Trent Dellahide v Shark Lake Food Group Pty Ltd

[2016] FWC 4774

[2016] FWC 4774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trent Dellahide
v
Shark Lake Food Group Pty Ltd
(U2016/6495)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 JULY 2016

Application for relief from unfair dismissal – employee not dismissed.

[1] On 27 April 2016 Mr Dellahide lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to what he asserted was the termination of his employment with the Shark Lake Food Group Pty Ltd (Shark Lake). Shark Lake objected to the application on the basis that it was beyond jurisdiction as Mr Dellahide had not been dismissed.

[2] This jurisdictional issue associated with Mr Dellahide’s application was the subject of a determinative conference on 25 July 2016 which involved a video-link between Adelaide and the Esperance Court House. Mr Dellahide represented himself in this matter and Shark Lake was represented by its Manager, Mr Wildberger.

[3] Mr Dellahide commenced working for Shark Lake in early 2014. It appears that he was originally hired to work in the Maintenance Department but later undertook work in the Freezer Department, before returning to work in the Maintenance Department. Whilst there is a difference between the parties about the extent to which Mr Dellahide was given warnings during the course of his employment, the fundamental issue goes to the circumstances under which Mr Dellahide last worked for Shark Lake in April 2016. There are significant factual differences between the parties about those circumstances.

[4] Mr Dellahide’s initial evidence was that the events which he asserted constituted his dismissal occurred on 16 April 2016. He subsequently agreed that it was more likely that these events occurred on 14 April 2016. Mr Dellahide’s evidence was that, on that day, he was asked to work on the kill floor as Shark Lake was short staffed. Mr Dellahide advised that he was uncomfortable working in this area and asked Shark Lake management personnel on multiple occasions if he could return to maintenance work. He asserts that he was advised that if he did not remain on the kill floor there was no job for him at Shark Lake. Mr Dellahide consequently agrees that he left the workplace but asserts that he had no alternative other than to do so as he had not been engaged to undertake that type of work and was highly uncomfortable in doing so.

[5] Mr Dellahide advised that, after leaving work, he then contacted the Fair Work Commission to enquire about his employment status. He also confirmed that he posted Facebook entries about what he considered to be the termination of his employment and allegations that Shark Lake had improperly dumped oil in a trench. He advised that, on 14 and 15 April 2016 Shark Lake management contacted members of his family about the matter and threatened legal action against him and that on 1 June 2016 he was offered one week’s pay. Mr Dellahide advised that, despite meetings directed at resolving the matter he maintained his position that he had been dismissed on 16 April 2016.

[6] Mr Carroll is the Operations Manager for Shark Lake. Mr Carroll provided a signed witness statement which went to Mr Dellahide’s employment history with Shark Lake and to the events which he advised occurred on 14 April 2016. In this statement Mr Carroll advised that he requested Mr Dreyer, who was the manager of the Maintenance Department, if Mr Dellahide could assist in meeting a labour shortage on the “Sheep Floor”. Mr Dreyer advised that Mr Dellahide had indicated that he would help with the production but did not wish to work on the actual floor. In his statement, Mr Carroll advised that other employees were allocated roles which enabled Mr Dellahide’s work request to be met. Notwithstanding this, in his statement, Mr Carroll advised that Mr Dreyer and Mr Dellahide met with him around noon and that Mr Dellahide advised that he did not wish to do that, or any other job, because it was not his job. In his statement, Mr Carroll asserts that Mr Dellahide then advised that “I am leaving and will be taking the company for unfair dismissal”. 1 Mr Carroll was not available to confirm his statement in evidence and I was advised that he had been called to urgent personal business in Melbourne. Consequently I have only had regard to those aspects of Mr Carroll’s statement which Mr Dreyer was able to confirm were correct.

[7] Mr Dreyer manages the Shark Lake Maintenance Department. His evidence went to concerns he had about Mr Dellahide’s work performance and attendance and the steps which he took to address these concerns. Mr Dreyer confirmed that on 14 April 2016, Mr Carroll asked him if he could assist in the provision of some labour on the “sheep floor” in order to address a labour shortage. He advised that he then spoke with Mr Dellahide who said that while he did not want to work on the sheep floor he would assist in pushing up sheep. Mr Dreyer then conferred with Mr Carroll who altered work arrangements to accommodate this request. Mr Dreyer advised that, at around 11.30 am, the “sheep floor” Foreman told him that Mr Dellahide had not returned to work from the smoko break. Mr Dreyer located Mr Dellahide in another part of the plant where he had commenced a painting job without any instructions to do so. He asked Mr Dellahide why he was not pushing up sheep and Mr Dellahide advised that that was not his job, that he could not be forced to do it and would leave and pursue an unfair dismissal claim. Mr Dreyer advised that he confirmed to Mr Dellahide that he was not being dismissed and that he and Mr Dellahide then met with Mr Carroll. He advised that Mr Dellahide told Mr Carroll that the work he had been allocated was not his job and that he was going to leave and pursue an unfair dismissal claim. Mr Dreyer confirmed that Mr Carroll had told Mr Dellahide that he was not being dismissed but that, notwithstanding this, Mr Dellahide proceeded to leave the workplace.

[8] Mr Dreyer advised that he subsequently tried unsuccessfully to telephone Mr Dellahide on 15 April 2016.

Findings

[9] A fundamental prerequisite for Mr Dellahide’s pursuit of his unfair dismissal application is that he must have been dismissed. Section 385 of the FW Act states:

“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.”

[10] Section 386 defines dismissal 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[11] The concept of termination at the employer’s initiative has been an essential characteristic of the concept of dismissal in workplace relations legislation for many years. In Mohazab v Dick Smith Electronics Pty Ltd (No2) the Court summarised this concept in the following terms:

“On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”

[12] There can be little doubt that this approach remains apposite to the current legislative provision as it was referenced in the Explanatory Memorandum.

[13] The position adopted by the Court in Mohazab was further endorsed by a Full Bench of the Commission in O’Meara v Stanley Works Pty Ltd in the following terms:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[14] I have applied these approaches to the consideration of Mr Dellahide’s circumstances. In doing so, it is appropriate that I make findings about the facts on the basis of the evidence provided to me. In this regard, I prefer the evidence of Mr Dreyer to that of Mr Dellahide.

[15] I have concluded that Mr Dellahide was mistaken in his reference to the incident occurring on 16 April 2016 as that was a Saturday. Notwithstanding that, Mr Dellahide’s evidence lacks credibility and appears, at best to be opportunistic. Mr Dellahide’s various assertions about the dates upon which events occurred, his assertions that he did not receive various phone calls from Shark Lake management after 14 April 2016 seeking clarification of his position and his somewhat reluctant admission of a Facebook entry on 14 April 2016 mitigate against my accepting his assertion that he was dismissed.

[16] I have concluded that Mr Dellahide was requested to work on the “Sheep Floor”, that he expressed concern about doing so but that he agreed to undertake work in pushing sheep. I have concluded that he subsequently left his work position and took up other employment duties without being directed to do so. When questioned by Mr Dreyer and, ultimately, by Mr Carroll, Mr Dellahide asserted that he was being dismissed without any valid foundation for that assertion.

[17] If Mr Dellahide had on-going concerns about the manner of the work being allocated to him, I consider that he had the opportunity to discuss those concerns or to escalate the matter within Shark Lake but I am not satisfied that he did so. I think it more likely that Mr Dellahide simply elected to leave his employment at Shark Lake. In any event, there is simply no basis for his assertion that he was either dismissed or was forced to leave that employment because of a course of conduct engaged in by Shark Lake. There is nothing to suggest that Shark Lake management were not entitled to ask Mr Dellahide to undertake duties within his area of competence and that the work requested of him, and which he had agreed to do, on 14 April 2016 was of that nature.

[18] Even if Mr Dellahide was told by Shark Lake management if he did not remain at work there was no job for him, his behaviour in then leaving the workplace could not easily be taken to represent a termination of his employment at the initiative of the employer. It was an action taken by Mr Dellahide himself.

[19] Mr Dellahide was not dismissed consistent with the definition in s.386 and is unable to further pursue his application. The application will be dismissed for these reasons and an Order (PR582859) consistent with this decision will be issued.

Appearances:

T Dellahide on his own behalf.

J Wildberger for the respondent.

Hearing (Determinative Conference) details:

2016.

Adelaide

July 18.

 1   Exhibit R2, para 4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR582858>