| [2022] FWC 1087 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
David Keith Haywood
v
Coles Supermarkets Australia Pty Ltd
(C2022/1787)
COMMISSIONER PLATT |
ADELAIDE, 10 MAY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant was dismissed – - jurisdictional objection dismissed.
[1] On 15 March 2022, Mr David Haywood lodged a general protections application against Coles Supermarkets Australia Pty Ltd (Coles or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 25 February 2022, he was dismissed in contravention of the general protections provisions of the Act.
[2] On 5 April 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Haywood had not been dismissed. On 6 April 2022, the Respondent indicated by email that they wished to proceed with their jurisdictional objection rather than participate in a conciliation conference. As such, a conciliation conference was not held.
[3] As a result of the decision in Coles Supply Chain Pty Ltd v Milford,1 I am required to determine the jurisdictional objection before the matter can proceed.
[4] On 11 April 2022, a Directions Conference was conducted by telephone. The Applicant did not attend the Directions Conference. Directions were issued for the filing of material on the jurisdictional objection, and a Hearing was scheduled for 6 May 2022.
[5] On 21 April 2022, the Respondent filed its material and submissions in relation to its jurisdictional objection. No material was filed by the Applicant despite follow up attempts from my Chambers.
[6] On 5 May 2022, the Respondent sought that as the Applicant had not filed any material, and there was no contest as to the facts, I should determine the matter on the papers. I acceded to that request.
[7] The Applicant has not provided any evidence or submissions. His application contends that he was constructively dismissed in circumstances which represent a breach of ss.340 and s.351 of the Act.
[8] The Respondent provided a witness statement from of Mr Tayus Cook and written submissions. The Respondent’s relevant evidence is summarised as follows:
• Mr Cook is the Store Manager of the Coles Supermarket in Ulverstone, Tasmania and he supervised Mr Haywood.
• Mr Haywood is employed as a part time Customer Service Agent and works 36 hours over a four-week cycle.
• In October 2021, the Respondent implemented COVID-19 vaccination requirements at its sites. One such requirement was that employees needed to be vaccinated against COVID-19 or have a valid medical exemption by certain dates in order to perform work at any Coles site in Tasmania. If Mr Haywood was not exempt, he was required to have his first vaccination dose by 25 February 2022.
• The Respondent sought information from Mr Haywood as to his vaccination/exemption status
• On 23 February 2022 the Respondent informed Mr Haywood by text message that unless he was exempt, in the absence of him receiving his first vaccination dose he would be unable to work from 25 February 2022. From 31 March 2022, he would be unable to work unless he had received two vaccination doses. Arrangements were offered to allow employees who did not meet these requirements to access leave.
• The Applicant did not provide the Respondent with evidence of his vaccination status or any exemption by 25 February 2022.
• Mr Cook stated that:
“The Applicant did not indicate to Coles whether he wanted to access his leave entitlements for the period after 25 February 2022. Whilst the Applicant is not able to work because he has not complied with the vaccination requirements, since February 2022, Coles has recorded his absence from work as leave without pay.”
• The Applicant last worked on 24 February 2022.
• On 14 March 2022, Mr Haywood spoke with Mr Cook and complained of his treatment. Mr Cook advised Mr Haywood that his employment had not been terminated. Mr Haywood indicated that he would ‘make a claim’.
• Mr Cook and the Respondent contend that Mr Haywood’s employment has not been terminated.
• Mr Haywood continues to be regarded as being on leave without pay and has not been provided with work.
• On 15 March 2022, Mr Haywood lodged this application.
• The Respondent submits that Mr Haywood remains in its employ, and in the alternative, if there was a repudiation of the contract Mr Haywood has not elected to accept the repudiation. The Respondent also contends there has not been a constructive dismissal.
[9] The issue of whether the Commission can be satisfied that a person has been dismissed was explored by Commissioner Wilson in the recent Decision in Martin Lord v Amywood Pty Ltd trading as Central Kitchens 1. Whilst the Decision was made in the context of an unfair dismissal application, it has similar application to the issue of whether or not there has been a dismissal for the purposes of a s.365 application. The relevant excerpt of Commissioner Wilson’s Decision is as below:
“The Act defines the term “dismissed” as follows:
“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) and (3) omitted]
[20] The definition within s.386 provides two relevant limbs for consideration. Firstly, whether (the Applicant’s) employment has been terminated on the employer’s initiative and secondly, whether, if he resigned, it was because he was forced to do so because of conduct, or a course of conduct engaged in by his employer.
[21] A termination on the employer’s initiative refers to a termination that is brought about by an employer and which is not agreed to by the employee. When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.
[22] A “termination on the initiative of the employer” is when two criteria are satisfied:
• the employer’s action “directly and consequentially” results in the termination of employment, and
• had the employer not taken this action, the employee would have remained employed.
[23] For there to be a “termination at the initiative of the employer” there must be action by the employer that either intends to bring the relationship to an end or has that probable result. Whilst the question of whether the action of an employer results “directly or consequentially” in the termination of employment is an important consideration it is not the only consideration. All of the circumstances must be examined including the conduct of the employer and the employee.”
(footnotes omitted)
[10] The issue for determination is whether the Respondent dismissed the Applicant. If the Applicant was not dismissed, the s.365 application must fail.
[11] The principles of interpretation of s.386(1)(a) are outlined by the Full Bench in Khayam v Navitas 2 and are summarised in Commissioner Wilson’s Decision in Lord as above.
[12] Critically, in determining whether there has been a termination at the initiative of the employer, “it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.” 3
[13] The Applicant was a part time employee with an agreed number of hours over a four-week period.
[14] There is no evidence before me that established that the Respondent has a right to unilaterally place Mr Haywood on leave without pay. No such provision is contained in any Award that would have been applicable to Mr Haywood’s employment and there is no suggestion that any applicable Enterprise Agreement provides such a term.
[15] In my view, the Respondent has no right to unilaterally place the Mr Haywood on unpaid leave.
[16] In my view, by failing to offer the Applicant shifts after 24 February 2022, the Respondent brought the employment relationship to an end, despite not formally communicating the termination to the Applicant.
[17] I find that the Respondent dismissed the Applicant.
[18] As a result of this view, I need not consider the issues of repudiation or constructive dismissal.
[19] On the basis of the material before me I find that the Mr Haywood’s employment ceased by way of a dismissal at the initiative of the Respondent between 25 February 2022 and 15 March 2022. The jurisdictional objection is dismissed.
[20] Should the parties with to engage in conciliation they should advise my Chambers by no later than 4.00pm (SA time) Friday, 13 May 2022. If the matter dos does not resolve by conciliation, I will issue a certificate under s.368(3)(a) of the Act.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR741395>
1 [2022] FWC 243 at [19].
3 [2022] FWC 243 at [21].