Timothy Hooker v Robert Guy and Sons Pty Ltd
[2017] FWC 2046
•13 APRIL 2017
| [2017] FWC 2046 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Hooker
v
Robert Guy and Sons Pty Ltd
(U2016/15097)
COMMISSIONER SAUNDERS | NEWCASTLE, 13 APRIL 2017 |
Unfair dismissal – whether the applicant was dismissed. Application dismissed.
[1] Robert Guy and Sons Pty Ltd (RGS) conducts a business in which it provides services such as concrete cutting, diamond core drilling, wall sawing and joint sealing. Mr Timothy Hooker was employed by RGS as a casual employee for in excess of six years. On 19 December 2016, Mr Hooker was directed to leave a job and return to RGS’ workshop and offices in Tomago, at which time Mr Hooker contends that he was dismissed in a meeting with Mr Greg Howe, owner of RGS, Ms Gail Shields, Payroll Clerk, and Mr Lee Douglas, Salesperson. RGS denies that it dismissed Mr Hooker; it contends that Mr Hooker was told, in effect, there was no work available for him over the Christmas shut down period.
[2] Mr Hooker submits that his dismissal on 19 December 2016 was unfair. RGS denies that it dismissed Mr Hooker and maintains that it has no issue with him returning to work. Mr Hooker is not seeking reinstatement and instead seeks an order for compensation.
[3] As to the initial matters that must be decided before considering the merits of the unfair dismissal application, 1 there is no dispute between the parties that Mr Hooker filed his application within the 21 day period required by s.394(2) of the Fair Work Act 2009 (Cth) (the Act), Mr Hooker was protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply because RGS was not a small business at the relevant time, and Mr Hooker’s alleged dismissal was not a case of genuine redundancy.
[4] I heard Mr Hooker’s unfair dismissal case on 10 April 2017 by way of determinative conference. Mr Hooker gave evidence in support of his own case, as did his de facto partner, Ms Cassandra Appleton. RGS called evidence from Ms Shields, Mr Douglas, and Ms Anderton, Personal Assistant.
Events leading up to 19 December 2016
[5] Mr Hooker was absent from work from about late August 2016 until about 24 November 2016, principally as a result of fracturing his knee in a non-work related incident.
[6] Although Mr Hooker was certified by his doctor as being fit for full duties on 2 November 2016, he did not return to work until about 24 November 2016. RGS gave Mr Hooker mainly sealing work on his return to work following his injury, because it is less physically demanding work than some of the other work undertaken by RGS. I accept that RGS returned Mr Hooker to work at this time and on such duties because it was genuinely interested in ensuring Mr Hooker could undertake the work given to him without risk of injuring his knee.
[7] Mr Hooker worked the following hours for RGS in the period between his return to work on about 24 November 2016 and 19 December 2016:
Date of end of pay period | Hours worked |
1 December 2016 | 27.5 |
8 December 2016 | 30.5 |
15 December 2016 | 37.25 |
22 December 2016 | 11 |
What happened on 19 December 2016?
[8] On Friday, 16 December 2016, Mr Hooker was informed by Ms Jo Leach that he had been assigned a cutting job on the following Monday at an aged care facility in Toronto. Mr Hooker admits that he told Ms Leach that the job he had been given for the Monday was a “shit job”. I accept Mr Hooker’s evidence that he did not tell Ms Leach or anyone else from RGS that he would not do the job.
[9] On the morning of Monday, 19 December 2016, Mr Hooker drove the RGS sealing truck from his home to RGS’ premises in Tomago. He there collected a RGS ute to drive to the work site at Toronto. On the way to Toronto Mr Hooker realised there was something wrong with the vehicle he was driving. He called Mr Howe and told him about the issue with the vehicle.
[10] Mr Hooker arrived at Toronto at about 7am. On arrival Mr Hooker realised that the vehicle he had driven to site did not have an electrical RCD safety box in it, which he needed to perform the work. Mr Hooker contacted his supervisor, Mr Douglas, in relation to the fact that he did not have a RCD safety box. I accept Mr Douglas’ evidence that he told Mr Hooker to ask the client if he could borrow a RCD safety box, and if the client did not have one for him to borrow then Mr Douglas would bring one to site. Mr Hooker asked the client whether he had a RCD safety box which he could borrow to do the work; the client agreed and loaned a RCD safety box to Mr Hooker.
[11] Mr Hooker then continued to unload the tools from the ute to the work site at Toronto. As Mr Hooker was doing so, and unbeknown to him, Mr Howe had a discussion with Mr Douglas at the RGS office in Tomago. In particular, Mr Douglas told Mr Howe that Mr Hooker did not have an RCD safety box with him and Mr Douglas might have to take one to site for Mr Hooker to use. Mr Howe then said to Mr Douglas words to the effect: “We will just get him back because we need to look at the ute anyway.” Mr Howe then called Mr Hooker and told him to pack up and return to the workshop. Mr Hooker said he was about to start the drilling, to which Mr Howe said “I don’t care; pack up the gear and head back to the workshop”, which Mr Hooker then did. Mr Howe did not tell Mr Hooker of the reason(s) for his decision to direct him to return to the workshop.
[12] Mr Hooker returned to the workshop in Tomago at about 8:30am. He went up to Mr Howe’s office, but the office door was shut and Mr Howe, Mr Douglas and Ms Shields were inside the office having a discussion. As a result, Mr Hooker proceeded downstairs to wait for an opportunity to speak to Mr Howe.
[13] A short time later Ms Leach called Mr Hooker on the PA system to go to Mr Howe’s office, which Mr Hooker did. On arrival Mr Hooker saw Mr Howe sitting behind his desk, Ms Shields sitting on a chair at the front of the desk and Mr Douglas standing on the right of the desk. Mr Hooker stood in the doorway to the office because he felt intimidated.
[14] There is no dispute that the conversation between Mr Hooker and Mr Howe was brief, but there is a dispute as to what was said in the discussion.
[15] Mr Hooker gave the following evidence in his witness statement and confirmed the truth and accuracy of this account in his oral evidence:
“9. Greg Howe stated I have no more work for you, and I replied with that’s good, I’ll get all my belongings and take my pro rata and I’ll see you in court and then Greg said Lee can you go help him. And I proceeded downstairs.
10. I went to the trailer where my belongings were started taking them out with Lee Douglas, then Lee informed me Debbie Bowes is going to give me a lift home, then Debbie drove into the workshop in her car and Lee Douglas and I loaded my tools in the back of the car.
11. Lee Douglas then asked for the company phone, which I then handed over, and then I got into the car with Debbie as she drove me home.
12. In the drive home Lee Douglas calls Debbie Bowes and states to her make sure you get the red card for the RAAF base off him, to which I couldn’t hand over it was in my partner’s car and she was at work.
13. Then we arrived at my house and I unloaded all my stuff out of the boot and then she left.”
[16] Mr Hooker did not explain in his discussion with Mr Howe on 19 December 2016 what he meant by his “pro rata”. During his oral evidence in these proceedings Mr Hooker explained that he referred to taking his “pro rata” in his discussion with Mr Howe on 19 December 2016 because he understood that he was entitled to receive a pro rata long service leave payment on his termination on the basis that he was employed by RGS for longer than five years.
[17] Ms Shields and Mr Douglas gave evidence to the following effect in relation to the discussion between Mr Hooker and Mr Howe on 19 December 2016:
“Mr Howe said: Tim, I have run out of work we will not be going back to do the RMS job until mid January.
Mr Hooker said: Good.
Mr Howe said: Have you given your fuel card back to Paul?
Mr Hooker said: Yes.
Mr Howe said: Please go and get your gear out of your car and please hand back your phone over the holidays. Debbie will drive you home.
Mr Hooker said: See you in court and I will take my pro rata.”
[18] I prefer the evidence given by Ms Shields and Mr Douglas over the evidence given by Mr Hooker relation to the conversation between Mr Howe and Mr Hooker on 19 December 2016 for the following reasons:
(a) First, although all witnesses agree that the conversation between Mr Howe and Mr Hooker was brief, it seems unlikely having regard to the context and sequence of events set out above that the discussion was as brief as Mr Hooker suggests;
(b) Secondly, Mr Hooker volunteered in his evidence that he felt intimidated when he attended Mr Howe’s office. Mr Hooker was clearly upset at being directed to return to the office at Tomago when he was about to start the work at the site in Toronto and was further upset he was told by Mr Howe that there was a lack of work for him. It is likely that these matters had an impact on Mr Hooker’s ability to accurately recall the entirety of his discussion with Mr Howe in his office on 19 December 2016;
(c) Thirdly, witness statements made by Ms Shields, Mr Douglas and Mr Howe were filed by RGS. Mr Howe was ultimately not called to give evidence and his witness statement was not admitted into evidence. I have not placed any weight on Mr Howe’s witness statement in deciding this case. The witness statements made by Ms Shields, Mr Douglas and Mr Howe set out the conversation between Mr Hooker and Mr Howe on the morning of 19 December 2016 in identical terms, which caused me some concern and I questioned Ms Shields about it. RGS was not represented by a lawyer or any third party in these proceedings. Ms Shields explained that she was responsible for preparing each of the witness statements, based on her notes of the conversation between Mr Hooker and Mr Howe, but Mr Douglas was standing beside her as she typed his witness statement. I questioned Mr Douglas in relation to his recollection of the conversation between Mr Howe and Mr Hooker. On the basis of Mr Douglas’ answers to those questions, I am satisfied that Mr Douglas’ witness statement sets out his truthful recollection of the conversation between Mr Howe and Mr Hooker, notwithstanding that it is in identical terms to Ms Shields’ witness statement and the witness statement prepared for Mr Howe. I am also satisfied on the basis of my question of Ms Shields that the account of the conversation between Mr Howe and Mr Hooker set out in her witness statement accords with her recollection of the conversation. In short, I am satisfied that each of Mr Hooker, Ms Shields and Mr Douglas gave truthful evidence of their recollection of the discussion between Mr Hooker and Mr Howe. The consistency of the oral evidence given by Ms Shields and Mr Douglas on the topic of the conversation between Mr Howe and Mr Hooker on 19 December 2016 supports a finding, on the balance of probabilities, that their recollection of the conversation is to be preferred over Mr Hooker’s recollection; and
(d) Fourthly, Ms Anderton was sitting in close proximity to Mr Howe’s office at the time Mr Hooker spoke to Mr Howe on the morning of 19 December 2016. Although Ms Anderton was working on other tasks and did not hear the whole of the conversation between Mr Howe and Mr Hooker, she did hear Mr Howe say to Mr Hooker: “Tim, I have run out of work.” This evidence supports the account of the conversation given by Ms Shields and Mr Douglas.
[19] Mr Douglas could not recall whether he asked Ms Bowes to make sure she obtained the red card from Mr Hooker. I accept Mr Hooker’s evidence that Ms Bowes did ask him to return his red card but he was unable to do so because it was in his partner’s car and she was at work. I also accept Mr Hooker’s evidence that he returned his work mobile phone and took his tools with him when he left the workplace on 19 December 2016.
[20] Mr Hooker lodged his unfair dismissal application in the Commission at 12:56pm on 19 December 2016.
Meaning of dismissal
[21] Subsection 386(1) of the Act governs when a person has been dismissed:
“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.”
[22] A Full Bench of the Commission considered s.386 in Barkla v G4S Custodial Services Pty Ltd: 2
“[23]It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination...
[24]It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:
…
‘[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be 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. It is not simply a question of whether ”the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” [emphasis added]’
[23] The reasoning in O’Meara was treated as fully applicable to s.386(1) of the Act by the Full Bench in Ryan v ISS Integrated Facility Services Pty Ltd. 3
[24] There is a clear distinction between the termination of an employment relationship and the discharge of a contract of employment. 4A wrongful dismissal of an employee by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the applicable employment contract, will bring the employment relationship to an end but will not automatically discharge the employment contract.5
[25] The question of whether an employee has been dismissed within the meaning of s.386 of the Act focuses on the termination of the employment relationship, not the contract of employment. 6 For that reason, the application of common law principles relating to the termination of an employment contract may not be irrelevant to the inquiry, but may not yield the correct answer to the question of whether the employee has been dismissed within the meaning of s.386 of the Act.7
Was Mr Hooker dismissed?
[26] This is an unfortunate case in many ways. I accept that Mr Hooker truly believes he was dismissed on 19 December 2016. However, the question of whether Mr Hooker was dismissed within the meaning of s.386 of the Act is not to be determined by reference to the subjective beliefs of Mr Hooker or any person on behalf of RGS. 8
[27] In light of my earlier finding, on the balance of probabilities, that the conversation between Mr Howe and Mr Hooker in Mr Howe’s office on the morning of 19 December 2016 took place in accordance with the evidence given by Mr Douglas and Ms Shields, none of the communications between Mr Hooker and Mr Howe on 19 December 2016, whether considered in isolation or collectively, expressly terminated Mr Hooker’s employment with RGS. In particular, the words “run out of work” do not, on their own, suggest, in the context of a discussion with a casual employee, the termination of an employment relationship. Further, Mr Howe made reference to “going back to do the RMS job” (on which Mr Hooker had been working) in mid-January and handing back his “phone over the holidays”, both of which suggest no express termination of the employment relationship.
[28] It is next necessary to consider whether any action of RGS amounted to a termination of Mr Hooker’s employment. In this regard, Mr Hooker points to the following matters, together with the words spoken during his discussion with Mr Howe on 19 December 2016:
(a) Mr Hooker was asked to return his company mobile phone, fuel card and red card, and was directed to take his personal belongings with him on 19 December 2016;
(b) Mr Hooker was not given a work vehicle to take home over the Christmas break, whereas he says he was in previous years;
(c) Mr Hooker was directed to return to the Tomago workshop even though he was set up to do the job he had been assigned in Toronto;
(d) the job in Toronto still needed to be done;
(e) RGS continued to undertake Roads and Maritime Services (RMS) work between 19 December 2016 and Christmas. Mr Hooker had been undertaking such work in December 2016 prior to being assigned the job in Toronto;
(f) Mr Hooker’s partner, Ms Appleton, had a discussion with Ms Anne Howe, an employee of RGS and the wife of Mr Howe, in early September 2016 in which Ms Appleton says Ms Howe expressed concern about the fact that Mr Hooker may take some time to recover from his knee operation and the risk of further injury to Mr Hooker at work could be a liability for RGS. Mr Hooker suggested that this was, or may have been, the motivation to dismiss him on 19 December 2016; and
(g) Mr Hooker says he did not receive any calls from anyone at RGS about his return to work, or offers of hours of work, after the conclusion of the Christmas break in January 2017.
[29] As to the matters referred to in paragraph [28(a)] above, it is significant that Mr Hooker accepted in his evidence that RGS does shut down its normal operations over the Christmas break each year, albeit Mr Hooker has been called in by RGS over the Christmas break in some years to undertake emergency work and/or work at schools. In previous years Mr Hooker was not required to return his work mobile phone to RGS during the Christmas break. I accept Ms Shields’ evidence that RGS introduced a policy in about August 2016 requiring employees to hand back their company mobile phone during a holiday or over the Christmas break. This policy was applied to other employees of RGS over the Christmas break in December 2016. The purpose of the policy is to (a) ensure that there is somebody available from RGS to answer a company mobile phone if a client calls that phone when an employee is on holidays or not at work during Christmas break and (b) prevent an employee from incurring significant charges on their company mobile phone during a holiday or work break. Although additional excessive phone costs are payable by the employee, RGS still needs to recover the payment from the employee. This policy was not applied to Mr Hooker when he was absent from work from about August to late November 2016, but that may have been because the policy was only introduced in about August 2016 and/or because RGS wished to continue to communicate with Mr Hooker during his recovery from his knee operation to track his progress. In any event, I accept the evidence given behalf of RGS that RGS required Mr Hooker to hand back his company mobile phone “over the holidays” for legitimate operational reasons, and not because it intended or wished to bring the employment relationship to an end. Similarly, I accept that RGS had legitimate business reasons for directing Mr Hooker to return his fuel card and red card, and take his personal belongings with him on 19 December 2016. In particular, Mr Hooker did not have a company vehicle over the Christmas break so there was no need for him to have a company fuel card, a red card is a very high security pass which allows a person to access Department of Defence sites and RGS had an interest in ensuring Mr Hooker’s red card, which was personal to him, was not misused, and RGS directed Mr Hooker to take his personal belongings with him over the Christmas break because there have been problems in the past at RGS with employees’ personal belongings going missing when they are not at work during a holiday or over the Christmas break.
[30] As to the matters referred to in paragraph [28(b)] above, I accept that Mr Hooker has been able to take a company vehicle home during previous Christmas breaks. I also accept that RGS ordinarily has its work vehicles serviced during the Christmas break. Documentary evidence tendered by RGS establishes that it had repair work undertaken on a vehicle on 19 December 2016. I am satisfied on the balance of probabilities that the vehicle the subject of those repairs was the ute that Mr Hooker drove to the Toronto site on 19 December 2016. It is also relevant that the RMS contract on which Mr Hooker had been working in the period leading up to 19 December 2016 was not expected to resume until mid-January 2017. For those reasons, I am satisfied that the fact that Mr Hooker was not permitted to take a work vehicle home over the Christmas break in December 2016 was for genuine operational reasons, and not because RGS intended or wished to bring the employment relationship to an end.
[31] As to the matters referred to in paragraphs [28(c) and (d)] above, because Mr Howe was not called to give evidence of behalf of RGS, there is no direct evidence as to the reason(s) why Mr Hooker was directed to return to the Tomago workshop at a time when there was still work to be undertaken at the Toronto site or why another employee was sent to the site at Toronto on 20 December 2016 to undertake the job. On the basis of the evidence set out in paragraphs [8] to [11] above, I find, on the balance of probabilities, that Mr Hooker was directed to return to the Tomago workshop on the morning of 19 December 2016 for a combination of the following reasons:
(a) Mr Hooker did not take with him to the Toronto site the RCD electrical box he needed to undertake the work. Although Mr Hooker was able to borrow that equipment from the client, there is no evidence that Mr Howe was aware of that fact at the time he directed Mr Hooker to return to Tomago. Mr Hooker told Mr Howe that he was ready to start the work, but he did not make any mention of whether he intended to use a RCD safety box to do so. In any event, it would have been reasonable for a person in Mr Howe’s position to be concerned about an employee of RGS borrowing a piece of safety equipment from a client;
(b) the ute Mr Hooker had driven to site needed to be repaired. Mr Hooker accepts the ute needed “urgent work”; 9 and
(c) Mr Hooker had expressed some dislike of the job when it had been assigned to him on Friday, 16 December 2016.
[32] The fact that Mr Hooker had expressed some dislike of the job when it had been assigned to him on Friday, 16 December 2016 and Mr Hooker attended the job on Monday, 19 December 2016 without first checking that he had the necessary safety equipment is, in my view, the most likely explanation for the job being assigned to another employee on 20 December 2016.
[33] As to the matters referred to in paragraph [28(e)] above, RGS continued to undertake work for RMS until 22 December 2016 and then resumed work for RMS on 17 January 2017 following the Christmas break. The work undertaken by RGS for RMS from 19 to 22 December 2016 was cutting work, whereas the work Mr Hooker had been undertaking on the RMS contract in December 2016 was sealing work. RGS had enough employees to undertake the cutting work for RMS in the period from 19 to 22 December 2016 and did not need Mr Hooker to undertake such work.
[34] As to the matters referred to in paragraph [28(f)] above, I accept Ms Appleton’s evidence that she had a conversation with Ms Howe along the lines of that set out in paragraph [27(f)] above. However, the fact that RGS gave Mr Hooker, a casual employee, significant hours of work when he returned to work in late November and December 2016 following his injury is a strong indicator that RGS did not wish to cease giving Mr Hooker work on the basis that he was a potential liability. Further, RGS’ open statement at the determinative conference that it has “no issue with Mr Hooker returning to work today” points in the same direction.
[35] As to the matters referred to in paragraph [28(g)] above, it is significant that Mr Hooker lodged his unfair dismissal application in the Commission at 12:56pm on 19 December 2016. That application was provided to RGS prior to Christmas. It would have been clear to RGS by the time it received Mr Hooker’s unfair dismissal application that he believed he had been unfairly dismissed and the employment relationship had come to an end. In those circumstances, I place no weight on the fact, if it be the case, that RGS did not contact Mr Hooker after the Christmas break in January 2017 to offer him further shifts as a casual employee. There is a dispute on the evidence about whether any such attempts were made to contact Mr Hooker at that time, but I do not need to resolve that factual dispute for the reason given in this paragraph.
[36] In addition, RGS did not require Mr Hooker to return all of RGS’s property on or about 19 December 2016. In particular, there is no dispute that RGS did not ask for, and Mr Hooker has not returned, the following items of RGS’s property which are in his possession: work boots; three shirts; two pairs of jeans; three polo shirts; and white overalls. This lends some weight to RGS’ contention that it did not dismiss Mr Hooker.
[37] In view of the discussion between Mr Howe and Mr Hooker in Mr Howe’s office on the morning of 19 December 2016, together with the matters set out in the previous eight paragraphs, I am satisfied that there was no action on the part of RGS which was either intended to bring Mr Hooker’s employment to an end or had the probable result of bringing the employment relationship to an end. A reasonable person in Mr Hooker’s position would not, in my view, have concluded from RGS’s conduct that it no longer wanted to employ him as a casual employee.
[38] No argument was made by or on behalf of Mr Hooker that he resigned, but was forced to do so because of conduct, or a course of conduct, engaged in by RGS.
Conclusion
[39] Because Mr Hooker was not dismissed by RGS within the meaning of s.386 of the Act, I must dismiss his unfair dismissal application and I do so. 10
COMMISSIONER
Appearances:
Appleton, C on behalf of the Applicant
Shields, G on behalf of the Respondent
Hearing details:
2017
Newcastle:
April 10
1 See s.396 of the Act
2 [2011] FWAFB 3769
3 [2014] FWCFB 8451 at [15]
4 Visscher v Giudice (2009) 239 CLR 361 at [53]
5 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454
6 Searle v Moly Mines Ltd (2008) 174 IR 21 at [22]-[23]
7 Ibid at [39]; GlaxoSmithKline Australia Pty Ltd v Gauci [2008] AIRCFB 439 at [19]
8 Searle v Moly Mines Ltd (2008) 174 IR 21 at [38]
9 Exhibit A1 at [6]
10 s.385(a) of the Act
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591778 >
0
4
0