Tristan Fathers v Global Line Marking Services Pty Ltd

[2021] FWC 6333

[2021] FWC 6333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Tristan Fathers
v
Global Line Marking Services Pty Ltd
(C2021/5118)

DEPUTY PRESIDENT LAKE BRISBANE, 12 NOVEMBER 2021

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – jurisdictional objections upheld – application dismissed

[1] Tristan Fathers (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Global Line Marking Services Pty Ltd (the Respondent).

[2] The Applicant was employed by the Respondent from 25 July 2021. The Applicant alleges that he was dismissed on 22 August 2021, effective immediately. The Respondent asserts that the Applicant was not dismissed. The jurisdictional objection was allocated to my Chambers. Directions were issued with respect to the filing of material and the matter was listed for hearing on 15 October 2021.

Was the Applicant dismissed?

[3] Section 386(1) of the Act relevantly provides thata 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.

[4]The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer. 1 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.2 

[5] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention. 3 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.4 Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?5 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.6 All the circumstances – including the conduct of both the employer and employee – must be examined.7 In other words, it must be shown 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.”8

[6] Each party provided submissions and evidence in writing and orally at the hearing. I have had regard to all the material before me.

Applicant’s material

[7] The Applicant represented himself and gave evidence on his own behalf. He alleges that he was sexually assaulted by a co-worker, David Billington. He says that on 4 August 2021, during the night shift on Coolangatta Road, Mr Billington grabbed him, squeezed his chest and said, “If I was gay you’d be the first person I’d fuck” and “you’ve got bigger tits than the woman I’m dating”.

[8] The Applicant reported this to two other employees, James and Ian McDermid, who were shocked told him to talk to Jordan Quest, the person whom they believed was acting as the Respondent’s Operations Manager while the regular Operations Manager (Kerry Mitchell) was on leave. Both of those employees gave evidence regarding the reporting of the incident to them by the Applicant. They appeared as honest, straightforward individuals.

[9] The Applicant headed that advice and raised it with Mr Quest on 6 August 2021, but says that when he did so, Mr Quest laughed. Mr Quest’s reaction did not make the Applicant feel good about things.

[10] Ian McDermid thought Mr Quest’s reaction was insensitive and poor for a person acting in his position, but observed that Mr Quest was a young guy, new to positions of responsibility. Further, Ian McDermid acknowledged that this sort of behaviour used to be the norm in the workplace though it should not be anymore.

[11] The Applicant said that around this time he also brought the alleged incident to the attention of Simon Harris (the Respondent’s Director) and Kerry Mitchell (the Respondent’s Operations Manager who was on sick leave, but still contactable, at the relevant time). He says he told them what happened and the comments that had been made to him. Initially, the Applicant observed that both Mr Harris and Mr Mitchell were shocked at the allegation. The Applicant says that to his knowledge nothing was ever followed up on, although he concedes that he was told that Mr Billington had been put on day shift – while the Applicant remained on night-shift – to ensure there was no further incidental interaction between the men.

[12] The Applicant said that Mr Billington returned to night shift a couple of weeks later on 17 and 18 August 2021. The Applicant alleges that on 18 August 2021, Mr Billington assaulted him again whilst both were at the depot waiting to go on their separate jobs. The Applicant states that because of this behaviour, he did not attend his shifts between 19 and 23 August 2021.

[13] The Applicant says he contacted James McDermid, on 19 August 2021, to tell him he would not be attending work that day. The Applicant says the reasons he gave were the alleged sexual harassment, ongoing conflict at work and because it was very difficult for him to get to work because he said they had not been paid until late and, in any event, he did not have the funds to re-register his vehicle or pay for fuel. The Applicant says he told James that he did not know if he would be coming back until something was sorted with the co-worker. James was a friend from work and not someone whom the Applicant would ordinarily had been expected to notify of his inability to attend work. The Applicant made no contact with anyone about missing the shifts on 22 or 23 August 2021. The Applicant accepted in evidence there were steps he could and should have taken to communicate that he was not coming in and the reasons for that decision. However, he says he was not thinking straight given everything that had occurred. Added to that was the fact that he was not keen to talk to Mr Quest, given that he had laughed at the Applicant when he first raised the allegations.  

[14] As to the shift on 20 August 2021 that the Respondent alleges that he missed, the Applicant stated that to his knowledge he was not rostered. He understood that Friday was an optional day of work and when he did not respond to the message which invited him to work that day, he assumed he would not be rostered.

[15] On or around 23 August, Jordan contacted the Applicant via text message to ask why he was not attending work. His message read, “Hey mate the guys tell me u havnt worked since last Wednesday? Whats up?”

[16] The Applicant responded a few minutes later saying, “Well I didn’t end up getting pay until like 10pm on Thursday and even then I haven’t got enough money to pay to fuel to get there. On top of all that I am really getting sick of all the shit between everyone, and I’m sick of Dave being a cunt and not being held accountable for his shitty behaviour.”

[17] Just over an hour later, Jordan responded to the Applicant via text message stating, “No worries mate. I think we will part are ways here. Good luck for the future”.

[18] The Applicant viewed this message as a termination of his employment and made no attempts to contact the Respondent after receiving it. He had received his final pay on 19 August 2021 and, because he had not worked after that day, was not expecting any further payment.

[19] The Applicant submits that the Respondent dismissed him for speaking out and making it known he was unhappy with an unsafe work environment.

Respondent’s material

[20] The Respondent submits that the Applicant was not dismissed within the meaning of s.386(1) of the Act, but rather abandoned his employment by failing to attend five consecutive rostered shifts without advising any staff members of his absence in advance.

[21] The Respondent relied on the written and oral evidence of Mr Quest, Mr Mitchell and Mr Harris, as well as a statutory declaration from Mr Billington and a written statement from Mr Chris Lloyd of Workforce Road Services Queensland.

[22] Mr Harris stated that prior to the Applicant raising the alleged incident with him, he had received multiple complaints by Mr Billington and performance concerns raised by Ian and James McDermid to the effect that the Applicant was not keeping up with the work.

[23] Mr Harris confirmed that the Applicant reported an incident to him involving Mr Billington on 4 August 2021, as set out above. He told the Applicant that he would deal with it. To that end, he spoke with Mr Billington about the incident. Mr Harris’ evidence was that Mr Billington expressly denied making the alleged comments but admitted to having tried to give the Applicant a “nipple cripple”. Mr Billington told him he thought it was a bit of fun.

[24] In his statutory declaration, Mr Billington admits that as part of the jovial team environment, his team sometimes give each other “nipple cripples”. He admitted this was “not a grown man’s game but the boys in my crew do it all the time to each other, it’s more of a let’s see how fast we can block them before making contact as we never do make contact. It’s just one of the silly thing my crew do for a laugh and a giggle”. He went on to say that he attempted to give the Applicant a nipple cripple and “straight away he blocked my arm and stopped any contact”. He says that the Applicant “smiled and said you missed and went on with his job that was giving [sic] to him for the night.” Mr Billington states that, “there was no issue or anything was said to me that he found it offensive or that it may offended him [sic]… Tristan did not tell me or approach me explaining that he was upset in any way”. Mr Harris’ evidence was that the Applicant’s allegations had taken a toll of Mr Billington.

[25] After his conversations with both the Applicant and Mr Billington, Mr Harris formed the view that this was a personal grievance between the two men and that the best way to deal with it was to separate them. Accordingly, Mr Billington was moved to day shift and the Applicant continued as rostered on night shift. That seemed to work as far as he was aware. He did not know the two had crossed paths again or that there had been any other alleged incidents until after the Applicant’s employment had ended. Mr Harris was of the view that he had taken reasonable management action and that it had worked. He says he thought he had acted appropriately in respect of the first allegation and could not have been expected to take any action in relation to the second alleged incident because he was not informed of it by the Applicant until after he had failed to attend work.

[26] From Mr Harris’ perspective, the Applicant was terminated because had stopped attending work for five consecutive days without providing a reason or notification.

[27] Mr Mitchell also provided evidence. I found him to be a very steady, reliable witness. He says the Applicant told him that Mr Billington had touched his breast and made comments about him being overweight. Mr Mitchell was shocked, having never experienced anything like this in his life. Mr Mitchell did not observe the Applicant to be particularly upset, but said he wanted them to do something about it. Mr Mitchell was of the view that such behaviour had to stop and the Respondent would have to do something. It took a little while for the Applicant’s comments to sink in, but Mr Mitchell said it was clear they would have to separate Mr Billington and the Applicant. Consequently, they put Mr Billington on day shift and the Applicant stayed on night shift. The rationale for that was that given there were a couple of hours between the shifts, it was unlikely they would accidentally run into each other.

[28] Mr Mitchell stated that it was around the same time that Mr Billington reported issues with the Applicant’s work. He told Mr Mitchell that the Applicant was not working out. Ian McDermid also reported similar concerns about the Applicant struggling to keep up. Mr Mitchell formed the view that there was clearly a personality conflict between the Applicant and Mr Billington.

[29] Mr Mitchell conceded in cross-examination that the performance issues had not been raised directly with the Applicant. He said this was because the Applicant was still new, and they were trying to give him a chance to settle in and get up to speed. Had he stayed on for much longer, it was likely someone would have raised them with him.

[30] Mr Quest also provided a statutory declaration and gave evidence at the hearing. He stated that the Applicant had reported to him that Mr Billington has touched him on the breast and made jokes about his weight. He denies laughing but said that something about his face may have indicated slight amusement. Mr Quest understood that the issue had been raised with Mr Mitchell, who even though on leave, was more senior than him so Mr Quest tried not to get involved. Mr Quest assumed it had been dealt with because the Applicant had not raised it with him again.

[31] During the week of 19 August 2021, Mr Quest had texted the Applicant his scheduled start times but have not received any response. It was not unusual for there to be no response if the person intended to attend their shift. It was usually only when an employee was not attending that they would respond. The Applicant did not do that, so it was only a few days later when Mr Quest was informed by other employees that the Applicant had not been attending his rostered shifts. Whoever had been rostered on for those evenings had managed to complete the jobs by themselves.

[32] On 23 August 2021, after the Applicant had been away a whole week, Mr Quest tried to call the Applicant but there was no answer. Mr Quest says it was clear to him from the Applicant’s absence that he no longer wished to continue working for the Respondent. This was compounded by the Applicant’s comment when Mr Quest did make contact, which was that he did not come to his shift on 19 August because he had got drunk the night before. Mr Quest confirmed the text messages sent between him and the Applicant on 23 August 2021 as extracted above.

[33] In short, the Respondent submits that the Applicant’s employment was not terminated at its initiative. Rather, the Applicant abandoned his employment by not attending, or informing the Respondent that he would not be attending, his five rostered shifts between 19 and August 2021.

Consideration

[34] I have listened to the Applicant’s account and understand that he was shaken by Mr Billington’s conduct. Whether it was sexual in nature or simply inappropriate, it was conduct unbecoming of any person in a workplace, particularly where that person has control or power over a junior employee. That said, it should be appreciated, to paraphrase Commissioner Riordan in Gosek v Illawarra Coal Holdings Pty Limited T/A South, that this is a line-marking business and not a convent. 9 Ian McDermid gave evidence that he did not particularly like the way Mr Billington interacted with his team (not just in this case but generally) and Mr Mitchell acknowledged that while “nipple crippling” and similar conduct was not unusual in times gone by, the industry was changing such that it was no longer acceptable. Even Mr Billington appreciated that the behaviour was immature.

[35] It is clear there were also other frustrations between the Applicant and Mr Billington. Complaints had been made by the latter in respect of the Applicant’s performance, which had been corroborated by reports from other staff members. Mr Mitchell, a seasoned and sensible Operations Manager, and Mr Harris, the Respondent’s Director, therefore formed the view that it would be best to separate the two men. That is why the Respondent took the reasonable management action of requiring Mr Billington to work on day shifts for a couple of weeks while the Respondent worked his regular night shift. As they understood it, the matter had been resolved. The Applicant admits that he never raised any further issues with them.

[36] Accordingly, it was a surprise to the Respondent when the Applicant stopped attending his shifts from 19 August 2021. As to the shifts the Applicant did not attend, I am satisfied that he failed to attend four shifts between 19 and 23 August 2021. It is unclear on the evidence whether the Applicant was expected or required to attend on 20 August 2021 (the Friday). The Respondent says he was, but the Applicant says the shift was available to him, but the common practice was for individuals to indicate to the Respondent whether they sought to be included on the rostered Friday shift. As he did not do so, the Applicant says he understood that he had not been rostered on. Though I think it is likely the Applicant was properly rostered on that Friday and failed to attend that shift as well, I willing to give him the benefit of the doubt. Therefore, I proceed on the basis that the Applicant missed four shifts without providing to his employer advance notice of his absence.

[37] In Abandonment of Employment, the Full Bench of this Commission considered the meaning of the “abandonment of employment” in the context of the four-yearly review of modern awards, thought their comments are relevant here:

“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. 10 Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.11

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).” 12

[38] I am satisfied that failing to attend, or give reasonable notice or explanation for one’s absence, for four consecutive shifts is conduct by an employee that conveys to a reasonable person in the employer’s situation a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. That is what occurred here.

[39] The Respondent was then entitled to accept that repudiation so that the employment relationship ended. That is what Mr Quest sought to do in text message on 23 August 2021 which suggested that the parties part ways. On the Full Bench’s reasoning outlined above, there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s.386(1)(a).

[40] I have also given consideration to whether the factual circumstance in this matter give rise to claim by the Applicant that there was a forced resignation under s.386(1)(b) of the Act. I do not think that is the case here given that Mr Harris and Mr Mitchell (on behalf of the Respondent) took reasonable management action when the Applicant raised the first complaint with them. They understood that in separating the Applicant from Mr Billington, the matter had been resolved. They had no reason to believe otherwise. The Applicant did not make any further allegations against Mr Billington until his employment had ended. If, for example, they had ignored the Applicant’s complaint or taken no action in relation to it, the Applicant may be on firmer footing to allege that the Respondent had forced his resignation. That is not what occurred. Accordingly, I am satisfied that there was no dismissal under s.386(1)(b) either.

[41] As to the part played in these proceedings by Mr Quest, I will make a couple of comment. The Respondent states that Mr Quest was not in the role of Operations Manager while Mr Mitchell as on leave, but clearly that was the perception of all the staff who have given evidence in these proceedings and indeed, he was the person charged with contacting the Applicant after he had not attended at work for his shifts. It should also be noted that Mr Quest was new to a management position and had never been involved in terminating another employee’s employment. He seemingly approached it as best he could, in a matter of fact way, though clearly without any understanding for the process by which such things occur. For example, he did not call the Applicant or otherwise clearly communicate to him that he was accepting the Applicant’s repudiation – that is, his failure to attend or notify the Respondent of his non-attendance – and that the Applicant’s employment was at an end. It is obvious that he formed the view that the Applicant had indicated that he no longer wished to be employed by the Respondent because he had failed to attend consecutive shifts without reasonable warning or explanation and acted upon it. However, a more seasoned manager would realise the importance of clearly documenting and explaining the termination process. Nevertheless, I do not find that this has any material bearing on the outcome in these proceedings.

[42] For the reasons set out above, I find that the Applicant abandoned his employment. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 2   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 3   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 4   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 5   O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006) at [23].

 6   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 7   Whirisky v DivaT Home Care [2021] FWC 650 at [77].

 8   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].

 9   Gosek v Illawarra Coal Holdings Pty Limited T/A South[2017] FWC 4574 [104].

 10   Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 [44]-[47].

 11   Visscher v Giudice (2009) 239 CLR 361 [53].

 12   Abandonment of Employment [2018] FWCFB 139 [21]-[22].