Tony Forrow v United Resource Management Group (Urm)
[2011] FWA 3411
•1 JUNE 2011
Note: An appeal pursuant to s.604 (C2011/377) was lodged against this decision.
[2011] FWA 3411 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tony Forrow
v
United Resource Management Group (URM)
(U2010/16044)
COMMISSIONER CAMBRIDGE | SYDNEY, 1 JUNE 2011 |
Unfair dismissal - whether applicant was dismissed or terminated his own employment - alleged casual employment - actual status of employment - instruction to applicant not to attend for work - repudiation of fundamental term of employment accepted by applicant after attempts to recover the employment had failed - termination of employment on initiative of employer - harsh, unreasonable and unjust dismissal - further proceedings to determine remedy.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 31 December 2010. The application was made by the Transport Workers’ Union of Australia, (the TWU), on behalf of Tony Richard Forrow, (the applicant) and named the respondent employer as United Resource Management Pty Ltd, (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 20 December 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 4 May 2011.
[3] At the Hearing the applicant was represented by Mr Oshie Fagir from the TWU. Mr Fagir called the applicant as the only witness to provide evidence in support of the claim. The employer was represented by Mr Rod Marshall a lawyer from the firm FCB Workplace Law. Mr Marshall adduced evidence from four witnesses, Mr Mark Anthony Nelson, Mr David Joseph Johnston, Mr Richie Scott Venn and Mr Ernesto Butera.
Factual Background
[4] The applicant had worked for the employer for about 11 months. The applicant worked as a waste collection vehicle driver. The employer is a company operating in the waste management industry. The employer has more than 100 employees engaged in connection with various waste recycling and collection operations. The applicant was employed in respect to waste recycling and collection operations undertaken by the employer by way of contract with the Warringah Municipal Council.
[5] The applicant commenced employment in January 2010. In March 2010 the applicant was provided with a document that advised that he had been appointed as a “permanent” employee1. The appointment letter dated 23/3/10 contains various terms that were attached to the employment including that the applicant would be initially employed on a three month probationary period. The record of this document that was retained by the employer included a hand written line made through the word “permanent” and the word “casual” was written above the word “permanent”. These hand written alterations were not made to the version of the appointment letter retained by the applicant.
[6] In late May 2010 the applicant suffered a work related neck injury. This injury led to the applicant being unfit for work for a period in June 2010 during which time he was in receipt of workers compensation payments. On about 30 June 2010 the applicant was cleared to return to work on suitable duties. In brief, the suitable duties involved the applicant driving rear-loading rather than side-loading collection vehicles. In about September 2010 the applicant returned to pre-injury duties, specifically the driving of side-loading collection vehicles.
[7] On 24 September 2010 the applicant received a final letter of warning regarding misconduct for failing to follow company procedure or instructions. This misconduct involved the applicant urinating in the Warringah Council depot. Although the applicant claimed that he was out of sight the employer did not accept the applicant's justification for his actions and he was therefore issued with the final letter of warning.
[8] In December 2010 there was an aggravation of the applicant’s work related neck injury. The aggravation of the injury resulted in the applicant being unfit for work for a further short period after which he was cleared to return to pre-injury duties from Monday, 13 December 2010.
[9] On Monday, 20 December 2010 the applicant commenced work at 6:30 am as usual. On that morning a number of the other drivers (approximately 5) had not attended for work and therefore the collection work for that day had to be undertaken by a reduced complement of drivers. The collection work scheduled for completion each day is variously referred to as “a run” or “runs” or “a round” or “rounds”. The reduced number of drivers created obvious difficulties with the completion of the collection work for that day. These difficulties were exacerbated by a mechanical breakdown with one of the collection vehicles that the applicant was driving during the morning.
[10] During the afternoon of 20 December the applicant and other collection vehicle drivers were requested to work beyond their usual finish time in order to attempt to complete the runs for that day. At about 6:30 pm the applicant and his supervisor, Mr Butera, had a discussion via the two-way radio communications system installed in the collection vehicles. This discussion commenced with enquiry by Mr Butera as to the anticipated completion time of the runs that were being undertaken by the applicant and the drivers of a number of other vehicles. During this open two-way radio discussion the applicant raised concern about the length of time that he and by implication, the other drivers, were being asked to work. The applicant raised particular concern about the apparent breach of the heavy vehicle driving fatigue management regulations (the fatigue management regulations) if he (and others), continued to work until completion of the runs.
[11] The applicant advised Mr Butera that he was returning to the depot because he had discovered that the vehicle that he was driving had a mechanical problem and that if he continued to work he would exceed the number of driving hours permitted under the fatigue management regulations. According to the evidence of the applicant Mr Butera became abusive and after an exchange of “unpleasantries” Mr Butera made a direction over the two-way radio for all collection vehicle drivers to return to the depot. Mr Butera confirmed that he did make the direction for all the collection vehicle drivers to return to the depot. However he said that he did so in the absence of the angst suggested by the applicant as he had agreed with the applicant's decision to return to the depot.
[12] Shortly after the applicant returned to the depot Mr Butera told him that he was not required for work the next day or the day after. There were considerably different recollections about the further details of this conversation between the applicant and Mr Butera. However it was clear that the applicant was told by Mr Butera not to attend for work on the following day, or the day after, or for an indeterminate period after that. Further it was undisputed that the applicant objected to the instruction given by Mr Butera and he advised Mr Butera that he would contest the issue and raise the matter with a more senior member of the employer's management, Mr David Johnston. The applicant unsuccessfully attempted to make telephone contact with Mr Johnston. The applicant then sent a text message to Mr Johnston requesting that he called him urgently. The applicant’s attempts to make contact with Mr Johnston that evening were unsuccessful.
[13] On the next day, at about 6:30 am the applicant again telephoned Mr Johnston and left a voicemail message requesting that he return the call urgently. In the absence of any response the applicant then travelled to the employer’s head office in an attempt to meet with Mr Johnston. Mr Johnston was not at the head office but the applicant did manage to make telephone contact with Mr Johnston who said he was very busy and would call him back later that day. At about 3 pm that afternoon the applicant made a further telephone call to Mr Johnston and during this conversation Mr Johnston agreed to meet with the applicant at the head office at 11 am the next day, 22 December.
[14] On the next day, 22 December, Mr Johnston cancelled the meeting with the applicant that had been scheduled for 11 am. The applicant made telephone contact with Mr Johnston at about 10:30 am and briefly told him about the issue that he wished to raise regarding Mr Butera having removed him from the work roster in the week before Christmas. Mr Johnston said that he would “look into” the matter. Mr Johnston claimed that during this telephone conversation he also told the applicant to make contact with another of the employer’s managers, Mr Nelson. However the applicant said that he was certain that Mr Johnston never mentioned Mr Nelson.
[15] By 3 pm that afternoon the applicant had not heard from Mr Johnston and so he attempted to telephone him. Unfortunately the applicant was again unsuccessful and he sent a further text message requesting that Mr Johnston call him. At about 4:10 pm the applicant made contact with one of the other collection vehicle drivers by the name of “Mitch”. Mitch told the applicant that there had been further absences from work of drivers and that there was continued difficulty with finishing their runs without working additional hours.
[16] On the following day, 23 December, the applicant made contact with the TWU and on or about 28 December the applicant attended the TWU offices and an unfair dismissal application was prepared and subsequently filed on 31 December 2010. There was no further contact with the applicant made by Mr Johnston or any other representative of the employer in respect to the matter that the applicant had attempted to raise with Mr Johnston on 20, 21 and 22 December.
[17] On 10 January 2011 the employer was advised that the applicant’s unfair dismissal claim was listed for conciliation before FWA on 3 February 2011. On 12 January 2011 an article appeared in the Manly Daily newspaper which referred to inter alia, the applicant's unfair dismissal claim and his assertion that drivers engaged by the employer to perform work under contract for the Warringah Council had been forced to work dangerously long shifts.
The Applicant’s Case
[18] Mr Fagir, from the TWU, appeared for the applicant and made detailed written submissions in support of the claim. These submissions were broadly divided into two parts, one part analysed the evidence and the second part dealt with the question of whether the termination of employment of the applicant was at the initiative of the employer.
[19] The submissions made by Mr Fagir firstly addressed the work pattern of the applicant. In this regard it was submitted that the evidence clearly established that the applicant worked on a regular and systematic basis usually involving work on Mondays to Fridays of each week.
[20] Secondly Mr Fagir made submissions about the issue of extended working hours in the context of the fatigue management regulations. Mr Fagir submitted that the employer had only minimal knowledge of and little regard for its obligations in respect to the fatigue management regulations. Further, according to Mr Fagir, the applicant had genuine and legitimate concerns about the extended working hours that were required by the employer in respect to work undertaken for the Warringah Council.
[21] Mr Fagir also made submissions about the employment status of the applicant. Mr Fagir referred to the Waste Management Award 2010 and he submitted that for Award purposes the applicant was a permanent rather than casual employee. According to the submissions made by Mr Fagir, whether or not the applicant’s employment status was casual or permanent, the removal from the work roster on 20 December was a sudden and significant departure from his working arrangements established since the commencement of his employment in January 2010.
[22] The submissions made by Mr Fagir also examined in detail the evidence about the events of Monday, 20 December 2010. These submissions criticised the absence of testing of important competing aspects of the evidence as advanced by the employer. Mr Fagir said that the employer's version of important aspects of conversations particularly between the applicant and Mr Butera, were not put to the applicant. Mr Fagir also submitted that the applicant's version of these important events was corroborated by his contemporaneous notes and assisted by completely implausible aspects of Mr Butera’s account.
[23] Mr Fagir made further submissions about the evidence regarding the amount of work on the days following 20 December. In this regard it was submitted that there was no basis to support the suggestion that the applicant was removed from the roster simply because he was surplus to work requirements at the time. Mr Fagir also made submissions about the conduct of both the applicant and the employer’s representatives specifically Mr Johnston, in the days immediately following the removal of the applicant from the work roster on 20 December. According to Mr Fagir this evidence confirmed that the applicant's repeated and genuine attempts to clarify his employment situation were not met with any reasonable responses.
[24] The submissions of Mr Fagir also addressed what were asserted to be irrelevant aspects relied upon by the employer including the issue of a final medical clearance in respect of the applicant's work-related injury.
[25] Mr Fagir submitted that a series of important conclusions should be drawn from the evidence. Specifically the applicant worked regularly five days a week and that this work was abruptly removed by the actions of Mr Butera following an argument about extended driving hours. Further, there was abundant work for the applicant and he was fit and eager to perform that work and his attempts to challenge his removal from work were ignored by the employer.
[26] The second part of the submissions made by Mr Fagir addressed the question of whether the applicant's employment was terminated at the initiative of the applicant or the employer. Mr Fagir referred to a number of Decisions which he said established that the principle enquiry that was required involved a question as to whether the employer’s conduct when viewed objectively, had the intended or probable effect of bringing the employment relationship to an end.
[27] Mr Fagir submitted that the actions of the employer in removing the applicant from the work roster indefinitely and then resisting or ignoring the applicant's attempt to contest that removal when combined with the ongoing failure to return the applicant to any work, had the intended, probable and in fact inevitable consequence of bringing the employment relationship to an end. Therefore, in summary, Mr Fagir submitted that the applicant’s employment was terminated at the initiative of the employer and that dismissal was without valid reason and therefore harsh, unjust and unreasonable. Consequently Mr Fagir urged that the matter should proceed to further Hearing in respect to any remaining matters and remedy.
The Employer’s Case
[28] Mr Marshall, who appeared on behalf of the employer, filed written submissions dated 12 May 2011 which were made in addition to an earlier outline of submissions dated 30 March 2011. Mr Marshall submitted that there was one primary issue for determination. That issue was whether the applicant was dismissed by the employer as contemplated by s. 386 of the Act. Specifically Mr Marshall said that the applicant's employment had not been terminated on the employer's initiative and therefore the application should be dismissed for want of jurisdiction.
[29] The submissions made by Mr Marshall set out various aspects of the evidence which were said to confirm that the actions of the applicant and not the employer caused the termination of the employment. These submissions mentioned that at no time did either Mr Butera, Mr Johnston or any other representative of the employer, advise the applicant either verbally or in writing that he had been dismissed from employment. Further, the applicant did not contact Mr Butera after 20 December 2010, seeking or making enquiry about the availability of work. In addition it was submitted that neither the applicant nor the TWU sought clarification or confirmation from the employer about whether the applicant had been dismissed. Instead it was submitted that the applicant had decided of his own accord on about 22 December 2010 that his employment had been terminated.
[30] Consequently the respondent submitted that the various factors identified from evidence of the respective party's actions indicated that there was no termination at the initiative of the employer. Therefore according to Mr Marshall the jurisdictional threshold established under s. 386 of the Act had not been established.
[31] Mr Marshall made further submissions which were critical of the applicant's actions on 21 and 22 December. It was submitted that the applicant's attempts to raise his concerns with Mr Johnston at that time were not properly directed towards a person who had the relevant responsibility. It was also submitted that the applicant embarked upon a course of action which had the sole purpose of pursuing an unfair dismissal claim rather than properly seeking to obtain some further work. These submissions included a variety of suggested alternative actions that were said to have been available to the applicant and which he did not pursue at the time.
[32] The submissions made by Mr Marshall detailed matters that are said to be relevant to the consideration of the jurisdictional test as to whether there had been a termination at the initiative of the employer. These submissions included reference to the history of the development of the current legislative provisions together with reference to a number of Decisions of FWA and the Australian Industrial Relations Commission. These Decisions often involved the concept of a constructive dismissal which frequently concerned the resignation of an employee in circumstances where it was alleged that that resignation was not freely given but rather a forced or intended reaction to conduct of the employer. Mr Marshall submitted that the various factors which had been identified as being relevant to establishing a constructive dismissal could not be found in the present case. Rather, it was submitted that the applicant alone decided that his employment had been terminated and he pursued a course of conduct designed to support that decision.
[33] Mr Marshall submitted that the employer was entitled to have assumed that the applicant's actions relating to: (a) his conduct immediately following advice from Mr Butera on 20 December that he would not be rostered for work on the following day; and (b) the filing of the unfair dismissal application on 31 December; and (c) the publishing of comments that were highly critical of the employer in the Manly Daily on 12 January 2011, amounted to the applicant effectively having abandoned, disavowed, resigned from or repudiated his employment.
[34] In summary, the submissions made by Mr Marshall asserted that the situation that arose between the applicant and Mr Butera on 20 December 2010 did not give rise to the applicant being able to claim that he had been unfairly dismissed where no act at the initiative of the employer can be identified. Therefore the termination of the applicant's employment was not on the initiative of the employer and the application must fail for want of jurisdiction.
Consideration
[35] Section 385 of the Act prescribes that 4 cumulative elements must be met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[36] In this case there was significant challenge relating to that element contained in subsection 385 (a), of the Act. Specifically, the employer contended that the applicant had not been dismissed because the circumstances of the termination of employment did not satisfy the meaning of “dismissed” as set out in s. 386 of the Act.
[37] Subsection 386 (1) of the Act is in the following terms:
“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.”
[38] The primary determination of this matter has involved an examination of the evidence surrounding the circumstances of the termination of employment so as to establish whether the actions of the applicant or the actions of the employer caused the employment to come to an end. The evidence contained a number of important factual conflicts particularly relating to the conversations between the applicant and Mr Butera on the evening of 20 December 2010. The consideration of the matter can initially be approached without necessarily resolving these factual conflicts. Essentially these factual conflicts can be put to one side and determined at a later point of the consideration.
[39] Although there was a clear contest about the detail of the discussions between the applicant and Mr Butera on 20 December 2010, there was no dispute that Mr Butera instructed the applicant not to attend for work on the next day or the day after that or for some unspecified period thereafter. Mr Butera made that instruction on the basis that the applicant was a casual employee who could be directed not to attend for work in such a fashion. If the applicant was not a casual employee then the instruction made by Mr Butera to the applicant to not attend for work would be a clear breach of a fundamental term of the employment. Consequently the status of the employment of the applicant has been a potentially vital aspect for consideration.
The Status of the Employment
[40] The applicant commenced employment in January 2010 and received a letter of appointment on about 23 March 2010. As mentioned earlier in this Decision, the letter of appointment had been altered by hand writing which crossed out the first mention of the word “permanent” and above that word the word “casual” was written. The version of the letter of appointment that the applicant had retained did not include the handwritten alterations. The employer suggested that the handwritten alterations on its copy of the letter of appointment would have been made at some point in time after the applicant had been given his copy of the document. This suggestion appears to represent a logical and plausible explanation for the differences that appear between the two documents.
[41] The letter of appointment also includes a number of other matters which are relevant to the status of employment of the applicant. Firstly it should be noted that the version of the appointment letter that contains the hand written alterations has no change made to the second mention of the word “permanent”. Secondly, the document also contains inter alia, the following:
“1. You will be employed by United Resource Management Group under the company's normal terms and conditions of employment.
2. You will be paid under the terms of the Transport Industry Waste Collection and Recycling (State) award [sic]2.
3. (If you are employed as a casual employee, please note that during your probationary period, your position may change and there is no guarantee of regular employment).”
[42] It is of relevance to note that the letter of appointment appears to suggest that the applicant, and presumably all other employees, would have their terms and conditions of employment established by way of “the company’s normal terms and conditions” and pay would be set by an Industrial Award. This is something of an unusual distinction to make, whereby employment terms and conditions are to be fixed by one mechanism and by implication, the application of the relevant Industrial Instrument is purportedly confined to the prescription of the rate of pay. This approach may provide explanation for evidence that established that the applicant was paid a casual rate of pay based upon the relevant Modern Award but other terms and conditions of the applicant's employment did not seem to be referable to the Modern Award.
[43] There would be no prohibition upon this somewhat unusual approach to establishing the basis for terms and conditions of employment provided that none of the terms and conditions established by the alternative method, in this case, the company's normal terms and conditions, were in any way inferior to the minimum terms and conditions established by the relevant Industrial Instrument. Therefore all terms and conditions of employment, however established, cannot be inferior to either the pay rates or any other terms and conditions established by the relevant Industrial Instrument.
[44] Although paragraph number 2 of the letter of appointment referred to the Transport Industry - Waste Collection and Recycling (State) Award there was no dispute that the relevant Modern Award was the Waste Management Award 2010 [MA000043] (the Award). Clauses 11, 12, 13 and 14 of the Award are relevant to the determination of the status of the applicant's employment. These clauses are in the following terms:
“11. Types of employment
11.1 Employees may be employed in one of the following categories:
(a) full-time;
(b) part-time; or
(c) casual.
11.2 At the time of engagement, an employer will inform each employee in writing of the terms of their engagement and in particular, whether they are to be full-time, part-time or casual. Such decision will then be recorded in the time and wages record.
12. Full-time employment
A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.
13. Part-time employment
13.1 A part-time employee is an employee who works less than 38 ordinary hours per week.
13.2 A part-time employee is to be paid per hour 1/38th of the weekly rate applicable to a full-time employee for the classification in which the employee is engaged with a minimum payment of four hours for each day.
13.3 Before commencing employment, the part-time employee and employer must agree upon:
(a) the hours to be worked by the employee, the days upon which they will be worked and the commencing and finishing times; and
(b) the employee’s classification.
13.4 The terms of the agreement pursuant to clause 13.3, and any agreed variation to it, must be in writing and retained by the employer. The employer must provide a copy of the agreement, and any agreed variation to it, to the employee.
13.5 The employer must pay a part-time employee at overtime rates for all time worked:
(a) in excess of the agreed hours; or
(b) outside the spread of hours in clause 27.2; or
(c) in excess of the daily or weekly hours agreed under clause 13.3.
13.6 The terms of this award apply pro rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38.
14. Casual employment
[Varied by PR503379]
14.1 A casual employee is one engaged as such and paid by the hour.
14.2 At the time of engagement the employer must inform the employee that they are to be employed as a casual, by whom they are to be employed and their classification, minimum wage and duties. The employer must also give the employee an indication of the actual or likely number of hours for which the employee will be required. This indication is not binding and does not constitute a guarantee.
14.3 The employer must notify a casual employee at the end of the day whether their services will be required on the next working day.
14.4 A casual employee while working ordinary hours must be paid 1/38th of the relevant minimum weekly wage per hour plus 25%. [14.5 inserted by PR503379 from 03Nov10]
14.5 In addition to normal overtime rates, a casual employee, while working overtime or outside ordinary hours, shall be paid on an hourly basis on thirty-eighth of the relevant minimum wage prescribed by the award, plus 10% of ordinary time earnings for the work performed.
[14.5 renamed as 14.6 by PR503379 from 03Nov10]
14.6 The minimum daily engagement of a casual is four hours.”
[45] The applicant's letter of appointment did not describe the type of his engagement in terms that synchronise with the types of employment mentioned in clause 11 of the Award. However the use of the word “permanent” would logically be used to encompass either full-time or part-time employment as opposed to casual employment. The handwritten alterations to the letter of appointment represent an attempt by the employer to establish the type of employment to be casual rather than either full-time or part-time, so-called “permanent”.
[46] However it would seem that by way of operation of clause 11.2 of the Award the employer would be required to have informed the applicant in writing that he was engaged as a casual. In the absence of such written information the applicant would be entitled to rely upon the written advice that he was given which stated that he was engaged as a “permanent” employee as opposed to a casual.
[47] Further, the evidence established that apart from the payment of a casual loading there were no characteristics of the employment of the applicant that were consistent with the provisions of clause 14 of the Award. There was no evidence that the nature of the applicant's employment was casual, or that he was paid by the hour, or that at the time of engagement he was informed that he was to be employed as a casual, or that he was given an indication of the actual or likely number of hours for which he would be required. Specifically in respect of clause 14.3 of the Award, there was no evidence that on any day other than 20 December 2010, was the applicant notified at the end of the day as to whether his services would be required on the next working day. On the contrary, the unchallenged evidence of the applicant was that a weekly roster was posted, and on Friday 17 December 2010 the applicant's name appeared on that roster for all working days of the following week.3
[48] It is also relevant to note that the applicant completed applications for leave4 during what was accepted by the employer to be a period of regular and systematic employment albeit that the employer asserted that it was of a casual status. However the evidence of the various aspects and characteristics of the applicant's employment when carefully assessed against the criteria established by the relevant Award provisions, leads to the inescapable conclusion that the applicant’s employment could not be properly held to be of a casual status.
[49] The position that emerged from a consideration of the totality of the evidence was that the employer mistakenly believed that payment of a casual loading was sufficient to establish that the employment was of casual status. This approach appeared to have been derived from the contents earlier identified in the letter of appointment which sought to use one mechanism for establishing terms and conditions of employment and confine the operation of the Industrial Instrument to pay rates.
[50] I can appreciate that the employer might believe that by making the additional payment associated with the casual loading it had “purchased” the flexibilities or other benefits that it might desire as would be attached to employment of a casual status. However unless the minimum terms of the Award which prescribe the basis for establishing casual employment are satisfied the payment of casual loading does not operate so as to negate or avoid those minimum terms. If those minimum terms are not met the employment cannot be of a casual status even if the casual loading is paid and the employer and the employee described and appeared to treat the employment as if it were casual.
[51] Consequently, on 20 December 2010 when Mr Butera instructed the applicant not to attend for work on the next day or days following, he was acting in the erroneous belief that the applicant was a casual employee. The applicant’s employment was not of a casual status and there was an obligation on the employer to continue to provide work in accordance with the established and understood pattern of regular employment. Therefore the employer had no legitimate right to simply refuse to provide work to the applicant on 21 December or thereafter.
[52] The determination of this matter could have been completed on the basis of my findings in respect to the status of the applicant's employment and that consequently the instruction made by Mr Butera on 20 December 2010, was not available to the employer and represented of itself, the act of dismissal of the applicant. However for abundant caution I have undertaken further consideration if, in the alternative, the employment status of the applicant was such that the employer had some legitimate capacity to refuse to provide work to the applicant as was conveyed by Mr Butera on 20 December 2010.
Repudiation of Contract of Employment
[53] The instruction given to the applicant by Mr Butera on 20 December was immediately challenged by the applicant who asserted that he was not a casual employee. Notwithstanding any contest about whether the applicant was a casual employee, the instruction clearly represented a significant, perhaps momentous, alteration to a fundamental term of the employment, namely, the provision of work in accordance with an established and understood pattern of regular employment. Further, advice of the change was abrupt, it would operate within less than 11 hours before the scheduled start time on 21 December, and the financial impact of the change would be conspicuously magnified by the proximity to Christmas.
[54] A unilateral change to the employment of this nature can be treated as action by the employer that displays an intention to no longer be bound by the terms of the contract of employment. Thus the concept of repudiation of the employment contract has attracted analysis. This analysis has been assisted by, in particular, the Decision of the Full Bench of FWA in Dover-Ray v Real Insurance Pty Ltd5. The inquiry required has involved an examination of the circumstances that surrounded the instruction given by Mr Butera on 20 December and the conduct of the parties in the days following particularly up until the unfair dismissal claim was made.
The Reason for the Instruction Not to Work
[55] There was considerable variation between the evidence of the applicant and that of Mr Butera about the detail of their conversations on 20 December 2010. Essentially the position that Mr Butera would have FWA believe was that on the afternoon of 20 December he was reviewing the roster arrangements for the following day and he decided that as the applicant was not one of the more efficient collection vehicle drivers he would not require his services for the following day or days. Once the applicant had returned to the depot that evening he simply advised him of this decision and there was no connection between that decision and the applicant raising the issue of the fatigue management regulations and returning to the depot before the completion of his run.
[56] In the alternative, the applicant's evidence was that when he raised the issue of the fatigue management regulations Mr Butera reacted angrily and he was incensed when faced with the position that he would be breaching the fatigue management regulations if he did not recall all the collection vehicles before they had finished their respective runs. The applicant asserted that there was no other basis for Mr Butera's decision instructing him not to attend for work the following day or days, other than as retaliation for the applicant raising issue about proper observance of the fatigue management regulations.
[57] The applicant's version of the discussions with Mr Butera on 20 December was supported by a number of factors.
[58] Firstly, the applicant produced hand written notes6 of the conversations which were made shortly after the events occurred. Although these notes did not contain precisely the same words in each and every exchange as deposed to in the applicant’s primary statement7 they synchronised with a very believable level of consistency and represented an accurate and contemporaneous written record.
[59] Secondly, much of the applicant's version of the relevant events was not challenged. In particular Mr Butera’s version of the important conversations of 20 December was not put to the applicant. As an example, the conversation detailed at paragraph 22 of the applicant's primary statement recounted Mr Butera’s aggressive response when the applicant raised the issue of working hours in excess of those permitted by the fatigue management regulations. In contrast, the evidence of Mr Butera at paragraph 6 of his statement was, “I agreed with Mr Forrow’s decision and accordingly, directed him and other vehicles to return to the depot.” Mr Butera’s version of this important aspect of evidence was not tested with the applicant. It was not suggested to the applicant that he was either mistaken or wrong with respect to the aggressive reaction of Mr Butera as he had alleged, and that instead, Mr Butera had simply and calmly agreed with the applicant's decision to return to the depot and recalled all vehicles.
[60] Thirdly, there was significant implausibility attached to the reasoning that Mr Butera advanced as the basis for the decision to remove the applicant from the work roster. Mr Butera said that he did not need the applicant because he was not a “first-string” driver. The evidence from all witnesses confirmed that the period immediately before Christmas was very busy such that there would be increased demand for collection vehicle drivers. There had been an unexpected absence of approximately 5 drivers that morning. The reduced complement of drivers and the mechanical breakdown of vehicles contributed to the situation whereby the runs for that day had not been completed. All of these factors contributed to a demand for more rather than less collection vehicle drivers to be rostered for work.
[61] Fourthly, the applicant's evidence was consistent and provided with an open and honest demeanour. Conversely, the performance of Mr Butera as a witness was, at best, regrettable. Mr Butera’s answers to questions during cross examination were often evasive and guarded. However in answer to questions from FWA he became unusually expansive to the extent that at one point his testimony unintentionally appeared to reveal the essence of the reason why the applicant was removed from the work roster. The following extract from the transcript of proceedings encapsulates the fundamental issue that has given rise to these proceedings and reveals that sometimes the truth can “escape” almost without notice. During questioning from FWA, Mr Butera perhaps unwittingly, provided the following evidence:
“PN925
But you say in your statement that you'd completed the roster for the next day - - -?---Yes.
PN926
- - - before that event occurred?---That's right, but that event had nothing to do with me saying to Tony, "I don't want you tomorrow, because of what you just done now.”
[62] Although the applicant did not suggest that Mr Butera had bluntly said that he did not want the applicant to work tomorrow because he had raised issue about working hours in excess of the fatigue management regulations, Mr Butera unintentionally perhaps, offered evidence of such a direct connection. A consideration of the totality of the evidence also confirms that connection. The evidence has firmly established that the reason for the instruction to the applicant not to work on 21 December and beyond was a punishment in retaliation for the applicant raising issue about working hours in excess of the fatigue management regulations.
Attempts to Recover the Employment
[63] The applicant understood that the instruction not to attend for work made by Mr Butera was punishment for raising the issue about the fatigue management regulations. The applicant made immediate and repeated attempts to raise this matter with a more senior manager, Mr Johnston. It was reasonable for the applicant to assume that a more senior member of management might calmly reassess what was on any objective assessment, a totally unacceptable and unlawful instruction that had been given by Mr Butera.
[64] Unfortunately and perhaps in part because it was such a busy period for the business operations of the employer, the applicant was unsuccessful with his repeated attempts to meet with Mr Johnston and explain the circumstances surrounding the events of 20 December. Although it is clearly speculative to contemplate what may have happened if the applicant had been able to carefully explain the position to Mr Johnston, such clarification would have occurred at a time where there would have been considerable prospects for a calm and measured reconsideration of the instruction that had been given by Mr Butera.
[65] It is relevant to recognise that the events under examination were occurring in the week before Christmas and this would have heightened the financial pressures that were created by the instruction to the applicant to not attend for work. The evidence demonstrated that the applicant was pursuing Mr Johnston with an unambiguous level of urgency and that Mr Johnston was made aware early on 21 December that the nature of the applicant's concern involved an instruction from Mr Butera that there was no work for the applicant.
[66] The financial implications of the issue that the applicant was seeking to raise must have been self-evident to Mr Johnston. Although matters of this nature were not normally part of the role that Mr Johnston performed in the business, by (at first) agreeing to meet with the applicant it was reasonable for the applicant to consider that Mr Johnston had assumed responsibility for the matter as a senior manager of the employer. Indeed, the concluding remarks of Mr Johnston in his telephone discussion with the applicant on 22 December clarified, inter alia, that he would “look into” the matter.
[67] Regrettably Mr Johnston took no further steps to deal with the issue that had been raised by the applicant despite its financial implications and the urgency with which the matter had been agitated by the applicant. As the days of the week before Christmas passed without further contact from Mr Johnston, it was understandable that the applicant came to the conclusion that the actions of Mr Butera were not going to be reviewed by Mr Johnston or any other senior manager of the employer.
[68] The applicant made initial contact with the TWU on about 23 December and arranged to meet with the relevant TWU Officers on 28 December 2010. By 28 December there had been no contact made with the applicant by Mr Johnston or any other representative of the employer. By this time the urgency associated with Christmas had passed and the financial consequences had materialised. In these circumstances the applicant's level of anguish about the matter would have been understandably elevated.
[69] As at 28 December, it would have been preferable if the TWU had attempted to clarify the position of the applicant’s employment by making contact with the employer. However the financial impacts at Christmas had been suffered, and given the nature of the issue that provided catalyst for the events, namely the retaliatory punishment for raising the fatigue management regulations, the applicant was entitled to treat the actions of the employer as an unambiguous and improperly based repudiation of the employment. In these circumstances it would be unremarkable that the applicant would not request that the TWU seek to restore the employment.
[70] Consequently, by 28 December the applicant’s employment had ended and there was no prospect for any recovery. The termination of the applicant's employment occurred as a direct result of the instruction made on 20 December by Mr Butera for the applicant not to attend for work. The instruction was unavailable to the employer and, or, of unconscionable motivation. Therefore the instruction was a clear repudiation of an essential element of the employment. After providing reasonable opportunity for the employer to recant the instruction the applicant was entitled to act upon the repudiation and treat the actions, and inactions, of the employer as tantamount to dismissal. Consequently the termination of the applicant’s employment occurred on the initiative of the employer and thereby satisfied the provisions of subsection 386 (1) (a) of the Act.
Harsh, Unjust or Unreasonable
[71] The other relevant element of s.385 of the Act has involved consideration as to whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria which FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Valid reason for the dismissal related to capacity or conduct
[72] The circumstances of this case do not neatly align with the usual approach to identification of any valid reason or reasons for dismissal. The employer asserted that there was no dismissal and by logical extension, no reason for dismissal.
[73] The termination of the applicant’s employment arose by way of direct action and to some extent inaction, on the part of the employer. The action of the employer that provided catalyst for the dismissal was unlawful and, or, of unconscionable motivation. That action translates as representing no valid reason for the dismissal of the applicant.
[74] Consequently there was not a valid reason for dismissal relating to the applicant’s capacity or conduct.
Notification of reason for dismissal
[75] In this instance there was no notification of dismissal.
Opportunity to respond to any reason related to capacity or conduct
[76] The instruction by the employer to the applicant to not attend for work was a precipitous and ill considered act that denied the applicant any opportunity to respond if there had been genuine issue in respect to the applicant’s capacity or conduct.
Unreasonable refusal to allow a support person to assist
[77] In the circumstances of this case this factor has no relevance.
Warning about unsatisfactory performance
[78] The applicant had been given earlier warning about misconduct relating to urinating in the Council depot. The events of 20 December 2010 were completely disconnected with the earlier misconduct. However I have had cognisance of that warning as part of the general consideration of all of the issues relevant to the determination of the matter.
Size of enterprise likely to impact on procedures
[79] This factor is of no relevance to the circumstances of this case.
Absence of management specialists or expertise likely to impact on procedures
[80] This factor is of no relevance to the circumstances of this case.
Other relevant matters
[81] Following the commencement of his unfair dismissal claim the applicant sought to publicly denigrate the employer8. The practical utility of such publicity must be questioned. The primary remedy for an unfair dismissal is reinstatement and the applicant's post dismissal conduct would on any objective assessment, create considerable impediment to reinstatement.
[82] Consequently the applicant’s post dismissal actions appear to have been motivated out of the indignation that he understandably felt at being dismissed a few days before Christmas as retaliation for raising legitimate concerns about workplace safety relating to the fatigue management regulations which of course, extends to the safety of the public more generally. Although I can appreciate the indignation that would have motivated the applicant, I doubt that the publicity associated with the Manly Daily article would have had any practical benefit in respect of the underlying workplace and public safety issues. It has appeared that rectification of these matters has been progressed by ongoing actions on the part of the appropriate government authority, WorkCover NSW.
[83] On balance, I believe that the post dismissal actions of the applicant connected with the public denigration of the employer are regrettable, broadly counter-productive and should not be endorsed. Those actions however could not disturb the primary findings that are made in this matter but may have some impact on the issue of remedy.
Conclusion
[84] The primary determination of this unfair dismissal claim has concentrated on whether the applicant was dismissed. Specifically FWA has been required to determine whether the termination of the applicant's employment was on the initiative of the employer or as a result of action of the applicant.
[85] Upon analysis I have reached the conclusion that the termination of the applicant's employment was on the initiative of the employer. In summary, the applicant was entitled to treat the actions and inactions of the employer during the period 20 to 23 December 2010 as repudiation of the employment. The particular act that provided catalyst for the repudiation of the employment was unavailable to the employer and, or, of unconscionable motivation.
[86] The final component of the primary determination has involved whether the dismissal of the applicant was harsh, unjust or unreasonable. Following an examination of the criteria set out in section 387 of the Act, I have concluded that the dismissal of the applicant was harsh, unjust and unreasonable.
[87] In view of the primary findings that have been made in this matter and as submitted by the TWU, an opportunity for further Hearing in respect to the issue of remedy will be provided upon the written request of the TWU within 21 days from the date of this Decision.
[88] Accordingly the matter will remain open in anticipation of a requirement to provide for a Directions proceeding to facilitate further Hearing.
COMMISSIONER
Appearances:
Mr O. Fagir, from the Transport Workers’ Union of Australia, for the applicant.
Mr R. Marshall, solicitor from FCB Workplace Law, for the employer.
Hearing details:
Sydney, 4 May 2011.
1 Exhibit 1 - Tab B
2 This has been presumed to be a reference to the Transport Industry - Waste Collection and Recycling (State) Award (AN120614), formerly Award 676, Serial C4146 of the Industrial Relations Commission of New South Wales.
3 Transcript of proceedings (4May2011) @ PN123.
4 Exhibit 1 Tab C.
5 Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd, [2010] FWAFB2670, Lawler VP, Richards SDP & Larkin C.
6 Exhibit 3 - TF1.
7 Exhibit 2.
8 Exhibit 7 - Annexure DJ 1.
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