Trevor Standish v Craig Arthur Pty Ltd

[2015] FWC 4633

[2015] FWC 4633

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Standish
v
Craig Arthur Pty Ltd
(U2015/4610)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 JULY 2015

Application for relief from unfair dismissal – jurisdiction – termination of employment at the initiative of the employer.

[1] These reasons for decision follow advice I provided to the parties in this matter at the conclusion of a hearing on 7 July 2015.

[2] On 8 April 2015 Mr Standish lodged an application pursuant to s.394 of the Fair Work Act 2009. In that application Mr Standish asserted that his employment by Craig Arthur Pty Ltd (Craig Arthur) had been unfairly terminated. The application did not proceed to conciliation because Craig Arthur did not participate in various listed conferences. As a consequence, it was referred to me for determination.

[3] The Employer’s Response (Form F3) to the application advised that Craig Arthur had not dismissed Mr Standish.

[4] In a telephone directions conference on 3 June 2015 I confirmed to the parties that I would initially deal with the question of whether the termination of Mr Standish’s employment was at the initiative of the employer. These reasons for decision deal specifically with this issue. At the hearing convened on 7 July 2015 Mr Standish represented himself and Ms Wensley appeared for Craig Arthur. I note that, in a decision 1 issued on 18 June 2015, I refused a request for a grant of permission for legal representation made on behalf of Craig Arthur.

[5] Whilst there are substantial factual differences between the parties and the significant antipathy between them makes it difficult to clarify some of these issues, I have set out my understanding of the relevant background material.

[6] Mr Standish worked as a line-haul truck driver. He was employed by Craig Arthur on what both parties agree was a weekly-hire basis from September 2013. He was also employed for earlier periods of time and on different employment contractual arrangements. I note that it appears that an earlier disputed employment termination may also have been referred to the Fair Work Commission (FWC) as Mr Standish referred to this in his witness statement.

[7] The parties disagree over the extent to which Mr Standish was a reliable employee and the relevance attaching to various concerns over his work performance. Notwithstanding this, there is no dispute that, whilst he was undertaking work in Victoria on 19 February 2015, he had a dispute with Mr Craig Arthur. The basis for that dispute is not agreed and there is no evidence from Mr Arthur in this respect. Mr Standish drove the truck, owned by Craig Arthur, back to Adelaide. He was not allocated further work but the parties dispute the extent to which this was a consequence of the absence of the necessary compliance paperwork. They also dispute the nature and the content of the communications which occurred between Mr Standish and Craig Arthur on and around 22 February 2015.

[8] Mr Standish gave evidence about his perception of the circumstances which culminated in the termination of his employment. Mr Standish advised he was paid for work he had done up to and including 19 February 2015 but that no payments were made with respect to time after that day. Mr Standish advised that he was given an induction agreement some time well before February 2015 and that, after the 19 February 2015 dispute with Mr Arthur, he was told that he needed to complete and return that documentation. He did that but was still not allocated any work. Mr Standish detailed the various discussions he had with Craig Arthur following 19 February 2015. Mr Standish’s evidence included the following:

“32. At some point prior to the 16 of March 2015, because I had no work nor pay, I made an appointment with legal aid who advised me something along the lines of “just because he wont say that your sack his actions make his intentions clear.”

33. On the 16^th of March 2015 I text the respondent “its been three weeks no pay and no work from you craig. If no work this week ur actions will indicate you have terminated my employment” (Appendix 2).

34. There was no response.

35. On the 17^th of March 2015 I text the respondent “R u gonna load me or not” (Appendix 3).

36. The respondent replied “When I find something that suits you” (Appendix 3).

37. I text the respondent “Well can u put some money in my bank pls” (Appendix 3).

38. The respondent replied “What for” (Appendix 3).

39. The respondent then rang me.

39.1 The respondent informed me that I don’t get paid for doing nothing.

39.2 I replied “Craig I am fulltime you cannot not pay me nor give me no work”.

39.3 The respondent replied “well your casual now.”

39.4 I replied “you can’t do that.”

39.5 The respondent then told me “come get your shit out the truck so I can use it or I will just put it in the yard.”

39.6 The call ended.” 2

[9] Mr Standish subsequently arranged to collect his possessions from the truck that he normally drove.

[10] Ms Wensley gave evidence relative to the Craig Arthur position. Her evidence was that she did not make payments to Mr Standish for the time after 19 February 2015 because she did not receive from him worksheets which detailed the work that he undertook. Ms Wensley disputed various aspects of Mr Standish’s evidence and advised that the extent to which he relied on text communications was inappropriate. In terms of evidence of Mr Standish relative to the events of 17 March 2015, Ms Wensley stated:

“16. In relation to Paragraph 39 of the Applicants statement, to the best knowledge of the Respondent the content of the telephone conversation that took place was different.” 3

[11] Ms Wensley confirmed that she was not a party to that discussion.

[12] There was no disagreement that, on 19 March 2015, Mr Standish telephoned Ms Wensley and requested an Employment Separation Certificate. Ms Wensley obtained instructions from Craig Arthur management about the basis for the employment termination and recorded this as a “Mutual Agreement - Unable to perform work as required”. I note that, Mr Standish strongly disputes any characterisation of the termination of his employment as reflective of a mutual agreement.

Findings

[13] Section 385 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.”

[14] Section 386 states:

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.”

[15] The concept of termination at the initiative of the employer has been considered at length in various decisions of the FWC and its predecessors. In O’Meara v Stanley Works Pty Ltd 4 a Full Bench of the Commission set out the detailed considerations relevant to determining whether an employment termination was at the initiative of the employer.5 The Full Bench concluded:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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 critical actions, that constituted a termination of the employment.’”

(references removed)

[16] I have applied this approach. It is important to note that the issue for determination here is not whether there were appropriate reasons for the termination of Mr Standish’s employment, or whether the process followed by the employer to terminate that employment was fair, it is simply a question of whether Craig Arthur terminated Mr Standish’s employment.

[17] I have concluded that Craig Arthur terminated Mr Standish’s employment on, or by 17 March 2015. I have concluded that this employment termination reflected Craig Arthur’s refusal to provide further work to Mr Standish after the dispute between he and Mr Arthur on 19 February 2015. I do not consider that Mr Standish’s belated return of the induction documentation represented any form of abandonment of his employment as it is clear that he continued to be provided with work after he was given that induction documentation. Further, I do not consider that Mr Standish’s employment was terminated as a consequence of his failure to submit weekly timesheets detailing the work that he undertook from 19 February 2015. Simply put, if no work had been allocated to him, it is difficult to conceive the basis upon which those timesheets could be submitted.

[18] I consider it most likely that the Craig Arthur decision not to offer Mr Standish further work after 19 February 2015 and not to pay him after that date reflected a termination of employment decision. Mr Standish was engaged as a weekly hire employee and, as such, was entitled to expect weekly wage payments unless he was given notice of termination. Craig Arthur’s refusal to offer him work must be regarded as an act intended to give rise to the termination of his employment.

[19] Further, I have accepted Mr Standish’s evidence that, on 17 March 2015, he was told that Craig Standish regarded him as a casual employee. That advice must constitute the termination of his weekly hire employment contract. It represents a fundamental change in the nature of the employment offered to him and was clearly not accepted by him. Accordingly, that advice confirms that Craig Arthur initiated the termination of Mr Standish’s employment as a weekly hire employee.

[20] For these reasons, I have concluded that Mr Standish was dismissed at the initiative of the employer. There is no dispute that he is a person protected from unfair dismissal, and no other initial or jurisdictional impediment to the continued pursuit of the application has been identified. The Craig Arthur objection to the application on the basis that Mr Standish’s employment was not terminated at the initiative of the employer must be dismissed and an Order (PR569213) to this effect will be issued. The application may therefore proceed to determination on the merits.

[21] It is appropriate that I note that, following my advice to the parties on 7 July 2015, of my conclusions in this respect, I advised the parties that I would not be involved in any consideration of the merits of Mr Standish’s application. With the agreement of the parties I then endeavoured to assist them to reach a conciliated outcome. No such agreement was possible and the application has subsequently been listed for determination before another Member of the Fair Work Commission.

Appearances:

T Standish on his own behalf.

L Wensley for the respondent.

Hearing details:

2015.

Adelaide:

July 7.

 1   [2015] FWC 4133

 2   Exhibit A2, paras 32 - 39

 3   Exhibit R2, para 16

 4   [2006] AIRC 496

 5   See paras 19-22

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<Price code C, PR569212>