| [2022] FWC 3132 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Duncan Stephen Johnson
v
PG & S Linehaul Pty Ltd
(U2022/8211)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 25 NOVEMBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the applicant was dismissed pursuant to section 386
[1] On 10 August 2022, Mr Duncan Stephen Johnson applied to the Commission for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Johnson alleges that he has been unfairly dismissed from his employment with PG & S Linehaul Pty Ltd (respondent).
[2] The respondent objects to the application on the basis that Mr Johnson was not dismissed. Accordingly, the matter proceeded to a jurisdictional hearing before me on 21 October 2022.
[3] For the reasons that follow, I find that Mr Johnson has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, the respondent’s jurisdictional objection is dismissed.
[4] The respondent is a family owned and operated transport business. Mr Johnson commenced employment with a related entity of the respondent, NPG Haulage Pty Ltd on 21 June 2018 as a MC Local B/Double local truck driver. Mr Johnson’s employment transferred to the respondent on or about 1 July 2022 with no change to his position. 1
[5] Mr Johnson performed local pick-up and delivery duties for the respondent pursuant to a contract between the respondent and Bluestar Global Logistics (Bluestar), a freight forwarding business. 2 Mr Johnson worked the day shift which involved commencing work at 9:00am and working Monday to Friday. Mr Johnson was paid an ordinary hourly rate of $28.50.3
[6] It became apparent to the respondent in or about June 2022 that the Bluestar contract would cease. 4 The respondent’s director Mr Tony Govesis gave evidence that he asked all of the respondent’s employees who worked pursuant to Bluestar contract if they would go on annual leave until he “found a way to put them all back to work.”5 Mr Johnson’s pay slip demonstrates that he took a period of annual leave in the period between 13 June and 26 June 2022.6 Following this, Mr Govesis said that Mr Johnson performed local work loading and unloading linehaul trailers7 during the period between 27 June and 10 July 2022.8 However, Mr Govesis said that this work only amounted to between four and six hours each day.9
[7] It is not in dispute that the loss of the Bluestar contract meant that the duties that Mr Johnson had been performing as a local truck driver were no longer available.
[8] Mr Johnson reported to the respondent’s Operations Manager, Mr Simon Cherry. 10 Mr Cherry said that the role that Mr Johnson was performing “came to an abrupt end with little to no notice.”11 Mr Govesis gave evidence that there was no work for Mr Johnson at the point in time that the respondent offered Mr Johnson “a linehaul position.”12 Mr Cherry said that the only role available was the “Brisbane run.”13
[9] The linehaul position, being the “Brisbane run,” was offered to Mr Johnson by way of email from Mr Govesis on 5 July 2022. The email relevantly stated: 14
“Position available within the company
Currently is Linehaul and change over jobs you are more than welcome to do that if not I will have to give you a week notice as that is how you are paid”
[10] The same day, Mr Govesis sent a supplementary email to Mr Johnson about the redeployment opportunity which provided as follows: 15
“The Position available within our [sic] company’s currently available is Linehaul and change over jobs that I have [sic] mad Duncan aware of. Duncan you are more than welcome to do this, if not I will have to give you a week notice as this is all that’s available for drivers/as you are well aware of, otherwise you give me no choice but to give you one weeks notice as that is how you are paid and this is our industry trucking.”
[11] Mr Johnson’s response to these emails was as follows: 16
“I have up until this moment not been given any options for redeployment within the company. I currently work 38-40 hour week most weeks and are interested in a [sic] the same or similar number of hours or even less. What can you offer with the changeover role? What options are you presenting for me to consider?? What are the days/hours.”
[12] Mr Govesis sent the following email in reply: 17
“Afternoon change overs to Tarcutta return
Duncan knows the job talk to Simon in the morning”
[13] On 8 July 2022, Mr Johnson sent an email to Mr Govesis which stated as follows: 18
“So after a few days of no communication and Simon Cherry knowing nothing about Tarcutta changeovers on offer, I was told late today that the only work for me is a run to Brisbane. My understanding is I leave home sometime Monday? & return sometime Friday. In effect working non stop for 5 days. This is not a suitable substitute for what I currently do.
You said that I would be on Tarcutta changeovers?
Awaiting your response.”
[14] Mr Govesis responded on 9 July 2022: 19
“Like I said in the last email Linehaul and change overs next week is Linehaul to Brisbane x Melbourne return advise if you are able to do run”
[15] On 9 July 2022, Mr Johnson sent the following email to Mr Govesis: 20
“I need more information about the Tarcutta changeovers & the Brisbane run. Is what proposed a week about? . 1 week Brisbane linehaul the next week Tarcutta?
What are my allowances, pay rate etc. When do I leave/return on the Brisbane run. When do I leave/return with Tarcutta runs. This change of conditions is not the same as the local work I currently do where I am home with my family each night and all I am asking for is honest and transparent communication.”
[16] Mr Govesis responded by stating that Mr Johnson could “call to discuss.” 21
[17] Later on 9 July 2022, Mr Johnson sent Mr Govesis a further email: 22
“After 2 phone calls on my day off from Simon Cherry I am no clearer as to what this proposed role entails. Or the future plan for me with the company. The conversation was at best vague. A run to Brisbane every week is not what you offered me initially in writing, A Tarcutta changeover run is what I accepted. Runs to Brisbane are a totally different thing. I need time now to consider my options and will take sick leave this week and then leave without pay until such time as something more suitable is offered. What your proposing is not in line with my current role.”
[18] The “Tarcutta return” role, which involved a return journey from Melbourne to Tarcutta, would have enabled Mr Johnson to return home each night. 23 However, it is apparent from the evidence that the “Tarcutta return” position, which Mr Johnson said that he accepted, was in fact unavailable.24 Accordingly, the only redeployment opportunity available for Mr Johnson at that time was an interstate driving position, which involved performing a return trip from Melbourne to Brisbane, being a five day journey.
[19] Subsequently, on 9 July 2022 the respondent sent to Mr Johnson a document titled “Offer of Temporary Position.” 25 The letter set out the details that Mr Johnson had sought in relation to the role of temporary interstate driver. The offer specified amongst other things, the following:
“As you are aware the position of Local Driver is at this stage no longer available due to unforeseen circumstances, we understand your frustrations and endeavour to provide you with this role as soon as one becomes available.
At this stage a Melbourne – Tarcutta Changeover is unavailable, In the meantime we have offered you a role as follows:-
Interstate Driver
Melbourne to Brisbane 1750km @ 0.47cents per Km Total = $822.50 each way
2 Allowances @ $32 Total = $84 Each way
Gross Total $1,813.00 less tax $385
Net Earnings $1,428.00
Please contact Tony Govesis if you wish to accept the above position until a position more suited to you becomes available
If you do not wish to accept this position, please advise which of the following options you would like to take:-
• Leave without pay until a Local position or Melbourne – Tarcutta Change Over becomes available
• As you do not have sufficient Annual Leave available 2.80 Hrs, the option of using your Annual Leave will not apply at this point in time
...”
[20] Mr Cherry gave evidence that Mr Johnson did not accept the temporary position as an interstate driver on the “Brisbane run” Accordingly, consistent with Mr Johnson’s email of 9 July 2022, Mr Johnson took one week of paid personal leave in the week commencing 11 July 2022, 26 and subsequently was on leave without pay from the week commencing 18 July 2022.27
[21] At around 11:00am on 18 July 2022, Mr Cherry sent Mr Johnson a text message which said “8 am at the yard tomorrow.” It later became apparent that the text message requested Mr Johnson to present to undertake “yard work,” which Mr Johnson considered involved a “[r]eduction in duties, responsibilities and not what [he] was employed to do.” 28 Mr Johnson sent a text message in reply which stated “Y,” which Mr Cherry reasonably understood to mean “yes.”29 However, before the Commission, Mr Johnson said that his response was to be understood as “why?”
[22] Mr Cherry sent a further text message to Mr Johnson at around 6.30pm on 18 July 2022 which stated “5 am in the morning.” 30 Mr Johnson did not reply to this message, and he did not present for work on 19 July 2022.
[23] On 19 July 2022 at 5:00pm, Mr Cherry sent a further text message to Mr Johnson which stated, “Come in at 8am tomorrow.” 31 However, Mr Johnson did not reply to this message, and he did not present for work on 20 July 2022.
[24] On 18 July 2022, the respondent issued Mr Johnson with a warning letter, for failing to safely secure a truck’s load. 32 Two further warning letters were issued by the respondent to Mr Johnson on 21 July 2022 for failing to attend work on 19 July 202233 and 20 July 2022.34
[25] On 21 July 2022, Mr Johnson sent an email to the respondent in which he said he “did not accept” the allegations contained in the warning letters and was “on advisement that I was on leave without pay from you” on 18 July 2022. Mr Johnson said that he had not received advice that he was required back at work and had not received any phone calls from the respondent on either 19 or 20 July 2022. The email proceeded as follows: 35
“If you now actually have work for me you need to properly advise in writing that the circumstances have changed from when you last wrote to me and make it clear in your future correspondence what you actually mean.. Communication from you has been severely lacking. Notice of a few business days would also be considered reasonable rather than simply a few hours.”
[26] On 25 July 2022, Mr Johnson lodged in the Commission a s 372 general protections application in which he submitted that the respondent had tried to exert pressure on him to resign. Mr Johnson sought (a) a stop to bullying and harassment, (b) a stop to unfair treatment and attempts to “fire” him with false claims in warning letters, (c) “open and transparent communication” about the status of work and whether there would be work for him in the future, (d) payment of entitlements while on leave without pay, (e) payment of entitlements when forced to take annual leave for two weeks, and (f) a redundancy if there was “genuinely no work.” 36
[27] The s 372 application did not proceed to a conciliation conference. On 4 August 2022 Mr Johnson responded to an email from Mr Govesis enquiring about where Mr Johnson wanted to “go from here.” 37 Mr Johnson stated, amongst other things, that “the only option left would be for you to offer a redundancy.”38 The email from Mr Johnson went on to explain the entitlements to which Mr Johnson considered he was entitled, representing notice of termination and redundancy pay.
[28] On 8 August 2022, Mr Govesis responded by email stating that Mr Johnson’s position was not redundant on the basis that “numerous offers were made within the company to keep you employed, therefore Redundancy is voided, we found Local work for you at the yard, you neglected to show, the local yard work is still available for you to take.” The email proceeded to state as follows: 39
“You have stated below that
“the relationship between myself and PG and S can’t move forward as too much has happened”
This tells me that you are not willing to come back to work, I respect your decision to leave the company and will re-imburse you the 76Hrs Annual Leave and any annual leave owed as per Fairwork states.”
[29] On 8 August Mr Johnson went an email to Mr Govesis as follows: 40
“Let’s be crystal clear. I am not leaving. Are you sacking me? Or making me redundant. In none of the correspondence we have had I have indicated I am leaving, just the relationship has soured.”
[30] Mr Govesis sent the following response: 41
“Your statement gave me the indication you were not coming back.
If that is not the case then please be at the Yard at 4am tomorrow for work.”
[31] Mr Johnson responded, “Tomorrow I have medical appointments” to which Mr Govesis said “4 am start Wednesday call Simon.” 42
[32] Later on 8 August 2022, Mr Johnson sent the following email to Mr Govesis: 43
“From 10th August due to breaches of contract by P G and S Linehaul from 9th July to 8th of August inclusive I consider myself constructively dismissed.
I have been on LWOP between the period of 9th July to 8th August. It is simply not reasonable to expect someone to sit around not getting paid for this long when there was no work. This was done intentionally to create financial hardship. Redundancy should have occurred as verbally offered by Simon Cherry 5/7/2022.
You offered to pay 2 weeks back of annual leave that was taken from me in a recent fight between yourself and Bluestar yet that has still not been forthcoming, pay day is supposed to be today, yet again evidence that you wish to cause me financial hardship. Mutual trust and confidence is no longer tenable after having received 3 unsubstantiated written warnings when I was on LWOP. This is further evidence of a harsh and hostile working environment. If I was to come back how would a reasonable person feel safe or confident that they would not be set up to fail (after all the attempts made in my absence)
The formal offer of work that come in today from you, with a 4am start is an unrealistic and unreasonable change and deliberately given as you know my caring responsibilities mean I can not attend at that time.
I was prepared to resolve our issues via the fair work commission for which you refused a mediation conference. I even agreed to do the Tarcutta run for you as a temporary measure, but you deliberately took that off the table.
I am on sick leave tomorrow for medical appointments. I have done all that I can to work towards a mutually agreeable solution yet you simply refuse to negotiate. So this has left me no choice but to consider myself constructively dismissed.”
[33] The same day, Mr Govesis responded to Mr Johnson’s email. The email stated: 44
“Your email from 9/7/2022 at 6.32pm specifies that you made the decision to go on Sick Leave then leave without pay from the 18th of July.
On the evening of the 18th of July I had a more suitable position for you that would have started from the 19th of July 1 day after your leave without pay started that would keep you working locally at the yard so you did not have to go interstate.
I have tried to accommodate you as best I can but you refuse to accept the Local work that is there for you to do.
I did the best I could under extreme pressure to keep you and many other employees in work.
You have not been paid 2 Weeks Annual Leave as I have told you there is work here for you which means that the 2 weeks Annual Leave would have gone back into your leave accrual.
Seeing as you are still Employed by PGS your Annual Leave is back in your balance.
There is no evidence of a harsh and hostile working environment where you should feel unsafe, being asked to start work at 4am does not equate to a harsh and hostile work environment.
The email to fairwork where I had explained that there was a misinterpretation of question 3.2 due to the fact that I had to drive Interstate because of the staff shortages about the mediation has you copied on it, you are very aware of that as per attached email that I was willing to mediate but unable to due to me being on the road.
Please provide a medical certificate for tomorrow so that I am able to supply to payroll for your sick leave.
I have never had an employee Constructively dismiss themselves and am unaware of what that means, did you quit?”
[34] In the absence of a response, Mr Govesis sent Mr Johnson a further email later that evening: 45
“I am yet to receive a response from you to my following question:-
“I have never had an employee Constructively dismiss themselves and am unaware of what that means, did you quit”?
Please advise if you will be coming to the yard in the morning as requested by your manager?”
[35] There is no record before the Commission of Mr Johnson responding to the emails from Mr Govesis on 8 August 2022.
[36] The application in the Commission was made on 10 August 2022.
[37] The circumstances in which a person has been unfairly dismissed is set out in s 385 of the Act as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[38] The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act, which provides as follows:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.”
[39] In order for an employee to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed. 46 The term “dismissed” is defined in s 12 of the Act by reference to s 386. Mr Johnson’s contentions are made on the basis that he was constructively dismissed, on the grounds of breaches of contract.47 This position is reflected in Mr Johnson’s 8 August 2022 email to Mr Govesis, which commences by stating, “From 10th August due to breaches of contract by P G and S Linehaul from 9th July to 8th of August inclusive I consider myself constructively dismissed.”48 Constructive dismissal is a term which is not used in the Act.49
[40] It is relevant to observe that Mr Johnson took specific issue with the cessation of his employment being characterised as a resignation. 50
[41] For the reasons that follow, I find that the respondent’s failure to provide Mr Johnson with, and pay Mr Johnson for, full time work as a local truck driver amounted to repudiation of the contract of employment. The repudiation was occasioned by the redundancy of Mr Johnson’s role on or about 9 July 2022. Mr Johnson’s 8 August 2022 email in which he considered himself “constructively dismissed” constitutes notice that he intended to accept the repudiation and terminate the employment contract on 10 August 2022. This is what occurred and amounts to a dismissal at the initiative of the employer for the purposes of s 386(1)(a) of the Act.
Terms of the contract
[42] It is trite to observe that in determining whether a party engaged in a repudiatory breach of a contract, the terms of the contract must be identified. 51 The contract of employment between Mr Johnson and the respondent is not before the Commission. Accordingly, its express terms are not known.
[43] In any event it is not in dispute, and I find, that Mr Johnson was employed as a MC Local B/Double local truck driver. The payslips before the Commission refer to Mr Johnson’s “Job Title” as “MC Local B/Double” and his wage and earnings rate as “MC B/Double Local Rate.” 52 The local driver role was paid at an hourly rate of $28.50.53 Mr Johnson’s unchallenged evidence, which is consistent with the payslips before the Commission, is that he was a full time employee working a minimum of 38 hours per week.54 I am satisfied that the terms of the employment contract included terms giving effect to these matters.
[44] The respondent employs a number of truck drivers undertaking different types of work including linehaul (State to State), changeovers (halfway between stations or States) and local. 55 Mr Johnson was employed as a local truck driver. Local and changeover employees were “home every day.”56 Mr Govesis described the duties of a local driver in the following terms:57
“Mr Johnson, what was he specifically employed to do? Well, he was employed over – we’ve got local trucks in each State as well, in Melbourne, also in Sydney and in Brisbane, and they would do local pick-ups and deliveries.
When you say local pick-ups and deliveries can you just elaborate a bit more for the Commission? We would pick up pallets from customers and bring them back to the warehouse or they’ll go to Woolworths or Coles or whatever the customer is going to take the trucks, yes.
Who do you get your work from? Several people. He was employed over in the Bluestar contract but we work with DHL, Allied Express, a lot of companies.
Bluestar, for example, does what? They’re a freight forwarder basically, they move freight, do warehousing and all that.
You just mentioned something to the effect that Mr Johnson was employed for Bluestar work. Can you explain what you mean by that? Well, he was employed to do local pick-ups and deliveries. That’s what he was employed to do...”
[45] Mr Johnson’s evidence was that he would commence work at 9:00am and had a “usual/current spread of hours.” 58 During cross-examination, he was questioned on his commencing at 5:00am for one week in July 2022, and responded that “because my children were on school holidays.”59 Having regard to this evidence, I am satisfied that Mr Johnson’s employment contract contained a term to the effect that his duties were as described by Mr Govesis. He performed work within the State of Victoria starting around 9:00am each day and working 38 ordinary hours each week.
Redundancy and repudiation
[46] Redundancy refers to a position being made redundant and not to an employee being made redundant. Not all redundancies involve dismissal. 60 However, redundancy can give rise to a termination at the initiative of the employer.61
[47] As earlier stated, it is not in dispute that the loss of the Bluestar contract meant that the duties Mr Johnson had been performing as a local truck driver were no longer available. The respondent’s “Offer of Temporary Position” email of 9 July 2022 to Mr Johnson which advises Mr Johnson that “…the position of Local Driver is at this stage no longer available due to unforeseen circumstances,” demonstrates the respondent’s understanding at the relevant time.
[48] I am satisfied that there was a change in the operational requirements of the respondent’s enterprise as a consequence of the cessation of the Bluestar contract. As a result, the respondent no longer required the position of local driver held by Mr Johnson to be performed by anyone. The respondent advised Mr Johnson of this position in writing on 9 July 2022. I accept Mr Govesis’ evidence that at this time, there was “no work” for Mr Johnson. I consider that Mr Johnson’s position became redundant on or around 9 July 2022.
[49] Where a position is made redundant by an employer, the employer may require the employee work in another position which is consistent with the contract of employment, and this may avoid a dismissal. 62 The parties may also negotiate to vary the contract. However, redundancy can give rise to a repudiation of the employment contract. The Full Bench in NSW Trains v James63 provided a short summary of the law with respect to repudiation as follows:64
“The High Court has described repudiation as referring to conduct of a party ‘which evinces an unwillingness or an inability to render substantial performance of the contract’ or ‘which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations’. ‘Repudiation of a contract is a serious matter and is not to be lightly found or inferred’. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”
(citations omitted)
[50] Further to this, the Full Bench in Alouani-Roby v National Rugby League Ltd 65 considered that “where an employer has repudiated the contract and the employee has accepted the repudiation to bring the contract to an end, there has been a termination of the employment contract…. This is sufficient for an employee to be “dismissed” under s 386(1)(a).”66
[51] Following the redundancy of Mr Johnson’s position on or about 9 July 2022, the evidence reveals that Mr Johnson remained ready, willing and able to perform work as a local truck driver. However, the respondent did not provide Mr Johnson with 38 hours per week of paid work as a local truck driver and thereby breached essential terms of the contract identified above at [43] and [45]. The respondent’s conduct evinces an inability to render substantial performance of the contract. The repudiatory conduct was ongoing from on or about 9 July 2022 (noting this was a Saturday, it may be that the repudiation arose on Monday 11 July 2022) until the termination of the contract.
[52] Where an employer has repudiated the employment contract, the employee may either accept the repudiation and terminate the contract, or affirm the contract. The Full Bench in NSW Trains v James stated: 67
“…whether there has been a termination of the contract of employment following an employer’s repudiatory conduct ‘depends on the resolution of a factual inquiry as to the response to the repudiatory conduct.’ For example, the employee might affirm the contract by negotiating with the employer and agreeing to changes to the contract of employment. Alternatively, the employee could elect to accept the repudiation by lodging an application under Part 3-2 of the FW Act and leaving the employment or (reluctantly) continuing in employment with the employer in the demoted position under a new contract of employment, whilst pursing the unfair dismissal application.”
[53] The relevant period to consider is from the time of the repudiation on or around 9 July 2022 to the termination of the employment. I observe that on 5 July 2022, while Mr Johnson was still employed performing a type of local work, Mr Johnson sought to negotiate a new “Tarcutta return” position with the respondent. However as noted at [18] above, this role, which would have enabled Mr Johnson to return home each night, was not the subject of a formal offer from the respondent. As such, this need not be considered further.
[54] On 8 July 2022, following a conversation with Mr Cherry, Mr Johnson emailed Mr Govesis. The email expressed that the role on offer was the Melbourne to Brisbane linehaul (being a “State to State” 68) route. Mr Johnson sought more information on this role, which he was provided by way of an offer on 9 July 2022.
[55] Mr Johnson raised concerns with the nature of the work required by the “Brisbane run,” and ultimately refused it, noting his family commitments and concerns with the requirement to spend the working week travelling interstate. Mr Johnson requested to take a week of personal/carer’s leave followed by leave without pay to consider his options. Consistent with this, Mr Johnson took personal/carer’s leave in the period between 11 July to 15 July 2022, though it is noted that this was due to there being no work for Mr Johnson to perform. 69 From 18 July 2022, Mr Johnson commenced leave without pay.
[56] As noted, Mr Johnson refused to accept the offer to undertake the “Brisbane run.” I consider that the terms of this position, as set out at [19] above, differed substantially to the terms of Mr Johnson’s contract identified above at [43] and [45] above. Had Mr Johnson accepted the offer, I am satisfied it would have amounted to a variation or revocation of the original contract. 70 This is so because the nature of the work, being on the road for five days at a time, and the manner in which pay was calculated (on a cents per kilometre basis) was fundamentally different to Mr Johnson’s agreed position with the respondent.
[57] Mr Johnson subsequently remained on leave without pay. The respondent contends that Mr Johnson’s email of 9 July 2022 amounts to an express request to be placed on leave without pay. 71 While I accept that this is what Mr Johnson stated, the request was made so Mr Johnson could consider his options. In effect, Mr Johnson provided the respondent with an opportunity to remedy the repudiation, as he was contractually entitled to do. It does not constitute an affirmation of the contract, or an acceptance by Mr Johnson of a variation or revocation of the contract.
[58] Mr Johnson was offered yard work on 18 July and 19 July 2022, which he refused. I accept Mr Johnson’s contention that the performance of yard work would have amounted to a significant diminution in his duties and would not represent performance of the terms of his contract. The duties did not involve driving trucks, and the hours attached to the role required pre-dawn starts which did not accommodate Mr Johnson’s family responsibilities. Mr Johnson was entitled to refuse the respondent’s offer of yard work.
[59] On 25 July 2022, Mr Johnson lodged in the Commission a s 372 general protections application. Mr Johnson sought, amongst other things, a redundancy if there was “genuinely no work.” As Mr Johnson had not returned to work in any way at this point, this bears little upon the matter other than to further demonstrate Mr Johnson’s unwillingness to affirm the contract by, for instance, agreeing to changes to his contract of employment.
[60] Mr Johnson’s 8 August 2022 email to Mr Govesis states that due to breaches of contract by the respondent, Mr Johnson considered himself constructively dismissed. It has been said that there is no real difference between an employee’s acceptance of their employer’s repudiation of the contract, or a constructive dismissal. 72 Essential in both is that one side to a contract of employment has made it clear that the contract in its existing form is not to continue.73
[61] In any event, Mr Johnson submits that he did not resign, and I accept this. The language in Mr Johnson’s 8 August 2022 email refers to the respondent’s “breaches of contract” and reflects the acceptance of the respondent’s repudiation unequivocally through the use of the words “constructive dismissal.” It is unnecessary for a person electing to affirm or terminate a contract to be aware of their right to do so. 74 Mr Johnson’s choice to terminate the contract was clear,75 and he was aware of the facts which gave rise to his right to terminate the contract.
[62] The events preceding the email provide relevant context. Mr Johnson had attempted to negotiate new work with the respondent in order to remedy the breach. However, Mr Johnson was not satisfied that the alternative roles presented to him by the respondent over a three-week period, in which he was otherwise unpaid, were suitable redeployment opportunities. I accept that Mr Johnson ultimately formed the view that the contractual breach could not be remedied. In this respect, I acknowledge that Mr Johnson posed his case, in part, as one of constructive dismissal under s 386(1)(b) of the Act. However, in so framing, Mr Johnson submits he had “no real choice in the end but to constructively dismiss. The employee had no option but to attempt to seek alternate employment to mitigate/minimize loss already suffered by breach of contract.” 76 Mr Johnson exercised his right to accept the repudiation, terminate the contract and seek a remedy in the Commission. As noted above, “this is sufficient for an employee to be “dismissed” under s 386(1)(a).”77
[63] It is noted that Mr Johnson’s employment did not terminate until 10 August 2022. On 9 August 2022, Mr Johnson took one day of personal/carer’s leave and was paid by the respondent accordingly. The respondent submits that the Commission should find that Mr Johnson resigned voluntarily from his employment. The respondent contends that the provision of advance notice of a forced resignation is at odds with a conclusion that Mr Johnson had no choice but to bring his employment to an end. While this may be the case, it does not detract from the fact that (a) there had been a repudiation of the contract that the respondent had not remedied, and (b) Mr Johnson was entitled to accept the repudiation and terminate the contract. The evidence does not support a finding that Mr Johnson resigned voluntarily from his employment, and I reject the contention.
[64] I accept that the effect of Mr Johnson’s email on 8 August 2022 where he expressed his choice to terminate the contract on 10 August 2022 raises a question of when the dismissal took effect. I consider that this is of no moment to my findings above. Fundamentally, Mr Johnson sought a remedy in the Commission the day he purported the “constructive dismissal” to have taken effect. This reflects his choice to terminate the contract and pursue his rights in the Commission. The repudiation was at all times ongoing and therefore Mr Johnson could accept the repudiation at any point. Any ambiguity arising from the email does not bear upon the task of determining whether there was a dismissal for the purposes of s 386.
[65] The respondent submits that much like the single member decision in Blair v Kim Bainbridge Legal Service Pty Ltd (Blair), 78 Mr Johnson’s decision to resign was premature. Contrary to the view of the respondent, I regard the facts arising in Blair to be distinguishable, as the circumstances in Blair did not give rise to a repudiation. Conversely, the employer had yet to determine to reduce the employee’s wage, and no term of the contract had been breached. In any event, I do not accept that it can be said that Mr Johnson acted prematurely. As stated, it is apparent on the evidence that the respondent engaged in ongoing repudiatory conduct from around 9 July 2022.
[66] Further, the respondent submits that Mr Johnson did not engage with Mr Cherry in July 2022 about the yard work because he had secured new employment with F Vitale & Sons Pty Ltd (Vitale). However, in response to questions from the Bench regarding Mr Johnson’s non-attendance at the respondent’s yard on 19 July and 20 July 2022, Mr Johnson denied that he was employed elsewhere at that time and said that he commenced employment with Vitale two months prior to the hearing, being around mid to late August 2022. 79 There is no direct evidence before the Commission that Mr Johnson commenced employment with Vitale prior to the cessation of his employment with the respondent, as contended by the respondent, nor was such evidence formally sought to be produced by the respondent. While Mr Govesis gave evidence that his sister-in-law, Stephany Govesis telephoned Vitale and was advised that Mr Johnson commenced employment on 14 July 2022,80 Ms Govesis was not called to give evidence in relation to this matter. In the absence of direct evidence which supports the respondent’s contention, I decline to draw the inference sought by the respondent that Mr Johnson commenced employment with a new employer prior to the cessation of his employment with the respondent.
[67] In the alternative, the respondent submits that Mr Johnson abandoned his employment by failing to present for work on 19 July or 20 July 2022 at the respondent’s request. I am not satisfied in the circumstances described that Mr Johnson abandoned his employment. Mr Johnson was not contractually required to undertake the yard work offered to him on 19 July and 20 July 2022.
[68] A further alternative advanced by the respondent is that this is a case of genuine redundancy. It is open to the respondent to advance its position in respect of s 389 of the Act in its response to Mr Johnson’s merits case.
[69] For completeness, I note that the respondent raised concerns with respect to Mr Johnson’s evasiveness as a witness when pressed on “critical” matters, and the bearing this has upon Mr Johnson’s credibility. 81 However, as is apparent from the preceding analysis, the conclusions I have reached arise from the consideration of documentary material and evidence that is largely not in dispute. While Mr Johnson was directed by the Commission on occasion to answer the questions posed of him during cross examination, Mr Johnson’s oral evidence does not materially bear upon my consideration of the relevant facts.
[70] The conclusion that I have reached turns upon largely undisputed or documented matters. In summary:
(a) Mr Johnson was employed with the respondent as a local truck driver, paid an hourly rate with full time hours of work;
(b) in June 2022, the respondent became aware that its contract with Bluestar would cease;
(c) on around 9 July 2022, Mr Johnson’s position was redundant;
(d) Mr Johnson was not redeployed or offered another suitable role with the respondent;
(e) Mr Johnson remained on personal/carer’s leave and leave without pay until 10 August 2022; and
(f) Mr Johnson sent an email on 8 August 2022 in which he said he was constructively dismissed because of the respondent’s breaches of contract with effect on 10 August 2022, the same day he filed his application for an unfair dismissal remedy in the Commission.
[71] Having regard to these matters, and the conclusions reached, I find that Mr Johnson has been dismissed at the employer’s initiative pursuant to s 386(1)(a) of the Act.
Conclusion and disposition
[72] As I am satisfied that Mr Johnson has been dismissed, it follows that I dismiss the respondent’s jurisdictional objection.
[73] Directions will issue for the further programming of Mr Johnson’s application for an unfair dismissal remedy.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR748304>
Appearances:
Mrs K Johnson, on behalf of the applicant
Mr B Roberts, on behalf of the respondent
Hearing details:
21 October 2022, by Microsoft Teams
1 Court Book (CB) 59
2 Transcript of proceedings dated 21 October 2022 (Transcript) at [659]-[660]
3 CB 120
4 Transcript at [433]
5 Transcript at [143]
6 CB 110; CB 111; Transcript at [440]
7 Transcript at [143]
8 Transcript at [440] and [451]
9 Transcript at [147]
10 CB 60
11 Ibid
12 Transcript at [144]
13 Transcript at [453]
14 CB 114
15 Ibid
16 CB 114
17 CB 115
18 CB 116
19 Ibid
20 CB 117
21 Ibid
22 Ibid
23 Transcript at [1063]
24 Transcript at [204]-[205]
25 CB 119
26 CB 46 and 47; CB 180
27 CB 46 and 47
28 CB 90 at [5(g)]
29 CB 178
30 CB 178
31 CB 178
32 CB 122
33 CB 123
34 CB 124
35 CB 121
36 CB 133 at [2.1]
37 CB 138
38 Ibid
39 CB 139
40 CB 139
41 CB 140
42 CB 140
43 CB 141
44 CB 183
45 Ibid
46 Fair Work Act 2009 (Cth), s 385(a)
47 CB 10 at [1.4], CB 12 at [3.1]
48 CB 141; see also Transcript at [1170]
49 See generally, Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941 at [49]
50 See, eg, Transcript at [851]-[852]
51 North v Television Corporation Ltd (1976) 11 ALR 599 at 609; NSW Trains v James [2022] FWCFB 55 at [126]
52 CB 109-111, 113, 120, 160-172
53 Ibid; Transcript at [473]
54 CB 99; see also, CB 12-13, 88
55 Transcript at [123], [129]
56 Transcript at [1065]
57 Transcript at [124]-[128]
58 CB 61, CB 88 at [5(d)]
59 Transcript at [1034]
60 Reg. v. Industrial Commission (S.A.); Ex parte Adelaide Milk Supply Cooperative Ltd [1977] 44 SAIR 1202 at 1205; Amalgamated Metals, Foundry & Shipwrights' Union v Broken Hill Pty Co Ltd (1984) 8 IR 34 (Termination, Change and Redundancy case) at 56
61 See, eg Fair Work Act 2009 (Cth) s 119(1)
62 Adcock v Blackmores Ltd [2016] FCCA 265
64 Ibid at [125] citing Koompahtoo Local Aboriginal and Council v Sanpine Pty Limited (2007) 233 CLR 115 at [44] and Shevill v Builders Licensing Board (1982) 149 CLR 620 at 633; see also, City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [14]-[20] and the cases cited therein
66 Ibid at [87]
67 NSW Trains v James [2022] FWCFB 55 at [70]
68 Transcript at [123]
69 CB 88
70 NSW Trains v James [2022] FWCFB 55 at [72]-[73]
71 Transcript at [1133]-[1135]
72 Brookton Holdings No V Pty Ltd v Kara Kar Holdings Pty Ltd (1994) 57 IR 288 at 289-290
73 Ibid
74 Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658 affirmed in Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
75 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 at 42-43 cited in Keays v JP Morgan Administrative Services Australia Ltd (2012) 224 IR 406 at [84]
76 CB 88-89
77 Alouani-Roby v National Rugby League Ltd [2022] FWCFB 171 at [81]
79 Transcript at [922]-[924]; see also Transcript at [628]-[630]
80 Transcript at [167]-[170]
81 Transcript at [1104]