Travis Sorensen v Designed Logistical Solutions Pty Ltd
[2024] FWC 1069
•24 APRIL 2024
| [2024] FWC 1069 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Travis Sorensen
v
Designed Logistical Solutions Pty Ltd
(U2023/9175)
Hollie Rose
v
Designed Logistical Solutions Pty Ltd
(U2023/9198)
| COMMISSIONER SIMPSON | BRISBANE, 24 APRIL 2024 |
Applications for unfair dismissal remedy – Two separate applications heard concurrently – Jurisdictional objection that applicants resigned dismissed – Dismissals unfair – Compensation ordered.
On 22 September 2023, Travis Sorensen (Mr Sorensen) and Hollie Rose (Ms Rose) (collectively, the Applicants) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging they were unfairly dismissed from their employment with Designed Logistical Solutions Pty Ltd (the Respondent).
History of the Matter
The Respondent raised a jurisdictional objection to the two applications on the basis that it was a small business and the Applicants had therefore not completed the minimum employment period. I earlier dealt with this objection in [2024] FWC 791, finding that the Respondent was not a small business employer, and the Applicants had completed the applicable minimum employment period of 6 months. I therefore dismissed this jurisdictional objection.
In its Form F3 response to the applications, the Respondent also stated that the Applicants had not been dismissed by the Respondent, but had instead resigned. The question before me now is whether the Applicants were dismissed within the meaning of s.386 of the Act, and if so, whether their dismissals were harsh, unjust or unreasonable pursuant to s.385.
The history of the matter was provided in the decision in [2024] FWC 791, however for completeness, this will be restated with the inclusion of further developments.
On 14 February 2024 I issued Directions for the filing of material relating to the Respondent’s jurisdictional objection that they had less than 15 employees at the time of termination. The Respondent failed to file material by the due date being 19 February 2024. On 21 February 2024, my chambers sent a follow up email to the Respondent seeking an explanation as to why material was not submitted in accordance with the directions. The Respondent emailed my chambers on 22 February 2024 noting that “Getting a sworn statement is difficult due to road access to Mossman and the Mossman court house having repairs from the Jasper floods.”
On 23 February 2024, my chambers sent a further email to the Respondent seeking they advise when they would be able to submit material. The Respondent did not reply to this email.
On 5 March 2024, my chambers sent a further email to the Respondent noting the failure to file or reply to the email on 23 February and I noted that if the Respondent failed to file material by 5:00pm 8 March 2024, I would dismiss the Jurisdictional Objection and list the matters for a hearing of the substantive applications. This same day, the Respondent sent an email noting the following:
“I would request the commissioner refer to the Douglas shire website and road access to Cape tribulation. We have now been isolated for 82 days. Failure of the shire give us access and support continues. The State government. It is impossible for me to get to arrange any of this necessary stuff. We had another 750t land slide that closed all access off for another 5 days. We still have not received any notification from the Douglas shire on when the road will be open again. And update on the 8th March 2024 is due by the DSC. It was meant to be the 4th March but they postponed it do to engineers and managers of the DSC now resigning under the mounting pressure. TMR is meant to be taking over control of the roads owned by the DSC but still no formal update.”
In response to this, I listed the matters for a further Case Management Hearing on 15 March 2024 by telephone. The Respondent failed to attend this listing. Accordingly, I again issued Directions for filing of material relating to the Respondent’s jurisdictional objection that they had less than 15 employees. The email containing the Directions noted that:
“…
The Commissioner is aware that the Respondent has previously raised the issue of roads being inaccessible due to the aftermath of the recent cyclone and other weather events as the reason the Respondent has been unable to comply with earlier directions to file evidence or submissions as the Respondent could not obtain sworn statements. The Commissioner advises to overcome that issue he is content for unsigned statements to be filed, and for signed statements to be filed at a later time prior to the hearing, or alternatively they can be adopted by the witness during the telephone hearing after a witness has been sworn in.
…”
I listed a hearing by telephone at 12:00pm on 27 March 2024.
The Respondent failed to file material, and the Applicants filed material on 25 March 2024. The Respondent failed to attend the hearing on 27 March 2024 and as stated above, on 27 March I issued a decision [2024] FWC 791, finding that the Respondent was not a small business employer, and the Applicants had completed the applicable minimum employment period of 6 months. I therefore dismissed this jurisdictional objection.
On 27 March 2024, I issued directions for the parties to file material in relation to both the further jurisdictional objection that the Applicants were not dismissed and the merits of the applications.
On 2 April 2024, Mr Cromwell sent the following email to my chambers:
…
“I can not be a witness to any of this as I have never been part of this. I called Brandon and he said this is “crap and they were leaving anyway“ Josh also said this it not what was said. Neither work for the company anymore and now due to 4 months of government inaction we only have one employee and the company is seeking assistance still from the State government for the past 3 months or it folds at the end of April as it can no longer operate due to no adequate road infrastructure to support tourism. It has exhausted all of its assets and sold off what it can. We have lost our all of our key staff members due to no work. I have requested witness statements several times but as you could imagine ex employees have better avenues to follow. They were happy to talk on the phone.”
The Applicants filed material on 5 April 2024, and on 19 April 2024, the Respondent filed a witness statement of its Chief Financial Officer, Ms Brooke Cromwell. In this same email, the Respondent sought a further extension of a week to file a response from Mr Cromwell as he was out of service. My chambers sent correspondence noting the hearing would proceed as planned at 1:00pm (AEST) on Monday, 22 April 2024.
The further adjournment request was denied on the basis that the Respondent had been given more than sufficient opportunity to respond to the application and to be prepared to participate in the hearing on the listed date. The Respondent had a history of failing to comply with earlier directions. The reason for the adjournment request, particularly in light of Mr Cromwell having already indicated he could not assist the Commission with any direct evidence himself, in the circumstances did not justify a further delay.
The Respondent failed to attend the hearing listed on 22 April 2024.
As the Respondent did not appear at the hearing, the statements filed by the two Applicants were effectively unchallenged. Both Mr Sorensen and Ms Rose were affirmed, and their respective statements were admitted into evidence[1],[2].
Relevant legislation
Section 385 of the Act states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
I am firstly required to determine whether the Applicants were dismissed by the Respondent within the meaning of s.386 of the Act. Section 386 relevantly provides as follows:
“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.”
Should I find that the Applicants have been dismissed, s.385(b) requires me to determine whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act outlines the criteria for determining whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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 the FWC considers relevant.”
Applicants’ evidence and submissions
The material filed by the two Applicants was almost identical.
The Applicants had both been employed by the Respondent since 19 December 2022 on a casual basis.
The Applicants submitted that on 2 September 2023, while at work, their manager, Mr Brandon Wylde, approached them and informed them that there were “no more hours” to be offered for them to work. After asking for a reason, the Applicants state they were told by Mr Wylde that his boss ‘Josh’ had said that the Respondent did not want “anyone working here who doesn’t live onsite and only works two days”. The Applicants evidence was that Mr Wylde then said that “Josh said he doesn’t know you guys and doesn’t want anyone he doesn’t know working here.”
Mr Sorensen stated that he phoned Mr Wylde, attempting to clarify the situation, who told him that “you’re not fired, they’re just not going to give you any hours anymore.” Mr Sorensen said he was then told that Josh would not respond if he or Ms Rose attempted to contact him. Later the same day, Mr Sorensen said he asked Mr Wylde, if it was the case that he and Ms Rose had not been dismissed, when their next shifts would be. Mr Sorensen said Mr Wylde replied, “I don’t know as the roster is done week to week.” Mr Sorensen said he then asked Mr Wylde whether they would “get any more shifts in the future”, to which Mr Wylde replied, “no”.
On 28 September 2023, almost one week after they made their unfair dismissal applications to the Commission, the Applicants each received an email from Ms Cromwell stating that the Applicants had resigned.
The Applicants submitted that they were dismissed, and their dismissals were harsh as they were not given proper notice and were not dismissed for any reasons relating to their performance or behaviour.
The Applicants both provided evidence that they had been unsuccessful in obtaining any other work. Ms Rose is receiving a disability pension, and Mr Sorensen is receiving a carers pension for support he provides to Ms Rose who suffers from Marfan Syndrome, a disorder that affects connective tissue.
Mr Sorensen submitted a medical certificate to support the Applicants submission that it had been difficult to find other work given the mental distress caused by their dismissal.
The Applicants confirmed in their oral evidence that the employment arrangement was that they both commenced employment on the same day from 19 December 2022. Mr Sorensen gave evidence that from approximately Easter 2023, given Ms Rose’s health situation it was agreed that the two Applicants working hours would be reduced to two shifts per week each.
This arrangement of working two shifts per week then continued until the end of their employment. Both Applicants received an hourly rate of $29.50 per hour and while the hours varied it was usually approximately five to six hours per day depending on the time of year and how busy it was. I am satisfied from this evidence that the Applicants were regular and systematic casual employees, and there regular and systematic casual employment exceeded six months and during that time they had a reasonable expectation of ongoing casual employment.
It was agreed that five hours pay equated to $147.50 per shift and therefore at least an average of $295.00 per week.
The Applicants accepted that Cyclone Jasper caused the business to stop operating from early December 2023.
The Applicants said they have a rental property near the Respondents business location, and they intended to stay in the Daintree and said they had no intention of leaving their employment as it was close to where they lived and would have remained in that employment at the Respondent.
The Applicants said they could not give any evidence in relation to the content of the email from Mr Cromwell concerning the financial position of the Respondent. Mr Sorensen said as far as he is aware, tourists are able to access Cape Tribulation at certain times.
Mr Sorensen said he was not aware of the details of any changes in the business at the time he was told they would not be receiving any more shifts. Mr Sorensen and Ms Rose said they had no prior knowledge that there may be a reduction in their working hours. Ms Rose said they had worked through slower periods before, and their hours were not reduced, and everything appeared to be running as normal as far as they were aware.
Respondent’s submissions
In the Form F3 responses to the applications, the Respondent stated that the Applicants were not dismissed, but were subject to “reduced casual hours due to operational requirements” and a need “to maintain the full-time salary employees”. According to the Respondent, the Applicants were dissatisfied with the reduced hours and resigned as a result.
Ms Cromwell stated that the reduction in hours was a “temporary adjustment due to a decrease in demand for our services during a lull period in our operations” and was not intended as a termination. She stated that it was the intention of the Respondent to return the Applicants to their previous hours once demand resumed. Any “confusion” caused by the communication of the new arrangements was said by Ms Cromwell to have been regrettable, and the Respondent apologises if the adjustments were construed by the Applicants as dismissals.
In his email to chambers, Mr Cromwell in summary indicated that he did not witness any of the relevant events and had been unable to obtain statements from those that were involved at the time.
Mr Cromwell did indicate that given the impact of Cyclone Jasper the company had been seeking assistance from the State government, and without assistance it will fold at the end of April as it can no longer operate due to no adequate road infrastructure to support tourism. Mr Cromwell said in his email the Respondent has exhausted its assets and sold off what it can and has lost all of its key staff members due to no work.
Were the Applicants dismissed?
The only sworn evidence before the Commission is that of the Applicants and I accept that evidence. Given that evidence includes that in response to a direct question from Mr Sorensen to Mr Wylde as to whether they would “get any more shifts in the future”, and Mr Wylde replied, “no”, I accept that amounts to a termination of the employment of both Mr Sorensen and Ms Rose at the initiative of the Respondent. The Applicants had been receiving shifts every week since December 2022, and a two shifts per week every week since around Easter 2023 until 2 September 2023.
In the circumstances, a communication that they would be receiving no more hours of work from that point plainly equates to a termination of their employment. The jurisdictional objection that the Applicants resigned is dismissed.
Were the dismissals Harsh, Unjust or Unreasonable?
(a) valid reason for the dismissal related to the person’s capacity or conduct
Given the Respondent has failed to participate in the hearing, there is no evidence before the Commission as to whether there was a valid reason for dismissal related to capacity or conduct.
The only evidence before the Commission is that of the Applicants which indicates the reasons for dismissal were that they did not live on site, and “Josh” didn’t know them and didn’t want anyone he didn’t know working there.
While it is not evidence, the written material filed by the Respondent purports that the Respondent was undergoing organisational change and reducing casual hours in favour of permanent employees, however there is no actual evidence that can be tested from anyone to support that claim. Based on the material before me, I am not satisfied there was a valid reason for dismissal.
(b) whether the person was notified of that reason;
The only evidence before the Commission is the evidence of the two Applicants concerning when and how they were notified of the dismissal. It is as set out above in paragraph [42]. I accept this is what occurred and the notification occurred on the day of the dismissal on 2 September 2023.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
It is apparent from the evidence that the Applicants were not given an opportunity to respond, and that the Respondent had already made the decision that they would not be receiving any further work, and it was not a matter that was open for them to respond on.
(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;
There is no evidence of the Respondent refusing a request for a support person and this is a neutral consideration.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
There is no evidence before the Commission that the Applicants performance was unsatisfactory, or that the dismissals were related to unsatisfactory performance. This is a neutral consideration.
(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;
It has been determined that the Respondent is not a small business employer for the purposes of the Fair Work Act 2009, however on the available evidence they are not a large business and this likely did impact on the procedures followed.
(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;
As the Respondent did not appear in the hearing there is no clear evidence on this consideration, although it would appear likely the Respondent did not have a dedicated human resource management specialist or expertise in the enterprise.
(h) any other matters that the FWC considers relevant.
The evidence indicates that the dismissals have had significant impact on the Applicants as the particular employment arrangement of two days per week was well suited to their personal situation. Mr Sorensen is Ms Rose’s carer, and the fact of Ms Rose suffering from Marfan Syndrome meant the two day a week arrangement for Mr Sorensen and Ms Rose working together worked well for them given Ms Rose’s physical limitations.
The loss of that arrangement has had a greater impact on them, then would otherwise usually be expected to be the case. It appears their particular circumstances given Mr Sorensen’s carer responsibilities, and Ms Rose disability, will make it more difficult for them to obtain an arrangement that is as suitable for them.
Conclusion on Harsh, Unjust and Unreasonable
Having considered each of the matters that are required to be considered under section 387, I have concluded that the Respondent did not have a valid reason for dismissal and the process followed in dismissing the two Applicants was also flawed. The terminations have had a significant personal impact on the two Applicants. For these reasons I am satisfied the dismissals were harsh, unjust and unreasonable.
REMEDY
The Applicants did not seek reinstatement. I am satisfied that reinstatement is not appropriate in either Applicant’s case.
In accordance with the principles in the Sprigg decision[3] the first step in assessing compensation is to determine the remuneration the employee would have received, or would have been likely to receive, if the person had not been dismissed. There is necessarily a degree of speculation in determining this amount.
The Applicants had only been employed for a relatively short period of time from 19 December 2022 until 2 September 2023. The Applicants were both casual and accepted there was some minor fluctuation in the hours they worked depending on demand.
It is not in dispute that Cyclone Jasper caused the Respondent to cease operations in early December 2023 and this would have undoubtedly caused the Applicants to cease receiving work from the Respondent at that time. This has ultimately not impacted on the assessment of remedy as I have assessed a likely period of future employment as shorter than the period from the dismissals to when Cyclone Jasper occurred.
I am prepared to conclude on the evidence, given that there is no contradictory evidence, that the Applicants would have remained employed for at least another eight weeks if not for their terminations of employment on 2 September 2023. This is in my view a reasonable assessment given the reasonably brief period of casual employment, and uncertainties associated with the security of casual employment in the tourism industry. I am not prepared to afford weight to assertions made by the Respondent which is not supported by any evidence.
Based on the evidence before me I estimate average weekly earnings of each of the Applicants at $295.00 per week. $295 multiplied by eight weeks equals $2,360.
The only income received from the Applicants since termination has been in the form of social security payments and I make no deductions on account of those amounts.
I am cognisant that the Respondent has sent email correspondence to my chambers claiming that the Respondent may cease to trade if it does not receive government assistance following from the impact of Cyclone Jasper. Given no one from the Respondent has availed themselves of the opportunity to appear to give evidence in the Hearing to support this claim, and the Respondent has generally been uncooperative in complying with directions of the Commission to file evidence and submissions, I have decided not to take this email into account in assessing compensation for the Applicants.
I have decided to issue separate orders that Designed Logical Solutions Pty Ltd pay to Travis Sorensen the sum of $2,360 gross taxed according to law plus 11% superannuation into the nominated superannuation fund within 21 days of the date of this decision, and that Designed Logical Solutions Pty Ltd pay to Hollie Rose the sum of $2,360 gross taxed according to law plus 11% superannuation into the nominated superannuation fund within 21 days of the date of this decision.
Orders to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Travis Sorensen and Hollie Rose on their own behalf.
Hearing details:
2024
By Telephone
22 April
[1] Statement of Mr Sorensen Exhibit 1.
[2] Statement of Ms Rose Exhibit 2.
[3] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
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