1
Fair Work Act 2009
s.365—General protections
Joel Amey
v
Organic Life Distribution Pty Ltd
(C2023/2157)
DEPUTY PRESIDENT LAKE BRISBANE, 13 NOVEMBER 2023
Application to deal with contraventions involving dismissal – jurisdictional objection –
applicant not dismissed – authority to act – out of hours conduct – jurisdictional objection
dismissed.
[1] Mr Joel Amey (the Applicant) lodged a general protections application involving
dismissal to the Fair Work Commission (the Commission) on 17 April 2023. The Applicant
claimed that adverse action was taken against him by Organic Life Distribution Pty Ltd (the
Respondent) under ss.340 and 344 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed.
The Applicant submitted that the Applicant was dismissed because of the General Manager’s
behaviour.
[3] For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant
will need to establish that he was dismissed in accordance with the definition in s.386 of the
Act.
[4] The matter was heard by Microsoft Teams on 24 August 2023.
Background
[5] The Applicant commenced employment with the Respondent on 12 December 2022 as
a warehouse manager on a part-time business. On 3 January 2023, the Applicant commenced
in the role of delivery driver on a full-time basis.
[6] On 14 February 2023, the Applicant sustained a workplace injury while making a
delivery. The Applicant made a workers compensation claim. The Respondent was not insured
in Queensland where the Applicant resides and stated that they were not aware that the company
required coverage in Queensland as they predominantly operate in New South Wales.
[7] On 16 March 2023, Mr Byron Scott (General Manager of the Respondent) had requested
to attend the Applicant’s GP appointment, to which the Applicant consented.
[2023] FWC 2892
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2892
2
[8] On 20 March 2023, the Applicant returned to work on light duties as per his doctor
certificate. However, the Applicant reported experiencing pain while undertaking light duties.
[9] On 21 March 2023, the Applicant went to his GP. Mr Scott asked to be present for this
appointment. The Applicant stated that he was uncomfortable with the request.
[10] On 27 March 2023, the Applicant corresponded with Mr Yarrington (Director of the
Respondent) and Mr Scott regarding the Applicant’s ability to return to work and his
WorkCover claim. The Applicant requested all correspondence to be in writing to avoid
miscommunication.
[11] On the same day, the Applicant received two calls from Mr Scott during out of work
hours at 7:40pm and 8:11pm, which he did not pick up. Mr Scott then started sending text
messages regarding the Applicant’s workers compensation claim and stated that he would be
‘sending your last mail’.
[12] Furthermore, the Applicant received multiple messages from Mr Scott via Facebook
Messenger out of work hours, between 9:42pm to 1:07am on 28 March 2023, with a picture of
the Applicant, a link to a Spotify song ‘Liar Liar (Burn in Hell), an Instagram picture of the
Applicant holding his child and another link to a song titled ‘Bullshit’ by the Dune Rats.
[13] The Applicant submitted that he was dismissed from the Respondent on 27 March 2023
by Mr Scott and informed Workcover regarding the on 28 March 2023.
[14] On 28 March 2023, during work hours, Mr Scott sent a document to the Applicant
regarding suitable duties:
‘Good Morning Joel!
Please see attached suitable duties document. Please review and sign ASAP so we can
have this sent to the doctor and get you back to work’.
[15] The Applicant did not respond to this email and ignored Mr Scott’s calls on 31 March
2023 and 5 April 2023.
[16] On 6 April 2023, Mr Yarrington tried to contact the Applicant by phone. The Applicant
did not pick up.
[17] On 8 April 2023 at 9.38pm, Mr Scott sent the Applicant over 200 messages via
Facebook messenger which appeared to be spam minus a message such as ‘lawyer up’. Mr Scott
also sent long text messages regarding the Applicant’s lack of communication and WorkCover
claim from 10:52pm to 2:01am the next day, with concerning content involving self-harm.
[18] On 10 April 2023, the Applicant and his wife Mrs Amey reached out to Mr Yarrington
regarding Mr Scott’s messages on 27 March 2023 and 8 April 2023. On 11 April 2023, Mr
Yarrington replied to the email apologising for Mr Scott’s behaviour and stated that he did not
know about the behaviour. Mr Yarrington further noted that the Applicant was not dismissed.
[2023] FWC 2892
3
Consideration
[19] Section 365 of the Act requires a person to be dismissed to be eligible to make a General
Protections application involving dismissal.
[20] Section 386(1) of the Act relevantly provides 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.
[21] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v
Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee
to be terminated at the initiative of the employer.1 In short, it is not sufficient to simply
demonstrate that the employee did not voluntarily leave their employment.2
[22] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention.3 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.4
[23] All the circumstances – including the conduct of both the employer and employee –
must be examined.5 In other words, it must be shown 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.”6
[24] In the matter before me, the preliminary question is whether Mr Scott had the actual or
apparent authority to terminate the Applicant’s employment, and secondly whether his actions
constituted a dismissal due to their out of hours nature.
[25] In assessing out of hours conduct, the conduct must have a relevant connection to the
employment relationship.7 The conduct must be such that, viewed objectively, it is likely to
cause serious damage to the relationship between the employee and employer; or the conduct
damages the employer's interests; or the conduct is incompatible with the employee's duty as
an employee.
[26] In the case of Muga v BIC Services Pty Ltd regarding apparent authority, Deputy
President Anderson found:
“BIC submit that [the Applicant’s supervisor] did not have authority to dismiss without
reference to others. This was a proposition advanced by submission, not evidence. In
any event, this does not mean that [the Applicant’s supervisor] did not have ostensible
authority to dismiss if in fact, as I have found, he was [the Applicant]'s immediate report
and had told [the Applicant] that his employment was terminated.” 8
[2023] FWC 2892
4
[27] This case and others that examined the same question and all refer to the Applicants
acceptance of the authority of their managers dismissing them based on workplace factors such
as the Applicant’s interactions with the manager day-to-day in decision making and if they were
a part of the Applicant’s hiring process. This can be seen in Cooper v East Coaster Tasmania
where Commissioner Lee found:
“There was a contest as to whether or not [the Applicant’s supervisor] had the authority
to dismiss the Applicant in the event that the Applicant was dismissed. The Respondent
claimed that [the Applicant’s supervisor] did not have the requisite authority to dismiss
the Applicant. I do not accept that to be the case. The Applicant was referred to [the
Applicant’s supervisor] when she queried her allocation of shifts and was the
Applicant's direct supervisor. If it were the case that [the Applicant’s supervisor] had
terminated the Applicant, it is apparent she would have had the authority to do so. 9
(Emphasis added)
[28] Several cases also examine how the actions of the Respondent employer after the alleged
dismissal action affect the validity of the decision, and whether it confirmed, clarify or counter
the decision. In Papadopoulos v Automate Car Care Pty Ltd, Commissioner McKinnon found:
“Finally, I do not accept that [the Applicant’s supervisor] had no authority to dismiss
Mr Papadopoulos. At the very least, he had apparent authority in his dual roles of
Workshop Supervisor and father of the owner of the business. Just as Automate Car
Care did not seek to clarify the status of his employment with Mr Papadopoulos on or
after 22 August 2022, it made no attempt to counter the actions of [the Applicant’s
supervisor] when put on notice of the allegation that he had dismissed Mr Papadopoulos.
Automate Car Care never asserted that the actions of [the Applicant’s supervisor] were
unauthorised or that Mr Papadopoulos remained employed. I accept that Mr Jonathan
Kritikos did not want to escalate things further. However, by this inaction, the actions
of [the Applicant’s supervisor] were confirmed.” 10
(emphasis added)
[29] In this case, it was identified in Mr Yarrington’s own submissions that he was not
responsible for the day-to-day activities of the Respondent. Mr Scott was entrusted with the
apparent authority to act on behalf of the employer. This was indicative when Mr Scott provides
the rostered tasks, conducted the hiring interview and offered the letter of employment to the
Applicant. It was clear through the engagement letter that the Mr Scott had the apparent
authority to act.
[30] I do not accept that termination was at the initiative of the employer on 27 March 2023,
but instead was effective on 8 April 2023. Regarding the 27 March 2023 messages, although
Mr Scott has sent inappropriate text messages to the Applicant during his out of office hours,
there was no indication that the Applicant’s employment would be terminated at the initiative
of the employer. The conduct and behaviours of Mr Scott were ambiguous and inferential at
best. Mr Scott sent an email on the following day about getting the Applicant back to work,
indicating a continuing employment relationship.
[2023] FWC 2892
5
[31] Without communication from the Applicant, it was assumed by the Respondent that the
Applicant was still employed. There were calls made by Mr Scott on 31 March 2023 at 11.57am
and 5 April 2023 at 4.06pm. On 6 April 2023, Mr Yarrington attempted to contact the Applicant.
Despite the Applicant asserting that he would not contact the Respondent unless it was in
writing, it was also acknowledged that the Applicant did not have an intention to contact the
employer.
[32] Although Mr Yarrington may not have been made aware of Mr Scott’s conduct until it
was raised to him on 10 April 2023, Mr Yarrington would have been aware that Mr Scott was
unable to reach the Applicant, with Mr Yarrington getting involved and making a call on 6
April 2023. At this stage, the Respondent could have followed up with the Applicant via email
at any stage regarding the Applicant and his suitable duties documents. If the Applicant had
still refused to respond, I could have possibly considered that the Applicant had abandoned his
duties.
[33] On 8 April 2023, the numerous messages of concern including a reference to self-harm
would have resulted in bringing the employment relationship to an end. His out of work hours
conduct had a significant enough connection to his work by virtue of that being the only link
between him and the Applicant, and his reference to work related content like the Applicant’s
WorkCover claim. It was clear that Mr Scott’s actions resulted in the Applicant’s continuing
employment being untenable. The employment relationship appeared to have been seriously
damaged resulting from the conduct of Mr Scott.
[34] Mr Scott had been stood down after the General Protections application was lodged. Mr
Yarrington had confirmed that the Applicant was not dismissed in an email response on 11
April 2023. However, it is noted that a dismissal takes effect when the employment relationship
has ended by the employer, rather than the termination of the employment contract.11 As a
result, even though Mr Yarrington may have had no intention to dismiss the Applicant, the
employment relationship had already ended through the conduct of Mr Scott.
Conclusion
[35] The Applicant was therefore dismissed at the initiative of the employer in accordance
with s.386(1) of the Act. The matter will be programmed for conference in accordance with
s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
K. Amey on behalf of the Applicant
J. Catchpole on behalf of the Respondent from Edge Legal.
WORK MISSION THE FAIR THE SEA
[2023] FWC 2892
6
Hearing details:
24 August 2023.
Hearing via Microsoft Teams
Brisbane.
Printed by authority of the Commonwealth Government Printer
PR767916
1 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
2 Ibid.
3 Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works
Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
4 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].
5 Whirisky v DivaT Home Care [2021] FWC 650at [77].
6 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care
Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].
7 Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); see also Kedwell v Coal & Allied
Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018 (Saunders C, 9
September 2016) at para. 104.
8 [2022] FWC 1708 at [74].
9 [2019] FWC 8592 at [66].
10 [2022] FWC 2888 at [19].
11 Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 at
[33].
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc6018.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc1708.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc8592.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc2888.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc2498.htm
