[2011] FWAFB 3769

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Fair Work Act 2009
s.604 - Appeal of decisions

Mr Geoff Barkla
G4S Custodial Services Pty Ltd



Appeal against decision PR506740 of Commissioner Cloghan at Perth on 21 February 2011 in matter number U2011/13936 - appeal in relation to unfair dismissal application - whether Appellant dismissed - meaning of dismissed - termination - constructive dismissal - ongoing employment - permission to appeal.


[1] This decision concerns an application for permission to appeal against the decision of Commissioner Cloghan handed down on 21 February 2011. The Commissioner dismissed an application under s394 of the Fair Work Act 2009 (the Act) by Mr Barkla on the ground that Mr Barkla was still employed by G4S Custodial Services (G4S) and therefore could not validly challenge a dismissal as contemplated by s394.

[2] The appeal in this matter was listed for hearing before the Full bench on 5 April 2011. Mr Barkla sought an adjournment of the hearing on the basis that he required additional time to adequately prepare his appeal submissions. After considering the circumstances of the application for an adjournment the Full Bench determined to deal with the issue of permission to appeal by way of full written submissions. Directions were made for the filing of full written submissions which were subsequently received from the parties. This decision deals with the submissions of the parties on that question.


[3] Mr Barkla initially began employment with G4S on a probationary basis in May 2008. He was appointed a permanent Court Security Custodial Services Officer (CSCSO), based in Kalgoorlie, from 29 September 2008. He was offered and accepted the position of Senior CSCS Officer in Kalgoorlie in October 2008.

[4] In February 2009 G4S approved Mr Barkla’s request that he be relocated to Perth, effective from 23 February 2009. The terms of the agreed relocation included his reversion to CSCS Officer while retaining his permanent employment status. He was employed as part of the Perth ‘Pool’ which meant that he could be assigned to different courts and duties according to demand.

[5] In March 2010 Mr Barkla commenced work at the G4S Geraldton site as an Acting Supervisor. In July 2010 Mr Barkla was offered and accepted a secondment to the position of ‘Supervisor Geraldton’. The secondment was to operate from 19 July 2010 until 11 February 2011 unless terminated earlier, with 4 weeks notice, at the option of either Mr Barkla or G4S. The terms and conditions of the secondment made it clear that the appointment was temporary in nature and that once the secondment came to an end Mr Barkla would revert back to his position of CSCS Officer in Perth. The relevant clause was in the following terms:

[6] During Mr Barkla’s period of employment at Geraldton a number of incidents occurred with other G4S staff. Mr Barkla first reported conflict with another member of G4S staff, Mr Clinch, in April 2010. Mr Barkla alleged that Mr Clinch had verbally abused him and this alleged incident formed the substance of Mr Barkla’s first complaint to G4S in relation to Mr Clinch. That first incident was investigated by G4S Management and Mr Clinch was disciplined and received a written warning in relation to his conduct. In September 2010, Mr Barkla made a further complaint in relation to Mr Clinch, alleging that Mr Clinch had verbally abused him for a second time. Following this second complaint, G4S appointed another supervisor to investigate the incident. The following day Mr Clinch commenced a period of stress leave.

[7] On 11 October 2010 Mr Barkla applied for annual leave plus five months leave without pay for personal reasons relating to his child and the necessity for him to return to Adelaide to attend to family issues. He indicated a desire to return to WA following the period of leave. His Manager, Mr Mexsom, advised him in an email on 12 October 2010 that the maximum period of leave without pay was three months for permit purposes. The email went on to say:

[8] In the following days there were numerous communications between Mr Barkla and Mr Mexsom about Mr Barkla’s failure to complete payroll reports, his absences on stress leave, the conduct of the investigation into Mr Clinch’s conduct, Mr Clinch’s employment status in the interim and Mr Barkla’s employment status pending his impending period of leave.

[9] On 13 October 2011 there were further email communications between Mr Mexsom and Mr Barkla. At 11.19 am, in response to requests for explanations of Mr Clinch’s position, Mr Mexsom wrote in an email to Mr Barkla:

[10] At 12.26pm on that day, Mr Mexsom wrote another email in response to further requests for explanations from Mr Barkla. He referred to Mr Barkla’s “notice to leave G4S WA CSCS” in his October application for leave without pay and again advised Mr Barkla that his secondment would end on 22 October and that he will then return to the position of CSCS Officer. He asked Mr Barkla to make himself available for work in the Pool, away from Geraldton, in the two weeks prior to departing for South Australia.

[11] Mr Barkla obtained medical certificates stating that he was unfit for work due to work related stress from 13 October 2010 to 18 November 2010 and was absent from work during that period.

[12] On 21 October 2010, Mr Barkla asked G4S whether it was happy for him to stay in Geraldton until 18 November 2010 on the basis of medical grounds. The General Manager of G4S, Mr McCarthy, agreed to this request on 22 October 2010.

[13] On 25 October 2010, Mr Barkla asked his employer whether he could return to his position as Supervisor Geraldton or alternatively be “slotted in to the vacant position of Supervisor Pool”.

[14] On 26 October 2010, Mr Smith, the G4S Manager Human Resources, advised that applications in response to the advertisement for the vacant Geraldton position closed the following day and an extension of a few days in his case was possible. He offered to forward a copy of the advertisement and noted that it was G4S policy to advertise vacant positions. He also indicated that the General Manager proposed to meet with Mr Barkla in the week of 15 November to assist his return to work.

[15] Later that day Mr Barkla filed an application with Fair Work Australia seeking a remedy for unfair dismissal from his employment.

[16] Mr Barkla continued to receive his salary as Acting Supervisor until December 2010.

[17] Commissioner Cloghan considered these circumstances and the submissions of the parties. He accepted the submission of G4S that Mr Barkla’s employment was never terminated by it and there was no dismissal that could be the subject of an application under s 394. He also considered the Submission of Mr Barkla that he was demoted from the position of Senior CSCS Officer on the termination of his secondment and that this demotion constituted the termination of his employment by G4S. The Commissioner found that the circumstances did not involve any demotion and did not give rise to the termination of Mr Barkla’s employment.

Permission to appeal

[18] It is common ground that the appeal, and the question of whether permission to appeal should be granted, concerns the question of whether Mr Barkla’s employment was terminated by G4S. Mr Barkla also raises certain procedural fairness issues regarding the filing of written material before the Commissioner and the reasons for decision issued by the Commissioner.

[19] Mr Barkla asserts that his employment was terminated by Mr Mexsom’s email of 11.19am on 13 October 2010, which is set out in full above at paragraph [9]. He states repeatedly that this email constitutes the termination of his employment and submits it is significant that the email makes no reference to the application for leave without pay, and that Commissioner Cloghan erred by taking his earlier application for leave without pay as a notice of termination. Mr Barkla also contends that he was demoted and that the employer’s failure to secure a stress free workplace when he had advised them of the stress he was suffering amounted to termination of employment.

[20] G4S contends that there is no error of fact or law in the Commissioner’s decision. It contends that Mr Barkla remains employed by G4S albeit that he is currently on leave because of his ill-health. It submits that none of its actions amounted to a termination of employment or a demotion and there has been no denial of procedural fairness.

[21] In our view it is important to consider whether Mr Barkla was dismissed by G4S for ourselves. If we consider that he has been dismissed then it will almost automatically follow that permission to appeal should be granted. If he has not been dismissed, there is no jurisdiction to deal with the matter and any further consideration of appeal grounds and processes in reaching the conclusion would be of very limited significance.

[22] The definition of “dismissed” is contained in s 386 of the Act in the following terms:

[23] It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination. We have reviewed the various communications including the email of 11.19am 13 October 2010, relied on by Mr Barkla and we do not believe that any of those communications expressly terminate his employment. We reach that conclusion notwithstanding that some of the correspondence may have equated Mr Barkla’s application for extended leave without pay as akin to a resignation, that the employer clearly brought the secondment to the ‘Supervisor Geraldton’ position to an end and directed Mr Barkla to return to his permanent position of CSCS Officer based in Perth.. In our view none of the correspondence expressly brought the entire employment to an end. This is clear from a review of the totality of the correspondence including the clear intention of the parties, as contained in the letter of appointment, as to what would occur after completion of the secondment and the employer’s statements regarding Mr Barkla reverting to his employed position of CSCS Officer once the secondment was ended We find that G4S consistently maintained that it was not terminating Mr Barkla’s employment and that there is no express statement to the contrary.

[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd 3 a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

[25] In our view it cannot be said that in the circumstances of this matter Mr Barkla had no effective or real choice but to resign or treat his employment as terminated. At the time he filed his unfair dismissal application he was on sick leave having obtained medical certificates certifying him unfit for work. His secondment as ‘Supervisor Geraldton’ had recently been brought to an end given his claims of stress and his impending annual leave and leave without pay. He had enquired about the prospect of applying for the Geraldton Supervisors role and was permitted to do so. He was asked whether he would be interested in working in the pool of security offices until the commencement of his leave. There is no doubt that he was frustrated at the lack of progress in a disciplinary investigation into Mr Clinch’s conduct towards him. He was also apprehensive about resuming his duties in an environment where Mr Clinch continued to be employed and may engage in further verbal abuse. Separately or in combination these circumstances did not objectively lead to the situation whereby Mr Barkla had no effective or real choice but to resign or treat his employment as terminated by the employer.

[26] It follows that Mr Barkla was not dismissed and was not able to lodge an application under s394 of the Act. The decision of the Commissioner was correct in this regard. We do not see any reason why permission to appeal should be granted. Permission to appeal is refused.



G. Barkla on his own behalf.

D. Heldsinger, of counsel, for G4S Custodial Services Pty Ltd.

Hearing details:

5 April.

Final written submissions:

G. Barkla filed written submissions on 27 April 2011 and 1 June 2011.

D. Helsinger filed written submissions, on behalf of G4S Custodial Services Pty Ltd, on
30 March 2011 and 18 May 2011.

 1   Exhibit R4-2.

 2   Exhibit R1-75.

 3   PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C.

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