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[2013] FWC 1062
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Wendy Bradford
v
Toll Personnel Pty Ltd T/A Toll Ipec
(U2012/12939)
COMMISSIONER GREGORY MELBOURNE, 29 APRIL 2013
No Dismissal and Resignation.
Introduction
[1] This matter concerns an application by Ms Wendy Bradford (the Applicant) under
s.394 of the Fair Work Act 2009 (the Act) alleging she has been unfairly dismissed by Toll
Personnel Pty Ltd T/A Toll IPEC (the Respondent). A jurisdictional objection was raised in
response by the Respondent. It was subsequently agreed by the parties that the submissions
and evidence in regard to both issues covered much of the same ground and the matter would
proceed in the normal course, commencing with the evidence relied on by the Applicant.
Leave was granted to Mr G. Dircks to appear on behalf of the Applicant and to Mr L.
Connolly to appear on behalf of the Respondent.
The Issue to be Determined
[2] Section 385 “What is an unfair dismissal” of the Act relevantly provides:
“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”i.
[3] The Respondent submits the Applicant has not been dismissed, as required by
s.385(a), and therefore there can be no unfair dismissal. It submits the Applicant was a casual
employee, employed by a labour hire company, whose placement at a client of the business
had come to an end. The Applicant continued to be an employee of the labour hire business
whom it looked to place elsewhere. However, she subsequently ended the relationship at her
own volition.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 1062
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[4] The Applicant rejects this view. It submits the Applicant was dismissed and this
occurred as a consequence of her assignment or placement with the host business coming to
an end.
[5] The issue to be determined at the outset is accordingly whether the Applicant “has
been dismissed” as required by s.385(a) of the Act. If I find the Applicant has not been
“dismissed” by the Respondent then the application must be dismissed. Conversely, if I find
she has been dismissed by the Respondent then it remains to be determined whether the
dismissal was “harsh, unjust or unreasonable.”
Submissions and Evidence
[6] In December 2004 the Applicant was assigned to Victoria Express to carry out a range
of data entry functions. In June 2008 Toll/IPEC acquired Victoria Express and the business
operated from then as Victoria Express/Toll IPEC. The Applicant’s employer from that point
was another labour hire/recruitment company, Toll Personnel, a division of Toll Holdings
established in 2004 to bring the use of the labour hire employees “in-house” to businesses
within the Toll Holdings group. It also provides labour hire services to some external clients.
[7] Mr Robert Stojevski is employed by Toll Personnel as the Branch Manager at its
Dandenong site. His evidence indicated at the time Toll Personnel took over as the labour hire
provider at Victoria Express/Toll IPEC there was no agreement to recognise continuity of
service. Employees were required to apply for employment with Toll Personnel and undergo
an interview and assessment process. The Applicant was subsequently offered a casual
position, which she accepted, and signed a document setting out the terms and conditions
under which she was employed. That document included the following clauses:
“1 – My employment with Toll Personnel is on a casual basis. I understand I may accept
or reject any offer of employment made by Toll Personnel, and upon completion of an
assignment, Toll Personnel is under no obligation to offer further assignments to me.
2 – I acknowledge that Toll Personnel does not control the length of an assignment. I
accept that Toll Personnel’s sites may vary the duration of any assignment at four (4)
hours notice. Upon accepting an assignment for a specific period of time, I agree to
complete that assignment.
...
5 – I am paid by Toll Personnel on an hourly rate basis according to my classification
under the appropriate site EBA or Toll Personnel EBA, whichever is higher.
...
10 – I understand and accept that Toll Personnel shall pay me for a minimum of four
(4) hours (or such other period as stipulated under the relevant award or EBA) on any
assignment.”ii
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[8] On 7 July 2012 the Applicant fractured her wrist when she slipped and fell in an
accident unrelated to her employment. This meant she was unable to work for a period of
time. She informed the Manager at Victoria Express/Toll IPEC about this situation and was
contacted on the following day by her Manager, Ms Lynne Charles, and later by Mr Joe
O’Loughlin, a Recruitment Consultant at Toll Personnel.
[9] On 24 August 2012 Toll Personnel informed the Applicant that her placement at
Victoria Express/Toll IPEC was to end. This occurred because Victoria Express/Toll IPEC
decided to restructure the customer service team in Dandenong, where the Applicant was
located, and for that work to be relocated and absorbed into the work performed at the Altona
head office. The Respondent submits that when the Applicant was told her placement at
Dandenong was to end she was also told Toll Personnel would look for opportunities for her
for redeployment elsewhere when fit to resume work.
[10] In his evidence Mr O’Loughlin said he contacted the Applicant on 9 July after hearing
of her accident. A file note made at the time indicated he told her she should take as much
time as needed to recover, and that a medical clearance would be required before she could
return to work. On 24 August he again spoke to the Applicant by telephone to inform her
about the restructure, indicating she was to make contact when fit to return to work and he
would look to find work elsewhere. He told the Applicant she remained an employee of Toll
Personnel and did not refer at any stage to her being dismissed or terminated. He also
questioned the Applicant’s recollection of the discussion, particularly comments about her age
and the difficulty of finding work. When the Applicant raised issues about her age he said “we
don’t discriminate”iii, and any decision about redeployment elsewhere would be based on
ability and experience.
[11] On 27 August the Applicant sent an email to Mr O’Loughlin, which was copied to Ms
Charles, her Manager at Victoria Express/Toll IPEC. It stated:
“Hi Joe, please excuse my disjointed typing – one-handed – still!!
To enable me to draw down on my superannuation my accountant is requesting in
writing a summary of our conversation on Friday, in that I was told on Friday 24th that
I am no longer employed by Toll.
I would appreciate this brief email confirming the above as soon as possible please, so
as I can start receiving some of my superannuation as I have not received any income
for over seven weeks. I know you will understand.
Many thanks in anticipation.
Wendy Bradford.”iv
[2013] FWC 1062
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[12] Mr O’Loughlin said he was surprised to receive the email because he had not said the
Applicant was no longer employed by Toll Personnel. He subsequently telephoned her again
to discuss the situation. The Applicant again indicated she wanted to access her
superannuation and to do so required confirmation she was no longer a Toll Personnel
employee. He said he didn’t try to persuade her to do otherwise out of concern for her and the
injury she had sustained, and her desire to gain access to her superannuation entitlements. He
accordingly indicated an Employment Separation Certificate would be sent to her, and the
Applicant made contact again later the following day to confirm when she could expect to
receive this document.
[13] Mr O’Loughlin refuted the suggestion the Applicant was dismissed because of her age
and the injury she had sustained. Whilst it prevented her from being placed with a client in the
short term it was his intention work be found for her elsewhere once medically cleared to
resume. It was instead, in his view, the Applicant’s conduct that ended the employment
relationship.
[14] Mr O’Loughlin indicated in cross-examination the Applicant was:
“...a fantastic worker.”v
[15] He also stated:
“I would have worked very hard to find her something and I am confident I would
have.”vi
[16] He also indicated the Applicant had asked to be sent an email indicating she had been
“fired”vii. However, he considered she remained an employee and only provided the
Employment Separation Certificate because of her desire to access her superannuation
entitlements.
[17] Ms Lynne Charles is employed by Victoria Express/Toll IPEC as the Administration
and Data Manager. She commenced with Victoria Express in 1992. The August 2012
restructure involved the removal of all day casual work from the customer service area at
Dandenong, with this work being taken on or “absorbed” by existing employees at the Altona
head office. Three other casual placements also ended as a consequence of the restructure. Ms
Charles contacted the Applicant on 24 August to confirm this situation. She told the Applicant
how sorry she was, given the Applicant’s long service and excellent employment record. She
did not believe the Applicant’s employment with Toll Personnel had ended, but that her
current placement had finished. It was her understanding Toll Personnel would find work
elsewhere for her. She subsequently prepared a reference on Company letterhead at the
Applicant’s request, being unaware of her employer’s policy not to provide references. She
used the words “employment ceased”viii in the reference, but acknowledged those words
should not have been included.
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[18] Ms Sylvia Jalovec is the Payroll Team Leader at Toll Personnel. She said the
Separation Certificate provided to the Applicant was marked “shortage of work”ix, however,
she stated Payroll had not been told the Applicant’s employment had ceased. The Applicant
was instead listed as “active,” meaning the person is looking for work and still active in Toll’s
personnel system. The provision of Separation Certificates and the notation “shortage of
work” was instead used so as to assist in accessing Centrelink payments until such time as
another assignment was found.
[19] The Applicant’s evidence confirmed she fractured her wrist in an accident on 7 July
2012. She left a voicemail message the following day indicating she would be off work for a
period of time as a result. She confirmed she was contacted by Ms Charles and Mr
O’Loughlin the following day, with the latter indicating she should obtain a doctor’s
certificate when clear to return to work. He contacted her again on 24 August to advise of the
restructure, indicating he would look to find other work when she was fit to resume. However,
the Applicant believed she had been dismissed because of the injury she sustained and her
age. She denies she brought the employment relationship to an end by her actions.
[20] The Applicant also stated she was not aware of what an Employment Separation
Certificate was and so would not have asked for one to be provided. However, she
acknowledged in cross-examination Mr O’Loughlin did not say she had been “terminated” or
“dismissed” in the discussions on 24 August. She also agreed he told her as soon as she was
fit to return to work he would look to find something for her at another location, and that
redeployment was about ability and experience, and not a person’s age. She also agreed she
initiated the discussions on 27 August because she wanted written confirmation of what had
occurred.
Consideration
[21] The Applicant submits the Respondent is asking the Tribunal to make a new principle
in relation to casual employment; that a casual can be removed from a long held position, but
providing the prospect of future work elsewhere is held out, then there is no termination of
employment. Accordingly, in the context of a relationship where an employee has worked for
a labour hire company, and may work for that company again at some point in the future, an
ongoing employment relationship continues to exist that has not been brought to an end.
[22] The Applicant rejects that interpretation of what has occurred in this matter. It submits
the Applicant was contacted by her employer and told her job, as well as those of other
casuals at Victoria Express/Toll IPEC, had come to an end. She was therefore terminated at
the initiative of the employer. The Applicant did not continue to be an employee of the
Respondent at that point and did not act to bring the relationship to an end when requesting
confirmation of what had occurred, apparently in order to access her superannuation
entitlements. It submits the terms and conditions of the employment document which the
Applicant signed support that view. Clause 1 indicates:
“My employment with Toll Personnel is on a casual basis. I understand I may accept or
reject any offer of employment made by Toll Personnel, and upon completion of an
assignment, Toll Personnel is under no obligation to offer further assignments to me.”x
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[23] In the Applicant’s submission this simply makes clear that at the end of each
assignment there is no ongoing employment relationship beyond that point and no consequent
obligation to offer further work. It submitted:
“There seems to be no ambiguity. The applicant was told that her casual position was
no longer available to her at the current site and that no admin positions, whether
casual or permanent, would be available at the Dandenong site. There had been no
discussion about the matter, which was presented as a fait accompli. There was no
discussion about following the work that went to the Toll Altona site. The applicant
had the message confirmed to her by her workmates, including the supervisor, and the
email WB4 speaks for itself. There’s no request in that email to do anything untoward
or to falsify the situation. The applicant is merely seeking confirmation in writing of
the conversation they actually had, which was to her understanding that she no longer
had the job. That was not disputed.”xi
[24] The Respondent submits in the alternative there was no termination of employment at
its instigation. The Applicant was employed by a labour hire company, Toll Personnel, and
had been placed at Victoria Express/Toll IPEC. In this case the placement had ended but the
Applicant’s employment with Toll Personnel had not.
[25] The Respondent acknowledges some things occurred that were inconsistent with the
ongoing nature of the relationship, but were done to try and assist the Applicant. It was
questionable whether a Separation Certificate referring to “shortage of work” should have
been provided. The same applied in the case of the reference. The employer’s policy was to
not provide references and, in any case, the reference should not have referred to
“employment ceasing”. Regardless, it submits there was no action taken by it to end the
employment relationship until the action initiated by the Applicant.
[26] Both parties made reference to various decisions in support of their submissions. The
Applicant referred to the decision of Commissioner Smith in the matter of Diana Sherwin v
Adesse Pty Ltdxii (Sherwin) which involved an employee of a labour hire company whose
roster was varied in stages leaving her first with reduced hours and eventually without any
rostered hours. A period of more than six months then elapsed before the employer was in
contact again to offer further work. The Applicant relied, in particular, on the statement of
Commissioner Smith, as he was then, at paragraph 14 of the decision:
“It is trite to also state that there can be a termination of employment at the initiative of
the employer when operational reasons dictate that a reduction in staffing levels is
warranted. In this case that is said to be the reason. That in itself constitutes a
termination at the initiative of the employer.”xiii
[27] The Commissioner had previously stated at paragraph 9:
“The key issue is whether or not the act of the employer resulted directly or
consequently in the termination of the employment.”xiv
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[28] And in the following paragraph:
“Termination can apply where work is not offered to a casual employee in
circumstances where it is available and all things being equal the person could expect
to be offered that work.”xv
[29] He continued in the following paragraph:
“There does come a time when, if a person is not offered work, there can be a
presumption that the employer no longer wishes that person to do the work. Some
uncertainty might arise over a short period as to available work but the longer the
period the more an employee is entitled to believe that they are not going to be offered
work.”xvi
[30] The Respondent sought to distinguish that matter on the basis that six months had
elapsed without any work being offered to the employee, whereas in the present case it had
been in immediate contact offering to look for other placements, once the Applicant was fit to
resume work. There are other important distinctions as well. The Applicant, Ms Sherwin, was
employed on a casual basis by a labour hire company. Her roster at the hospital where she
was placed was at first varied to reduce the available hours of work. It was later varied again
to remove her from the roster completely in circumstances where casual work was still clearly
available and being offered to other employees. This occurred because the host business had
asked the labour hire employer to stop placing Ms Sherwin with the business. In addition, it
was not until 6 months later that her employer, the labour hire company, was again in contact
to offer other work. Commissioner Smith accordingly concluded in paragraph 13:
“It is not necessary to decide with any precision the length of time which might
constitute a termination in circumstances where there has be (sic) a failure to offer
work, but in my view a period of six months is too long to expect an employee to
wait.”xvii
[31] Those circumstances can be contrasted with the present matter. In this case the
employee’s placement came to an end because of a decision taken by the business in which
she was placed to end the use of casuals in data entry work at that location. Once this became
evident the labour hire employer indicated to the Applicant that once fit to resume work it
would look to find work for her elsewhere. There is no evidence it acted to end the placement
at Victoria Express/Toll IPEC, or acted to delay looking for other opportunities when that
placement came to an end.
[32] Whilst the Applicant seeks to rely on the decision in Sherwin the extracts from
paragraphs 11 and 13 suggest Commissioner Smith acknowledged, in some circumstances,
there can be a period of time in which a casual employee is not working, yet the employment
relationship continues. The Commissioner was clearly of the view six months without an offer
of work was “too long to expect an employee to wait”xviii, but the situation was less certain in
regard to whether an employee had been terminated or not in circumstances involving a
shorter period of time.
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[33] The Applicant next referred to the decision Deputy President Duncan in S. Andrevska
and B. Naumovska v Lansdowne Motor Innxix. That matter involved two casual employees
who had worked on a casual basis for nine years and 18 months respectively. Both were left
off the roster for a period and marked “as required”.
[34] Deputy President Duncan held:
“For the applicants to succeed they must first establish that they were dismissed. They
say, in effect, that management brought about the termination of their employment by
not offering them work.”xx
[35] He continued:
“I find that the action of the employer resulted consequentially in the termination of
both Ms Andrevska and Ms Naumovska. The reasons for my so finding are as follows:
There is no distinction in the circumstances of the two women. Each had had a pattern
of work established over a considerable period of time. Each was suddenly confronted
with a change in that pattern which caused them to leave their employment. That
change was to deprive them of work for a period of at least three weeks without
discussing and explaining the change before it was to be implemented.”xxi
[36] However, again the circumstances in that matter are different. The two employees
were directly employed on a casual basis by the respondent employer and not placed or
assigned to that business by a labour hire company. Deputy President Duncan concluded it
was the action of the employer in that case that had unilaterally changed the employees’
established pattern of work and caused them to seek work elsewhere, effectively meaning the
employer had acted to terminate their employment.
[37] The Applicant also relied on a further decision of then Commissioner Smith in the
matter of Peter Shevchenko v Tip Top Bakeriesxxii (Shevchenko). In that case the employer
reduced the hours it provided over time to a casual employee to the point where the employee
found it necessary to seek work elsewhere, indicating at the same time he continued to be
available for casual work on Sunday. The employer gave evidence it reduced the available
hours because the employee was only prepared to work when penalty rate shifts were
available, and not at other times, and it wanted to share the available shifts across the roster
among all employees. It argued the employee had not been dismissed, but had acted to
terminate his employment by restricting his availability to a time when the employer would
not engage him. Commissioner Smith did not criticise the rationale behind the employer’s
decision. Nevertheless he found the decision effectively meant the Applicant had been
terminated at the initiative of the employer because of its decision to no longer offer work to
him.
[38] The circumstances in that matter are again different in several respects. Firstly, it did
not involve an employee employed and placed by a labour hire company. Secondly, the
employer had made a conscious decision to withdraw offers of casual employment to the
Applicant in circumstances where work was still available and being offered to other casual
employees.
[2013] FWC 1062
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[39] The Respondent made reference to another decision of a single member of the
Tribunal, which it submits encapsulates the circumstances that need to be considered when
dealing, in particular, with labour hire arrangements. It also submits the decision addresses
two questions that must be answered in dealing with this matter. Firstly, who is the employer,
which it submits in the present matter is “crystal clear” and, secondly, to again use the
Respondent’s own words:
“Did that employer terminate her employment in the scenario of a labour hire
arrangement?”xxiii
[40] The matter of Mr David Tse v Ready Workforce (a division of Chandler Macleod) Pty
Ltdxxiv (David Tse) involved an application pursuant to section 365 of the Act. However, as
Commissioner Cloghan noted in his decision for a certificate to be issued pursuant to s.369 of
the Act it is a necessary prerequisite that the “person has been dismissed.”xxv That issue was
accordingly required to be determined at the outset.
[41] The Applicant commenced employment with Ready Workforce, a labour hire
company, in April 2009 and was subsequently placed or “deployed” with an airline company.
After a series of incidents the host business requested the Applicant no longer be placed with
them. The Applicant’s employer, the labour hire company, subsequently attempted to contact
the Applicant to discuss this situation, but was unable to make contact. It instead forwarded
an email indicating the current placement had been “closed” and it would be in contact again
to:
“...offer you any suitable work when it becomes available.”xxvi
[42] It subsequently attempted to contact the Applicant again by telephone and email to
offer further assignments elsewhere but again the Applicant did not respond.
[43] The Applicant’s contract of employment contained the following clauses.
“ Clause 1 – ‘My employment with Chandler Macleod is as a casual labour-hire
employee, and as such I may from time to time be placed on assignment to provide
services for the benefits of customers of Chandler Macleod (each an “Assignment”
with a “Customer”), with each sift constituting a discrete period of employment.’
Clause 2 – ‘I understand that Chandler Macleod does not control the length of any
Assignment and I accept that, while Chandler Macleod may indicate the potential
length of an Assignment in good faith, the Customer may vary the length of the
Assignment or terminate my attendance at its absolute discretion.’
Clause 3 – ‘I accept that if a Customer varies the length of an assignment period or
terminates my attendance at an assignment as contemplated in clause 2, Chandler
Macleod has the right, at its discretion, to discontinue my employment.’”xxvii
[44] The Applicant argued that because the Respondent had ended his assignment with the
airline company the Respondent had effectively dismissed the Applicant.
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[45] In his decision Commissioner Cloghan held:
“I find that the Applicant entered into a contract of employment on an unqualified
acceptance basis. The terms of the contract are clear and include:
his employment is with a labour hire company;
his employment is as a casual labour hire employee;
his employment was by way of Assignment to clients of the Employer;
the length of any Assignment was uncertain and at the absolute discretion of clients
of the Employer;
notwithstanding continuation of a labour hire contract between the Employer and its
client, the client can terminate the Assignment of individual employees at its
absolute discretion; and
should the Employer’s contract with its client cease or vary, or a client terminates the
Assignment of an individual employee, the Employer can terminate the employment
of that employee.”xxviii
[46] He concluded:
“Consistent with these expressed terms of Mr Tse’s contract, I find that Q Catering
requested the Employer to no longer assign the Applicant to its work area. Having
made the request, the Employer advised Mr Tse that his assignment to Q Catering had
ceased and would contact him when suitable work becomes available. While such a
phrase is full of uncertainty, and could be interpreted as disingenuous and a
meaningless attempt to pacify the Applicant, the Employer could have exercised its
discretion to discontinue its employment relationship with Mr Tse immediately.
The Applicant has not contested the Employer’s assertion that since the cessation of
Mr Tse’s assignment, it has, ‘attempted to telephone Mr Tse on a number of occasions
about further assignments [based on his skill set] but since Mr Tse has not responded
to these telephone calls CMG [the Employer] has been emailing Mr Tse these
assignments’.
Having considered all the above matters, I find that Mr Tse was not dismissed from his
employment but had his assignment with Q Catering discontinued in accordance with
the express provisions of his contract of employment.
Further, given the nature of Mr Tse’s contract of employment, I find that it continues
to exist, albeit only enlivened when a mutually tripartite (Employer, client and
employee) assignment is found.”xxix
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[47] Having found the Applicant had not been dismissed Commissioner Cloghan concluded
the application pursuant to s.365 was not within jurisdiction.
[48] The Respondent’s written submissions also make reference to the decision of the Full
Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltdxxx (Mohazab) where
it considered at length what constituted “termination at the initiative of the employer”. At
page 7 of the decision the Full Court held:
“It is necessary to consider the ordinary meaning of the expression "termination at the
initiative of the employer" in context in the Convention having regard to its object and
purpose. The word "initiative" is relevantly defined in the New Shorter Oxford
Dictionary in the following way:
‘initiative 1. The action of initiating something or of taking the first step or the
lead; an act setting a process or chain of events in motion; an independent or
enterprising act.’
and in the Concise Macquarie Dictionary in the following way:
‘initiative 1. an introductory act or step; leading action; to take the initiative. 2.
Readiness and ability in initiating action; enterprise: to lack initiative.’
These definitions reflect the ordinary meaning of the word "initiative". Viewed as a
whole, the Convention is plainly intended to protect workers from termination by the
employer unless there is a valid reason for termination. It addresses the termination of
the employment relationship by the employer. It accords with the purpose of the
Convention to treat the expression "termination at the initiative of the employer" as a
reference to a termination that is brought about by an employer and which is not
agreed to by the employee. Consistent with the ordinary meaning of the expression in
the Convention, a termination of employment at the initiative of the employer may be
treated as a termination in which the action of the employer is the principal
contributing factor which leads to the termination of the employment relationship.
We proceed on the basis that the termination of the employment relationship is what is
comprehended by the expression termination of employment: Siagen v Sanel [1994]
IRCA 2; (1994) 122 ALR 333 at 351; [1994] IRCA 2; (1994) 1 IRCR 1 at 19. In
many, if not most, situations the act of the employer that terminates the employment
relationship is not only the act that puts in train the process leading to its termination
but is, in substance, the entire process. An example would be a situation where the
employer decided to dismiss an employee and did so orally or in writing with
immediate effect. Other situations may be more complex as exemplified by the
circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 125
ALR 355 where an employee had given written notice purporting to terminate the
employment relationship.
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The notice was not reasonable but was accepted by the employer which later refused
to allow the employee to withdraw the notice. A question arose as to whether that was
a termination of the employment at the initiative of the employer and his Honour held
it was. His Honour said at 372:
‘I have already said that Div 3 concerns termination at the initiative of the
employer. The respondent submits that 'initiate' means 'to begin, commence,
enter upon; to introduce, set going, or initiate': see Shorter Oxford English
Dictionary. In this matter, it is submitted, it was the applicant and not the
respondent that initiated the termination by writing the letter of 18 May. This,
in my opinion, gives the expression 'termination' in the Act, read in conjunction
with Art 3 of the Convention which speaks of 'termination ... at the initiative of
the employer', a narrow meaning that was not intended. A principal purpose, if
not the sole purpose, of Div 3 is to provide an employee with a right to seek a
remedy in circumstances where the employee did not voluntarily leave the
employment. An employee may do some act which is the first in a chain of
events that leads to termination. An example would be an employee who
engaged in misconduct at work which ultimately led to the employer
dismissing the employee. However, that situation and the present are not
situations where the termination was at the initiative of the employee. In both
instances the step or steps that effectively terminated the employment or
purported to do so were taken by the employer.’
In these proceedings it is unnecessary and undesirable to endeavour to formulate an
exhaustive description of what is termination at the initiative of the employer but
plainly an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship
is not voluntarily left by the employee. That is, had the employer not taken the action
it did, the employee would have remained in the employment relationship.”xxxi
[49] The Applicant’s submissions also make reference to a Full Bench decision of the
Australian Industrial Relations Commission when it considered the meaning of the expression
“termination at the initiative of the employer.” In the decision O’Meara v Stanley Works Pty
Ltdxxxii (O’Meara) the Full Bench held:
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“In our view the full statement of reasons in Mohazab which we have set out together
with the further explanation by Moore J in Rheinberger and the decisions of Full
Benches of this Commission in Pawel and ABB Engineering require that there to be
some action on the part of the employer which is either intended to bring the
employment to an end or has the probable result of bringing the employment
relationship to an end. It is not simply a question of whether “the act of the employer
[resulted] directly or consequentially in the termination of the employment.”
Decisions which adopt the shorter formulation of the reasons for decision should be
treated with some caution as they may not give full weight to the decision in Mohazab.
In determining whether a termination was at the initiative of the employer an objective
analysis of the employer’s conduct is required to determine whether it was of such a
nature that resignation was the probable result or that the appellant had no effective or
real choice but to resign.”xxxiii
[50] The Respondent’s submissions also refer to the decision in Pawel v Advanced Precast
Pty Ltdxxxiv (Pawel) and the Full Bench’s conclusions about the need to consider all of the
circumstances involved:
“It is plain that the Full Court in Mohazab considered that an important feature in the
question of whether termination is at the initiative of the employer is whether the act of
an employer results directly or consequentially in the termination of the employment
and that the employment relationship is not voluntarily left by the employee. However,
it is to be noted that the Full Court described it as an important feature. It plainly
cannot be the only feature. An example will serve to illustrate this point. Suppose an
employee wants a pay rise and makes such a request of his or her employer. If the
employer declines and the employee, feeling dissatisfied resigns, can the resignation be
said to be a termination at the initiative of the employer? We do not think it can and
yet it can be said that the act of the employer i.e. refusing the pay rise, has at least
consequentially resulted in the termination of the employment. This situation may be
contrasted with the position where an employee is told to resign or he or she will be
terminated. We think that all of the circumstances and not only the act of the employer
must be examined. These in our view, will include the circumstances giving rise to the
termination, the seriousness of the issues involved and the respective conduct of the
employer and the employee.”xxxv
[51] The Respondent accordingly submits the onus rests on the Applicant to establish she
was dismissed, and its bona fide attempts to redeploy her when fit to return to work are
further evidenced by its redeployment of two other employees whose placements also ended
as part of the restructure.
[52] The decision in Mohazab indicates an important aspect of determining “termination at
the initiative of the employer” is whether the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship is not
left voluntarily by the employee. The decision in Pawel also indicates that:
“...all of the circumstances and not only the act of the employer must be examined.”xxxvi
[2013] FWC 1062
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[53] In the present matter it was not the act of the employer, Toll Personnel, at first instance
that led to the Applicant’s placement at Victoria Express/Toll IPEC coming to an end. It was
instead the decision by Victoria Express/Toll IPEC to restructure its operations that ended her
placement at that location. It decided it no longer required casual employees to carry out data
entry functions at the Dandenong site. That work was instead transferred and “absorbed” into
the Altona head office functions. If not for this decision, and the Applicant being cleared fit to
resume work, she would still presumably be working at the Dandenong site. She was
apparently well liked and a “fantastic worker” according to her labour hire employer. There is
nothing to suggest her placement would not have continued but for that decision.
[54] How did her employer react to the decision by Victoria Express/Toll IPEC? The
evidence of Mr O’Loughlin from Toll Personnel is that he made contact with the Applicant at
the time and indicated he would seek work elsewhere for her when she was fit to resume. Her
Manager at Victoria Express/Toll IPEC also told her she understood her employment with
Toll Personnel had not ended and it would find work for her elsewhere. After an exchange of
emails Mr O’Loughlin did provide an Employment Separation Certificate. Ms Charles also
provided her with a reference, although as it subsequently transpired this was in breach of her
employer’s policy. Both these actions were highlighted by the Applicant as evidence of
actions consistent with her employment having been terminated. However, they can also be
construed as attempts to assist a long-standing and valued employee, who had already been
off work for some time due to the injury she sustained away from work. Whilst the legitimacy
of the practice of providing an Employment Separation Certificate to a person who is still “on
the books” can be questioned, the reason why this occurred can also be understood and
acknowledged.
[55] In addition, the circumstances are not inconsistent with the terms and conditions of
employment the Applicant entered into and apparently accepted in 2008, although it is
acknowledged she had little subsequent recollection about signing that document or about its
content. Clauses 1 and 2 of that document are, in fact, similar in wording and intent to the
employment contract entered into by the employee in the matter of David Tse and Ready
Workforce. Regardless, I am not satisfied those provisions are conclusive of the matter in the
manner suggested by the Applicant. The wording in Clause 1 indicates, on the one hand, the
Employee can accept or reject placements offered. Secondly, once an assignment has been
completed the Employer is under no obligation to offer further assignments to the Employee.
If, in fact, the Employer did nothing to find and offer other work at the conclusion of a
placement then, as Commissioner Smith found in the matter of Sherwin, this will likely be
construed as the Employer having acted to terminate the Employee. But that is not the
situation in the present matter. The Employer in this case has consistently indicated the
Applicant was a valued employee and it would look to find work elsewhere for her as soon as
she was medically fit to resume.
[2013] FWC 1062
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[56] In all the circumstances I am not satisfied the Applicant has been dismissed by the
Respondent. At the time the Applicant was already off work because of the injury she had
sustained. Her employer, the Respondent, had subsequently been in contact to clarify a
medical clearance would be required before she could resume. This was consistent with its
view a continuing and ongoing employment relationship existed. After the decision taken by
the host business the Respondent was again in immediate contact with the Applicant,
indicating once fit to return to work it would look to find work elsewhere for her. Her work
performance was praised and nothing was put to persuade that the employer was not genuine
in this regard. The actions of the Respondent can be distinguished from those in the matter of
Sherwin where the employer did nothing for more than six months to find other work
opportunities for a casual employee whose placement was no longer wanted by the host
business.
[57] I am satisfied the circumstances in this matter have more in common with those
considered and dealt with by Commissioner Cloghan in the matter of David Tse and Ready
Workforce. In both cases the terms of the employee’s engagement were set out in writing. In
both cases, albeit for different reasons, the Applicant’s placement in the host business had
ended. Again, the employer in each case had been in contact immediately to foreshadow
future work opportunities elsewhere. In all the circumstances I am accordingly satisfied, as
was Commissioner Cloghan in similar circumstances in the matter of David Tse, that the
Applicant in the present matter was not terminated by her employer, Toll Personnel. Her
current assignment was instead discontinued, however, her employer remained ready to find
work elsewhere when the Applicant was medically cleared fit to resume work.
[58] In coming to this decision it should not necessarily be construed as having wider
implications. As the Full Court indicated in Pawel the question of whether a termination is at
the instigation of the employer is a matter to be determined in the circumstances of each case.
This matter involved an employee of a labour hire company. Clearly there will be situations,
as Commissioner Smith found in Sherwin, where the action or indeed inaction, of a labour
hire employer in a particular matter can be construed as having acted to terminate an
employee’s employment. However, in the present matter, for all the reasons indicated, I find
the Applicant has not been dismissed by the Respondent. The application is accordingly
dismissed.
Appearances:
G. Dircks of Just Relations on behalf of the Applicant.
L. Connolly of Mills Oakley Lawyers on behalf of the Respondent.
ORK COMMISSION SEAL OF FAIR AUSTRALIA THE MMISSIONER
[2013] FWC 1062
16
Hearing details:
2012.
Melbourne:
12 December.
Final written submissions:
Applicant filed additional submissions on 12 December 2012.
Printed by authority of the Commonwealth Government Printer
Price code C, PR534125
i Fair Work Act 2009 (Cth) at s.385.
ii Exhibit C1; Attachment RS1 at page 15.
iii Exhibit C2 at para 15 and 17.
iv Ibid; Attachment JO3 at page 3.
v Transcript at PN565.
vi Transcript at PN571.
vii Transcript at PN616.
viii Transcript at PN706.
ix Transcript at PN794.
x Above n.2.
xi Transcript at PN871.
xii [2008] AIRC 900.
xiii Ibid at para 14.
xiv Ibid at para 9.
xv Ibid at para 10.
xvi Ibid at para 11.
xvii Ibid.
xviii Ibid.
xix Dec 1507/97 S Print P7333.
xx Ibid at para 11.
xxi Ibid at para 12-13.
xxii PR972070.
xxiii Transcript at PN918.
xxiv [2010] FWA 8751.
xxv Ibid at para 7.
xxvi Ibid at para 22.
xxvii Ibid at para 27.
xxviii Ibid at para 48.
xxix Ibid at paras 49 – 52.
xxx (1995) IRCA 645.
xxxi Ibid at page 7.
xxxii PR973462.
[2013] FWC 1062
17
xxxiii Ibid at 23.
xxxiv Dec 526/00 M Print S5904.
xxxv Ibid at para 13.
xxxvi Ibid.
