Steve Goldburg v Glenn Ashley & Debra Therese Offner T/A Central West Furniture Transport and Storage
[2023] FWC 2042
•16 AUGUST 2023
| [2023] FWC 2042 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Steve Goldburg
v
GLENN ASHLEY & DEBRA THERESE OFFNER T/A CENTRAL WEST FURNITURE TRANSPORT AND STORAGE
(C2023/2611)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 16 AUGUST 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection of no dismissal – objection dismissed.
On the 9 May 2023, Mr Steve Goldburg (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 19 April 2023 by Glenn Ashley & Debra Therese Offner T/A Central West Furniture Transport and Storage (the Respondent) contravened his workplace rights. In its Form F8A response the Respondent raises two jurisdictional objections to the Application, that being the Applicant’s employment does not meet the minimum employment period and the Applicant was not dismissed (the jurisdictional objections).
While relevant to the exercise of the Commission’s jurisdiction in an unfair dismissal application, the period of the Applicant’s service is not relevant to a general protections application made pursuant to s 365 of the Act. As such the first jurisdictional objection of the Respondent may be quickly disposed of and is dismissed. The Respondent’s second jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that issue before exercising its powers under s. 368 of the Act[2]. Consequently, the first issue for determination is whether the Applicant was dismissed from his employment within the meaning of s. 386(1)(a) or (b) of the Act.
Following allocation of the matter to my Chambers on 5 June 2023, Directions were issued to the parties for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objections was listed for 2 August 2023. A further hearing was conducted on 14 August 2023 to deal with telephone records ordered to be produced and to hear closing submissions. At the hearings, the Applicant appeared on his own behalf and gave evidence. Mr J Carpenter of Blackwell Short was granted permission to appear on behalf of the Respondent pursuant to s 596 of the Act. Mr Carpenter called Mr G Offner, a partner of the Respondent and Mr G Welsh who was the Respondent’s Warehouse Manager, to give evidence.
Background and evidence
On 16 February 2023, the Applicant commenced employment with the Respondent and was engaged on a part time basis to assist in the loading and unloading of trucks at the Respondent’s warehouse. At the date of his claimed dismissal, he was in receipt of an hourly base rate of pay of $28.00 and his ordinary hours of work were 36 hours per week on top of which he routinely worked overtime hours.
On 17 April 2023, the Applicant complained of a sore back while assisting in the loading of a truck at the Respondent’s site at approximately 9.30pm and left site shortly after. The Applicant obtained a medical certificate[3] dated 18 April 2023 (18 April Medical Certificate) that indicated that he had attended the Royal Melbourne Hospital on 17 April 2023 and that he would be unfit for work for the period 17-24 April 2023 inclusive. A further medical certificate[4] dated 3 May 2023 (3 May Medical Certificate) indicated that he had suffered a recurrence of the medical condition of pilonidal disease in May 2023, the first onset of which occurred in 2021. The second certificate indicated that he was unfit for work in the period 3-10 May 2023.
At 7.13am on 18 April 2023, the Applicant advised the Warehouse Manager Mr Welsh by text message[5] that he was in hospital and would not be in that day. Shortly after the above-referred text message, Mr Welsh responded by text to the Applicant’s text, advised him to ring Mr Offner and suggested he may need to provide a medical certificate[6]. Mr Welsh also states that later that day the Applicant’s partner rang him and advised that the Applicant had a previous injury, needed an operation on his back and “won’t be back”[7]. The Applicant disputed that his partner would have used the language claimed to have been used by her in the conversation with Mr Welsh.
At 10.07am on 18 April 2023, Mr Welsh and the Applicant, who was still at hospital, had a brief telephone conversation[8] during which the Applicant advised Mr Welsh that he was waiting to see a doctor. The Applicant also spoke by phone with Mr Offner shortly after at 10.11am[9] during which the Applicant advised that he needed a week off work. The Applicant was discharged from hospital later that day after having an operation.
At 9.09am on 19 April 2023, Mr Welsh sent a text message to the Applicant asking whether he would be in to work that day[10]. The Applicant responded by sending a copy of the 18 April Medical Certificate to Mr Welsh and advised in a further text that he could not work for a week[11]. The Applicant also sent a copy of the 18 April Medical Certificate to Mr Offner at 12.36pm on 19 April 2023[12].
At 12.42pm and 12.48pm the Applicant called and spoke briefly with Mr Offner for periods of 97 seconds and 124 seconds, respectively. Mr Offner while initially disputing he had spoken with the Applicant on 19 April 2023 subsequently conceded that he had based on the Applicant’s telephone records[13]. While making this concession Mr Offner could not recall the conversations with the Applicant or the substance of the conversations.
The Applicant states that during the above-referred telephone conversation with Mr Offner on 19 April 2023, Mr Offner raised concerns about the Applicant’s hours of work and cost to the business. The Applicant states that at the conclusion of their conversation Mr Offner terminated his employment. The Applicant when questioned during cross-examination about the telephone calls with Mr Offner on 19 April 2023 gave the following responses;
PN101Please go on, explain what happened in your words?‑‑‑So I went to the hospital, had the surgery. I provided the medical certificate to Grant Welsh and Glenn, and Glenn had sacked me on the phone. He called me after supplying that evidence to him, and he said that he was unhappy with the hours that I was working, just because I was waiting around for the truck that many times he didn't want to pay me or something. And I said, 'That's pretty unfair.' And he said, 'That's it, you're sacked.' And I texted to Grant, like, 'This is pretty unfair, man, I've been sacked straight away after supplying a medical certificate. This is not on.' And he goes, 'What was the' - - -
………………..
PN124All right. What happened then?‑‑‑That's when I got a call from Glenn about 1 o'clock-ish saying, 'That's not good. When are you going to be returning to work?' And I said, 'It's going to be about a week recovery.' Then he started going on about my hours, that he didn't want to pay me so much money per hours. Like he wanted me to leave work in between the shift. So I agreed to that. And we ended up disputing about a payment that was meant to be made being on a medical certificate, and he said there was no payment meant to be made. So he ended up sacking me saying to me that it's not going to work, 'You're not going to be able to work here any more even, just leave.' And I said, 'You can't sack me, I'm on a medical certificate and I've done nothing wrong to be sacked.' And then he hanged up on me. I had called Mr Welsh, and he didn't answer till I had texted to him saying that it was unfair that I had been sacked now after providing a medical certificate, and I never had a response until about two weeks later saying, 'Sorry, but it's not my decision, it's Glenn's decision.[14]
At 12.55pm on 19 April 2023 following his telephone discussions with Mr Offner, the Applicant sent a further text message[15] to Mr Welsh after unsuccessfully attempting to call him at 12.51pm[16]. The text message was as follows;
“I send a med cert then get sacked by Glen this isn’t a game any more get payed 28 hours no ot really”.
A further series of text messages were then exchanged between the Applicant and Mr Welsh in relation to the Applicant’s pay. Those texts were in the following terms;
· At 12.56pm on 19 April 2023, the Applicant sent a text message to Mr Welsh stating;
“Where s my ot from last week and when I done my back 8abd 3 1/2.”
· Mr Welsh then replied at 1.13pm on 19 April 2023 to the Applicant’s 12.56pm text in the following terms;
“I told Alesha Ur hours what u talking about?”
· The Applicant then replied to Mr Welsh at 3.26pm as follows;
“They paid 28 hours only”
Mr Offner states that following his phone calls with the Applicant he had no further contact from the Applicant and that he did not return to work. He further states that he believed that Mr Welsh attempted to contact the Applicant after the 19 April 2023 including by several text messages.
In his witness statement Mr Welsh gave evidence that after his conversation with the Applicant’s partner on 18 April 2023 he “had no further conversations with the Applicant about him returning to work”[17]. He did however receive a text message from the Applicant on 5 May 2023 in the following terms;
“Can U send me alshers number work sent a pay slip say $1089 but no pay went through’
When questioned during cross-examination on his communication with the Applicant after 19 April 2023, Mr Welsh was more equivocal. In reply to a question on whether he had any further contact with the Applicant about him returning to work after 19 April 2023, Mr Welsh gave the following response;
“With the text messages I’m not 100 per cent sure, but I’m sure there were phone calls and face to face conversations as well, because I‘ve been friends with Steve for a while”.[18]
Further contradicting his witness statement, Mr Welsh when asked on the content of his conversations with the Applicant, gave the following response;
“Honestly I couldn't tell you. It would have been along the lines of asking him how he was, how his back was, and whether or not he would have been coming back to work. I couldn't - I couldn't tell you off the top of my head.”[19]
When further pressed on his communication with the Applicant after the 19 April 2023, Mr Welsh agreed that the Applicant had told him during a conversation that Mr Offner had sacked him[20]. He also stated that he was sure he had messaged the Applicant after 19 April 2023 asking whether he would be coming back to work.[21] When questioned on why he had not produced text message records of his communication with the Applicant between 19 April – 5 May 2023 Mr Welsh explained that his phone had been smashed which prevented him accessing records for that period. He was however unable to reconcile how he was able to retrieve certain text messages exchanged with the Applicant prior to the phone being damaged, but not other text messages from the period prior to the phone being damaged[22].
Given Mr Welsh’s poor recollection of the form and substance of his communication with the Applicant after 19 April 2023, he was ordered to produce his text message records for the period from 19 April – 5 May 2023. Following the issuing of the order to produce, the Respondent’s representative advised that Mr Welsh was unable to comply with the order to produce any text messages from his mobile phone between the dates 19 April – 5 May 2023 other than those already produced in evidence[23]. It was explained that Mr Welsh’s inability to produce any further text messages for that period was due to his phone having been damaged and rendered unusable on or shortly after 5 May 2023. It was further explained that Mr Welsh replaced the damaged phone and while the damaged phone was subsequently repaired, he had since been unable to retrieve the text messages from that phone for the relevant period other than the text messages of 19 April & 5 May 2023 previously furnished in evidence.
Statutory framework
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.
The circumstances in which a person is taken to be “dismissed” are set out in s. 386 of the Act. Section 386(1) relevantly provides as follows:
(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 authorities in respect of the meaning of the term ‘dismissed’ are well traversed. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[24] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’
“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)”
Consideration
Whether Applicated terminated at the Respondent’s initiative (s. 386(1)(a))
The events leading to the alleged dismissal of the Applicant are largely uncontested. The Applicant injured his back on the evening of the 17 April 2023, attended hospital that same evening, underwent surgery the following day on 18 April 2023 and was discharged from hospital later that day. He contacted both Mr Welsh and Mr Offner during the day on 18 April 2023 to alert them that he would not be in at work that day and would be off for a week. He then provided the 18 April Medical Certificate to both Mr Welsh and Mr Offner at 12.32pm and 12.36pm respectively on 19 April 2023.
It is also accepted that following his sending the 18 April Medical Certificate to Mr Welsh and Mr Offner, the Applicant then spoke briefly by telephone to Mr Offner at 12.42pm and 12.48 pm on 19 April 2023. It is at this point that the Applicant and Mr Offner’s recollection of events diverge. While he accepts the phone calls took place Mr Offner could not recall the conversations at all or their substance. For his part, the Applicant gave evidence that during those telephone conversations, Mr Offner raised concerns at the Applicant’s hours of work and the costs arising from those hours and at the conclusion of the conversation advised the Applicant that he should not return to work.
The Respondent sought to challenge the credibility of the Applicant’s evidence on the substance of his conversations with Mr Offner on 19 April 2023 by referring to the different versions of the conversation said to have occurred. The responses of the Applicant to questioning on this point are set out above at [10]. I accept that the Applicant gave somewhat different versions of the conversation with Mr Offner. There are however two key features present in both versions of the conversation. Firstly, the Applicant refers to Mr Offner being unhappy about the Applicant’s hours of work and the attendant cost. Secondly, at the conclusion of the conversation, Mr Offner by his words is said to have made clear to the Applicant that he was no longer employed by the Respondent.
The following things may be said about the Applicant’s evidence. He was self-represented and was clearly not experienced in proceedings before the Commission. He appeared to answer the questions put to him in a candid and unsophisticated manner. While his second response to questioning on the substance of the 19 April 2023 conversation with Mr Offner included additional information and attributed different words to Mr Offner in communicating the Applicant’s dismissal, the descriptions of the conversation are not so dissimilar as to cause me to reject the Applicant’s evidence. Putting aside the obvious difficulty for the Respondent, that being Mr Offner has no recollection of the 19 April 2023 conversations with the Applicant at all, there are other aspects of the evidence discussed below which also support the Applicant’s version of events.
Following the telephone conversations between the Applicant and Mr Offner on 19 April 2023, telephone records reveal that the Applicant immediately sought to contact Mr Welsh at 12.51pm on 19 April 2023 without success. He then sent a text to Mr Welsh at 12.56pm on 19 April 2023 in which he complained that after sending the 18 April Medical Certificate to both Mr Offner and Mr Welsh, Mr Offner had dismissed him. There was no evidence from either Mr Welsh or Mr Offner that the claim of dismissal made by the Applicant in that text message was checked or confirmed by Mr Welsh with Mr Offner.
Furthermore, in circumstances where the Respondent argues the Applicant was not dismissed, it is telling that there is little or no credible evidence that any action was taken by either Mr Welsh or Mr Offner to follow-up with the Applicant after 19 April 2023 regarding his health and if and when he was likely to return to work. Mr Offner concedes he had no further contact with the Applicant after 19 April 2023 and Mr Welsh gave conflicting evidence on whether he had further contact with the Applicant after 19 April 2023 in relation to a return to work. In his witness statement Mr Welsh said he had no further conversations with the Applicant about a return to work after 19 April 2023 but then stated during cross-examination that he believed he had contact after 19 April 2023 although he couldn’t say with certainty what was discussed with the Applicant. Nor could he provide any evidence of text message exchanges with the Applicant, citing the inconvenient timing of damage to his phone. In all the circumstances I found Mr Welsh’s evidence to be unconvincing.
The Applicant’s version of the 19 April 2023 telephone conversation between he and Mr Offner is strongly supported by both the subsequent text message to Mr Welsh at 12.56pm on 19 April 2023 and the inaction on the part of both Mr Welsh and Mr Offner in following up after 19 April 2023 with the Applicant regarding his return to work. A failure of the Respondent to follow up with the Applicant after the 19 April 2023 about a return to work cannot be reconciled with its contention that the Applicant was not dismissed. To the contrary, Mr Welsh and Mr Offner’s apparent inaction after 19 April 2023 can be more easily reconciled with a finding that the Applicant had in fact been dismissed, the fact of which they would have been both aware of after 19 April 2023.
I find for the reasons set out above that the Applicant was dismissed at the initiative of the Respondent. The dismissal was communicated to the Applicant by Mr Offner during a telephone conversation at approximately 12.48pm on 19 April 2023.
Conclusion
I find that the Applicant was dismissed within the meaning of s. 386(1)(a) of the Act. It is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. The requirements of s 365 have been met. The respondent’s jurisdictional objections are dismissed. The application will shortly be listed for a conciliation conference.
DEPUTY PRESIDENT
Appearances:
S Goldburg, Applicant.
J Carpenter for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
August 2, 14.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] Exhibit A2, Medical Certificate dated 18 April 2023
[4] Exhibit A1, Medical Certificate dated 3 May 2023
[5] Exhibit R4, Text messages between Mr G Welsh and Applicant
[6] Ibid
[7] Exhibit R3, Witness Statement of Grant Maxwell Welsh, dated 19 June 2023, at [7]-[8]
[8] Exhibit A3, Telephone records of Applicant for 18 & 19 April 2023
[9] Ibid
[10] Ibid
[11] Ibid
[12] Exhibit A3
[13] Exhibit A3
[14] Transcript of hearing 2 August 2023, at PN101, PN 124
[15] Exhibit R4
[16] Exhibit A3
[17] Exhibit R3 at [9]
[18] Transcript of 2 August 2023 hearing, at PN356
[19] Ibid at PN357
[20] Ibid at PN359, PN362
[21] Ibid at PN366
[22] Ibid at PN376-PN381
[23] Exhibit R4
[24] [1995] IRCA 625; 62 IR 200.
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