[2013] FWC 1062 |
FAIR WORK COMMISSION |
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” 1.
[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.
[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.” 2
[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” 3, 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.” 4
[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.” 5
[15] He also stated:
“I would have worked very hard to find her something and I am confident I would have.” 6
[16] He also indicated the Applicant had asked to be sent an email indicating she had been “fired” 7. 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” 8 in the reference, but acknowledged those words should not have been included.
[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” 9, 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.” 10
[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.” 11
[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 Ltd 12 (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.” 13
[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.” 14
[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.” 15
[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.” 16
[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.” 17
[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” 18, 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.
[33] The Applicant next referred to the decision Deputy President Duncan in S. Andrevska and B. Naumovska v Lansdowne Motor Inn 19. 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.” 20
[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.” 21
[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 Bakeries 22 (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.
[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?” 23
[40] The matter of Mr David Tse v Ready Workforce (a division of Chandler Macleod) Pty Ltd 24 (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.”25 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.” 26
[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.’
[44] The Applicant argued that because the Respondent had ended his assignment with the airline company the Respondent had effectively dismissed the Applicant.
[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:
[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.” 29
[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 Ltd 30 (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.
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.” 31
[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 Ltd 32 (O’Meara) the Full Bench held:
“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.” 33
[50] The Respondent’s submissions also refer to the decision in Pawel v Advanced Precast Pty Ltd 34 (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.” 35
[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.” 36
[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.
[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.
COMMISSIONER
Appearances:
G. Dircks of Just Relations on behalf of the Applicant.
L. Connolly of Mills Oakley Lawyers on behalf of the Respondent.
Hearing details:
2012.
Melbourne:
12 December.
Final written submissions:
Applicant filed additional submissions on 12 December 2012.
1 Fair Work Act 2009 (Cth) at s.385.
2 Exhibit C1; Attachment RS1 at page 15.
3 Exhibit C2 at para 15 and 17.
4 Ibid; Attachment JO3 at page 3.
5 Transcript at PN565.
6 Transcript at PN571.
7 Transcript at PN616.
8 Transcript at PN706.
9 Transcript at PN794.
10 Above n.2.
11 Transcript at PN871.
12 [2008] AIRC 900.
13 Ibid at para 14.
14 Ibid at para 9.
15 Ibid at para 10.
16 Ibid at para 11.
17 Ibid.
18 Ibid.
19 Dec 1507/97 S Print P7333.
20 Ibid at para 11.
21 Ibid at para 12-13.
23 Transcript at PN918.
25 Ibid at para 7.
26 Ibid at para 22.
27 Ibid at para 27.
28 Ibid at para 48.
29 Ibid at paras 49 – 52.
30 (1995) IRCA 645.
31 Ibid at page 7.
33 Ibid at 23.
34 Dec 526/00 M Print S5904.
35 Ibid at para 13.
36 Ibid.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR534125>