Steve Winbank v Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy))

[2022] FWC 1158

[2022] FWC 1158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Steve Winbank
v

Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy))

(C2022/234)

DEPUTY PRESIDENT CROSS SYDNEY, 13 MAY 2022

Application to deal with contraventions involving dismissal – no dismissal – application dismissed.

1. On 29 December 2021, Mr Steve Winbank (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act), alleging that adverse action involving dismissal had been taken against him in contravention of ss 340, 343, 344, 351 and 352 of the Act (the Application). The adverse action was alleged to have been taken by Laundy Hotels Pty Ltd (the Respondent).

1. The Respondent submitted that the Applicant was not dismissed by the Respondent. Accordingly, the Respondent submitted that the Applicant was not dismissed from his employment with the Respondent within the meaning of s 386(1) of the Act.

Directions and Evidence

1. On 17 March 2022, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

1. Steve Winbank (the Applicant) is directed to file with the Fair Work Commission, and serve on Laundy Hotels Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 1 April 2022.

1. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 15 April 2022.

1. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 22 April 2022.

1. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 15 April 2022.

1. The parties complied with the Directions. In particular:

(a)On 25 March 2022, the Applicant filed an Outline of Submissions with annexures, and on 28 March 2022 he filed further Submissions by email;

(b)On 12 April 2022, the Respondent filed an Outline of Submissions, a statement of Mr Shane Richardson, Senior Operations Manager for Laundy Hotel Group, and a statement of Ms Selina Birchall, Head of Human Resources for Laundy Hotel Group; and

(c)On 20 April 2022, the Applicant filed an Outline of Submissions in Reply together with Annexures.

1. The matter was heard on 26 April 2022 (the Hearing). At the Hearing, no witnesses were required for cross-examination.

Alleged Adverse Action and Dismissal

1. In the Form F8 – General protections application involving dismissal (the Form F8), which noted that the Applicant was legally represented at that time, the Applicant described the actions of the employer that led to the making of the Application, as follows:

“The complainant attempted to exercise his workplace right to work in a safe environment and comply with the employers of [sic] standards and terms of his employment contract to do so.

The employer attempted to coerce the complainant into returning to work in direct contravention of its own health and safety standards and in defiance of a NSW Health directive for the complainant to isolate following exposure to the COVID-19 virus in the workplace.

A copy of that directive is attached to this complaint for the FWC’s consideration.”

1. In the Form F8, the Applicant described the adverse action of the employer as follows:

“The adverse action claimed by the applicant to have occurred, occurred ‘because’ of a proscribed reason.

More precisely the adverse action occurred because the complainant in this matter was complying with the employment terms of his contract, in that he was abiding by the standards and public health orders which formed part of his employment contract.

When the complainant was abiding by those terms of his contract, the employer attempted to unlawfully coerce and bullying the complainant into the workplace in contravention of its own publicised standards concerning COVID-19 restrictions.”

Background Facts and Findings

1. The Applicant commenced employment with the Respondent at the Bayview Hotel, Woy Woy, on 4 December 2021. He signed a contract of employment with a six-month probationary period.

1. On 22 December 2021, a co-worker tested positive for COVID 19.The Applicant was sent a text message by Chris Mills, Hotel Manager, to “make sure u [sic] go to clinic”. The Applicant subsequently had a PCR test. Issues arose as to whether the Applicant was required to self-isolate while waiting for his PCR result, or whether he was a casual contact, only required to do a RAT test, and therefore not required to self-isolate upon returning a negative result as asserted by the Hotel Manager Chris Mills.

1. After a large number of messages between the Applicant and Mr Mills regarding whether the Applicant was required to isolate, or whether he could attend his scheduled shifts, Mr Mills sent the Applicant a text message on 24 December 2021, stating “Delete my number”. The Applicant stated in his submissions that he “was absolutely shattered and intimidated and many emotions including being confused at what I had read”. The Applicant said the text message stating “Delete my number” was the last contact made by Mr Mills.

1. On or about 24 December 2021, the Applicant text messaged Ms Birchall regarding his experience with Chris Mills and requesting consideration to move to another Hotel.

1. The Applicant contacted Mr Richardson and Ms Birchall. On 28 December 2021, the Applicant sent Shane Richardson a message that was critical of how the Hotel was managed. Also, on either 28 or 29 December 2021, the Applicant and Mr Richardson had a telephone conversation that was summarised by Mr Richardson as follows:

“Mr. Winbank proceeded to explain that he had determined he was a COVID19 close contact and had let Mr. Mills know that he was isolating so would not be working but there seemed to be quite some confusion on whether he was meant to or not. Mr Winbank then began to state the Mr. Mills was not fit for the role and he believed he was not a good GM, it was obvious that he and Mr. Mills did not have a good relationship.

I then questioned Mr. Winbank on a number of issues I had been made aware of, notably, being late for shifts, not turning up for a scheduled management meeting and generally not communicating with the venue when these situations had occurred. Mr. Winbank said he had personal issues that had caused these problems but did not provide an explanation for not communicating.

Mr. Winbank then further stated that he did not believe Mr. Mills was capable of running the venue and gave examples of what he did with a couple of situations, one I remembered was how he thinks security should be run, however eventually stating that he did not want to work with Mr. Mills. We talked about how he is an employee at Bayview and that we are a large group with many venues and he was going to think about what he wanted to do and he would give me a call when he wanted to discuss what he wanted to do post his isolation.”

1. On 29 December 2021, the Applicant lodged a general protections dismissal application against the Respondent.

1. On 18 January 2022, the Respondent received the Applicants F8 Initiating Documents and on 24 January 2022 the Respondent submitted the Form F8A Response. In that Form F8A the Respondent noted:

“1. The Applicant’s employment was not terminated, he has not received a letter of termination or a separation certificate.

2. The Applicant was advised by head of HR (Selina Birchall) that his employment was not terminated and that we would look for alternate employment for him within the Laundy Hotel Group

3. The Applicant was advised by Senior Management (Danielle Richardson and Shane Richardson) that his employment was not terminated and that he could work elsewhere within the group

4. The Applicant is still registered on Deputy (workplace program) as an employed staff member. See Annexure “A”.

5. The Applicant brought this application a day after he was advised that we would look into alternative employment.

6. The Applicant can begin employment immediately at the Twin Willows Hotel at Bass Hill as the Applicant advised that he would prefer to work in Sydney.”

1. From 21 December 2021 to 18 January 2022, the Applicant remained on the Respondent’s “Deputy Roster System” as a current employee.[1]

Consideration

1. The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act, involving dismissal. The Commission has jurisdiction to entertain the Application only if the Applicant has been dismissed[2].

1. The Respondent disputes the Applicant’s assertion that his employment terminated at the Respondent’s initiative. If the Respondent’s contention is correct, it follows that the Applicant does not have standing to bring the Application under s 365 of the Act and the Commission therefore does not have jurisdiction to deal with the dispute under s 368 of the Act, including conciliating the dispute and issuing a certificate that it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Absent such a certificate being issued, the Applicant cannot commence an application in the Federal Court of Australia or the Federal Circuit and Family Court of Australia regarding the Respondent’s alleged contravention of general protections in relation to his dismissal.[3]

1. As noted at paragraphs [6] and [7] above, the adverse action alleged by the Applicant involved the Respondent attempting to unlawfully coerce and bully the Applicant into attending the workplace in contravention of its own publicised standards concerning COVID-19 restrictions. That allegation falls well short of dismissal at the initiative of the Respondent.

1. Insofar as the Applicant’s assertion that Mr Mills’ text message to the Applicant on 24 December 2021, stating “Delete my number” constituted dismissal, I consider that too falls short of constituting dismissal at the initiative of the Respondent. Considered in context, it was the final text message in a long chain of messages where Mr Mills and the Applicant pressed their different understandings of isolation rules. While that text message expressed Mr Mills’ frustration, it could not amount to communication of termination of employment.

1. Any doubt the Applicant held regarding his employment status should have been dispelled by his conversations with Mr Richardson and Ms Birchall prior to filing the Application. Indeed, in communications with Ms Birchall on or about 24 December 2021, the Applicant requested consideration of a move to another venue.

Conclusion

1. I find that the employment relationship between the Applicant and the Respondent ended due to the Applicant’s non-attendance at work, particularly after the filing of the Application. I therefore find that the Applicant’s employment was not terminated on the initiative of the Respondent, and the Applicant was not dismissed pursuant to s 386(1)(a) of the Act. The Application must therefore be dismissed.

1. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

S Winbank, Applicant.
J Kennedy, Respondent.

Hearing details:

2022.
Sydney (by Video):
April 26.

[1] Transcript PN 95.

[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [74]-[75].

[3] S.370(a) of the Act.

Printed by authority of the Commonwealth Government Printer

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