DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Cooper
v
A and A Excavations & Landscapes Pty Ltd
(U2017/2629)

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant dismissed – no dismissal – application dismissed.

[1] The respondent conducts a small business undertaking excavation and landscaping work. It is very much a family-run business, with Mr Anthony Murphy as the sole owner, his daughter, Ms Antoinette Murphy, the sole director and secretary looking after the administrative side of the business, and his son Mr Keith Murphy, working in the business.

[2] Prior to about late-February 2017, Mr Gregory Cooper, the applicant, and Mr Keith Murphy had been friends for many years. Mr Cooper was employed as a casual employee by the respondent for a significant period of time prior to the cessation of his employment in about late-February 2017. Mr Cooper and Mr Keith Murphy worked together in the respondent’s business on a regular basis prior to late-February 2017. They had plenty of arguments during that time, all of which they resolved or put to one side save for the argument which resulted in Mr Cooper’s employment with the respondent coming to an end in about late-February 2017.

[3] The parties are in dispute as to whether Mr Cooper was dismissed. That is the first issue I will address in this decision, having earlier dismissed the respondent’s jurisdictional objection that Mr Cooper had not been employed by the respondent for at least the minimum employment period. 1

Determinative Conference

[4] The final determination of Mr Cooper’s unfair dismissal application took place on 11 September 2017 by way of a determinative conference. Mr Cooper gave evidence in support of his case.

[5] Mr Anthony Murphy, Mr Keith Murphy, Ms Antoinette Murphy and Mr Ben Steber, a labourer/truck driver and maintenance manager employed by the respondent, gave evidence for the respondent.

What is a dismissal?

[6] Subsection 386(1) of the Fair Work Act 2009 (Cth) (Act) governs when a person has been dismissed:

“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.”

[7] A Full Bench of the Commission considered s.386 of the Act in Barkla v G4S Custodial Services Pty Ltd: 2

“[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...

[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 a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

…

[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. [emphasis added]”

[8] The reasoning in O’Meara v Stanley Works Pty Ltd 3 was treated as fully applicable to s.386(1) of the Act by the Full Bench in Ryan v ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services.4

Was Mr Cooper dismissed?

[9] Two issues arose between Mr Cooper and Mr Keith Murphy in February 2017. First, Mr Cooper was not prepared to work on a weekend because he had to care for his 12 year old son, who lived with his mother during the week. Mr Cooper’s refusal to work the weekend caused difficulties for Mr Keith Murphy and Mr Anthony Murphy because the respondent won a contract which required work to be undertaken on two weekends and Mr Anthony Murphy informed the respondent’s employees some months before the work had to be undertaken of the need to do the limited weekend work. On 17 February 2017, about two weeks prior to the first weekend on which the work had to be undertaken, Mr Cooper informed the respondent that he could not work on the weekend. Secondly, Mr Cooper had a long standing arrangement whereby he would finish work by about 4pm on a Friday, so he could pick up his son and commence caring for him over the weekend. Mr Keith Murphy says he did not have any problem with Mr Cooper finishing early on a Friday to pick up his son, but he says he continually asked Mr Cooper to drive his own car to site on a Friday so that Mr Keith Murphy could continue working at the site (and therefore earning income) after Mr Cooper left. On Friday, 24 February 2017, Mr Cooper did not drive his own car to site, with the result that Mr Cooper and Mr Keith Murphy had to leave the work site early so that they could travel together in the work truck back to the respondent’s office in time for Mr Cooper to pick up his son. I will now address the evidence in relation to each of those two issues in detail.

[10] On Friday, 17 February 2017, Mr Cooper and Mr Keith Murphy had an argument at work. Mr Cooper says the dispute related to his need to finish work early and be transported back to the respondent’s office. Mr Cooper says that Mr Keith Murphy told him he had to “make arrangements to keep working later on Fridays and have those arrangements made by the following Friday”. Mr Cooper says he told Mr Keith Murphy that he could not change the arrangements because he had to pick up his son. Mr Cooper then says that Mr Keith Murphy said to him words to the effect “if you don’t like it leave and find another job”, and Mr Cooper responded by saying words to the effect “I will not leave my employment voluntarily”. Mr Keith Murphy denies that he had such a conversation with Mr Cooper and says that his only concern was to make sure that Mr Cooper drove his own vehicle to the work site on a Friday, so that he could leave early and allow Mr Keith Murphy to continue working at the site.

[11] Mr Keith Murphy also says that he had a dispute with Mr Cooper on Friday, 17 February 2017 about Mr Cooper’s refusal to undertake weekend work on 25 and 26 February 2017. Mr Keith Murphy argued with Mr Cooper that he and Mr Steber also had kids to look after on a weekend, so they were in the same boat as Mr Cooper. Mr Keith Murphy says he told Mr Cooper that he was sick of the pressure Mr Cooper was putting on the rest of the team all the time. Mr Keith Murphy says that Mr Cooper then said “if this is the way it is going to be then I will have to seek other employment”, to which Mr Keith Murphy said “do as you wish, but I’m sick of picking up your slack when you don’t turn up for work, there needs to be changes.” Mr Cooper denies this version of the events.

[12] After his discussion with Mr Keith Murphy on 17 February 2017, Mr Cooper says he rang Mr Anthony Murphy, who told him that he never had a problem with him finishing work at 4pm on Fridays and he would speak to Mr Keith Murphy about the issue. Because Mr Cooper had no further communication with Mr Anthony Murphy about leaving work at 4pm on a Friday, he believed it was fine to do so.

[13] At about 2pm on Friday, 24 February 2017, Mr Cooper reminded Mr Keith Murphy that he needed to finish work by 4pm on that day. Mr Keith Murphy became disappointed, frustrated and angry, and said to Mr Cooper “I told you last week that this had to stop”. Mr Keith Murphy gave evidence, which I accept, that he made this comment in response to the fact that Mr Cooper had not driven his own car to the work site, with the result that Mr Cooper and Mr Keith Murphy had to leave the site together in the work truck so that Mr Cooper would finish work at the respondent’s office by 4pm. This early finish caused Mr Keith Murphy to lose income he would have earned had he been permitted to stay at the work site and continue working. Mr Cooper says that after he told Mr Keith Murphy that he could not change the arrangements due to the circumstances with his son, Mr Keith Murphy said “you’re done finish up this arvo.” Mr Keith Murphy denies making such a statement, and instead says he said words to the effect “that’s it. We are done.”

[14] I prefer Mr Keith Murphy’s evidence over that given by Mr Cooper in relation to the disputed conversations on 17 and 24 February 2017, for the following reasons:

(a) I accept Mr Cooper’s evidence that he had finished work early on a Friday for years because he had to care for his son. I am satisfied that Mr Keith Murphy, as a long-time friend of Mr Cooper, had sympathy for him in this regard and did not wish to cause friction between Mr Cooper and his son or the mother of his son. I accept Mr Keith Murphy’s evidence that what concerned him about this issue was not the fact that Mr Cooper had to leave early on a Friday, but that Mr Cooper regularly failed to drive his car to site on a Friday, which resulted in Mr Keith Murphy losing income he would have otherwise earned, which income he needed in light of his own marriage breakdown;

(b) I accept Mr Keith Murphy’s evidence that he was frustrated, irritated and angry about the attitude taken by Mr Cooper to working any part of the two weekends required to undertake a particular job, and those matters led to the discussion set out in paragraph [11] above;

(c) I accept Mr Keith Murphy’s evidence that he did not have the authority to hire or fire employees in the respondent’s business; only Mr Anthony Murphy had the authority to make such decisions. Mr Keith Murphy was frustrated by the fact that his father did not always follow his suggestions in relation to the business, but he clearly understood that those decisions were his father’s decisions to make. It is therefore unlikely that Mr Keith Murphy told Mr Cooper on 24 February 2017 that he would “finish up this arvo”; and

(d) The expression “we are done” is consistent with the obvious frustration that Mr Keith Murphy had in working with Mr Cooper and, as a result, having his income limited by reason of Mr Cooper’s repeated failure to drive his own car to site on a Friday and having to carry what he regarded to be Mr Cooper’s fair share of the limited weekend work required. That is, I accept that Mr Keith Murphy was “done” working with Mr Cooper and wanted to work with someone who he regarded as reliable and a team player. Notwithstanding these views, I accept Mr Keith Murphy’s evidence that only his father could make decisions about who would be hired or fired in the respondent’s business.

[15] Mr Steber gave evidence by telephone in support of the respondent’s case. However, I do not give any weight to his evidence in relation to the disputed conversations between Mr Cooper and Mr Keith Murphy because it became apparent during Mr Steber’s cross-examination that he has a very poor recollection of those conversations.

[16] Mr Cooper says that he rang Mr Anthony Murphy on the afternoon of Friday, 24 February 2017 and informed him that he had been dismissed by Mr Keith Murphy. Mr Cooper says that Mr Anthony Murphy told him he would talk to Mr Keith Murphy and get back to him. Mr Cooper also says that he tried to call Mr Anthony Murphy over the weekend with no reply, so he rang Mr Steber on Saturday, 25 February 2017, who was working with Mr Anthony Murphy on that day, and Mr Steber said he would pass on the message for Mr Anthony Murphy to return Mr Cooper’s call.

[17] Mr Anthony Murphy says that Mr Keith Murphy rang him on Friday, 24 February 2017 and he (Keith) was very annoyed due to having to close the site early yet again and losing out on his wages in order to get Mr Cooper home to pick up his son. Mr Anthony Murphy also says that he had to work on the weekend following 24 February 2017 because Mr Cooper would not work on the weekend and Mr Anthony Murphy needed to relieve the pressure on the team. Mr Anthony Murphy says he had to cancel an operation he had booked in three months prior to this “one-off event”. Mr Anthony Murphy also says the first contact he had from Mr Cooper on or after 24 February 2017 was on Sunday, 26 February 2017, but he could not answer the phone on that day due to site rules.

[18] There is no dispute between Mr Cooper and Mr Anthony Murphy that they spoke on the morning of Monday, 27 February 2017. However, there is a dispute as to what was said during this very important conversation:

(a) Mr Cooper says he asked Mr Anthony Murphy “what is going on? Do I still have a job?”, to which Mr Anthony Murphy replied “Keith has made the decision to dismiss you. Keith will be taking over the business in three or four months.” Mr Cooper says that he told Mr Anthony Murphy that he would take the matter up with “Fair Work Australia”, at which time Mr Anthony Murphy became abusive and told him not to make any threats against him; and

(b) Mr Anthony Murphy says that Mr Cooper asked him if he still had a job, to which Mr Anthony Murphy said of course he did, but there were a few things he had to work out with Mr Keith Murphy because it was only a matter of time before Mr Keith Murphy would be taking control of a related business and Mr Cooper would have to work with him. Mr Anthony Murphy did not believe this would be a great issue because Mr Cooper and Mr Keith Murphy were friends for 20 years and had worked together almost every day for a significant period of time. Mr Anthony Murphy says that Mr Cooper told him he would not take any “shit” from Mr Keith Murphy and he would need to look for another job, in response to which Mr Anthony Murphy replied with words to the effect “if that’s what you feel you need to do, then you’re free to do so”. Mr Cooper then made reference to “Fair Work Australia” and unfair dismissal. Mr Anthony Murphy says he then explained to Mr Cooper that his job was still there and he was not dismissed, all he was asking was that Mr Cooper work as part of a team. Mr Anthony Murphy then says he spoke to Mr Cooper about setting a time frame of two weeks to arrange a work plan with himself and/or Mr Keith Murphy to ensure everyone’s happiness at work. Mr Anthony Murphy says the conversation ended with Mr Cooper agreeing to a two week timeframe to arrange a practicable and workable situation to ensure all employees’ needs were accommodated, but Mr Cooper never contacted him again or returned to work after this conversation.

[19] Both Mr Anthony Murphy and Mr Keith Murphy deny that they dismissed Mr Cooper or any stage gave him the impression that his employment had been terminated.

[20] There is a history of Mr Cooper being absent from work for days and sometimes weeks at a time and then returning to work with the respondent. On this occasion (late-February 2017) Mr Cooper formed the view that his working relationship with Mr Anthony Murphy and Mr Keith Murphy had come to an end.

[21] On about 1 March 2017 Ms Antoinette Murphy prepared an employment separation certificate for Mr Cooper, stating that his employment ceased on 24 February 2017 and the reasons for separation were “employee ceasing work voluntarily” and “Mr Cooper abandoned his employment after he refused (at the last minute) to work one Saturday as a favour to management”. Ms Murphy retained the employment separation certificate she completed on about 1 March 2017 together with Mr Cooper’s other employment records, but did not send it to Mr Cooper. Ms Murphy believed that this would be another occasion on which Mr Cooper would return to work after a period of absence.

[22] I prefer Mr Anthony Murphy’s evidence over Mr Cooper’s evidence in relation to their telephone discussions, or lack of them, in the period from Friday, 24 February 2017 to Monday, 27 February 2017, for the following reasons:

(a) I accept that Mr Anthony Murphy views himself as the sole owner of the respondent’s business and his son, Mr Keith Murphy, does not (and did not in February 2017) have authority to make decisions as to who is employed and who is dismissed in the business. The strong belief that Mr Anthony Murphy holds in that regard weighs against the likelihood that he told Mr Cooper that Mr Keith Murphy had made the decision to dismiss him;

(b) I accept that Mr Anthony Murphy genuinely believed that the dispute between Mr Cooper and Mr Keith Murphy in February 2017 would be resolved between them, as many disputes had been between these close friends over a period of at least 20 years;

(c) I accept Mr Anthony Murphy’s evidence that he believes Mr Cooper was good at his job, but was unreliable. Mr Anthony Murphy consistently gave evidence in the jurisdictional and final hearing to the effect that he believes Mr Cooper was good at his job and that is the reason why Mr Anthony Murphy treated Mr Cooper leniently and continued to give him work after his numerous absences from the workplace with no or limited communication; and

(d) Mr Anthony Murphy has repeatedly made “open statements” throughout these proceedings to the effect that he did not dismiss Mr Cooper and he would take Mr Cooper back as an employee at any time. I accept that these offers of re-employment by Mr Anthony Murphy have been genuine.

Conclusion

[23] I have made factual findings, on the balance of probabilities, as to what was said in conversations between Mr Cooper and Mr Anthony Murphy or Mr Keith Murphy in February 2017. Those factual findings determine the outcome of this case.

[24] In light of my factual findings as to what happened in February 2017, as set out in paragraphs [9] to [22] above, I am satisfied that:

(a) none of the communications between Mr Cooper and the respondent constituted an express termination of his employment;

(b) there was no action on the part of the respondent which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship between Mr Cooper and the respondent to an end;

(c) Mr Cooper’s employment with the respondent was not terminated on the respondent’s initiative; and

(d) this is not a case in which Mr Cooper resigned from his employment with the respondent, but was forced to do so because of conduct, or a course of conduct, engaged in by the respondent.

[25] Accordingly, Mr Cooper was not dismissed within the meaning of s.386 of the Act. I therefore dismiss Mr Cooper’s application for unfair dismissal.

COMMISSIONER

Appearances:

Mr D Waller for the applicant.

Mr A Murphy, Ms A Murphy and Mr K Murphy for the respondent.

Hearing details:

2017.

Newcastle:

September 11.

 1   [2017] FWC 3309

 2   [2011] FWAFB 3769

 3   PR973462; [2006] AIRC 496 at [23]

 4   [2014] FWCFB 8451 at [15]

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