Tina Kilden v SSL Security Service Pty Ltd T/A Spotless Security Services
[2016] FWC 6541
•15 SEPTEMBER 2016
| [2016] FWC 6541 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tina Kilden
v
SSL Security Service Pty Ltd T/A Spotless Security Services
(U2016/8022)
DEPUTY PRESIDENT WELLS | HOBART, 15 SEPTEMBER 2016 |
Application for relief from unfair dismissal – jurisdictional objection – applicant not dismissed – application dismissed.
Introduction
[1] Ms Tina Julie Kilden (the Applicant) made an application on 29 June 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by SSL Security Services Pty Ltd trading as Spotless Security Services (SSL) (the Respondent) on 11 June 2016, and that the dismissal was unfair.
[2] SSL, in its Form F3 – Employer Response to Unfair Dismissal Application, opposed Ms Kilden’s unfair dismissal remedy application, raising a jurisdictional objection, that is, that Ms Kilden had not been dismissed.
[3] Ms Kilden appeared on her own behalf and gave evidence1 in support of her application. SSL was represented by its Human Resource Manager, Mr Matthew Potter, with Supervisor Mr Kerry Best2, and Leading Hand Mr Stanley Maher,3 giving evidence for SSL. Mr Scott Steedman also made an appearance for SSL.
[4] For the reasons provided below, I have determined that Ms Kilden was not dismissed pursuant to s.386 of the Act and accordingly, Ms Kilden does not meet the requirement set out in s.394(1) of the Act. Therefore, Ms Kilden’s application is incompetent and is required to be dismissed.
Background
[5] SSL is a security services company and holds a contract with the University of Tasmania (UTAS) to provide a 24 hour a day, 7 day a week service of static guards stationed in all UTAS buildings.
[6] Ms Kilden underwent a selection interview with Mr Best and Mr Maher and was employed by SSL on 26 April 2012 on a casual basis as a security guard. Ms Kilden contended that the role offered to her was 20 hours per week located at the UTAS Centre for the Arts site, which is located on the wharf area in the central business district (CBD) of Hobart. Mr Best and Mr Maher deposed in their witness statements that at interview, they advised Ms Kilden that she would be trained to be multi-skilled and could be posted anywhere on the UTAS campus. Other than a few shifts undertaken at the commencement of her employment, Ms Kilden’s evidence was that she worked all of her shifts at the Centre for the Arts.
[7] In 2014 Ms Kilden travelled to the United Kingdom (UK) for a period of two months, requiring the approval of SSL for her to be absent from the workplace for that period. Ms Kilden returned to her work with SSL at UTAS’s Centre for the Arts. During 2015, the specific date is not in evidence, Ms Kilden advised Mr Best she wished to again travel to the UK for an extended period and sought Mr Best’s approval.
[8] It is common ground between the parties that Ms Kilden was again provided with an authorised absence from the workplace to allow her to travel to the UK in 2016, although in evidence it wasn’t put in those words. However, Mr Best stated that he had advised Ms Kilden on a number of occasions that he could not keep her position open at the Centre for the Arts. He asserted that this statement meant that he could not guarantee that on her return from overseas that she would be stationed at the Centre for the Arts. Mr Best said that Ms Kilden had responded by saying “text me if things change.”4
[9] On 4 December 2015, Mr Best received an email from Ms Kilden advising of the dates she would be away, namely 13 June to 17 August 2016. He stated that on the next work day for Ms Kilden he verbally advised her he could not keep her position open at the Centre for the Arts for that amount of time (approximately 10 weeks).
[10] On 13 April 2016, a discussion occurred between Mr Best and Ms Kilden at the Centre for the Arts. Ms Kilden advised she would be away from 13 June to 24 August 2016. Mr Best advised her again that he could not keep her position open for that long, stating that it would create hardship on the rest of the security team at that location. Mr Best further stated that a similar conversation was had on 27 April 2016 with Ms Kilden, wherein he told her that she should not be under any illusions that she would be working at the Centre for the Arts on her return.
[11] Ms Kilden’s evidence was that Mr Best never discussed with her that she would not be returning to her work at the Centre for the Arts and that the first contact she had from Mr Best indicating he would not keep her position open for her at the Centre for the Arts was when she received a text message on 11 June 2016 at 12.20am. This text message stated “Hi Tina just to reiterate our conversation on the 27th April when you informed me of the dates you would be away. As you are a casual we cannot keep your position open at the arts for that period of time cheers Kerry”.5 An email was sent by Mr Best on the same day ostensibly containing the same substance as the text message. I note that the text message and email supports the evidence that a discussion occurred between Mr Best and Ms Kilden on 27 April 2016; although Ms Kilden disputed that discussion related to her return from holiday.
[12] The timing of the text message and email to Ms Kilden on 11 June 2016 arose due to Mr Best receiving advice from another security office, Mr Ben Gath, who informed Mr Best that Ms Kilden had told him on the evening of 10 June 2016 that when she returned from overseas she would be returning to the Centre for the Arts. There is some dispute about the time of the day the text message was sent, however it is not relevant to the matters that require my determination and I therefore make no finding about that matter.
The Applicant’s case
[13] Ms Kilden submitted that she was employed to work 20 hours per week at the Centre for the Arts and that Mr Best’s email and text message of 11 June 2016 therefore amounted to a termination of her employment.
[14] At hearing, Ms Kilden submitted that she should be offered employment only at the Centre for the Arts as this was the role that had been offered to, and taken up by her.
[15] Particularly relevant aspects of Ms Kilden’s evidence were that:
- Her employment was to work at the Centre for the Arts and had done little other work at any of the other UTAS campus sites;
- she worked regularly and systematically during her employment with SSL, excluding the two periods of extended absence in 2014 and 2016 which in the UK.
- she had sought the authority of her employer to be able to have an absence from her casual position to enable her to travel to the UK for 10 weeks in 2016;
- Mr Best had not told her prior to 11 June 2016 that there was any difficulty with her returning to work at the Centre for the Arts;
- whilst she was away, she had received employment emails from SSL and was confused about whether she was still employed;
- on her return from the UK she had been offered two or three rosters of work by SSL but had refused to participate in that work, on the basis of her ongoing unfair dismissal application;
- her employment contract6 provided for her employment as a Security Officer and that “[y]our position and duties may change from time to time in accordance with the Company’s business needs. Any such changes will be first discussed with you”;
- her termination arose due to her insistence to Mr Best that her co-worker ‘night guard’ should be required to undertake the duress alarm tests at the Centre for the Arts and not Ms Kilden;
- her employment contract provided no specific workplace, although it was deposed that a hand written hours of work clause had been added to the employment contract, guaranteeing Ms Kilden 40 hours per fortnight;
- given the fact that she had been rostered to work at the Centre for the Arts for four years, it was reasonable for her to think that she had been terminated when she received the text message and email from Mr Best.
The Respondent’s case
[16] Mr Potter, on behalf of SSL, contended that Ms Kilden performed duties as part of SSL’s contract with UTAS to provide security at their sites in Northern and Southern Tasmania, and that security officers are stationed at a number of sites either in Hobart city or at the main Campus at Sandy Bay, all of which are either in, or within 3km, of the Hobart CBD.
[17] In its written submissions, SSL argued that whilst Ms Kilden generally performed work at the Centre of the Arts campus, this was simply a pattern rather than a contractual entitlement, which arose mostly due to Ms Kilden’s resistance to working at other UTAS campuses.
[18] SSL submitted that Ms Kilden’s employment contract does not limit a specific work location. It was further submitted by SSL that directing Ms Kilden to work at other UTAS campus sites is a reasonable management direction that does not constitute termination of employment; rather that she had been told that on her return to work in August 2016 she would receive work, but most likely not at the Centre for the Arts campus.
[19] Key aspects of SSL’s evidence were that:
- Ms Kilden was advised at interview that she may be required to work at multiple UTAS campuses;
- Ms Kilden had received training (or offered further training) which would enable her to work at other campuses;
- Ms Kilden had resisted working at UTAS campuses other than the Centre for the Arts;
- Mr Best denied that he told Ms Kilden, either through conversation or correspondence, that she was being dismissed;
- Mr Best advised Ms Kilden at various times that there was no guarantee, on her return from the UK in 2016, that she would be stationed at the Centre for the Arts;
- it was a reasonable to require Ms Kilden to work at another UTAS campus site;
- it was reasonable to require Ms Kilden to conduct the duress and help point tests at the Centre for the Arts site;
- rostered work had been offered to Ms Kilden on her return from the UK, but she had not taken up that work.
The Statutory Framework
[20] The meaning of dismissed is found at s.386(1) of the Fair Work Act2009 (the Act) and states:
(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.
Remedy
[21] Both parties were taken to ss392 and 393 of the Act, and provided submissions on the criteria and matters contained within those sections of the Act.7
Consideration
[22] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. An analysis of the material before the Commission indicates that:
- Ms Kilden’s employment contract did not provide for a specific work location;
- at the employment interview with Ms Kilden, Mr Best and Mr Maher advised Ms Kilden she would be trained and required to work at multiple UTAS campuses;
- Ms Kilden was trained to work on multiple UTAs campuses;
- the pattern of work established at the Centre or the Arts is a pattern of convenience and does not establish that Ms Kilden’s place of employment was that site;
- it is reasonable for SSL to direct Ms Kilden to work at any of the southern UTAS campuses, particularly in light of the tight geographical location of those sites;
- the email and text from Mr Best dated 11 June 2016 do not advise Ms Kilden that she has been dismissed;
- Ms Kilden received work emails during her 2016 trip to the UK which were indicative of an employment relationship still on foot;
- Ms Kilden has been offered work by SSL upon her return from the UK, but that work has not been at the Centre for the Arts.
[23] The subject of dismissal at the initiative of the employer was considered in Mohazab v Dick Smith Electronics (1995) 62 IR 200 at 205-206. In that decision the Full Court of the then Industrial Relations Court of Australia held that:
“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 (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of 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 p 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 crucial actions, that constituted a termination of the employment.”
[24] Further, in the AIRC Full Bench decision J Searle v Moly Mines Limited [2008] AIRCFB 1088 per Giudice P, O’Callagham SDP and Cribb C held at [38]
“…Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.”
[25] It is not enough for Ms Kilden to rely on her subjective view of the text message and email of 11 June 2016. The question of whether a termination took place is one of fact.
[26] The freedom and flexibility that is inherent in casual employment is well known and understood. Ms Kilden availed herself of that flexibility in 2014 and 2016 when she sought to take extended leave to travel to the United Kingdom. It is not surprising that SSL also chose to take advantage of the flexibility that came with the casual nature of the employment, that was, to roster Ms Kilden as other UTAS campuses, in accordance with the employment contract.
[27] Having regard to the analysis of the above material that is before the Commission, and considering the test established in Mohazab, I am unable to conclude that Ms Kilden’s employment was terminated by SSL. To the contrary, the evidence before me established that Ms Kilden, as indicated by Mr Best, would continue to receive work at other UTAS campuses.
[28] In summary, considering the evidence and conclusions made above, there is nothing before me which establishes that Ms Kilden has been dismissed at the initiative of the employer or as per s.386 of the Act. Accordingly, I am satisfied that Ms Kilden does not meet the criteria set out in s.394(1) of the Act (that is a person that has been dismissed) and her application is therefore incompetent and must be dismissed.
Conclusion
[29] For the reasons given above, I have concluded that Ms Kilden was not dismissed pursuant to s.386 of the Act and that she does not meet the requirements set out in s.394(1) of the Act. I dismiss Ms Kilden’s unfair dismissal remedy application. An order to that effect will be issued shortly.
DEPUTY PRESIDENT
Appearances:
Ms T Kilden, the Applicant
Mr M Potter,for the Respondent
Mr S Steedman, for the Respondent
Hearing details:
Hobart
2016
5 September
1 Exhibit A1 and A2 – Witness Statements of Tina Julie Kilden, undated, together with evidence document
2 Exhibits R1 and R2 – Witness Statements of Kerry Best, dated 1 August and 25 August 2016
3 Exhibit R3 – Witness Statement of Stanley Maher, undated
4 Exhibit R1 (first statement), paragraph 5
5 Exhibit A2 (second Statement), page 2
6 Employment Contract between SSL and Tina Kilden dated 19 April 2012
7 See Transcript – closing submissions
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