[2016] FWC 4161

The attached document replaces the document previously issued with the above code on 24 June 2016.

The previous version did not include text in paragraph [48] under the heading of Remedy.

Associate to Commissioner Ryan

Dated: 27 June 2016

[2016] FWC 4161
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Robert Goodwin
v
Shanaya Pty Ltd T/A Domino’s Pizza
(U2016/6282)

COMMISSIONER RYAN

MELBOURNE, 24 JUNE 2016

Application for relief from unfair dismissal - Applicant forced to resign –dismissal unfair –compensation ordered.

[1] The Applicant filed an unfair dismissal application on 18 April 2016 alleging that he was dismissed by the Respondent on 12 April 2016 in that he resigned from his employment but was forced to do so because of conduct engaged in by the Respondent.

[2] The Applicant commenced employment with the Respondent on 5 October 2015 and had just over six months employment as at the date of dismissal.

[3] The Respondent in its Form F3 raised three jurisdictional objections to the application: that the Applicant was not dismissed; that the Applicant had not met the minimum employment period; and that the Respondent was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] The latter two jurisdictional objections were determined by the Commission in earlier proceedings and decision 1 in this matter.

[5] The Applicant and Respondent both indicated to the Commission that they were content for the remaining issues to be decided in this matter to be decided on the papers as each had filed with the Commission all that they sought to rely on.

[6] Before considering the merits of the Applicant’s unfair dismissal application the Commission is required by s.396 to decide certain matters. S.396 provides as follows:

“396 Initial matters to be considered before merits

[7] The Commission is satisfied and so finds that the application was made within the 21 day time limit specified by s.394(2)(a).

[8] The Commission is satisfied and so finds that the dismissal was not a case of a genuine redundancy.

[9] The Commission has previously decided that the Small Business fair Dismissal Code does not apply in this matter.

[10] Section 382 spells out when a person is protected from unfair dismissal.

[11] In the present matter the Commission is satisfied that the Applicant has served the minimum employment period and that the Applicant is either covered by the Fast Food Industry Award or that the enterprise agreement applying to some of the Domino’s Pizza franchisees applies to the Applicant.

[12] A key issue that arises for determination in the present matter is whether the Applicant was dismissed within the meaning of s.386(1) which provides as follows:

“386 Meaning of dismissed

[13] The Applicant contends that the course of conduct engaged in by the Respondent which forced the Applicant to resign his employment commenced on Tuesday 2 March 2016 when the Applicant sought to alter his rostered hours of work for Friday 5 March 2016 by cutting his shift short and finishing at 7pm because of a personal problem and ended when the Applicant resigned because of low hours being given to him. The Applicant relied on a series of emails between himself and Domino’s Pizza Enterprises Ltd the franchisor of the Respondent’s franchise operation.

[14] The Applicant emailed Mr VanSchnyde, Manager – Employee Relations and OHS at Domino’s Pizza Enterprises Ltd on Wednesday 3 March 2016 and described events as follows:

[15] The Applicant in his material filed with the Commission did not identify the time that he was expected to finish on Friday 5 March 2016 nor did he identify what was the personal problem that necessitated him cutting his shift early on that night.

[16] It is very obvious from the material filed by both the Applicant and the Respondent that the Respondent withdrew from the Applicant the rostered shift for Friday 5 March 2016 and that the Respondent did not roster the Applicant for any work on Saturday 6 March 2016 or Sunday 7 March 2016 or any day in the following week.

[17] On Friday 4 March 2016 Mr VanSchnyde replied to the Applicant requesting that the Applicant call Mr VanSchnyde to “run through the situation.” It is not known when the Applicant called Mr VanSchnyde but it is clear that he did so and that he spoke to Mr VanSchnyde about more than the Applicant’s hours of work.

[18] On 20 March 2016 the Applicant sent another email to Mr VanSchnyde and the relevant part of the email is as follows:

[19] Mr VanSchnyde replied on the same day as follows:

[20] On 4 April 2016 the Applicant again emailed Mr VanSchnyde and another person and the relevant part of that email is as follows:

[21] The email then dealt with issues which were not specific to the Applicant and concluded with the following:

[22] On Tuesday 5 April 2016 Mr VanSchnyde replied to the Applicant and the relevant part of that email is as follows:

[23] On 12 April 2016 the Applicant again emailed Mr VanSchnyde and another person as follows:

[24] The Respondent’s case includes the following contentions.

[25] Firstly, that the Applicant was employed as a casual and that there was no agreement between the Respondent and the Applicant as to guaranteed hours of work. Therefore the Respondent was entitled to alter the hours of work offered to the Applicant. As the Respondent put it “Shanaya Pty Ltd is not bound with Mr Goodwin to provide desirable hours.”

[26] Secondly, the Respondent contended as follows:

[27] Thirdly, the Respondent contended that it did not reduce the Applicant’s working hours because of any complaint made by the Applicant to Domino’s Head Office. As the Respondent put it, they could have simply terminated the Applicant in the 23rd week of employment (the week commencing 7 March 2016) and this would have denied the Applicant any right to make an unfair dismissal claim The Respondent contended that after the 23rd week the Respondent continued to offer hours to the Applicant and the Applicant continued to accept those hours.

[28] Fourthly, the Respondent contended that it did know about any issue that the Applicant raised with Domino’s Head Office. As the Respondent put it:

[29] A number of comments need to be made as to the Respondent’s contentions.

[30] The Respondent’s contentions as to the hours worked and the changes to those hours must be considered in light of the pattern of hours worked by the Applicant. The Respondent in its written submissions of 19 June 2016 provided a table which identified the hours worked or to be worked by the Applicant over a 28 week period.

[31] The Commission notes that when the Respondent first responded to the Applicant’s unfair dismissal application the Respondent contended that the Applicant had not served the minimum employment period of 12 months given that the Respondent was a small business. It was not until after the first hearing in relation to this application that the Respondent conceded that it was not a small business given that the Respondent had associated entities which meant that the total number of employees of the Respondent and its associated entities was more than 15. The Respondent’s most recent contention that it could have prevented the Applicant from pursuing an unfair dismissal remedy if it had dismissed him in week 23 appears to be a recent invention as it is clear from the Respondent’s Form F3 that the Respondent considered in April 2016 that the Applicant did not have any entitlement to pursue an unfair dismissal application because he had not been employed for a year.

[32] The Respondent’s contentions that it “didn’t know about any issue” having been raised by the Applicant with Domino’s Head Office is only believable if the Commission accepts that the email chain produced by the Applicant is a fabrication. Given that the Respondent has had access to the emails since the Applicant filed them with the Commission on 19 May 2016 the Commission would have expected more than a mere denial from the Respondent that it was unaware of the Applicant’s complaints to Domino’s Head Office. In absence of any material from the Respondent which contradicts the email chain the Commission is prepared to accept that the Respondent knew of the Applicant’s complaints to Domino’s Head Office.

[33] The fact that the email chain identifies the views of the Applicant at times which are contemporaneous to the events occurring lends weight to the Applicant’s case. The fact that the pattern of hours of work of the Applicant identified by both the Applicant and the Respondent are consistent with the events as described in the email chain lends weight to the Applicant’s case.

[34] The emails allege specific conduct by specific managers of the Respondent yet at no stage has the Respondent denied the specifics of the allegations.

[35] The Explanatory Memorandum to the Fair Work Bill 2008 explains s.386(1)(b) as follows:

[36] As the language of s.386(1)(b) makes clear the concept that an employee has been forced to resign requires consideration of the alternatives available to the employee other than to resign. As the Explanatory Memorandum makes clear it is necessary to consider whether the employee had no reasonable choice other than to resign.

[37] In the present matter the Respondent contends that the Applicant had ongoing work available and that when the Applicant sent his resignation text message on 12 April 2016 the Applicant had already been offered work for 3 � hours on Tuesday 12 April 2016 and 3 hours on Friday 15 April 2016. The Respondent contends that the resignation by the Applicant was voluntary. The Respondent contended that the Applicant should have communicated any concerns directly with Mr Pankaj Monga the Director and owner of the Respondent.

[38] The Applicant contends that he had no option other than to resign since he had raised the issue of his hours of work with Domino’s Head Office after being effectively removed from any hours of work and that the small number of hours that the Respondent was prepared to offer the Applicant was meant to force the Applicant to resign.

[39] When considered in light of the actual hours worked by the Applicant, the Applicant’s conduct in contacting Domino’s Head Office when the Respondent ceased providing him with hours of work after interactions between the Applicant and the Respondents managers on 2nd and 3rd March 2016 was a reasonable response to being threatened with being fired. The Applicant’s continued contact with Domino’s Head Office to obtain their assistance in resolving the Applicant’s concerns was a reasonable response to the Respondent’s actions in only offering limited hours of work to the Applicant.

[40] The Applicant’s resignation from his employment followed a period of 5 weeks in which his hours had been reduced to zero then maintained at a number significantly lower than the average for the previous 20 weeks. In that 5 week period the Applicant had tried to have issues resolved with the assistance of Domino’s Head Office but without success. In these circumstances it was a reasonable response to the conduct of the Respondent for the Applicant to resign.

[41] It is very clear that at the time of his resignation the Applicant did not want to leave his employment and wanted to continue working for the Respondent. It was the Respondent’s conduct over a period of 6 weeks that forced the Applicant into the position where he had no reasonable option to respond to the Respondent’s conduct other than to resign. There is nothing in the material relied on by the Respondent which would disclose that the Applicant had any other reasonable choice of action other than resignation in order to respond to the course of conduct undertaken by the Respondent.

[42] The Commission is satisfied that the Applicant was dismissed in that the Applicant resigned from his employment, but was forced to do so because of a course of conduct engaged in by the Respondent.

Was the Dismissal Harsh, Unjust or Unreasonable

[43] Having determined that the Applicant was dismissed and having determined the initial matters required by s.396 the Commission must now consider whether the dismissal was harsh, unjust or unreasonable. S.387 provides as follows:

[44] In the circumstances of the present matter where the Respondent has at all times denied dismissing the Applicant then it follows that the Respondent has never contended that it had a valid reason for the dismissal related to the Applicant’s capacity or conduct. Given this then the criteria specified in s.387(a), (b), (c), (d) and (e) are not relevant in the present matter.

[45] The criteria in s.387(f) and (g) are always relevant as they require the Commission to have regard to the degree to which both the size of the Respondent’s enterprise and the absence of dedicated HRM specialists in the enterprise impacts on the procedures followed in effecting the dismissal. In the present matter the Respondent appears to have a very unsophisticated HR system and this would suggest that some allowance be made in favour of the Respondent concerning the procedures followed in effecting the dismissal. However, it is also clear that as a franchisee of the Domino’s Pizza franchise system that the Respondent had access to a high degree of HRM specialist advice from the franchisor. It would appear that there was some tension between the Respondent and the Domino’s Head Office especially in relation to resolving issues concerning the Applicant. In all of the circumstances of the present matter I am prepared to treat the two criteria under s.387(f) and (g) as being of neutral value.

[46] I do consider, under s.387(h), that the circumstances which led the Applicant to resign from his employment are matters that the Commission considers relevant for the determination as to whether the dismissal was harsh, unjust or unreasonable.

[47] Having considered each of the relevant criteria under s.387 the Commission is satisfied that the dismissal of the Applicant was unreasonable.

Remedy

[48] The Commission is not prepared at this point to consider whether any remedy should be granted to the Applicant and, if so, what that remedy should be. The Commission notes that the Applicant is not seeking reinstatement and is seeking compensation. Neither of the parties have addressed the issue of remedy in their written material filed with the Commission. The Commission will issue directions to the parties to file any submissions and any other material they seek to rely on in relation to whether or not a remedy should be granted and if so what that remedy should be.

The seal of the Fair Work Commission and the Member's signature

COMMISSIONER

 1   [2016] FWC 3539.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582045>