[2019] FWC 1564 [Note: An appeal pursuant to s.604 (C2019/1868) was lodged against this decision - refer to Full Bench decision dated 18 June 2018 [[2018] FWCFB 4240] and decision dated 9 August 2019 [[2018] FWC 5374] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Loi Toma
v
Workforce Recruitment and Labour Services Pty Ltd
(U2018/2283)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 11 MARCH 2019

Application for an unfair dismissal remedy – jurisdictional objection that applicant was not dismissed – applicant resigned – resignation was not forced – jurisdictional objection upheld – application dismissed.

[1] On 1 March 2018, Loi Toma (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act). The application was in relation to his alleged dismissal by his former employer, whom he described in his application as being Workforce Variable (Pty) Ltd. However, it is clear from evidence tendered during the proceedings (including the applicant’s pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd, a related entity of Workforce International Group (Workforce or the respondent).

[2] The application was initially dealt with by Commissioner Cambridge. On 24 May 2018, the Commissioner dismissed the application pursuant to s.587 of the FW Act. 1 The Commissioner did so on the grounds that the application had no reasonable prospects of success. He also stated:

‘…in addition, as the application was taken in pursuit of collateral purposes, the application is both frivolous and vexatious, it represented an abuse of process.’ 2

[3] On 5 June 2018, Workforce applied for costs in relation to the unfair dismissal application. The costs application was listed for mention and directions on 19 June 2018. However, this application was put on hold pending consideration of an appeal by the applicant against Commissioner Cambridge’s decision to dismiss his unfair dismissal application.

[4] On 27 September 2018, a Full Bench of the Commission upheld the applicant’s appeal. This was on the basis that by not allowing the matter to proceed, the applicant had been deprived of an opportunity to present his case. This was in circumstances where there was a live issue of fact as to whether the applicant had been dismissed. The Full Bench held that ‘[a] conclusive view on this question could not have been reached without a full substantive hearing.’ 3

[5] The application for an unfair dismissal remedy was then referred to Commissioner Simpson for rehearing.

[6] Commissioner Simpson held a directions hearing on 31 October 2018. Having heard from both parties, he indicated that the respondent had the permission of the Commission to be represented by a lawyer or paid agent, in accordance with s.596 of the FW Act. The Commissioner also corrected the name of the respondent to Workforce Recruitment and Labour Services Pty Ltd, in accordance with the Commission’s discretion under s.586.

[7] Following the directions hearing, the matter was listed to be heard on 11 December 2018 and further directions were issued. These were that:

1. The Applicant may file with the Commission, and serve on the Respondent, a witness statement for himself by no later than 5:00 pm Friday 16 November 2018.

2. The Respondent may file an amended statement of Ms Vanzwan to correct errors as discussed at the Directions Hearing dated 31 October 2018.

[8] The hearing was subsequently adjourned at the applicant’s request, because he said that his other witness, Thiruvasan Nagan, would be unavailable in December 2018. A new hearing date of 26 February 2019 was set.

[9] The matter was subsequently referred to me for hearing. No changes were made to the directions issued by Commissioner Simpson on 31 October 2018. I heard the matter on 26 February 2019. The applicant represented himself at the hearing. The respondent was represented by Andrew Burnett, of counsel.

The evidence

[10] The applicant did not file a witness statement (despite indicating to Commissioner Simpson at the directions hearing, and, subsequently, by email to my chambers, that he intended to do so). Nor did he call any other witnesses (despite previously indicating that he intended to call Mr Nagan). However, I accepted as evidence on his behalf a series of documents that he had previously filed with the Commission:

  a document entitled ‘Outline of Submissions’, which contained factual assertions; 4

  a bundle of documents starting with one entitled ‘Workforce Textes’ (sic); 5 and

  a document responding to the respondent’s F3. 6

[11] The applicant was cross-examined by Mr Burnett.

[12] Workforce filed a witness statement of Lisa Vanzwan, the respondent’s account manager for the PAX facility located at Ingleburn NSW, where the applicant was employed. 7 Ms Vanzwan was briefly cross-examined by the applicant.

[13] Shortly after the commencement of the proceedings, the applicant said that he had not had time to prepare a reply to Ms Vanzwan’s statement, which he said had only just been given to him. I indicated that he would be given an opportunity to object to Ms Vanzwan’s statement being accepted into evidence. 8

[14] The applicant also asked that I recuse myself from hearing the case. The reason he gave was:

‘…because you’re new to the case and the people that dealt with it before I think that if they dealt with it it would be a different path, but because you’re new to the case.’

[15] He confirmed this was the only reason he was seeking my recusal but added:

‘…I’ve got a feeling that you don’t know fully of what has happened before….Because the statement that I received from the respondent there’s a lot of changes, and I don’t understand all the changes that are in the statement.’ 9

[16] I indicated at the time that I did not intend to recuse myself from dealing with the application. 10 I did not consider that the applicant had made out a proper basis for recusal. In particular, I was satisfied that he was being given a fair opportunity to present his case, including any objections he had to Ms Vanzwan’s statement. I should add that I have had the opportunity to acquaint myself with all the relevant written and audio records from the previous proceedings dealing with Mr Toma’s application.

[17] Before determining whether to accept Ms Vanzwan’s statement into evidence, I asked the applicant to indicate the nature of his objection. He reiterated that it was because there were ‘a lot of changes’ to the statement. I infer that the changes he was referring to were between the version of Ms Vanzwan’s statement that had been filed with the Commission on 23 May 2018, and her revised statement, filed on 11 February 2019.

[18] I note that at the time of the hearing, despite what he said, the applicant had actually had the revised statement for around two weeks. He agreed that he had had time to read the revised statement. 11 I asked the applicant to identify what the changes were that he objected to, and why he thought he would be disadvantaged if the revised statement were accepted. He had great difficulty in identifying any actual changes beyond such things as changes to paragraph numbers or minor changes in wording.12

[19] I have examined both versions of Ms Vanzwan’s statement. Having also had the opportunity to listen to the recording of the directions hearing before Commissioner Simpson, I can understand why the applicant was surprised at the number of changes that had been made between the two versions. The respondent had not only taken the opportunity granted by Commissioner Simpson’s directions to produce an amended statement to ‘correct errors’. It had also taken the opportunity to make a number of other changes. Nevertheless, while those additional changes were perhaps not completely consistent with the intent of the directions or what the applicant was led to believe at the directions hearing, it is important to emphasise that there were no changes of substance to the statement. The changes were generally to improve readability (e.g. introducing new headings, inserting material into the body of the statement that was previously only in the attachments to the statement, etc.) or changes in the order in which information was provided. As already noted, the applicant had the revised statement for around two weeks before the hearing.

[20] I am satisfied that accepting the revised witness statement of Ms Vanzwan into evidence was not unfair to the applicant.

[21] Having had the opportunity to examine the material the applicant filed by the applicant and observe him during his cross-examination, I have little faith in his credibility. During his cross-examination, he admitted to lying to his employer at least twice. 13 He also admitted to misleading the Commission by deliberately excluding a certain SMS from himself to his employer from his written evidence.14 His oral and written evidence was generally at odds with contemporary written documents, such as his treating medical practitioner’s certificate of capacity and Ms Vanzwan’s email asking for the preparation of a return to work plan.15 When his evidence contradicted the written records, in particular his doctor’s certificate of capacity, he implied that the versions in evidence had been forged,16 but was then unable to produce any alternative written records to back up his version of events.17 In addition, his answers to questions during cross-examination were often evasive18 and implausible.19

[22] By contrast, Ms Vanzwan’s evidence was clear and consistent with the contemporary written records. Despite being given the opportunity to do so, the applicant did not challenge her evidence in any material way in cross-examination.

[23] Accordingly, where there is any inconsistency between the evidence of the applicant and that of Ms Vanzwan, I prefer the latter. I make the following findings of fact based on my assessment of the evidence.

[24] The PAX factory at Ingleburn is a manufacturing plant for mixing and filling of aerosols and liquids for therapeutic goods, personal care, industrial, insecticides and household products. 20

[25] Workforce has supplied PAX with labour on a contract basis since 2004. The respondent supplies approximately 100 to 150 unskilled or semi-skilled employees for hire each week depending on the varying workload of the PAX facility. 21

[26] The applicant had worked for the respondent in a variety of roles since 31 May 2016. These included working as a forklift driver and a labourer. In August 2017 the applicant started working as a casual process worker at the PAX facility. 22

[27] In the morning of Tuesday, 6 February 2018, the applicant was cleaning some empty buckets that had been used to mix different chemicals but despite using protective gear some of the solution splashed on his face and caused some burning and irritation to his skin. 23

[28] The applicant attended a doctor later that morning and obtained a WorkCover NSW certificate of capacity. The certificate indicated that the applicant continued to be capable of working from 6 to 8 February 2018 for eight hours a day. However, it included the following:

‘[W]orkplace assessment to ensure contact of chemical solution or fume be prevented. Loi is not fit to work in similar environment...Loi has been complaining about breathing difficulty while exposing (sic) to the chemicals earlier. He also has contact dermatitis.’ 24

[29] The applicant told Ms Vanzwan that he did not want to return to the ‘Mano’ part of the factory, which she understood to mean the manufacturing part of the factory. Ms Vanzwan suggested he operate a forklift instead, and the applicant agreed. He did not at this time, or any other time, request to work at other locations than PAX, even though he had previously worked for the respondent at several other host businesses. 25

[30] The applicant then signed a number of documents, including a WorkCover injury claim form. 26 Ms Vanzwan organised the preparation of a return-to-work plan for the applicant, and for him to return to work at PAX the next day to work as a forklift driver, in accordance with their agreement.27 This work would not involve any direct contact with chemicals.28

[31] In the morning of Wednesday, 7 February 2018, the applicant attended the PAX factory, signed the return-to-work plan, then told his supervisor that he was ill and was going to see the doctor, and left. 29

[32] At 9:04 am that day, Workforce sent a group SMS to all rostered employees (including the applicant), asking them to book in their roster for the next five working days. They were asked to call if they could not work any of these shifts. 30

[33] On Thursday, 8 February 2018, the applicant sent a message to ‘Rostering’, which stated:

‘Hi, I’m back on Monday, I’m going to see the doctor today still not feeling well, Thanks Loi.’ 31

[34] On Friday, 9 February 2018, the applicant sent an email to the payroll email address which stated:

‘Hi, can you please use my RDO hours to pay me on the 7/02/19, 08/02/18 and 9/02/18, I wasn’t worked on this days because I was sick and have my medical certificate with me for the proved (sic).

Thanks

Loi Toma’ 32

[35] At 4:48 pm that day, Workforce sent a group SMS to all rostered employees (including the applicant), indicating that their Monday morning shift had been cancelled. 33

[36] On Monday, 12 February 2018, the applicant sent an email asking for that day’s pay to be added to the other three days using another RDO. 34

[37] On Tuesday, 13 February 2018, the applicant sent a further email saying:

‘Hi, as because I’m not work (sic) this full week can you please use my RDO to pay my 40 hrs please’ 35

[38] That morning, Workforce’s rostering service sent a group SMS message to all relevant employees to confirm availability for the following week (being the week ending 20 February 2018). 36

[39] That afternoon, all rostered employees were advised that their shift the next morning (Wednesday, 14 February 2018) had been cancelled. 37

[40] Early on Wednesday, 14 February 2018, Workforce sent a group SMS to all relevant employees to check their availability for the night shift. 38

[41] On Thursday, 15 February 2018, the applicant did not turn up to work.

[42] At 2:52 pm that day, Workforce sent a further group SMS advising rostered employees that their shift the next day would start at 8:15 am. 39

[43] At 3:50 pm that day, the applicant sent the respondent’s rostering service the following SMS:

‘I’m sorry I quit from Pax due from my doctor’s advice for my health and I will start my new job on Monday so thank you so much and appreciate the time I work with you all Thanks Loi Toma’ 40

[44] On Monday, 19 February 2018 at 10:00 am, the applicant sent an email to the respondent’s payroll email address, which said:

‘Hi

Can you please pay my RDO hours left because I’m not at work at Pax due from doctor’s advices and also I have a new job not from workforce

Thanks

Loi Toma’ 41

[45] It is hard to make sense of the applicant’s explanation as to why he sent the emails advising his employer that he had another job and was resigning (even though he now says he in fact had no other job). He said he ‘was pressured’, and that lying about having another job was the only way he could get Workforce to pay him the money they owed him (presumably referring to his accrued RDOs). 42 He also said he was not being offered any shifts – which is clearly untrue.43 When challenged about this, the applicant then modified this to say he was not being offered any shifts where he would not have to use ‘the chemicals’.44 He was then asked:

‘What do you mean use the chemical? If you’re working on a forklift, how were you using the chemicals? --- When I was injured I wasn’t offered a forklift driving job.

Right? --- It was working with the chemicals, mixing the chemicals, using, as he said, cleaning the buckets that they mix the chemicals in.’ 45

[46] I am satisfied that this is untrue. I am satisfied the applicant was offered a job driving a forklift, which would have meant he would not have to come into contact with the chemicals that had caused his injury.

[47] A short time later, still under cross-examination, the applicant also said his doctor did not want him to work within the PAX workplace at all, as there were ‘chemicals all around’. He claimed to have a medical certificate that said this, but was unable to produce it. 46

[48] When asked whether he had asked the respondent for work at a location other than PAX, he said he had mentioned it to them, but could not remember when. 47

[49] I am satisfied, for the reasons already given, that none of this is true.

[50] The applicant’s ‘availability file’ was made inactive based on his advice – initially by SMS and subsequently reiterated in an email – that he wished to resign because he had a new job. He was paid out his remaining accrued hours and continued to receive workers’ compensation payments from Workforce. 48

[51] The respondent’s workers’ compensation insurer approved provisional payment of the applicant’s pre-injury wages pending a final decision on liability. Workforce continued to pay the applicant’s wages in accordance with its normal practice until the insurer confirmed that they were taking over the payments. 49

Consideration

[52] The immediate issue before the Commission is the respondent’s objection that the Commission lacks the jurisdiction to award the applicant an unfair dismissal remedy because the applicant was not dismissed.

[53] Section 386(1) of the FW Act provides 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.’

[54] There can be no question that the applicant resigned his employment with the respondent. He told them twice, on 15 and 19 February 2018, that he had quit and had a new job with another employer. However, the applicant’s case appears to be that he was forced to resign because of the conduct of his employer. He said in Exhibit 3:

‘I was dismissed by cancellation of shifts and by deliberately being given shifts at Pax when the doctor advised that I should avoid chemicals.’

[55] Neither of these assertions is consistent with the facts. While the respondent had indeed cancelled a couple of the applicant’s shifts (as well as those of other rostered employees), it was continuing to offer him further shifts. More importantly, the evidence does not support the applicant’s assertion that he was (deliberately or otherwise) being given shifts that were inconsistent with his doctor’s advice.

[56] I have found that the respondent offered him shifts driving a forklift which was consistent with the restrictions imposed by the only medical advice of which I have credible evidence (being the certificate of capacity).

[57] I am satisfied that the applicant’s resignation was not forced by any action of the employer. He was not dismissed within the meaning of s.386 of the FW Act.

Conclusion

[58] The respondent’s jurisdictional objection is upheld. The application for an unfair dismissal remedy is dismissed.

tle: seal - Description: Seal of the Fair Work Commission with Member's signature.

SENIOR DEPUTY PRESIDENT

Appearances:

L Toma, the applicant, in person.

A Burnett, counsel, with D Lyons, paid agent, for Workforce Recruitment and Labour Services Pty Ltd.

Hearing details:

Sydney.

2019.

February 26.

Printed by authority of the Commonwealth Government Printer

<PR705702>

 1   [2018] FWC 2963; PR607418.

 2   [2018] FWC 2963 [13].

 3   [2018] FWCFB 5811 [17].

 4   Exhibit 1.

 5   Exhibit 2.

 6   Exhibit 3.

 7   Exhibit 10.

 8   PN26-30.

 9   PN61-5.

 10   PN85.

 11   PN531.

 12   PN503-29.

 13   PN250, PN306, PN454.

 14   PN451-2.

 15   For example, at PN205 he said that the doctor told him to rest for three days, being 6-8 February 2018, which is inconsistent with the capacity for employment document the doctor had signed.

 16   For example PN210, PN224.

 17   For example PN212.

 18   For example, PN232-3.

 19   For example, PN251-4.

 20   Exhibit 10 [6].

 21   Ibid [7]-[8].

 22   Ibid [10]-[12]; PN593.

 23   Exhibit 10 attachment LJV-1, 9.

 24   Ibid attachment LJV-1, 10.

 25   Ibid [21], [49]-[50].

 26   Ibid [23].

 27   Ibid [26]-[27].

 28   PN598-600.

 29   Exhibit 10 [29].

 30   Ibid [30]-[31].

 31   Ibid [32].

 32   Ibid [33].

 33   Ibid [34].

 34   Ibid [35].

 35   Ibid [36].

 36   Ibid [37].

 37   Ibid [38].

 38   Ibid [39].

 39   Ibid [42].

 40   Ibid [43].

 41   Ibid [45].

 42   PN254.

 43   PN257.

 44   PN258.

 45   PN259-60.

 46   PN267-70.

 47   PN275-6

 48   Exhibit 10 [44], [47]-[48].

 49   Ibid [52].