Vaughan Saunders v Western Diesel and Turbo Service

[2020] FWC 6335

[2020] FWC 6335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vaughan Saunders
v
Western Diesel and Turbo Service
(U2020/10767)

DEPUTY PRESIDENT BEAUMONT PERTH, 18 DECEMBER 2020

Application for an unfair dismissal remedy – minimum employment period not satisfied – application dismissed.

[1] Mr Vaughan Saunders resigned from Western Diesel and Turbo Service (the Respondent) on 29 July 2020. He had been an apprentice at the Respondent business but said he was forced to resign because of continued workplace bullying by the two Henderson brothers (Daniel and Benjamin), both of whom were directors of the Respondent. Mr Saunders lodged an application for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent objected to Mr Saunders’ application on the ground that it was beyond the jurisdiction of the Commission for two reasons. The first, Mr Saunders was not forced to resign or given no reasonable choice but to resign on 29 July 2020. The second, while Mr Saunders had resigned on 29 July 2020 and that was not disputed, he had previously resigned on or around 29 March 2020.

[3] The implications arising from the objections are evident. If Mr Saunders resigned on 29 March 2020 and had later commenced work with the Respondent towards early May 2020, he would not have satisfied the minimum employment period and would therefore not be protected from unfair dismissal. In circumstances where the minimum employment had been satisfied but nevertheless it could not be shown that Mr Saunders was ‘dismissed’, then again, the unfair dismissal regime would afford no protection.

[4] The parties were informed that I would determine whether the application was beyond the jurisdiction of the Commission, would then turn my attention to whether the dismissal was unfair and would also consider the issue of remedy.

[5] Having considered whether Mr Saunders satisfied the minimum employment period, I have found that he did not. In arriving at this decision, I have considered the decision of the Commissioner in Vaughan Saunders v Western Diesel and Turbo Service (Extension Decision), 1 where it was determined that an extension of time to make the unfair dismissal application was not required.2 However, I note that the Extension Decision did not traverse the circumstances that arose in March 2020, and while the Respondent, on that occasion, agreed that the cessation of employment took effect on 29 July 2020, such agreement was given in light of the resignation letter of 15 July 2020. Therefore, I consider that the case has no bearing on the finding made and conclusion reached in this decision.

[6] Because of the finding made, it has proved unnecessary to determine whether Mr Saunders was ‘dismissed’ come 29 July 2020. I have concluded that the application is beyond the jurisdiction of the Commission because Mr Saunders had not satisfied the minimum employment period. It is therefore dismissed. My reasons follow.

Background

[7] The Respondent operates a mechanic and auto repair business based in the northern suburbs of Perth, Western Australia. There were reportedly four employees in the business and, for all intents and purposes, it appears that the two Henderson brothers were included in that headcount.

[8] Mr Saunders said that he started work for the Respondent on 20 January 2019. The Form F3 Employer response to unfair dismissal application, referred to the same date.

[9] According to Mr Daniel Henderson, he had offered Mr Saunders work at his business after having heard that Mr Saunders was not receiving the opportunities he had hoped to gain at ‘Honda’. The evidence was that Mr Saunders was dating the cousin of Mr Daniel Henderson’s girlfriend.

[10] There was no written employment contract, albeit there was a training contract in place concerning Mr Saunders’ apprenticeship. 3

[11] Mr Benjamin Henderson gave evidence that, initially, Mr Saunders showed enthusiasm and he considered that a team had started form. 4 The Henderson brothers and Mr Saunders would exercise together, often played golf together on a Friday afternoon, and would play ‘PS4 online’ on certain occasions. The brothers and Mr Saunders were said to have booked and taken a snowboarding trip to Japan in early 2020.

[12] However, Mr Benjamin Henderson spoke of Mr Saunders having performance issues, running out of steam early in the day, in addition to presenting to work with no food and eating the bread and coffee supplied by the business. 5 Because the behaviour went on for months, the Henderson brothers said they gave Mr Saunders a written warning as the verbal warnings did not seem to sink in. Mr Benjamin Henderson said that the brothers wrote in the warning how ‘they felt’.

[13] Mr Saunders reports having received the written warning on 8 November 2019, in addition to verbal feedback that was provided by the Henderson brothers. Mr Saunders stated that he was verbally informed, amongst other matters:

I think you need to get your stuff and go home and really have a look at yourself and think if this is what you want to do as a career and come back in Monday with a fresh attitude.

[y]ou don’t show passion for the industry and we feel it’s because you don’t want to be a mechanic.

[14] While Mr Saunders was informed at the meeting that goals would be set, he reports that none were. 6 Mr Saunders said that he was asked to sign the warning, but he did not do so.7

[15] Mr Saunders stated that during the period of April and July 2019, he had worked an increasing number of Saturday shifts, which he was not paid for. 8 When asked in or around July 2019 to work on a Saturday, Mr Saunders said that he informed Mr Benjamin Henderson that he had exceeded his contracted hours and he did not want to work the Saturday as he was not paid for it. Mr Saunders purports that Mr Benjamin Henderson retorted ‘fine, f*** off and go home then’, and thereafter walked out of the office.9 While Mr Saunders presented to work the next day, he reported there was further tension and disagreement between him and Mr Daniel Henderson.

[16] A further incident was raised, whereby Mr Saunders said that the Respondent agreed to pay for half of the cleaning supplies for Mr Saunders’ own personal vehicle, on the proviso he could keep the products at his house, but when ordered to do so, would have to clean any other vehicles. 10 While Mr Saunders said he could only afford to spend $200.00, the order received amounted to an approximate $450.00 spend, which Mr Saunders said that he could not afford, but was informed by Mr Daniel Henderson he could have a month to pay it off.11 When Mr Saunders remonstrated about the cost, he notes that the response he received from Mr Daniel Henderson was ‘[S]top being so f******cheap, I’m not arguing over this anymore, pay half and that’s final’.12 The full amount was paid.13

[17] Mr Saunders gave evidence that, on 10 November 2020, he reported to a Mr Mel Greenhow, RTO Manager, of the Motor Trade Association of WA, that he was being bullied in the workplace and, approximately one week later, he was spoken to by a Mr Mike Waslte (Mr Waslte) about the situation. 14 Mr Saunders said he was informed to raise the issues with the Henderson brothers, but he expressed to Mr Waslte that he did not want to jeopardise his job and apprenticeship, or create tension before the trip to Japan, to which he considered he was financially bound.15

[18] Mr Saunders stated that approximately one week after Mr Walste’s visit, he approached Mr Benjamin Henderson about being underpaid and about his finish times. According to Mr Saunders, Mr Henderson responded that if Mr Saunders wanted to excel in the industry, he would not be so worried about wages all the time and would want to put in the extra hours to be better. 16

[19] It was Mr Saunders’ account that on 31 March 2020, he was sent home after discussions had taken place between the MTA and Western Diesel & Turbo Service regarding continuing his apprenticeship on a part-time basis. 17 The proposition of working part-time had apparently arisen in the context of the Respondent business facing difficulties, because it did not possess the correct zoning to work out of the property.18 Mr Saunders said that he was informed that his wages would need to be cut in order to save for the possible zoning bill faced by the Respondent business.19

[20] Mr Daniel Henderson gave evidence that Mr Saunders left the Respondent business on 29 March 2020 to tend to his mother, who had recently come out of hospital after shoulder surgery. 20 He said that the business left Mr Saunders’ apprenticeship open on good faith that he would return when he was able.21 Mr Daniel Henderson stated that if the business had cancelled Mr Saunders’ apprenticeship on that date, he would have been given three months to find another placement, unless advised by the MTA, or his apprenticeship would have been cancelled altogether. During the course of the hearing, Mr Daniel Henderson noted that having spoken to ‘Mike’, presumedly Mr Waslte, this period was extended to six months because of the Covid-19 pandemic.

[21] The Respondent tendered several text messages to support its contention that Mr Saunders resigned on 29 March 2020. The first in the series of text messages detailed communication between Mr Saunders and Mr Daniel Henderson on 24 March 2020, where there was discussion of Mr Saunders’ mother being admitted to hospital for shoulder surgery, and Mr Saunders informed Mr Daniel Henderson that he would not be at his girlfriends for a month or two, because he would be looking after his mother and her house, as she would be off work for a year. 22

[22] On 15 April 2020, the following text messages were relayed between the two:

Mr Daniel Henderson: Hey man how’s everything going? We’re [sic] you able to get Centrelink approved? I think the government changed the job keeper [sic] relief recently. Also have you been in contact with tafe to see what you can do to continue with your training and get signed off?

Mr Saunders: My claims [sic] been but through a while ago but yeah still waiting on an answer from them, should hopefully be confirmed the 20^th so they reckon but yeah mike called me yesterday and just asked if I had anything to hand in so Friday I’m just gonna shoot down to Balcatta and hand a bunch of the video evidence and stuff in so I’ll know what I’ve got left after that and see what I can do about it, did the shire end up coming out or are they on hold with the virus

Mr Daniel Henderson: Ok then no worries. The shire is leaving us along [sic] during Covid, don’t quite know the plan of attack after that tho [sic]. Do you want to come in for a few days here and there to keep up with your training or is your mum gonna give you a hard time?

Mr Saunders: I think she’s got a check in with her doc soon so I’ll talk to her and see where’s [sic] she’s at on her meds n shit [sic] and hopefully if the rate of new cases keeps dropping she’ll feel better about it

Mr Daniel Henderson: Ok then no worries keep us posted. 23

[23] Mr Daniel Henderson gave evidence that Mr Saunders was paid out any entitlements owed toward the latter part of March, or early April. Mr Saunders confirmed that this was correct. Whilst the Respondent business was initially ineligible for JobKeeper, Mr Daniel Henderson noted that this changed after the first month, as the business took a ‘bit of a hit’, but the Respondent was unable to place Mr Saunders on JobKeeper because he was not an employee.

[24] Mr Daniel Henderson sent subsequent text messages to Mr Saunders in the latter part of May 2020 asking him to call him about his apprenticeship and asking whether he was ‘alright to start at 9 tomorrow?’. It was Mr Daniel Henderson’s account that Mr Saunders was agreeable to coming back to work in late May 2020, but asked that he be paid in cash as he was still waiting for a backpay from Centrelink.

[25] Mr Saunders said that, on 10 June 2020, he requested from Mr Daniel Henderson a letter from the Respondent stating that he had been engaged in full-time employment, along with payslips for the period, as he needed to provide proof to Centrelink. 24

[26] Mr Daniel Henderson gave evidence that Mr Saunders left the week after getting his Centrelink repayments, at a time where there had been a discussion about putting him back on the books full-time. 25 Mr Saunders provided a resignation letter to the Respondent, dated 15 July 2020, setting out that his last day of work would be 29 July 2020. Further, a medical certificate was provided for the dates 14 July 2020 to 31 July 2020 certifying Mr Saunders unfit for work.26

The relevant legislative provisions and their interpretation

Minimum employment period

[27] A person is protected from unfair dismissal if they have completed the minimum employment period. The meaning of ‘minimum employment period’ for the purpose of this application is twelve months.

[28] Section 383 of the Act sets out the meaning of the minimum employment period as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i)  the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer - one year ending at that time.

[29] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

(1) [Meaning of period of employment]

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (emphasis added)

[30] The starting point is that a period of employment is also referred to as a period of continuous service.

[31] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) [Exceptions to meaning of service]

The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) [Excluded period does not break continuous service]

An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service…

Agreed matters

[32] Before turning to an objective analysis of the conduct of both the Applicant and the Respondent, it is necessary first to traverse those matters that are agreed upon. It is not in contest, and I am satisfied on the evidence:

(a) the Respondent was a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was applicable; 27

(b) Mr Saunders’ alleged dismissal was not a case of genuine redundancy; 28 and

(c) his application was made within the period required. 29

Did Mr Saunders satisfy the minim employment period?

[33] As identified in the introductory paragraphs, one of the critical issues in this case was whether Mr Saunders’ resigned effective 29 or 31 March 2020. If he did, then it is the case that he did not satisfy the minimum employment period, because his return to employment with the Respondent, in the latter part of May 2020 until his date of resignation, did not equate to one year of continuous service.

[34] Based on the evidence before me, I am persuaded that, more likely than not, the Henderson brothers were providing a truthful account. It was apparent that they could not be held out to be a role model employer. Whether or not there were underpayments or other breaches of the relevant modern award, I am unable to ascertain based on the evidence presented. In any event, I am unconvinced that arriving at such findings assists with determining the controversial issues in this case. Their form of counselling or warning to Mr Saunders was premised on ‘feelings’ and as such was emotively charged. Referring to an employee on the basis it was ‘like looking at a brick wall. A zombie walking around the workshop’ was neither helpful nor appropriate. Yet their evidence was forthright, unpolished, and neither sought to obfuscate when providing evidence. They admitted their errors and were, in my view, candid with their responses.

[35] While there was no written resignation to give effect to Mr Saunders’ cessation of employment on 29 March 2020, the text messages and evidence presented by the Henderson brothers supported a version of events such that Mr Saunders had informed the Respondent that he would not be at work, because he would be caring for his mother, and in addition, there were concerns regarding COVID-19 and the potential for him to transmit this to his mother, given his exposure to the public at work. There was no evidence before me to show that Mr Saunders had been stood down or, alternatively, had been permitted to take leave without pay. Further, the evidence was such that Mr Saunders had been paid out his entitlements at that time. 30

[36] I was unconvinced by Mr Saunders’ answer when he was asked directly what was meant by the series of text messages, where he had spoken of his mother ‘feeling better about it’, in the context of the following:

I think she’s got a check in with her doc soon so I’ll talk to her and see where’s she’s at on her meds n shit and hopefully if the rate of new cases keeps dropping she’ll feel better about it

[37] In my view, Mr Saunders’ response did not accurately reflect that which he was conveying to Mr Daniel Henderson at the time when he referred to ‘it’. ‘It’ being work. That is, he was conveying that if the new cases of COVID-19 kept dropping, his mother would feel better about him returning to work. In the context of this case, that mean taking up employment again with the Respondent. When he did commence employment again, I am persuaded, based on the evidence given, he did so in a part-time capacity and had requested to be paid in cash for an initial period.

[38] Having considered all the evidence and the submissions made, I am persuaded that, more likely than not, Mr Saunders voluntarily resigned as of 29 March 2020. It follows, he has not satisfied the minimum employment period and therefore is not protected by the unfair dismissal regime. An order to this effect is issued concurrently with my decision. 31

[39] By way of observation only, whilst I have found that the resignation as of 29 March 2020 was voluntary, it should not be assumed that such finding indicates disbelief regarding all concerns reported by Mr Saunders. Mr Waslte and Ms Greenhow were called by neither party to give evidence. And, as is often the case with self-represented litigants, much of the evidence was untested.

DEPUTY PRESIDENT

Appearances:

Mr V Saunders, Applicant; and
Messrs B Henderson & D Henderson for the Respondent.

Hearing details:

2020:
Perth;
November 25.

Printed by authority of the Commonwealth Government Printer

<PR724879>

 1   [2020] FWC 4450.

 2   Ibid.

 3   Exhibit R3, page 132 of Court Book – Notice to assign a training contract to a new employer.

 4   Exhibit R1.

 5   Exhibit R1.

 6   Exhibit A1.

 7   Exhibit A1.

 8   Exhibit A1, p 82 Court Book.

 9   Exhibit A1, p 82 Court Book.

 10   Exhibit A1, p 82 Court Book.

 11   Exhibit A1, p 82 Court Book.

 12   Exhibit A1, p 86 Court Book.

 13   Exhibit A1, Court Book p 88.

 14   Exhibit A1.

 15   Exhibit A1.

 16   Exhibit A1.

 17   Exhibit A1, p 96 Court Book.

 18   Exhibit A1, p 96 Court Book.

 19   Exhibit A1, p 96 Court Book.

 20   Exhibit R2, p164 Court Book.

 21   Exhibit R2, p164 Court Book.

 22   Exhibit R2, p151 Court Book.

 23   Exhibit R2, p154 Court Book.

 24   Exhibit A1, p 95 Court Book.

 25   Exhibit R2, p165 Court Book.

 26   Exhibit A1, p 49 Court Book.

 27   The Act, s 385(c).

 28   The Act, s 385(d).

 29   The Act, s 394(2); Vaughan Saunders v Western Diesel and Turbo Service [2020] FWC 4450.

 30   Court Book, p 119.

 31   PR725669.