[2011] FWAFB 3769 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON |
|
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.
Introduction
[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.
Background
[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:
“Your likely tenure in this position is expected to be until 11th February 2011. This arrangement may be ended by either G4S Custodial Services or yourself with a minimum of four (4) weeks notice. At the conclusion of the secondment you will be entitled to return to your substantive position which is CSCS Officer, Permanent Flex Time status, Pool” 1
[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:
“You are welcome to re-apply for employment with G4S WA if you decide to return to Western Australia in the future and you can also apply for a RPL process through the training dept.” 2
[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:
“Geoff,
This complaint is currently being investigated along with a large list of complaints that have recently come from the Geraldton site. I am a little nonplussed at your reference for the need for G4S to provide you with a stress free workplace as there is no such requirement. I can assure you that there are no “stress-free” roles in G4S at a supervisor/manager level. The officer you are referring to has been disciplined for the first incident and placed on a written warning he is also currently being investigated for the second mentioned incident.
Please be advised your secondment as Acting Supervisor for Geraldton will be ending as of next Friday the 22nd of October 2010 as of this date you will be returned to your employed position of CSCS Officer.
Regards,
Marc Mexsom”
[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:
(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) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[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:
“Termination at the initiative of the employer
[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:
“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:
‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:
‘… a termination of employment at the instance [of] the employer rather than of the employee.’
And at p 5:
‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”
[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (References omitted)
[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.
VICE PRESIDENT WATSON
Appearances:
G. Barkla on his own behalf.
D. Heldsinger, of counsel, for G4S Custodial Services Pty Ltd.
Hearing details:
2011
Perth
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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