Wade Felsch v The Trustee for Rose Family Trust T/A Indigo Rose Disability Support Services

[2024] FWC 1709

[2024] FWC 1709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Wade Felsch
v

The Trustee For Rose Family Trust T/A Indigo Rose Disability Support Services

(C2024/2606)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 JUNE 2024

General protections application involving an alleged dismissal – whether applicant was dismissed.

Introduction

1. On 21 April 2024, Mr Wade Felsch lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal.  The respondent to the dispute is Mr Felsch’s former employer, the trustee for Rose Family Trust trading as Indigo Rose Disability Support Services (Indigo Rose).

1. Mr Felsch contends that Indigo Rose contravened s 340 of the Act in dismissing him from his employment. Indigo Rose raised a jurisdictional objection to the application. Indigo Rose contends that it did not dismiss Mr Felsch.

1. The Commission must determine whether Mr Felsch was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Mr Felsch was dismissed in contravention of the general protections.[1]

1. On 25 June 2024, I conducted a hearing in relation to the question of whether Mr Felsch was dismissed by Indigo Rose. Mr Felsch gave evidence in support of his contention that he was dismissed, as did Ms Katie Phelan, who is Mr Felsch’s wife and a former employee of Indigo Rose, and Ms Susan Phelan. Mr Sean Rich, General Manager of Indigo Rose, gave evidence for Indigo Rose.

Dismissal

1. The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

“(1)     A person has been dismissed if:

(a)   the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b)   the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

1. Mr Felsch contends that his employment was dismissed at Indigo Rose’s initiative. Mr Felsch does not suggest that he resigned.

General principles

1. The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]

1. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4] 

1. It is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, and whether either party has communicated to the other party a decision to terminate the relationship.

1. The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[5]

Relevant facts re alleged dismissal

1. On 1 December 2023, Mr Felsch commenced employment with Indigo Rose as a casual support worker.

1. At all times during his employment with Indigo Rose, save for one week when he travelled to Sydney, Mr Felsch was available to work for Indigo Rose three days a week (Tuesday, Wednesday and Thursday). Between 1 December 2023 and March 2024, Mr Felsch almost always had shifts with Indigo Rose on all three days each week.

1. Shifts are communicated to Indigo Rose’s staff by an app known as Brevity.

1. Mr Rich gave evidence that staff are required to enter their availability into the Brevity app each four weeks, and if a staff member does not enter their availability then they will not be given any shifts. In closing submissions, Mr Rose, CEO of Indigo Rose, referred to an email which he said was sent to all staff in early 2024 informing staff to provide notice of any times they were unavailable for shifts and update their availability if they need to.

1. Mr Felsch gave evidence, which I accept, that at no time during his employment with Indigo Rose did he enter his availability into the Brevity app, yet he was consistently given shifts each Tuesday, Wednesday and Thursday between December 2023 and March 2024. Mr Felsch’s understanding was that he only had to enter into the Brevity app when his regular availability of each Tuesday, Wednesday and Thursday changed, which he did for one week when he went to Sydney.

1. From 3pm on 5 March 2024 until 10am on 6 March 2024, Mr Felsch worked a 19 hour shift for Indigo Rose. Mr Felsch had to stay awake during the entire shift because the client he was caring for needed assistance. Mr Felsch did not remember to send a text message to Indigo Rose’s on-call phone to prove that he was awake overnight. Mr Felsch says that he provided this notification to Indigo Rose after the conclusion of the shift.

1. Mr Felsch did not believe that he had been paid correctly by Indigo Rose for his shift on 5-6 March 2024. On 6 March 2024, he enquired with Indigo Rose about this issue, and says that in response Indigo Rose removed all shifts from his upcoming roster except for one shift which he completed on 14 March 2024. Mr Rich says that Mr Felsch only had two shifts on his roster at this time and one client asked to have Mr Felsch completely removed from his service.

1. On 14 March 2024, Mr Felsch worked his final shift for Indigo Rose. During this shift, Mr Felsch reported what he alleged was serious misconduct on the part of the brother of the CEO of Indigo Rose (Mr Nathan Rose). At the time, Mr Rose’s brother was a support worker employed by Indigo Rose. Mr Rose says that Indigo Rose has very strong processes and procedures to deal with this type of issue and he was not involved in the matter because it concerned his brother.

1. Mr Felsch says that he was not assigned any more shifts by Indigo Rose after he made his inquiries about his pay for his shift on 5-6 March 2024 and he blew the whistle on Mr Rose’s brother.

1. On 4 April 2024, Mr Felsch’s wife, Ms Katie Phelan, had her employment with Indigo Rose terminated on the grounds of redundancy. Ms Phelan alleges that she was unfairly dismissed by Indigo Rose and has commenced unfair dismissal proceedings in the Commission.

1. Also on 4 April 2024, I accept Mr Felsch’s evidence that he was locked out of the Brevity app. He tried multiple times to log in to the app but could not do so. Mr Felsch even tried changing his password but could not log in to the app. Mr Felsch then called, on about three or four occasions, reception at Indigo Rose to enquire about his inability to log on to the Brevity app but was told that nobody in management was available to take his call and he would be called back. But nobody returned Mr Felsch’s calls. Mr Rich and Mr Rose say they were not made aware that Mr Felsch made such calls. In the result, Mr Felsch was not offered any shifts, and did not work any shifts, for Indigo Rose after 14 March 2024.

1. During April 2024, Indigo Rose was advertising for support workers “due to continued growth and demand”. I accept Mr Rose’s explanation that he runs this advertisement continuously on Seek because he has a corporate licence with Seek and it is more economical to run the advertisement all year round than it is to only advertise for such positions at different times of the year.

1. On 19 June 2024, Indigo Rose filed and served a statement made by Mr Rich to support its jurisdictional objection that it had not dismissed Mr Felsch. Mr Rich stated that Mr Felsch is “still a current casual employee with Indigo Rose”. On the same day, Mr Felsch tried again to log on to the Brevity app and was able to do so using the same log in details he had used prior to being unable to log in on and from 4 April 2024.

1. Mr Rich gave evidence that although three clients had informed Indigo Rose that they did not wish for Mr Felsch to care for them and Mr Felsch was on the “do not roster” list for another three clients, Indigo Rose had about another 28 clients. Mr Rich stated in his evidence that if Mr Felsch had put his availability into the Brevity app each four weeks from mid-March 2024, he would have been offered shifts. On the balance of probabilities, I do not accept this evidence. It is contrary to Mr Felsch’s consistent lived experience from 1 December 2023 until mid-March 2024, during which time he never entered his availability into the Brevity app but was almost always offered, and worked, shifts on all three days on which he was permanently available (Tuesday, Wednesday and Thursday each week).

1. Mr Rose suggested that the problem with Mr Felsch’s ability to log in to the Brevity app may have been that Mr Rose was using a password of one character in length when the app required a password to be at least four characters in length. On the balance of probabilities, I do not accept that this was the reason Mr Felsch could not log in to the Brevity app. Mr Felsch was able to consistently log in to the Brevity app using a password of one character in length for about one to two months prior to 4 April 2024. In addition, Mr Felsch tried, without success, to change his password to a four-character length password after he was locked out of the Brevity app on 4 April 2024.

Consideration re dismissal

1. It is clear on the evidence that Mr Felsch did not voluntarily leave his employment with Indigo Rose. He did not say that he resigned or that he wanted to leave. Mr Felsch’s actions demonstrate that he was eager to continue working for Indigo Rose.

1. I am comfortably satisfied on the evidence that Mr Felsch’s employment with Indigo Rose did come to an end and it was action on the part of Indigo Rose that was the principal contributing factor which resulted in the termination of Mr Felsch’s employment. In a case of this kind, it was not a single act or communication which resulted in the termination of Mr Felsch’s employment. It was a combination of actions. First, Mr Felsch was not offered, and did not work, any shifts for Indigo Rose in the period after 14 March 2024, even though he continued to be available to work for Indigo Rose on Tuesday, Wednesday and Thursday of each week and, according to Mr Rich, there were shifts that could have been offered to Mr Felsch during this time. That, of itself, is not conclusive for a casual employee such as Mr Felsch. Secondly, Mr Felsch was effectively locked out of the Brevity app from 4 April 2024 until 19 June 2024. Thirdly, nobody from management within Indigo Rose returned Mr Felsch’s calls following his inability to log in to the Brevity app on and from 4 April 2024.

Conclusion

1. For the reasons given, Mr Felsch’s employment with Indigo Rose was terminated on Indigo Rose’s initiative. He was dismissed within the meaning of s 386(1)(a) of the Act. It follows that Indigo Rose’s jurisdictional objection is rejected.

1. The application is listed for a conciliation conference, by telephone, at 9am on 4 July 2024.

DEPUTY PRESIDENT

Appearances:

Mr Wade Felsch (supported by Ms Katie Phelan) appeared for Mr Felsch
Mr Nathan Rose appeared for Indigo Rose

Hearing details:

2024.
Newcastle by video conference
24 June.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]

[2] NSW Trains v James[2022] FWCFB 55 at [45]

[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

[5] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]

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