Zac Healing-Mason v Barrington Retail Pty Limited
[2023] FWC 1399
•15 JUNE 2023
| [2023] FWC 1399 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Zac Healing-Mason
v
Barrington Retail Pty Limited
(C2023/1308)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 JUNE 2023 |
General protections application involving an alleged dismissal – whether applicant was dismissed.
Introduction
On 9 March 2023, Mr Zac Healing-Mason 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 Healing-Mason’s former employer, Barrington Retail Pty Ltd (Barrington).
Mr Healing-Mason contends that Barrington contravened a number of the general protections provisions in dismissing him from his employment. Barrington raised a jurisdictional objection to the application. Barrington contends that it did not dismiss Mr Healing-Mason. In the alternative, Barrington contends that if a dismissal did take place, it took effect on 11 February 2023, which is more than 21 days before Mr Healing-Mason filed his application in the Commission.
The Commission must determine whether Mr Healing-Mason was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Mr Healing-Mason was dismissed in contravention of the general protections.[1]
On 6 June 2023, I conducted a hearing in relation to the question of whether Mr Healing-Mason was dismissed by Barrington. Mr Healing-Mason gave evidence in support of his contention that he was dismissed. Mr Simon Beisler, sole director of Barrington, gave evidence for Barrington.
Dismissal
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.”
Mr Healing-Mason contends that his employment was dismissed at Barrington’s initiative. Mr Healing-Mason expressly rejects any suggestion that he resigned.
General principles
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]
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]
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.
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
On 7 March 2022, Mr Healing-Mason commenced employment with Barrington as a casual employee. He worked primarily in Barrington’s retail shop based in the Cameron Park Shopping Centre.
In the period from March 2022 until 11 February 2023, Mr Healing-Mason’s weekly earnings from Barrington fluctuated between a minimum of $421.19 and a maximum of $990.04, save for two weeks where he did not work at all for Barrington (in the week ending 1 January 2023 and the week ending 21 August 2022).
Rosters were communicated to Barrington’s staff by electronic communications sent by Facebook Messenger to employees who worked in a particular store. Employees had to be a member of the relevant Messenger group in order to receive the rosters through Facebook Messenger. Barrington had control over who was a member of the relevant Messenger group.
In the week commencing Monday, 6 February 2023, Mr Healing-Mason worked four shifts in the Cameron Park store. His last shift that week was from 6:30am until 2pm on Saturday, 11 February 2023. That was the last occasion on which Mr Healing-Mason worked for Barrington.
At 7:09pm on Saturday, 11 February 2023, Mr Healing-Mason exchanged the following text messages with Mr Beisler’s partner, Kehani, who also worked for Barrington:
Mr Healing Mason:
“Hi kehani, is there any reason why I’m not rostered on?”
Kehani:
“I don’t need you next week.”
Mr Healing Mason:
“Why what’s the go with this? I really need the work right now…”
At 12:03pm on Sunday, 12 February 2023, Mr Beisler sent the following text message to Mr Healing-Mason:
“No issues we don’t have work for you. If that changes we will let you know.”
On Friday, 17 February 2023, Mr Healing-Mason and his mother, who also previously worked for Barrington, were removed from the Facebook Messenger group for Barrington’s Cameron Park store. Mr Healing-Mason was also removed from the Facebook Messenger group for another Barrington store at which he worked from time to time. As a result, Mr Healing-Mason did not have access to the weekly work rosters for the Barrington stores at which he had formerly worked.
At 4:08pm on Friday, 17 February 2023, Mr Healing-Mason sent the following text message to Mr Beisler:
“Hi Simon, noticed mum and I were removed from the page, does this mean that we’re no longer working for you? Cheers”
Mr Healing-Mason did not receive a response to this message.
On Saturday, 18 February 2023, Mr Healing-Mason exchanged the following text messages with Mr Beisler:
Mr Healing-Mason:
“Hi Simon,
Would you mind reiterating my employment status please. I see that I’ve been taken off the roster for the second week and removed from the staff Facebook page. You said last week you didn’t have work for me and that there aren’t any issues with my performance and would let me know, yet I’ve not been given my usual shifts or getting any response and have instead been replaced by new staff. Can you reiterate when work will resume please or if I am no longer employed with your company.
Cheers
Zac”
Mr Beisler:
“No issues we don’t have work for you. If that changes we will let you know.”
Mr Healing-Mason:
“If there aren’t any issues and I’m still employed then why would I be removed from the staff Facebook page? Saying ‘we don’t have work for you’ is different then [sic] saying there aren’t enough hours, yet you are still advertising a position available and taking on new staff. I’m really hoping we can come to some resolution as you’re preventing me from making an income or receiving unemployment benefits.”
Mr Healing-Mason did not receive a response to the final message he sent to Mr Beisler on 18 February 2023.
At 2:10pm on Monday, 27 February 2023, Mr Healing-Mason sent the following text message to Mr Beisler:
“Hi Simon, any work this week?”
At 10:03am on Tuesday, 28 February 2023, Mr Healing-Mason sent the following text message to Mr Beisler:
“Hi Simon, I’ve just been informed that [the] award rate you were paying me does not match up with what I was supposed to [be] payed [sic] under (retail level 3) plus not getting payed [sic] penalty rates for weekends, happy if you wanna give me phone call to discuss said issue. You’ve put me in massive choke hold and have given me no choice but to look further into my rights as an employee as I feel I’m being unfairly treated as you’ve said there is no issue or no word termination. Kind regards Zac.”
At 1:03pm on Tuesday, 28 February 2023, Mr Beisler sent the following text message to Mr Healing-Mason:
“Hey Zac no one is stopping you finding another job. I don’t have any work for you. I do have however financial paperwork that’s has been manipulated for financial gain. This is called fraud. I also have the video footage to support that from the centre. Now I haven’t forwarded this to the police for investigation or charges and I think that’s the best for whoever removed the time and date stamp from my till tapes. As fraud charges would mean never getting another job for that person. As I said before I have no issues and I don’t have any work. Im sure you would rather be working than have the hassle of an investigation into something like that and I’m sure you don’t want to upset me into changing my mind. Please Zac don’t escalate this cause nobody wins. All the best for the future.”
On Tuesday, 28 February 2023, Mr Beisler had a telephone conversation with Mr Healing-Mason’s mother. Mr Healing-Mason was present with his mother when the telephone conversation took place. Mr Healing-Mason’s mother attempted to negotiate with Mr Beisler to settle the issues between Mr Healing-Mason and Mr Beisler. She did not succeed. Mr Healing-Mason’s mother then, on his behalf, asked Mr Beisler for a separation certificate. That request was made because Mr Healing-Mason wanted to be able to claim unemployment benefits. Mr Beisler responded to the request for a separation certificate by stating that he would send a separation certificate to Mr Healing-Mason.
At 2:28pm on 28 February 2023, Mr Beisler’s daughter emailed a separation certificate to Mr Healing-Mason. The separation certificate was signed by Mr Beisler. He gave evidence that his daughter prepared the separation certificate dated 28 February 2023, but Mr Beisler signed it and satisfied himself that it was accurate before he signed the certificate. It relevantly states that Mr Healing-Mason started working for Barrington on 7 March 2023 and the employment ceased on 19 February 2023. Mr Beisler was not able to explain why the date of 19 February 2023 was included as the date on which Mr Healing-Mason’s employment with Barrington ceased. The “reason for separation” stated on the certificate was “shortage of work”, not “employee ceasing work voluntarily” or any of the other available options on the certificate.
The work rosters for the Barrington store at Cameron Park in the period from 13 February 2023 until early March 2023 show that full-time employees of Barrington, together with some casual employees of Barrington, worked at the Cameron Park store during this period. One of those casual employees, Lyndal, worked a number of shifts at the Cameron Park store in the week commencing on Monday, 13 February 2023. Mr Beisler explained in his evidence that Lyndal did not appear in the work rosters for the following weeks because “she did not meet the grade” and “we had to get rid of her as well”.
Mr Beisler also explained in his evidence:
He met with his accountant, Mr John Rapson, in early February 2023 to discuss the performance of each of his stores.
Mr Rapson pointed out to Mr Beisler that the Cameron Park store had the weakest trading performance of his five stores.
Mr Beisler then decided to arrange for a full-time employee who floats between his five stores, together with his partner and daughter, to work at the Cameron Park store to see if they could work out why it was performing poorly compared to the other stores.
The hours worked by the full-time employee and Mr Beisler’s partner at the Cameron Park store in the second half of February 2023 took up many of the hours that would ordinarily be worked by casual employees, including Mr Healing-Mason, at the Cameron Park store.
Mr Healing-Mason was removed from the Facebook group chat for the Cameron Park store on 17 February 2023, but this was an error on Barrington’s part;a number of previous employees that had remained in the group were removed as part of a ‘clean up’, during which a number of current employees were accidentally removed as well. . Mr Beisler did not arrange for Mr Healing-Mason to be put back on the Facebook group chat after he had been removed because Mr Beisler did not have any work for him at that time and Mr Beisler did not want Mr Healing-Mason to see the work rosters for the Cameron Park store and ask Mr Beisler questions why he was not on the roster when other employees, including casual employees, were on the roster.
By 28 February 2023, Mr Beisler says that he had been told about a number of things that had been going on at the Cameron Park store, including matters that were critical of Mr Healing-Mason. As a result, by 28 February 2023 Mr Beisler had formed the view that he did not want Mr Healing-Mason back at the Cameron Park store or near his money.
Barrington’s Cameron Park store always has a sign in the window advertising casual employment. The fact that this sign remained in the store in February 2023 was not any different from the usual situation.
Because Mr Healing-Mason requested, through his mother, a separation certificate, Mr Beisler believed that Mr Healing-Mason had resigned.
Consideration re dismissal
It is clear on the evidence that Mr Healing-Mason did not voluntarily leave his employment with Barrington. He did not say that he resigned or that he wanted to leave. Mr Healing-Mason’s communications and actions demonstrate that he was eager to continue working for Barrington. True it is that Mr Healing-Mason requested, on 28 February 2023, through his mother, a separation certificate from Mr Beisler, but that was because he wanted to be able to access unemployment benefits, having not worked since 11 February 2023 and needing to pay bills and other living expenses.
I am comfortably satisfied on the evidence that it was action on the part of Barrington that was the principal contributing factor which resulted in the termination of Mr Healing-Mason’s employment. In a case of this kind, it was not a single act or communication which resulted in the termination of Mr Healing-Mason’s employment. It was a combination of actions. First, Mr Healing-Mason was not given any shifts in the period between 12 and 28 February 2023. That, of itself, is not conclusive, particularly when one has regard to the fact that Mr Beisler was taking reasonable steps to have experienced and trusted employees and family members work in the Cameron Park store during that time in an attempt to discover the reasons for the poor performance of the store. Secondly, Mr Healing-Mason was not only removed from the Facebook Messenger group on 17 February 2023, he was never put back into that group even when he raised the issue with Mr Beisler. Mr Healing-Mason had no prospect of being rostered to work another shift for Barrington unless he was put back into the group so that he could receive and access work rosters. Thirdly, it would have been clear to any reasonable person reading Mr Beisler’s text message to Mr Healing-Mason on 28 February 2023 that the employment relationship was at an end. So much is apparent from comments in the text message such as “no one is stopping you finding another job. I don’t have any work for you… All the best for the future.” This was consistent with the decision Mr Beisler had made that he did not want Mr Healing-Mason back near his money or his stores. Fourthly, Mr Beisler signed a separation certificate on 28 February 2023 in which he informed Centrelink and Mr Healing-Mason that Mr Healing-Mason’s employment relationship with Barrington had ceased and the reason for the separation was “shortage of work”. That reason for separation strongly suggests that the termination was at Barrington’s initiative, not Mr Healing-Mason’s initiative.
Although Mr Healing-Mason worked what turned out to be his last shift for Barrington on 11 February 2023, his employment with Barrington did not come to an end at that time. A dismissal does not take effect until an employee is aware that they have been dismissed or the employee has at least had a reasonable opportunity to become so aware.[6] I am satisfied on the evidence that Mr Healing-Mason did not become aware, and did not have a reasonable opportunity to become aware, that he had been dismissed until he received Mr Beisler’s text message on 28 February 2023 and the separation certificate about 1.5 hours later. I find that the dismissal took effect on 28 February 2023. That is the date on which a reasonable person would have understood, as a result of Mr Beisler’s words and conduct, that Mr Healing-Mason’s employment with Barrington had come to an end.
Conclusion
For the reasons given, Mr Healing-Mason’s employment with Barrington was terminated on Barrington’s initiative. He was dismissed within the meaning of s 386(1)(a) of the Act.
The dismissal took effect on 28 February 2023. Mr Healing-Mason filed his general protections application in the Commission on 9 March 2023. It follows that the application was filed within the 21-day time limit provided for in the Act.
The application will now be listed for a conciliation conference.
DEPUTY PRESIDENT
Appearances:
Mr Z Healing-Mason, on his own behalf
Mr S Beisler, on behalf of Barrington Retail Pty Limited
Hearing details:
2023.
Newcastle
6 May.
[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]
[6] Ayub v NSW Trains[2016] FWCFB 5500 at [36]
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