[2020] FWC 1860
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Corey Fox
v
Cropper Brothers Landscape Construction T/A Cropper Brothers Landscape Construction
(U2019/13666)

COMMISSIONER SIMPSON

BRISBANE, 16 APRIL 2020

Application for an unfair dismissal remedy - whether the applicant was dismissed at the initiative of the employer.

[1] On 6 December 2019, Mr Corey Fox made an application to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Cropper Brothers Landscape Construction (the Respondent).

[2] The matter did not proceed to conciliation and was allocated to me. I issued directions for filing of material, with the Small Business Fair Dismissal Code attached. The hearing took place on 6 April 2020. Mr Corey Fox was self-represented, and Mr Peter Cropper and Mr Stephen Cropper appeared on behalf of the Respondent.

[3] Mr Fox did not seek reinstatement however said that prior to his termination, notice was given to the Respondent that he would potentially be ending his employment after Christmas. As Christmas was six weeks prior to his dismissal, he was seeking that he receive six weeks’ compensation as this was the time he was left out of pocket. Mr Fox said he now has ongoing work and also contract work under his own business.

Jurisdictional Objection

[4] Mr Fox commenced employment with the Respondent in September 2018. It was not disputed that Mr Fox was employed on a casual basis. He said he worked between 36 to 46 hours per week.

[5] It is not in dispute, and I am satisfied that the Respondent is a small business employer in accordance with s. 23 of the Act.

[6] In the Form F3 – Employer Response to unfair dismissal application, the Respondent objected to the application on the basis that Mr Fox has not been dismissed in accordance with s. 386 of the Act.

The Legislative Framework

[7] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[8] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“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.

(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.”

[9] Section 388 of the Act provides:

The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[10] The Small Business Fair Dismissal Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009:

Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[11] In this matter, I am first required to determine if Mr Fox was dismissed pursuant to s. 386 of the Act. If I found that Mr Fox was not dismissed pursuant to s. 386 of the Act, the application will be dismissed. If I find that he was dismissed, then it is necessary to determine if the dismissal was in accordance with the Code.

[12] If I determine Mr Fox’s dismissal was not in accordance with the Code, it is necessary for me then to determine if the dismissal was harsh, unjust or unreasonable pursuant to s. 387 of the Act, which states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Was there a dismissal in accordance with s. 386(1) of the Act?

[13] Mr Fox’s submission is that he was dismissed at the initiative of his employer on 19 November 2019. It is the Respondent’s submission that Mr Fox was employed as a casual employee, and that he had not been in contact with the Respondent to advise of his availability since 28 November 2019. The Respondent contends that Mr Fox’s employment was not terminated.

[14] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1 A dismissal can be communicated orally.2

[15] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab)3 a termination is at the employer’s initiative when:

  the employer’s action ‘directly and consequentially’ results in the termination of the employment; and

  had the employer not taken this action, the employee would have remained employed.

[16] In O’Meara v Stanley Works Pty Ltd (O’Meara), 4 a Full Bench of the Australian Industrial Relations Commission considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …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.”

[17] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee. 5

Tuesday 19 November 2019

[18] The question of whether or not Mr Fox was dismissed at the initiative of the employer turns on the events that occurred on the morning of Tuesday 19 November 2019.

[19] Mr Fox stated that he was notified of his dismissal on 19 November 2019 and that his dismissal took effect on the same day. It is Mr Fox’s written evidence that on the date of his dismissal, he was physically accosted by Mr Peter Cropper and Mr Steve Cropper after he had asked Mr Peter Cropper to not speak to him in a derogatory manner. This was in regard to Mr Peter Cropper accusing Mr Fox that he failed to complete an instructed task, one in which Mr Fox states he had already completed.

[20] Mr Fox gave evidence that during his shift, Mr Peter Cropper approached him and started mouthing off and said words to the effect “come on, get the fuck into it.” Mr Fox said he said words to the effect “If you’re going to talk to me like that I’ll just go home.” Mr Fox said Mr Peter Cropper then “arced up” and said, “get your stuff and get the fuck out.”

[21] Mr Fox said Mr Peter Cropper said words to the effect “get your shit and get the fuck out and never come back, you will never get another cent.” He said it became confusing because Mr Peter Cropper then said, “you’ll be back.” Mr Fox said he was of the view that Peter and Stephen Cropper thought he would apologise and come back, but that he was not prepared to do that.

[22] Mr Fox said while he was collecting his belongings, Mr Peter Cropper continued to harass and intimidate him and made a threatening comment. Mr Fox said Mr Peter Cropper grabbed him and tried to tell Mr Fox that Mr Fox was on ice. Mr Fox said Mr Stephen Cropper also then grabbed him. He said it was at the point of the physical altercation that he decided he was not going to come back.

[23] Mr Fox submitted he was not working under the influence of any substance, no theft ever occurred nor was he approached about any theft or drugs in the duration of his employment.

[24] The Respondent disagreed with the Mr Fox’s submissions, asserting that Mr Fox was not dismissed. It is the Respondent’s evidence that on the 19 November 2019, Mr Fox “appeared to be under the influence of an unknown subject and was operating machinery in a hazardous and careless manner”. 6

[25] Mr Peter Cropper gave evidence that at approximately 9 am on 19 November 2019 during smoko, he and others noticed that Mr Fox was acting erratically, and it was obvious by the way Mr Fox was operating machinery that he was on some kind of drug or had not been taking his medication.

[26] Mr Peter Cropper said he was aware Mr Fox had said he used to use methamphetamine and so he knew Mr Fox had that background.

[27] Mr Peter Cropper said he believed Mr Fox was on drugs and approached him and said, “What are you on?” and Mr Fox replied, “Fuck off”. Mr Peter Cropper said he was concerned about Mr Fox’s erratic behaviour operating the machinery. Mr Peter Cropper said Mr Fox was so erratic, that he needed to leave the job site as it was unsafe. Mr Peter Cropper said he told Mr Fox he needed to leave. Mr Cropper said Mr Fox then pulled down all of the string lines putting the job back a full day.

[28] Mr Stephen Cropper supported Mr Peter Cropper’s evidence and said they were observing Mr Fox and were concerned about his erratic behaviour around machinery. Mr Stephen Cropper said after watching him for 15 minutes, Mr Peter Cropper told him he needed to leave.

[29] Mr Stephen Cropper said his brother asked Mr Fox to leave for the day and did not dismiss Mr Fox. He said that despite the issues they had with Mr Fox, they needed Mr Fox and needed a supervisor. He said it would not have made sense to dismiss him on that day. Mr Peter Cropper supported the evidence that Mr Fox was needed, and that he was a great worker.

[30] Mr Stephen Cropper said Mr Fox became aggressive. He said he had been aggressive in the past and had once threatened to punch him. Mr Stephen Cropper said he approached the situation and also asked Mr Fox to leave.

[31] Mr Stephen Cropper said there had been previous occasions where Mr Fox was asked to leave site, but it never lead to a dismissal. Mr Stephen Cropper said it occurred in the past when he had not followed directions, such as showing up to the site late.

[32] Mr Peter Cropper said Mr Fox would show up to work sites at different times, despite being required to show up at designated times. He said Mr Fox never treated the job seriously, though he was never dismissed because he was needed and was a good worker.

[33] Both Mr Peter Cropper and Mr Stephen Cropper reiterated in their oral evidence that despite past issues with Mr Fox, the Respondent had never sought to terminate Mr Fox because they needed Mr Fox and they needed a supervisor. They said this was still the case on 19 November 2019, and hence was the reason Mr Fox was not dismissed.

[34] Mr Fox said he could not recall a single time that he was asked to leave site prior to November 2019.

Week following the 19 November Incident

[35] Mr Fox said a week later, he messaged Mr Peter Cropper about money owing to him. He said Mr Peter Cropper again started accusing him of being on drugs. Mr Fox said he denied this and offered to do a drug test.

[36] Mr Fox said that Mr Peter Cropper sent him a text message stating “if you want to come back, things will need to change.” He said this text message confirmed his belief that he had been dismissed.

[37] Mr Peter Cropper said this message was sent to Mr Fox because he had not returned to the site for a week. The Respondent submitted that it employs workers on a casual basis on the basis that employees could be employed elsewhere and therefore may not always be available for work.

[38] The Respondent submitted that despite this arrangement, it was common practice for employees to advise when they were available for work. The Respondent submitted that as it had not received communication from Mr Fox that he was available for work, it had been assumed that Mr Fox had gained employment elsewhere and was no longer available for casual employment with the Respondent.

[39] Mr Peter Cropper said he left it with Mr Fox to call him and apologise, but that Mr Fox did not do this. Mr Peter Cropper said Mr Fox was welcome to come back to work, but he never did. The Respondent submitted that it was not until the 28 November 2019 that the Respondent made contact with Mr Fox in a text message. The text message was between Mr Fox and Mr Cropper and was regarding whether Mr Fox was available for upcoming work. The text exchange is as follows:

Consideration

[40] To find Mr Fox was terminated at the initiative of the employer, the legislation provides that the test is objective, and I must be satisfied that a reasonable person in the circumstances would have been led to believe they had been dismissed.

[41] I accept the evidence of Mr Peter Cropper and Mr Stephen Cropper, that Mr Fox had been a valuable employee to the company, and that they had been reluctant in the past to dismiss Mr Fox despite issues surrounding his conduct.

[42] I prefer the evidence of Mr Peter Cropper and Mr Stephen Cropper that Mr Fox had been asked on past occasions to leave the worksite. Both witnesses gave consistent evidence that there had been issues regarding Mr Fox not following directions and often showing up to work late. Mr Fox did not directly dispute these accusations and simply stated he could not remember ever being asked to leave site.

[43] I therefore accept the evidence of Mr Peter Cropper and Mr Stephen Cropper in regard to what was said during the conversation with Mr Fox on 19 November 2019. Mr Fox’s evidence that Mr Peter Cropper told him to “never come back” is not consistent with the evidence (that I have accepted) that Mr Fox was a valuable employee and that the business could not afford to lose its supervisor. Mr Fox’s own evidence was that it was confusing because in the same exchange he was told “You’ll be back.” Mr Peter Cropper and Mr Stephen Cropper’s evidence that Mr Fox was told to leave site, with the understanding he would return, is consistent with similar events that took place in the past and the language “you’ll be back” is consistent with an understanding from the Respondent that the relationship had not been terminated.

[44] I therefore find that given the context in which Mr Fox was asked to leave site, that a reasonable person in that position would not have taken that to mean he had been dismissed.

[45] I am also of the view that Mr Cropper’s text message to Mr Fox stating “if you want to come back things need to change” suggests Mr Fox was not dismissed, but rather the Respondent was seeking an apology from Mr Fox for his behaviour on 19 November 2019 and that it intended for Mr Fox to return to work after doing so.

[46] I therefore find that there was no action of the Respondent that directly and consequentially resulted in the termination of Mr Fox’s employment.

[47] Mr Fox appears to submit as an alternative argument that he was constructively dismissed due to the physical altercation that occurred between himself, Mr Peter Cropper and Mr Stephen Cropper on 19 November 2019.

[48] Mr Fox submitted that he was unable to return to work after he had been physically assaulted.

[49] Mr Peter Cropper did not deny that he grabbed Mr Fox’s arm during the heated exchange on 19 November 2019. Mr Stephen Cropper did not deny the accusation either. Mr Peter Cropper agreed that he was very angry during the exchange.

[50] I accept Mr Fox’s evidence that his arm was grabbed by Mr Peter Cropper and later by Mr Stephen Cropper during the conversation that took place on 19 November 2019. However, I am not satisfied this minor physical altercation was serious enough to warrant the view that he was unable to return to the workplace.

[51] I am not satisfied that had Mr Peter Cropper or Mr Stephen Cropper not grabbed Mr Fox’s arm during the conversation, Mr Fox would have remained employed.

[52] I therefore find on the evidence that Mr Fox was not dismissed at the initiative of the Respondent. The Commission therefore does not have jurisdiction to hear the application, and the application must therefore be dismissed.

COMMISSIONER

Appearances:

Mr C. Fox appearing on his own behalf
Mr P Cropper and Mr S Cropper appearing on behalf of the Respondent.

Hearing details:

2020,
Brisbane:
April 6

Printed by authority of the Commonwealth Government Printer

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 1   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496.

 2   Plaksa v Rail Corporation NSW [2007] AIRC 333

 3   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) [1995] IRCA 645.

 4   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 5   Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 6   Form F3 – Employer’s Response to unfair dismissal application, Q2.2.