| [2020] FWC 3266 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bradley Richmond
v
APS Group (Placements) Pty Ltd
(U2020/3609)
DEPUTY PRESIDENT BULL |
SYDNEY, 7 JULY 2020 |
Application for an unfair dismissal remedy – Jurisdiction to hear matter – Casual employment – Whether regular and systematic – Whether dismissal at initiative of employer or employee resignation.
[1] Mr Richmond was engaged by APS Group (Placements) Pty Ltd (APS), a labour hire business, as a casual employee on 23 January 2018. Mr Richmond’s unfair dismissal application is opposed by APS on a number of jurisdictional grounds which are that he:
• was not dismissed but resigned; or
• was not engaged on a regular and systematic basis from December 2019 on; or
• filed his application out of time.
[2] Mr Richmond’s employment was reflected in a document titled “Contract of Engagement’. 1 While this document refers to Mr Richmond as ‘the Contractor’ there is no dispute that Mr Richmond was engaged as an employee. Section (1) of the Contract of Engagement sets out the employment relationship and includes the following terms:
‘… the Contractor is engaged by the Company as a casual employee to work on assignment for clients at a client’s premises.
Nothing in this agreement shall compel the Contractor to accept an assignment or constitutes an offer of ongoing work.
… the Contractor may also register the Contractor’s services with other personnel agencies and remain registered with other agencies at all times whilst registered with the Company.
The Contractor’s engagement to work on assignment may be terminated by the Company providing one hour’s notice.’
[3] On commencement of work with APS in January 2018 Mr Richmond worked 6 days a week and would be sent text messages each week with his roster for the following week. 2
[4] Mr Richmond states that in October 2018 he enquired with an employee of Coles (the host employer), if he secured a fulltime job elsewhere, whether he could be rostered to only work weekends as he was interested in a career in insurance. While agreed, this arrangement did not proceed as Mr Richmond decided it was not the right direction for him. 3
[5] In May 2019, Mr Richmond changed his working hours to working weekends only, which was confirmed by APS at the time and he was sent weekly text messages from APS advising of his weekend roster.
[6] Mr Richmond’s last day at work was 28 July 2019. Mr Richmond did not return after this date as he was suffering from the effects of kidney stones but later from having broken bones in both his legs in a ‘freak accident’. Mr Richmond states he was declared unfit for work until the end of November 2019, and on 4 December 2019 obtained a medical clearance to return to work on ‘light duties.’ 4
[7] Mr Richmond states he spoke to Ms Hosannah Sale, a representative of APS, on 6 December 2019 to obtain an update as to whether he could work the following day and was advised that because of his injury, and having not worked for more than three months, he had been made inactive on APS’s records and would need to be re-inducted which wouldn’t occur until the new year as Coles were not conducting any inductions for the balance of 2019. 5
[8] On 12 December 2019, Mr Richmond states he received an email from Ms Russell APS’s National Contract Manager stating that she had been advised that he would like to return to work and asking that he confirm his availability. He responded with his availability for weekend work. As he had not heard back from Ms Russell, he telephoned the APS office the following day 13 December 2019 and was told that APS’s records indicated that he had been made ‘inactive’ the day before. 6
[9] Mr Richmond then sent an email to Ms Russell on 16 December 2019, stating he was ‘not impressed with this matter and how it has been dealt with’.
[10] Mr Richmond states that on 17 December 2019 he spoke to Ms Russell by telephone who told him that APS’s internal procedure was that after three months without being rostered to work employees are automatically made inactive on the APS system. This required Mr Richmond to reapply for work or be re-inducted.
[11] Following this conversation, Mr Richmond sent two emails to Ms Russell requesting clarification regarding his inactive status. 7
[12] Mr Richmond sent a further email on 20 December 2019 requesting a copy of his employment contract and his employment status in the APS system.
[13] Ms Russell responded that day by email stating that Mr Richmond was not currently active on the APS data base as previously advised by telephone. If he wished to re-apply for any advertised positions in the new year, he could do so on line as previously advised. 8
[14] On 23 December 2019, Mr Richmond again emailed Ms Russell. On this occasion, Mr Richmond asked whether he had been terminated and what award he was covered under, to which Ms Russell replied the same day that he had not been terminated and was covered under the Storage Services Award. 9
[15] Mr Richmond sent two further emails to Ms Russell on 23 and 24 December 2019, but did not receive a response. On 2 January 2020 he attempted to contact Ms Russell by telephone as she was unavailable, he was put through to Mr Volarich APS’s Employment Relations Manager. Mr Richmond expressed to Mr Volarich his frustration with Ms Russell and states he said she was unprofessional and not very transparent. Mr Richmond requested that he be made active again and put back on the roster for work with Coles.
[16] Mr Richmond referred to his understanding of the agreement to return to work on weekends at Coles and Mr Volarich replied that weekend work is reserved for people who work during the week as a reward. 10 Mr Richmond raised during the telephone conversation APS’s loyalty and values stated on its website as being its cores values. Mr Richmond states that Mr Volarich replied with words to the effect of:
‘Our loyalty is to people who currently work full time not to people like you where APS is your secondary employment. Your agreement is irrelevant, and besides, APS has to move forward and make decisions that are in our best interests.’
[17] Mr Richmond states that he requested to resume work and Mr Volarich stated that he would see what he could do.
[18] Mr Volarich who gave evidence 11 and was subject to cross examination did not share entirely Mr Richmond’s understanding of the 2 January 2020 telephone conversation. Mr Volarich is also the APS operational contact for Coles. Mr Volarich stated that Coles’ requirements change from day to day and APS was required to maintain a pool of inducted employees. APS was under instructions that Coles were not inducting employees over the Christmas peak period. Mr Richmond was not an inducted employee on 2 January 2020, having worked his last shift in late July 2019. APS was instructed not to induct new employees until early March 2020.
[19] Mr Richmond stated that in December 2020, Ms Russell had advised him that Mr Richmond had been ‘extremely insistent’ that he be rostered to work at Coles. Mr Volarich’s interaction with Mr Richmond was limited to the telephone discussion on 2 January 2020. Mr Volarich’s evidence was that due to the long absence from being available to work Mr Richmond had become inactive in the system. Mr Richmond also required a full re-introduction/training prior to returning to Coles.
[20] In respect to the 2 January 2020 telephone conversation Mr Volarich stated that it lasted about 45 minutes and that Mr Richmond wanted to know whether he was an “active or inactive” employee and was told that he was inactive in the system as employees are deactivated automatically after a period of inactivity of more than three months.
[21] Mr Richmond was advised that this was an internal process and in order to become active again he would have to undergo a new site induction. In addition to the site induction, employees working at the Coles site need to be available for work six days per week, including Monday to Friday, and that weekend shifts are be given to workers with this availability and that he could not force Coles to take on staff.
[22] Mr Volarich’s evidence was that Mr Richmond then went on to describe Ms Russell as a liar and as being incompetent and criticised the way she had handled things. On asking Mr Richmond for evidence to support these allegations he continued to make disparaging remarks about Ms Russell, APS, and Coles.
[23] Mr Volarich then asked Mr Richmond why he would want to work for APS if he felt like that, and why APS would want to place him with a client if he felt like that, to which he responded, “fair comment. ”
[24] Mr Volarich states that he said to Mr Richmond that the relationship had obviously broken down and that maybe it was best to part ways, to which Mr Richmond agreed, the conversation then ended.
[25] Mr Volarich’s evidence was that it was clear to him that at the end of the telephone conversation Mr Richmond had resigned from his employment although the word resignation was not used during the conversation. Mr Volarich denies having told Mr Richmond that in respect of working at Coles “he will see what I can do.”
[26] Mr Volarich attached to his witness statement a file note of the telephone conversation that he recorded in the APS document management system the following day. The file note reflects the account of the telephone conversation Mr Volarich provided. 12 Mr Volarich stated that he then advised Ms Russell of Mr Richmond’s resignation.
[27] Mr Richmond denies having agreed to part ways during his telephone conversation with Mr Volarich.
[28] Mr Volarich stated that there is a large number of resignations from APS each year. Some employees do not advise of their resignation and APS accepts resignations where they are given verbally. As a labour hire business APS does not expect to receive written resignations from its employees. Employment separation certificates are only prepared upon request from a terminating employee.
[29] On 4 February 2020, a month after the telephone conversation with Mr Volarich, Mr Richmond emailed a member of Ms Russell’s team, Brittney Ray an APS Senior On-Site Recruitment Consultant and he was advised that it would be unlikely there would be any work until Easter. 13
[30] Mr Richmond spoke to Ms Brittany again on 22 February 2020 and states he had a similar conversation as had occurred during the earlier 4 February telephone conversation.
[31] On 28 February 2020, Mr Richmond sent Ms Russell a lengthy email in which he states he apologised for any disrespect he had shown her previously. 14 Included in the email were the following comments:
“I would assume that whatever has been said by each party over the last number of months has probably ruined an employement (sic) relationship, in fact it's probaly (sic) not even appropriate for me to be contacting you.
I understand the requirements that the client aks (sic) for when recruiting potential team members. And I am aware that I am probably not an option anymore either because of a toxic trait that has been caused and or because of my injury/availability.
I am asking if there is a way Sarah that you could consider making an exception for me to be able to come back to Coles for weekends, atleast (sic) as a trial.”
[32] In the email Mr Richmond details his financial difficulties and that he is considering resigning from his ‘career job’ and goes on to make the following request:
“Would it be possible if the agreement that I had with you guys and Coles previously could be re considered and possibly granted for me to work weekends and when I can. I don't want to go backwards and resign from a government full time job only to be back at square one again.”
[33] Mr Richmond concludes by asking if APS could consider a special arrangement at least as a trial.
[34] Mr Richmond received an email response from Ms Russell on 4 March which stated:
“I can confirm that the reason you are no longer employed by APS has nothing to do with your injury, and as per our verbal conversations, is purely based on the fact that you were unavailable for almost 5 months. The APS procedure states that APS contractors are to be deactivated if they are unavailable for 3 months.
Our procedure is that anyone who is inactive for the above mentioned period of time, would need to re-register to be considered for roles within APS. You have previously had verbal conversations with both myself and Rob - our ER Manager, where you have voiced your point of view on the whole matter including how you feel towards APS staff. You were advised in these conversations that based on your attitude towards APS, that we would not be considering you for roles in the future.
I would like to take the opportunity to wish you all the best for your future endeavours, and ask that you do not make any further contact with anyone at APS or Coles. This includes site visits, emails and verbal communication.
Thanks in advance”
[35] Mr Richmond states that following receipt of this email he sent two emails to Ms Russell requesting advice as to when he was terminated, but did not receive a reply.
[36] Ms Russell also gave evidence 15 and was subject to cross examination. Ms Russell states that she met Mr Richmond in person on one occasion only, in October or November 2019 when he wanted to discuss a return to work at Coles when he received a medical clearance.
[37] Mr Richmond said he needed the money to supplement his full-time job in real estate, his full-time job was his “real job”, and the placement at Coles was his “on the side job.”
[38] On 4 December 2019, Mr Richmond provided a medical certificate dated 4 November 2019 that stated, ‘suitable for light duties only.’ 16 As Mr Richmond had taken an absence of over four months, he had automatically become inactive on the APS internal system. This meant that should he wish to be placed with one of APS’s clients including Coles, he would need to re-apply for a position at that particular site. This would require undertaking a new site induction, and training if necessary.
[39] Coles had informed APS that it had filled its staffing requirements for the month of December 2019 and were not taking on new workers until the new year.
[40] On 6 December 2019, Mr Richmond spoke to a member of her team Hosannah Sale. Ms Sale told Ms Russell that she had told Mr Richmond that he would need to undertake a full re-induction as per Coles’ procedure, and that Coles had finalised all their placements until the new year. He was also advised that the preference for Coles was availability of workers for six days per week. Ms Sale informed her that Mr Richmond was difficult on the phone and that he did not take this information well. Ms Sale sent Ms Russell an email that day which in part stated that Mr Richmond said to her “Please get Sarah to call me because I’m pissed off. I tried my best to calm this dude and he just didn’t take any of it.” 17
[41] Mr Richmond also spoke to another On Site Recruitment Consultant, Ms Alannah Cain, on 6 December 2019.
[42] Since Mr Richmond had contacted the office three times on 6 December 2019, and her team had handled difficult conversations with him, Ms Cain sent him a text message advising him that she was on leave that day and that she would contact him on Monday 9 December 2019.
[43] Ms Russell’s evidence was that she called Mr Richmond on the Monday and repeated to him what had already been told to him by her team members. He would have to re-apply to be placed at Coles and would need to wait around a month as they were not recruiting. Ms Russell states that she also explained to Mr Richmond why he could not be placed at Coles several times as they were only engaging staff that could work six days a week. Mr Richmond was not happy and refused to accept this advice.
[44] Ms Russell stated that Coles had informed her that Mr Richmond had approached them around the same time to find out why he had to re-apply and complete a new site induction and Coles had referred Mr Richmond back to APS and herself.
[45] On 17 December 2019, Mr Richmond contacted Ms Russell by telephone and was advised consistent with previous discussions that he would have to undergo a site re-induction in order to be placed at Coles, however Mr Richmond would not accept this.
[46] On 23 December 2019, Mr Richmond asked in an email if he had been terminated, Ms Russell confirmed that as per their previous discussions, he had not been terminated.
[47] Ms Russell stated that it was not possible to place Mr Richmond with another APS client as he was only available for weekend work. Ms Russell stated that as Mr Richmond was not satisfied with her responses, she had kept Mr Volarich informed of her discussions. In early January 2020, Mr Volarich told her that Mr Richmond had resigned. 18
[48] Mr Richmond was pursuant to his contract employed on a casual basis, he commenced work on 23 January 2018 and last worked a rostered shift for APS on 28 July 2019.
[49] The Fair Work Act 2009 (the Act) provides employees protection from unfair dismissal subject to certain limitations, one limitation being that the employee has worked for a minimum employment period (s.382(a)).
[50] Section 382(a) of the Act refers to the employee having “completed a period of employment” of at least the “minimum employment period”. At s.383 of the Act, the minimum employment period (where the employer is not a small business employer) is defined as 6 months ending at the earlier of the following times:
“(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal”
[51] In Mr Richmond’s case, as a casual employee the required 6-month period of employment is subject to further qualification. Any period of his service as a casual does not count towards his period of employment unless as expressed at sub-ss.384(2)(a)(i) and (ii) of the Act:
“(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and ...”
[52] Section 384(2) of the Act is concerned only with determining which periods of service count toward the employee’s period of employment with the employer for the purposes of s.382(a) of the Act.
[53] APS submits 19 that the Applicant could not be said to have been a casual employee on a regular and systematic basis from December 2019. At this time, Mr Richmond had been informed that further shifts would not necessarily be provided. Alternatively, it was as early as May 2019 that the Applicant was no longer regularly and systematically employed, when he commenced full-time employment with another unrelated employer.
[54] As Mr Richmond had not performed any work for APS since late July 2019 and was told during December 2019 that further shifts may not be provided, on this basis he could not be said to be engaged regularly and systematically from that time.
[55] It was submitted by Mr Richmond that the entire period of his employment must be considered and, if so, the engagement was clearly regular and systematic. Mr Richmond’s pay slips and text messages attached to his witness statement 20 show that he was employed every week from January 2018 to May 2019, 6 days per week, and every weekend from May 2019 to 28 July 2019, 2 days a week.
[56] In referring to s.384(2)(a)(ii) of the Act, Mr Richmond submitted that he had a reasonable expectation of ongoing employment for the following reasons:
• His contract was ongoing, did not have a fixed end date, and required him to comply with continuing obligations, for example following policies, and providing regular time sheets. It was clearly intended to create an ongoing engagement.
• APS had a regular system of engaging Mr Richmond. APS sent his roster every week via text message, he did not request shifts, but was allocated shifts. Mr Richmond was not required to confirm if he accepted each weekly roster, rather he would have to inform APS if he did not want to work.
• The frequency and the amount of work allocated was significant – initially being 6 days a week for 14 months, then 2 days a week for 3 months up until the end of July 2019.
[57] In Wayne Shortland v The Smiths Snackfood Co Ltd 21 the applicant in that case at the time of his dismissal was not being allocated any casual work but had previously completed a 6 month period of continuous service on a regular and systematic basis with an expectation of continuous service. The Full Bench found that the employee was a person protected from unfair dismissal.
[58] In Bronze Hospitality v Janell Hansson 22, in referring to the construction of s.384(2)(a)(ii) of the Act, the Full Bench opined as follows:
“[29] We make some observations about the construction of s.384(2)(a)(ii). … . The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time.
[59] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 23 Roe C concluded at [81]:
“Further, the six month minimum clearly must end with the dismissal or notice of dismissal but the wording suggests the possibility that the complying period of casual employment might be earlier so long as the period of continuous service extends up to the point of dismissal or notice of dismissal.”
(My underline)
[60] The test under s.384(2) of the Act is whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[61] The evidence demonstrates that Mr Richmond as a casual employee worked on a regular and systematic basis between January 2018 and July 2019 whether working 6 or 2 days a week. 24 There is no reason not to infer that at all times during this period Mr Richmond had a reasonable expectation of continuing his employment on a regular and systematic basis.
[62] As such the Commission is satisfied that Mr Richmond has met the requirements of s.382 of the Act having completed a period of employment of at least the minimum employment period of 6 months and as per s.384(2) of the Act during this 6 month period was engaged on a regular and systematic basis with a reasonable expectation that it would continue on this basis.
[63] While I accept that in late December 2019 Mr Richmond ceased being rostered on a regular and systematic basis (excluding his absence since 28 July 2019 on fitness grounds), and was informed by APS that there was no guarantee he would be provided with work on a regular and systematic basis, this does not detract from having already met the period of employment requirements of the Act. No authority is provided by APS to support the contention that not being employed on a regular and systematic basis at the time the employment relationship ended is a jurisdictional requirement under the Act.
[64] Not being offered shifts or having a reasonable expectation of ongoing employment at the time a casual employee’s employment ceases is a factor that may be relevant in considering whether a dismissal is unfair and, if so, any remedy; but it is not a jurisdictional requirement under the Act where the required period of employment has been completed at an earlier stage during the employment relationship.
[65] To be able to invoke the jurisdiction of the Act in respect to the filing of an unfair dismissal application there needs to have been a dismissal either via the initiative of the employer or through the forced resignation of the employee. These requirements are expressed at ss.385 and 386(1) of the Act:
[66] In particular s.386(1) of the Act, states that 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”.
[67] APS submits that Mr Richmond resigned his employment during a telephone conversation he held with Mr Volarich on 2 January 2020. APS submits that as there has not been a dismissal at the initiative of the employer there is no jurisdiction to hear the application. The submission of APS is based on the evidence of Mr Volarich supported by his contemporaneous file note, the evidence of Ms Russell and the subsequent conduct of Mr Richmond.
[68] Prior to the alleged resignation, APS states that Mr Richmond contacted APS on 3 occasions on 6 December 2019 requesting that he be placed with the host employer Coles. APS states that his manner was rude and aggressive. 25 He was advised on 6 December 2019 by representatives of APS that the host employer required employees who were available 6 days a week during the December 2019 peak period and that he would have to undergo an induction before being offered work and that there were no inductions until the new year.
[69] On 9 December 2019 and 17 December 2019 Mr Richmond spoke to Ms Russell the National Contract Manager who, while advising Mr Richmond that he had not been terminated, told him that there was no guarantee that he would receive further work with the host employer. 26 These conversations were lengthy and it is put that the relationship between Mr Richmond and APS broke down.
[70] During a lengthy telephone conversation with Mr Volarich on 2 January 2020, Mr Richmond upon again being told that he needed to be available 6 days a week and undertake an induction to be considered to work at Coles spoke in a derogatory manner about Ms Russell, APS and Coles. At the end of that conversation it was put to Mr Richmond that maybe it was best to part ways and that Mr Richmond agreed. Mr Volarich subsequently advised Ms Russell of Mr Richmond’s resignation which she confirmed in her evidence. 27
[71] On 28 February 2020, Mr Richmond again contacted Ms Russell via email requesting that an exception be made for him to work at Coles on the weekend on a trail basis.
[72] In denying that he resigned during the telephone conversation with Mr Volarich on 2 January 2020, Mr Richmond states that the conversation was heated from the start and that Mr Volarich told him that APS’s loyalty is to employees who work full time, not employees like himself who work for APS as a form of secondary employment.
[73] Mr Richmond states that the conversation ended with him stating that he wished to resume work as soon as possible, and with Mr Volarich stating that he would see what he can do. 28
[74] A month later on 4 February 2020, Mr Richmond emailed Ms Ray the APS Senior On-Site Recruitment Consultant asking whether she could give him a call. Mr Richmond states that he spoke to Ms Ray that day and Ms Ray told him that she was ‘sorry for the whole situation’ but it is unlikely that there would be any work until Easter. 29 Mr Richmond states he spoke to Ms Ray again on 22 February 2020 about a return to work. Ms Ray was not called as a witness by the respondent to provide her version of these telephone conversations.
[75] On 28 February 2020, Mr Richmond states he sent Ms Richmond an email apologising for any disrespect he had previously shown and asking if APS could make an exception for him to return to work on weekends on a trial basis. In response, Ms Russell in an email of 4 March 2020 confirmed that Mr Richmond was no longer employed which was purely based on the fact that he was unavailable for work for almost five months and that he had been advised previously that he would not be considered for roles in the future due to his poor attitude.
[76] Mr Richmond’s evidence is that he had never previously been advised that he had been terminated or that he would not be considered for future roles. 30 In response he sent two emails to Ms Russell the same day asking to be informed of the exact day his employment ended. Ms Russell’s evidence was that she did not respond as she had previously requested Mr Richmond not to contact APS or Coles again in her 4 March 2020 email response.
[77] Having heard the evidence of both Mr Richmond and Mr Volarich I am satisfied that the telephone conversation of 2 January 2020 ended in the manner as stated by Mr Volarich in his evidence and corroborated by the recorded file note made by Mr Volarich the following day which states:
“I said the relationship between the parties has broken down and that it may be best to part ways – Brad agreed with my comments and the call ended.”
[78] While Mr Richmond denies that any such comment was made, there is no plausible reason why Mr Volarich would have made such a record at the time if it was not what had actually been said between the parties.
[79] While Mr Volarich’s evidence is that he treated this conversation as Mr Richmond having resigned from his employment, the file note does not record a ‘resignation’ other than stating that Mr Volarich said it ‘may be best to part ways’ which Mr Richmond agreed. What is critical is whether it was the intention of Mr Richmond to resign during this telephone conversation, which he denies.
[80] APS points to the correspondence sent by Mr Richmond to Ms Russell on 28 February 2020, wherein Mr Richmond acknowledges he is probably ‘not an option anymore’ but would like APS to ‘consider making an exception’ for him to come back to Coles, as indicative of having resigned. It was also put that following the 2 January 2020 conversation with Mr Volarich, Mr Richmond’s communications regarding work with APS reduced significantly also indicating that Mr Richmond had resigned.
[81] For the Commission to accept that Mr Richmond as put by APS resigned from his employment on 2 January 2020 over the telephone, there would need to be compelling evidence that this did in fact occur. 31 There are a number of factors that indicate otherwise.
[82] In the first instance Mr Richmond submits that he did not resign and that any such conversation about ‘parting ways’ did not occur. While I have preferred the evidence of Mr Volarich on this issue it does not necessarily lead to the conclusion that Mr Richmond resigned. Approximately one month later Mr Richmond contacted Ms Ray from APS on 4 February 2020 and also had a telephone conversation with Ms Ray on the same day. No reference to a resignation was made by Mr Richmond or apparently by Ms Ray when she was advised that there was unlikely any work until Easter. Mr Richmond again contacted Ms Ray on 28 February and was not told that he had resigned. Ms Ray’s state of knowledge about Mr Richmond’s alleged resignation is unknown; as stated above, she was not called to give evidence.
[83] On 4 March 2020, Ms Russell replied to an email of Mr Richmond of 28 February 2020 in which she confirmed that the reason Mr Richmond was no longer employed was ‘purely based on being unavailable for almost five months’ and that he had been advised in conversations with herself and Mr Volarich that based on his attitude towards APS he would not be considered for roles in the future.
[84] Ms Russell’s evidence was that her email was not intended to be a notice of termination as Mr Richmond had already resigned. While I accept that the email was not intended to be a notice of termination it was, in Mr Richmond’s evidence, the first time he was advised that he was no longer employed. It was not satisfactorily explained by Ms Russell why her correspondence in stating what the termination was ‘purely based on’ makes no reference to Mr Richmond having resigned. Nor was it explained why Ms Ray advised Mr Richmond it would be unlikely that there would be any work until Easter. 32
[85] Despite Mr Volarich’s understanding, I am not satisfied that Mr Richmond actually resigned his employment on 2 January 2020.
[86] This then raises the question as to when did Mr Richmond’s employment end? While it is apparent on the evidence of Mr Volarich and Ms Russell that in their view Mr Richmond’s employment with APS had ended well before Mr Russell’s email response of 4 March 2020, Mr Richmond maintains he did not resign on 2 January 2020. For a dismissal to be initiated at the employer’s initiative it will not ordinarily take effect until such time as it is communicated to the employee whose employment is being terminated. 33 On this basis the effective date of dismissal is the notification date to Mr Richmond of 4 March 2020.
[87] I have reached the above conclusions having regard to the nature of the labour hire industry and that Mr Richmond was engaged as a casual; and that where a resignation is given verbally it is not essential that is be confirmed in writing, or that in the absence of a request an employment separation certificate need be issued.
[88] In labour hire there may also be a lengthy period, as in this case, where no work is provided, however an employer of a casual employee does not repudiate the employment contract when it fails to offer another shift. A casual remains employed until a decision is made by the employer that there is no further work or no further work will be offered. 34 Although a one month period had elapsed, Mr Richmond continued to engage with APS in respect of seeking employment after 2 January 2020, without it being confirmed by APS that it was their understanding that he had resigned, including their last correspondence of 4 March 2020 which failed to mentioned resignation but provided other reasons for the employment termination.
[89] As I have concluded that Mr Richmond’s dismissal was effective as of 4 March 2020, his unfair dismissal application has been made within the prescribed period.
[90] The jurisdictional objections raised by APS are dismissed.
[91] The matter will now be subject to further directions to enable the matter to be listed for conciliation and, if necessary, arbitration on the merits of the unfair dismissal application.
DEPUTY PRESIDENT
Appearances:
Mr M Lynch Solicitor for the Applicant
Mr Sztrajt Solicitor for the Respondent
Hearing details:
2020
Sydney by telephone
18 June
Printed by authority of the Commonwealth Government Printer
<PR720396>
1 Attachment BR1 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
2 Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
3 Attachment BR3 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
4 Attachment BR6 of Witness statement of Bradley Richmond dated 17 June 2020
5 Witness statement of Bradley Richmond dated 17 June 2020 at [31-32]
6 Ibid at [41-42]
7 Attachment BR9 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
8 Attachment BR11 of Witness statement of Bradley Richmond dated 17 June 2020 Exhibit A1
9 Taken to mean the Storage Services and Wholesale Award 2010
10 Witness statement of Bradley Richmond dated 17 June 2020 at [53] Exhibit A1
11 Witness statement of Rob Volarich dated 9 June 2020 Exhibit R1
12 Attachment RV1 of Witness Statement of Rob Volarich dated 9 June 2020 Exhibit R1
13 Witness statement of Bradley Richmond dated 17 June 2020 at [57]
14 Ibid at [60]
15 Witness statement of Sarah Russell dated 9 June 2020 Exhibit R2
16 Attachment SR2 of Witness Statement of Sarah Russell dated 9 June 2020 Exhibit R2
17 Attachment SR3 of Witness Statement of Sarah Russell dated 9 June 2020 Exhibit R2
18 Witness statement of Sarah Russell dated 9 June 2020 Exhibit R2 at [19-22]
19 Written submissions of the Respondent dated 9 June 2020 at [17]
20 Attachment BR2 to Witness statement of Bradley Richmond dated 17 June 2020
21 [2010] FWFB 5709
24 See payslips attached to Witness Statement of Bradley Richmond dated 17 June 2020 Exhibit A1 at BR2
25 See email from Hosannah Sale of 6 December 2019 at SR3 and email from Alannah Cain at SR4 of Witness Statement of Ms Russell
26 Witness statement of Ms Russell at [13] and [16]
27 Ibid at [22]
28 Witness statement at [53]
29 Ibid at [58]
30 Ibid at [64]
31 See comments of Lucev J referring to clear and unambiguous resignation in Strydom v CBD Refrigeration & Air Conditioning Pty Ltd & Ors [2019] FCCA 1444 at [87]
32 This alleged comment was not disputed by APS
33 Burns v Aboriginal Legal Service of Western Australia (Inc.), Print T3496, [24], 21 November 2000 (Williams SDP, Acton SDP, Gregor C)
34 While at common law a casual employee’s contract of employment ceases at the end of each engagement, see comments of the majority in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [71] “Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 386(2)(a)”.