[2020] FWC 166
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Matthew Priestley
v
The Traffic Controllers Pty Ltd
(U2019/11861)

Mr Truman Te Kani
v
The Traffic Controllers Pty Ltd
(U2019/11864)

DEPUTY PRESIDENT CROSS

SYDNEY, 13 JANUARY 2020

Applications for unfair dismissal remedy - heard in tandem - jurisdictional objection upheld - Applicants not dismissed.

[1] Applications were filed on 23 October 2019 by Mr Matthew Priestley and Mr Truman Te Kani (collectively the “Applicants”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicants sought unfair dismissal remedies following their alleged dismissals, which occurred for each of them on 17 October 2019.

[2] Mr Priestley commenced employment with The Traffic Controllers Pty Ltd (the Respondent) on about 14 August 2017, and Mr Te Kani commenced employment with the Respondent on about 18 March 2019. The Applicants were both casual employees.

[3] In both Applications a Form F3 Employer Response was filed by the Respondent, in which the jurisdictional objection was taken that the Applicants were not dismissed. The matters were allocated to my Chambers for hearing and determination of that jurisdictional objection.

[4] On 7 November 2019, I convened a directions hearing to outline a timetable for the matter. The parties agreed to a timetable for the filing and serving of material addressing the jurisdictional objection as follows.

“1. The Applicants (Mr Michael Priestley and Mr Truman Te Kani) are directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicants intend to rely on in opposition to the Respondent's jurisdictional objection (the “Jurisdictional Objection”) by no later than 4.00pm on 21 November 2019.

2. The Respondent (Traffic Controllers Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicants, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in support of their Jurisdictional Objection in this matter by no later than 4.00pm on 28 November 2019.

3. The Applicants are directed to file with the Fair Work Commission, and serve on the Respondent, a reply to the Respondent’s material in support of the Jurisdictional Objection by no later than 4.00pm on 5 December 2019.

...

4. This matter is listed for Hearing on 9 December 2019 at 10.30am (AEDT) at the Fair Work Commission in Sydney.” (emphasis removed)

[5] The following materials were filed and relied upon by the parties:

(a) The Applicants filed and relied upon:

(i) Undated Outlines of Submissions of each of the Applicants;

(ii) A Statement of Mr Priestley dated 21 November 2019, with annexures; and

(iii) A Statement of Mr Te Kani dated 21 November 2019, with annexures.

(b) The Respondent filed and relied upon:

(i) Undated Outlines of Submissions in response to each of the Applicants’ Submissions;

(ii) Two Statements of Gerard O’Neill dated 27 November 2019 (responsive to each of the Applicants’ statements);

(iii) Two Statements of Brianna Higgins dated 22 November 2019 (responsive to each of the Applicants’ statements);

(iv) Two Statements of Xaine Lambert dated 22 November 2019 (responsive to each of the Applicants’ statements); and

(v) Two Statements of Adrian L’Orguilloux dated 25 November 2019 (responsive to each of the Applicants’ statements).

[6] The directions provided for the filing of submissions and statements in reply. On 6 December 2019, in response to an enquiry from my Chambers, the Applicants’ representative advised that “… the Applicants rely on the material submitted thus far to the Commission and do not wish to submit any further material”. That representative had advised the previous day that the Applicants would not be represented in the hearing on 9 December 2019 (the “Hearing”), “for the purposes of saving costs”.

[7] At the commencement of the Hearing, the parties agreed that the matters could be heard by way of Determinative Conference, particularly as neither party was represented at the Hearing.

The Evidence

[8] As evidenced by the absence of reply evidence, there was very little dispute between the parties as to the evidence regarding the relevant events. Both Mr Te Kani and Mr Priestley impressed me as honest individuals, who gave clear and considered responses to enquiries made of them. Mr Te Kani even volunteered an error in his statement regarding an alleged request for casual conversion when his statement was being marked as evidence 1. Further, as occurs in determinative conferences, the written evidence was refined and supplemented by enquiries of the parties.

[9] In early September 2019, the Applicants travelled to Goulburn for a work assignment from 9 to 24 September 2019. As a result of that work travel, the Applicants raised an underpayment claim with the Respondent regarding meal allowances. The Applicants raised the issue with the Respondent upon their return. The Applicants also contacted the Fair Work Ombudsman (the “FWO”) on 26 September 2019 to enquire about their entitlements.

[10] On 1 October 2019, an email was forwarded to the Respondent by the FWO regarding the Applicants’ claim. Mr O’Neill saw that email on the morning of 2 October 2019. He contacted the relevant officer at the FWO for clarification and guidance. Mr O’Neill then messaged both the Applicants asking for a meeting, which was scheduled for 9.00am the following day, 3 October 2019.

[11] In that meeting on 3 October 2019, Mr O’Neill and the Applicants spoke for around 40 minutes about the alleged underpayments. At the conclusion of the meeting, Mr Priestley said "I honestly thought that we wouldn't have a job anymore". Mr O’Neill assured both Applicants that their employment with the Respondent was not in jeopardy and it was business as usual. Mr O’Neill also assured the Applicants that that he would start working on their complaint immediately and they agreed that all parties would meet again on Thursday 10 October 2019.

[12] In the meeting of Thursday 10 October 2019, Mr O’Neill asked the Applicants for more particulars and clarification of their claim and they agreed that they would get that information to Mr O’Neill when available. At the conclusion of the meeting Mr O’Neill asked Mr Priestley why neither he nor Mr Te Kani were answering calls to them made by the Respondent’s Allocator, who wanted to place them on shifts. Mr Priestley’s answer was "yeah I saw a call came through and thought it's too late to reply". Mr O’Neill responded saying "Please keep your phones close so we can give you work". Mr Priestley responded "Well if I see the call I'll take it. If I don't I don't". Mr Priestley confirmed that exchange in the Hearing 2.

[13] On 15 October 2019, Mr O’Neill received a message from Mr Priestley asking if he and Mr Te Kani could come to the office and see him on Wednesday 16 October 2019. A meeting was subsequently scheduled for 17 October 2019.

[14] At the meeting that occurred between 10.00am and 11.00am on Thursday 17 October 2019 3, Mr O’Neill, and the Applicants spoke for around ten minutes. The Applicants provided Mr O’Neill with the information that he had requested. Mr O’Neill then assured the Applicants that now they had provided the correct information regarding what they were claiming, Mr O’Neill would work on it and have a resolution in an extremely timely manner. Mr O’Neill advised both the Applicants that if they had any questions or follow up, to not hesitate to call or message him.

[15] At 2.48pm on 17 October 2019, no more than four and a half hours after the meeting in the above paragraph, The Applicants each forwarded to Mr O’Neill what they have defined as an “involuntary termination letter”. Those letters were in relevantly identical terms. The letter from Mr Priestley was as follows:

Attention: Mr Gerald O’Neil / Management

The Traffic Controllers Pty Ltd (ABN: 65 602 952 723)

17/10/2019

To Whom It May Concern

I, Matthew Priestley tender an involuntary resignation.

I began employment with the (sic) The Traffic Controllers on or about 14 August 2017. My employment has always been consistent, systematic and regular. On my rough calculations, I have performed approximately 31 hours a week on average. After serving The Traffic Controllers for more than 6 months of continuous service, at no point was I informed by The Traffic Controllers in writing that I had the right to elect to have my contract of employment converted to full-time or part-time employment in line with the applicable award (Building and Construction General On-Site) section 14.8(a). Had I been provided written notice of my right to elect to have my employment converted to full-time or part-time, my official response in the first instance would be full-time and in the second instance part-time.

In early September 2019, I travelled to Goulburn with a colleague (Truman Te Kani) for work purposes. As a result of this work travel, Truman Te Kani and I raised an underpayment claim with you regarding travel expenses incurred (the dispute). We did not agree with the outcome of the dispute and contacted the Fair Work Ombudsman (FWO) on 26 September 2019 to enquire about our entitlements. We were informed by the FWO that we have been underpaid in not only travel allowances but also in general over our time employed with The Traffic Controllers. My FWO claim reference number is 320469048 and the claim remains ongoing at this point.

Since 2 October 2019 and after lodging my underpayment claim with the FWO, I have not been provided with any shifts/work in contradiction to the usual weekly pattern of work I would ordinarily be provided.

More than two weeks has now gone by and I am unable to continue employment with The Traffic Controllers without work and pay. Naturally, without pay my domestic responsibilities and standard of living have been adversely affected.

I have attempted to communicate with The Traffic Controllers and have found no real resolution regarding this matter.

Based on the above actions by my employer, it is clear that the required relationship of trust and confidence between the employer and myself has been severely damaged and therefore I can no longer work with the company and accordingly with no other option tender my resignation.

This entire ordeal has caused much stress on me as a person, as result [sic] of the circumstances I have employed the services of a[n] HR Professional who will now act on my behalf, please find my representative’s details below, any further communication regarding this and or other matters is to strictly be referred to my representative.

Representative’s details:

Michael Alkan Senior HR Consultant

[contact details]

Regrettably,

Matthew Priestley

17/10/2019”

[16] Telephone records that were submitted in evidence recorded attempts to offer work shifts to the Applicants. While Mr Te Kani denied ever being telephoned by the Respondent 4, it was apparent that the usual course of action was for the Respondent’s allocator to first try to contact Mr Priestley with work for both Applicants5. I accept that the following table lists the attempts to contact the Applicants regarding possible work allocations:

Consideration

[17] In Bupa Aged Care Australia Pty Ltd v Tavassoli (“Bupa v Tavassoli”) 6, a Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element. (emphasis added)

[18] The case advanced by the Applicants was that a dismissal had occurred as defined in s.386(1)(b) of the Act. The conduct of the Respondent that forced the resignations of the Applicants was outlined as 7:

“3. The Applicant submits he was forced to resign (constructive dismissal) inter alia because the Respondent failed to provide the Applicant with continuing work (in terms of shifts) when the Applicant complained of the following conduct;

a. The Respondent failed to notify the Applicant of his right to elect to convert his employment to full time or part time;

b. The Respondents failed to remunerate the Applicant appropriately as per the Award.”

[19] The evidence was clear. As outlined in paragraphs [12] and [16] above, the Respondent had not failed to provide either Applicant with continuing work. Quite to the contrary, the Respondent was seeking to allocate work to the Applicants. The Respondent even lead evidence from Ms Brianna Higgins, the Staff Allocator, regarding the usual methods of allocation of work, and attempts to allocate work to the Applicants.

[20] In the meeting of Thursday 10 October 2019, Mr O’Neill specifically enquired of Mr Priestley as to why neither he nor Mr Te Kani were answering calls from the Respondent’s Allocator. It was agreed that Mr O’Neill said “Please keep your phones close so we can give you work", to which Mr Priestley responded "Well if I see the call I'll take it. If I don't I don't” 8.

[21] The response by the Respondent to the Applicants’ allegations of underpayment was as one would expect from a responsible employer. The Respondent:

(a) Received the allegations and commenced immediate consideration of those allegations;

(b) Made appropriate enquiries of statutory bodies; and

(c) Responded promptly, and in timeframes previously advised, to the Applicants.

[22] There is simply no basis to the assertion that requests for casual conversion somehow motivated the Respondent to deny the Applicants shifts. As noted above, Mr Te Kani clarified the error in his statement regarding an alleged request for casual conversion. Mr Priestley referred to various correspondence as evidencing his request, yet all that correspondence post-dated his resignation.

[23] Considering the relatively uncontroversial evidence in this matter, it is simply unbelievable that the Applicants could have felt compelled to resign due to the conduct of the Respondent. As the Hearing was a determinative conference, there were attempts to enquire of the Applicants as to how in the circumstances they could have felt compelled to resign. The following exchanges occurred in the Hearing:

“[PN446] THE DEPUTY PRESIDENT: See, I suppose something nags in my mind, having to determine what was going on at the time and I'd be interested to know what you might have to say about it is. What changed between 10 am and 11 am and 2.48 pm? You were in a meeting you were discussing the underpayment. There was further undertaking to investigate and get to the bottom of it, and you might say, well they should have done it a bit quicker than that. But I don't think you doubt the sincerity that they were going to finally try and resolve the underpayment issue.

[PN447] But the things that you put in the involuntary resignation letter, why didn't you just raise them in the meeting?

[PN448] MR TE KANI: Why we didn't bring the resignation up at the meeting?

[PN449] THE DEPUTY PRESIDENT: It's more that what you're saying in the document was complaints about not being allocated shifts, that you felt that you had no option but to resign.  To me, I look at that, and I go, you had your third meeting with the employer in the morning and it's not - from what I see, and from the conversations occurring, it's not an employer that is ignoring your complaints; they're looking into it, genuinely. You might say they could do it quicker, but they're looking into it genuinely.

[PN450] MR TE KANI: Yes.

[PN451] THE DEPUTY PRESIDENT: They're taking on board what you're saying. Why didn't you say to them in that meeting, I really feel this is getting to the point where you don't want me here?

[PN452] MR PRIESTLEY: Well, I did say that kind of, when I said yes, I thought we were going to lose the job.

[PN453] THE DEPUTY PRESIDENT: But you said that on the 3rd, not on the 17th.

[PN454] MR PRIESTLEY: Yes, yes, yes. It was all a build up of everything. Like, I was already thinking about quitting during the whole meeting, because I didn't think I should let them know that I'm thinking about resigning and all that stuff, because of the shifts not being there and all that.

[PN455] THE DEPUTY PRESIDENT: But I mean no one doubts that this employer needs staff.

[PN456] MR PRIESTLEY: Yes, I'm not doubting that.

[PN457] THE DEPUTY PRESIDENT: I think - am I correct in understanding that throughout all the relevant period of time, even when you were going through the meetings, you knew that the respondent needed you.

[PN458] MR PRIESTLEY: Yes.

[PN459] THE DEPUTY PRESIDENT: I just don't understand because the point is, they have to have been doing what they're doing with an intention of making you resign, leaving you with no other option but to resign. I just don't - when you've got an employer that is wanting people, particularly you two, I just don't understand how they could be wanting you to resign.  But also, I don't understand how in the meeting of the 17th, with an employer that is responsive, you wouldn't tell them, hey, you know, I think X and Y is not on and I'm feeling pressure to resign. Can you help me?

[PN460] MR PRIESTLEY: Yes, we could have handled it a bit better and told him in person about the issues, but I was still feeling the pressure of it all and I didn't want to have the big argument in person about it. I thought it would be easier to do it through the email.  Let them know my issues through there.”

[24] The irresistible inference that I find is that the “involuntary termination letter(s)” were based not on any real or perceived feelings of being forced to resign due to the conduct of the Respondent. To the contrary, the Applicants knew that the Respondent was seriously considering their underpayment claims, and was keen to offer work to the Applicants and have them remain as employees.

[25] Unfortunately, I find that the “involuntary termination letter(s)” were nothing more than crude, and unfounded, attempts to create unfair dismissal claims where no such claims existed due to the absence of dismissals.

Conclusion

[26] The Applicants were not dismissed pursuant to s.385(a) of the Act. The Applications are dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Priestley on his own behalf

Mr T Te Kani on his own behalf

Mr R Bdeir and Mr N Hebous appeared for the Respondent

Hearing details:

Sydney

2019

December 9

Printed by authority of the Commonwealth Government Printer

<PR715874>

 1   PN 156 to PN 162

 2   PN 241

 3   PN 435 and PN 437

 4   PN 181 to PN 191, and PN 361

 5   PN 349

 6   (2017) 271 IR 245; [2017] FWCFB 3941, at [47]

 7   Each Applicants’ Outline of Submissions at [3]

 8   PN 241