 2019, and states:

“Dear Stephen,

Re: Offer of Employment

I have pleasure in making you an offer of continued employment with [name]……..

You will commence your new position with the Company on a mutually agreeable date……” [their emphasis]

[22] Mr Hutson’s supplementary statement incorrectly stated that he commenced with the new employer on 16 August 2019, however he corrected it to read 16 September 2019. There was some discussion during a telephone conference I convened on 30 January 2020 in respect of this matter as to whether Mr Hutson commenced with the new employer in some capacity prior to the offer of permanent employment, and earlier than 16 September 2019. An email dated 30 January 2020, from a manager within the new employer was forwarded to my chambers demonstrating that Mr Hutson first commenced employment with the new employer on 16 September 2019, and not beforehand. I accept the email as evidence that Mr Hutson commenced new employment with the new employer on 16 September 2019 and not beforehand.

[23] Mr Hutson remained unwell until 21 August 2019.

[24] It was submitted that Marker Aviation’s conduct in attending upon Mr Hutson’s home on 4 and 5 August 2019 to retrieve training manuals, and to return to him his toolbox with items missing from it was a clear and unambiguous notification of Mr Hutson’s dismissal. It was submitted that Mr Marrie and Mr Walden knew too that Mr Hutson’s employment was at an end.

[25] Mr Hutson submitted that there was no reason for an attendance at his home on 4 August 2019, as nobody knew, at that stage, that he was not well enough to attend the next day, and he could have brought the manuals with him when he next attended for work, which within the Respondent’s knowledge should have been the next day.

[26] It was submitted that where the Commission finds that the Respondent has dismissed Mr Hutson, it is very difficult for the Respondent to maintain any argument under the Small Business Fair Dismissal Code that it had complied with the Code.

Overview of Marker Aviation’s evidence and submissions

[27] Mr Gough stated that Mr Hutson commenced employment with Marker Aviation in August 2018, and it became necessary to extend the probationary period on account of Mr Hutson’s standard of work performance. The probationary period was extended until 28 February 2019.

[28] The following performance notes were made relevant to Mr Hutson’s work performance in 2019:

“25/01/2019 Staff review carried out. Steve given verbal warning about the ongoing safety issues. 29/01/2019 toolbox audit carried out – several issues found with Steve’s toolbox that he was asked to fix.

07/03/2019 Staff training – booking out parts, ordering parts, protocol with customers – [name], hours on jobs, toll and leave forms.

26/03/2019 CASA Awi speaks to Steve during our audit regarding his toolbox not being up to standard meeting regulations.

17/04/2019 Audit observation received from CASA regarding Steve’s toolbox. Steve advised Peter that he will have his toolbox rectified by the 24/05/2019.

15/05/2019 Safety report submitted regarding induction hose not fitted correctly causing massive induction leak. Steve given verbal warning about his complacency and carrying out his job correctly.

16/05/2019 Safety report regards not carrying out compass swing correctly and fitting an old-style compass swing card that doesn’t comply with the latest AWB 34-008 issue 2. Steve given verbal warning about following procedures and setting an example for other staff.

23/05/2019 Safety report submitted regarding not carrying out duplicate inspection correctly. Steve did 1^st inspection on flight controls after tail was refitted and the up elevator cable bolt was loose and not safetied. Steve given verbal warning with regards to his ongoing complacency and he needs to properly inspect all work carried out I.A.W. car 42G.

24/05/2019 Toolbox was to be completed by today but has not been done.

25/05/2019 Safety report submitted regarding finding engine leads only finger tight after aircraft has been signed out. Stegve given official verbal warning with regards to his ongoing complacency.

18/06/2019 Verbal discussion/warning.

01/07/2019 Email sent to Steve regarding the man hour plan in the diary not filled out correctly and with a list to rectify.

05/07/2019 Email sent to Steve with a list of jobs to be completed by the time Peter got back from leave on 01/08/2019.”

[29] On 17 July 2019, Mr Gough met with Mr Hutson and completed a one-year performance review. Mr Gough left Mt Isa on 17 July 2019. On 21 July 2019, Mr Gough sent to Mr Hutson the written performance review and asked him to respond to it. Mr Gough then left on 22 July 2019 to travel to New Zealand. He was due to return to work on 1 August 2019. The one-year performance review is produced in part below:

“Hi Steve,

Sorry for the delay with this email but to capture our conversation for your 1 year performance review, please read the following dot points which are intended to help you.

Although I think you are slowly improving, there are still some really bad habits of yours that hinder our work place and the Marker team.

•  Complacency

We talked about you being complacent and you really need to knock this on the head right now! The amount of safety reports that have come from your complacent ways and near misses with incidents in the last year is simply ridiculous for someone of your experience.

•  Mistakes

I feel you don’t care sometimes or consider it not important to you. This is why you conveniently forget when you make mistakes and I hear the freight train coming with all the excuses.

It is my opinion that you need to learn from the mistake and work out a way to fix it rather than making up feeble excuses.

When I make mistakes I OWN IT and learn from the mistake.

A classic example of you making excuses:

The comment from you during the review was that you didn’t work on SUX engine although you signed the aircraft out.

As discussed, I checked the camera footage.

You might also remember replacing the gear warning miscroswitch on the engine of SUX?

Regardless of what parts of the engine you worked on, it is still the responsibility of the co-ordinator to ensure all work is double checked before release.

I suggest you use the post maintenance checklist and not just tick it off to keep everyone happy. If it needs additional items, please let me know.

Paperwork

Following paperwork procedures will save a lot of problems when an aircraft is released and this is a real safety issue.

It is our procedure to do the following for release to aircraft to service that require a maintenance release.

……….

DO NOT do a maintenance release till items 1 to 3 have been finalised! This is a sackable offence as I will not allow it.

•  Planning

………..

………..

•  Procedures

……….

……….

•  Interruptions

……….

……….

•  Consistency

……….

……….

Don’t be lazy and put jobs off because they are boring or insignificant in your eyes.

On a positive note, I forget to mention that I was impressed with the installation on PSY engine so well done.

Summary

You are well within your rights to continue with what has happened over the last year and not take on my dot points to lift your standards.

I am well within my rights to one day after another incident or lack of following procedures and tell you to pack up your tool box because I have had enough.

Please make sure all outstanding jobs like your tool box control and FPA training are complete before I return as I will not be accepting ANY excuses.

This will go on your file with everything else over the last year so please reply with your thoughts.

If you are going to reply with excuses, please don’t bother as I want positive feedback from you as to how you will move forward as I really think we need to leave the last year behind us.”

[30] On 25 July 2019, Mr Gough emailed Mr Hutson requesting a response to the above letter. Mr Gough stated that Mr Hutson replied in a form which was unsatisfactory and unacceptable to him, but this evidence is not before the Commission.

[31] On 26 July 2019, Mr Hutson left work with no instruction to other staff in his absence. On 29 July 2019, Mr Hutson attended for work at 7:30am, but left at 8:00am stating that he was unwell. At 11:51am, Mr Hutson sent to Ms Cailin Ginn, Parts Administrator a text message stating that he had a chest infection.

[32] Mr Gough considered that Mr Hutson’s absences left the operations in a situation where it might have breached CASA requirements. Accordingly, Mr Gough attempted to manage the operations remotely from New Zealand.

[33] At 3:45pm on 30 July 2019, Mr Hutson rang Ms Angela Bentley, Administration Assistant to advise that he would be at work the following day. On 31 July 2019 he did not attend for work as he had stated, and at 3:26pm he sent a text message to Ms Ginn stating that he would not be at work up to and including 2 August 2019.

[34] Mr Gough returned to work on 1 August 2019 and met with staff. He discovered that Mr Hutson’s toolbox had not been reorganised as requested. It is Mr Gough’s evidence that having a disorganised toolbox is a serious safety breach. When working on planes, it is necessary to account for all tools used, to ensure they are not left in or on the plane.

[35] On 2 August 2019 Mr Gough requested Ms Ginn to collect the Metro training manuals that Mr Hutson had at his home. Mr Gough’s evidence is that he needed them as was having some difficulty working on a particular plane, and the manuals were required. Ms Ginn informed Mr Gough that she was having trouble contacting Mr Hutson. Mr Hutson later sent a text message to Ms Ginn informing her that Mr Marrie could collect the documents.

[36] Mr Hutson did not attend for work at 7:30am on 5 August 2019. Mr Marrie arrived at work at 7:50am and informed Mr Gough that Mr Hutson would not be at work that week, and provided Mr Hutson’s medical certificate certifying him unfit for work for the remainder of the week.

[37] At approximately 9:00am, Mr Gough instructed Mr Marrie and Mr Walden to pack up Mr Hutson’s toolbox and take it to his premises. It is his evidence that he did this because he had instructed Mr Hutson to fix his toolbox on so many occasions and he had not done so. He considered that he could do this while he was on leave. Mr Gough removed the ASIC and other authorisations, keys and stationery items as a security precaution. He asked his employees to request the hangar keys from Mr Hutson as he would not need them until his return to work.

[38] Mr Gough stated that he is the only person within Marker Aviation with the authority to approve any action relevant to the employment of employees, including engaging staff for employment, performance management and/or disciplinary action. His evidence is that at no stage did he verbally or otherwise terminate Mr Hutson’s employment, nor give any such indication to Mr Marrie and Mr Walden.

[39] On 5 September 2019, Mr Morgan sent an email to Mr Salter advising that Mr Hutson had procured alternative employment and was leaving Mt Isa. Mr Gough considered that Mr Hutson had decided to terminate his employment with Marker Aviation from that date, and accordingly, a recruitment process began to replace Mr Hutson as Hangar Supervisor. It is noted that Marker Aviation was aware from as early as 20 August 2019 that Mr Hutson considered he had been dismissed, as this is the date the Form F2 – Unfair dismissal application was served on Marker Aviation by the Commission.

[40] In cross-examination, Mr Gough agreed that Mr Hutson’s toolbox was locked at the end of each day, and a locked toolbox is therefore not a compliance concern while it is locked. Mr Gough considered it a compliance issue when it was in use, if it is disorganised.

[41] Mr Gough’s evidence is that if Mr Hutson had returned to work after his period of leave, he would have inspected the toolbox, and would have returned Mr Hutson’s ASIC to him. Mr Gough considered that Mr Hutson would not have required the ASIC whilst at home on personal leave.

[42] Mr Gough considered that Mr Salter informed Mr Morgan why the employment had not ended and why the toolbox was sent home.

[43] It was submitted that there had been no dismissal at the initiative of Marker Aviation. Further, where Mr Hutson considered that he had been dismissed, Marker Aviation purposely wrote to his representative to deny that he had been dismissed, and in fact confirmed his ongoing employment.

[44] It was submitted that it must be demonstrated that Marker Aviation took action with the intent to bring the relationship to an end, or that was the probable result, and that could not be demonstrated in this matter.

Legislation

[45] Section 386 of the Act states:

“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.”

[46] Mr Hutson submitted that when viewed objectively, the actions of Marker Aviation, and Mr Hutson’s response to those actions unequivocally indicate that Mr Hutson’s employment was terminated at the initiative of Marker Aviation, and that Mr Hutson accepted it as such.

Applicable case law

[47] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab), 2 a termination is at the employer’s initiative when:

•  the employer’s action ‘directly and consequentially’ results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed.

[48] In O’Meara v Stanley Works Pty Ltd 3 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[49] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee. 4

[50] It was submitted by Mr Hutson that the Commission should have regard to the decision in Nurcombe v Balaclava Pastoral Co Pty Ltd[2016] FWC 7454, the relevant consideration as to whether there was a dismissal, undisturbed by a Full Bench decision in the matter. The following passage was cited:

“[57] The requirement for the return of the Hotel keys was action on the part of the employer that was consistent with dismissal. This was particularly the case because less than three weeks earlier the applicant had been stood down in relation to the miracle box theft incident, and there had been no requirement for him to surrender his Hotel keys at that time. Consequently, it would seem that although the employer was telling the applicant that he was stood down, the requirement for the return of the Hotel keys reflected the underlying, true intention of the employer to bring the employment to an end……..”

Was Mr Hutson dismissed at the initiative of the employer?

[51] Mr Hutson stated that if Mr Gough had contacted him much earlier than around 4:30pm on 5 August 2019, and closer to 10:30am when his toolbox was returned to his home, he would not have considered his employment to have come to an end at the initiative of the employer. Interestingly, Mr Hutson put a time limit on the employer’s actions, stating that six hours was far too long a period for Mr Gough to have made contact with him.

[52] I have taken into consideration the concerns Mr Gough held for a considerable period of time as to the state of Mr Hutson’s toolbox. He had been asked for a very long period of time to attend to the task. For the period up until August 2019, the request for him to attend to it was during work time. It was not an unreasonable request, and as is demonstrated in Mr Gough’s letter to him of 21 July 2019, Mr Gough was exhausted with the various excuses he stated that Mr Hutson made. The following from Mr Gough to Mr Hutson was the clearest indication of his exasperation:

“You are well within your rights to continue with what has happened over the last year and not take on my dot points to lift your standards.

I am well within my rights to one day after another incident or lack of following procedures and tell you to pack up your tool box because I have had enough.

Please make sure all outstanding jobs like your tool box control and FPA training are complete before I return as I will not be accepting ANY excuses.”

[53] Mr Gough was, I accept, inconvenienced in having to remotely supervise the operations whilst on holidays in New Zealand. This was on account of Mr Hutson’s absence on personal leave, and on the evidence before the Commission, Mr Hutson was genuinely ill.

[54] I accept Mr Gough’s evidence that he required use of the Metro manuals, and he sought to have them picked up from Mr Hutson’s home. When Mr Hutson would not respond to Ms Ginn, he sent a text to state that Mr Marrie could pick them up. At no stage did he say that he would be in at work on the Monday and he would bring them in. He agreed to Mr Marrie picking them up from his home on the Sunday.

[55] Considering all of the evidence and submissions before the Commission, together with relevant case law, while Mr Gough may arguably have foreshadowed that a future breach would result in his employment ending by having Mr Hutson “pack up [his] toolbox”, I do not find that the act of Mr Gough sending to Mr Hutson’s home his toolbox constituted a dismissal of Mr Hutson’s employment.

[56] I accept Mr Gough’s evidence that neither Mr Marrie or Mr Walden had any authority to indicate or inform Mr Hutson that he had been dismissed. Mr Hutson did not provide any direct evidence to the Commission that his colleagues had informed him that Mr Gough had dismissed him. The highest his evidence reached is his impression that they too considered his employment was at an end, and an answer “Yes” to either, “I guess that’s it, then”, or “Well it seems as if I don’t have a job at Markers anymore”.

[57] I consider that Mr Marrie and Mr Walden did no more than deliver Mr Hutson’s toolbox to him. Mr Gough was very clear in his email to Mr Hutson on the afternoon of 5 August 2019 what was required and expected of him. Mr Gough’s email demonstrated his frustration, and it is toned accordingly. It is written in the tense of Mr Hutson’s employment being on foot. It is not written in the tense of the employment already having come to an end.

[58] I find that Mr Hutson improperly formed an opinion that his employment had come to and end. On his evidence, the employment could have been ‘saved’ closer to 10:30am if only Mr Gough had contacted him. On his evidence, he concluded, some time after 10:30am and before 4:30pm that it had come to an end.

[59] It should have been clear to Mr Hutson when he received Mr Gough’s email that the employment was in place. Mr Gough demanded contact before 9:00am the next day. That would not be required if the employment had already come to an end at the initiative of the Respondent. Marker Aviation already had the hangar keys, and Mr Hutson already had his toolbox.

[60] The only impression Mr Hutson gave that he considered that his employment had come to an end at Marker Aviation’s initiative in his email of 5 August 2019 is when he stated:

“You have already made your mind up by sending it home and removing my asic and hangar key.

Your inference that you trying to place on me is not warranted not correct.”

[61] Mr Salter’s email to Mr Morgan was clear; there had not been a termination at the employer’s initiative, and if Mr Hutson thought that to be true, he was mistaken. It seems unusual to me, and rather counterintuitive that the ALAEA, on behalf of Mr Hutson then persisted with asserting that the employment had come to an end at the employer’s initiative. It is easier to attempt to preserve an employment relationship if an employer insists it exists, than trying to claim unfair dismissal where an employee asserts that there has been a dismissal which is denied by the employer.

[62] Relevant to Mr Hutson’s ASIC having been removed from his locked toolbox, I do not consider it to have been unreasonable for Marker Aviation to have taken that course of action. It wasn’t required at Mr Hutson’s home, whether in the toolbox or not. Had Mr Hutson returned to work after recovering from his illness, it would have been returned to him. It was a card paid for by Marker Aviation, and I accept that it is safer to be at the workplace than at a private residence. I do not accept that the removal of the ASIC equates to a conclusion that could reasonably have been drawn that the employment had been terminated at Marker Aviation’s initiative. For the same reasons I do not accept that the removal of Marker Aviation items, including stationery, or the requirement for Mr Hutson to hand back the hangar keys constitutes a dismissal at the employer’s initiative.

[63] When regard is had to the Respondent’s written notification that the employment had not come to an end at its initiative, and accepting Mr Gough’s reasons for sending the toolbox home and removing the ASIC and other items, I do not find that the employment ended at the Respondent’s initiative.

Conclusion

[64] Mr Hutson drew the conclusion that his employment had come to an end at an arbitrary time between 10:30am and 4:30am, but then did not alter his thinking upon being sent Mr Gough’s email directing him to urgently contact him. Mr Gough’s email was clear that the employment was still on foot.

[65] I do not find, having regard to the relevant authorities that the actions of Marker Aviation directly and consequentially resulted in the termination of employment, and had those actions not been taken, Mr Hutson would have remained employed. I do not find the action taken by Marker Aviation intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.

[66] I do not find that there was a dismissal pursuant to s.386(1)(a) on the employer’s initiative. Accordingly, I must dismiss the application and I do so.

COMMISSIONER

Appearances:

Morgan S, Australian Licenced Aircraft Engineers Association (ALAEA), for the Applicant.
Salter J, Accord HR, for the Respondent.

Hearing details:

31 January 2020, Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR717251>

 1   Hutson v Marker Aviation Services Pty Ltd[2019] FWC 8062.

 2 [1995] IRCA 645.

 3   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 4   Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).