Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Whether termination at the initiative of the employer - s. 386(1) - Constructive dismissal and casual employment - Repudiation of employment contract and casual employment - Finding that Applicant was dismissed - Dismissal was unfair - Compensation awarded.

[1] Mr Ian Birchley (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Downer EDI Mining Pty Ltd (the Respondent). The application was filed in the Commission on 18 October 2018. The Respondent objected to the application on the basis that it was filed outside of the 21 day period required by s.394(2) of the Act and that the Applicant was not dismissed.

[2] In a Decision issued on 31 January 2019[1] I dealt with the question of whether a further period should be granted to the Applicant to file the application and found that the Applicant's employment had continued until at least 15 October 2018 and therefore the application had been filed in time. I made no finding as to whether the Applicant was dismissed and the matter was listed to deal with the Respondent's jurisdictional objection on that ground and the merits of the application in the event that the jurisdictional objection did not succeed. This Decision deals with those matters.

[3] The relevant background to the cessation of the Applicant's employment can be briefly summarised as follows. The Respondent provides contract mining services at the Meandu Mine for the owner of the Mine, the Stanwell Corporation. The Mine is located at Nanango in Queensland. The Applicant was employed on a casual basis as an Emergency Services / Security Officer (ESSO) from 16 September 2016 until his employment ceased on or around 15 October 2018. The Applicant worked in accordance with a roster known as the B/D Day shift Roster - although there is some dispute as to whether he worked for the full extent of the shifts on that roster.

[4] The Applicant last performed work at the Mine site on 9 August 2019. On that date, he was rostered to work at the Gatehouse to the Mine. The Gatehouse is a critical part of the Mine operations as it is the entrance for vehicles and personnel. At or around 9.00 am on 9 August 2018 the Applicant left the Mine site after emailing his supervisor and advising that he would not be available to work any further shifts until 20 August 2019. There is evidence that the Applicant often left before the rostered finishing time of a shift after informing his supervisor that he was leaving, although the time at which he normally finished work when he was rostered on at the Gatehouse is in dispute. Prior to leaving the Gatehouse the Applicant emailed his supervisor and advised that he was leaving the site and would not be available to work again until 20 August 2018. The Applicant was rostered to work six shifts in the period between 9 and 20 August 2018.

[5] Upon receipt of the Applicant's email, managers of the Respondent formed a view that the Applicant had left the site hurriedly and without explanation and assert that they were concerned as to his whereabouts and welfare. On 10 August 2018 after making several attempts to contact the Applicant his supervisor decided to arrange alternative coverage for the Gatehouse up to 31 October 2018. Upon being informed of this Decision the Applicant formed a view that he had been suspended or stood down and took issue with this in email exchanges with supervisors and managers of the Respondent. Matters came to a head when the Applicant engaged a legal representative to dispute what he was variously asserted to be a stand down, a suspension and a constructive dismissal. At one point the Applicant asserted that he was not a casual employee and sought payment of leave entitlements. By 15 October 2018 the Applicant's employment had ended.

[6] The question of whether the Applicant was dismissed or whether he resigned his employment in circumstances that constituted constructive dismissal is a matter for determination. If the Applicant was dismissed it will be necessary to determine whether the dismissal was unfair, and if so, the remedy (if any) that should be granted.

[7] Directions were set for the filing of material and the matter was dealt with by way of hearing. The Applicant was self-represented and the Respondent was represented by Ms Chelsea Attreed, Industrial Relations Advisor for Downer EDI Mining Pty Ltd.

[8] The Applicant gave evidence on his own behalf. Evidence for the Respondent was given by Mr Charles Curran, Maintenance Training Co-ordinator/Emergency Services Supervisor[2] and Mr Nick Mason, Health, Safety and Training Superintendent.[3] It is necessary to traverse the chronology of events - and in particular the extensive email communication between the parties - in order to understand the present dispute.

[9] The operation of the mine is covered by the Coal Mining Safety and Health Act 1999 (Qld) and that the safety of coal mine workers, contractors and visitors is paramount to the license to operate. It was said that as Meandu Mine is a secure facility with significant safety risks including high voltage power lines, heavy vehicles and dangerous chemicals and that as the gatehouse is the main access point for the site, the ESSO role plays a critical role in the site's operation. Mr Mason and Mr Curran stressed in their evidence that without gatehouse coverage the gate to the site does not open and the mine cannot operate.[4] The day to day duties of the ESSO role identified by Mr Curran include the following:

1. Managing and monitoring the shift change process, including assisting with access cards, processing personnel to undergo alcohol and drug testing and conducting inductions.

2. Management of inward and outward movement of plant and equipment.

3. Management of site visitors and deliveries.

4. Monitoring of 40 security cameras installed on site.

5. Monitoring and reporting on the geotechnical early warning system - Work Area Monitor (WAM) and Slope Stability Radar (SSR).

6. Monitoring the WeatherZone early warning system and enacting and/or communicating in accordance with the severe weather and lightening Triger Action Response (TARP).

7. Emergency Response Team equipment and first aid room inspections and record keeping, including the ordering of supplied and manging the calibration testing of alcoholmeters and gas detectors.

8. Pre-start inspections on first response vehicles.

9. Management of equip safe documentation and record keeping along with the issuing of site-specific stickers for vehicle inspections and equipment height.

10. Issuing of OCE reports and hand-held VHF radios.

11. Support and/or escalation of any walking wounded who present at the gatehouse.

12. Management of the site key register and the issuing of keys.

13. Other duties are required to execute the multiple levels of responsibility with the Security Management Plan.

[10] In response to questions relating to the duties of an ESSO (listed above), Mr Curran sought to delineate the duties into duties falling under the security and the emergency response aspects of the ESSO role. While he identified some duties that more often fell under one particular aspect of the role than the other, he stated that all of the duties listed are critical to the mine function on any given day.

[11] Mr Mason conceded under cross-examination that the mine could continue to operate without the Applicant being present as there would be a full-time ESSO at the gatehouse. However, Mr Mason maintained that the absence of a casual ESSO may impact the Respondent's operations because of the way that tasks are divided between the full-time and casual ESSO on any day, which could include the need for the full-time ESSO to shut down all entrances and exits to site while conducting the drug and alcohol testing that would usually performed by the casual ESSO.

[12] Further, in relation to the impact of having no casual ESSO available, Mr Curran outlined the role of an ESSO in the event of an emergency as including the management of all communication across site and with external emergency services, enacting the emergency response plan and locking down the site. He gave evidence that without the secondary ESSO, it would be extremely difficult to gain control of the site through lockdown while enacting the emergency response plan and that if an emergency event happened in the absence of the secondary ESSO, the Respondent would be under-staffed.

[13] In outlining what other options were available to the Respondent in the event of the Applicant's unavailability, Mr Curran indicated that the alternative is to have the full-time ESSO conduct the drug and alcohol testing and utilise another staff member from the production and maintenance areas of the business to assist with other gatehouse duties. He stated that utilising staff from other areas has a direct impact on production and labour utilisation in those areas and that there is a flow on effect in terms of starting shifts and the cycle time of excavators and the starting of maintenance work.

[14] Mr Curran accepted that there were approximately fourteen other employees who had the required qualification to undertake the drug and alcohol testing ordinarily performed by the Applicant, however those people were in positions ranging from Production Managers to Mr Curran's position and are required to undertake other duties rather than cover a casual ESSO shift.

[15] The Applicant provided evidence in the form of an email from his supervisor that indicated that the casual ESSO employees were a supportive role to the Senior ESSO positions, with Senior ESSO's to take the lead 'with the daily operations and requirements in the gatehouse'.[5] Mr Curran agreed that the Applicant's role in the gatehouse was as a second person to assist the main ESSO and that on all dates between 9 and 20 August 2018, other than 14 August 2018, the Applicant was rostered to perform the role of the second ESSO. Mr Curran also agreed that the Mine would not stop operating if there was only one ESSO in the gatehouse.

[16] The Applicant said that he worked up to 60 hours per week and tendered pay slips showing that up to 9 August 2018 he worked a weekly pay cycle average of almost 39 hours and 20 minutes. The Applicant undertook the ESSO role at the site Gatehouse and in addition performed manual water treatment duties. In this capacity he worked 12 hour shifts according to the B/D dayshift roster.

[17] In March 2018 as a result of no longer being required to undertake water treatment duties, the Applicant reached agreement with his supervisor to reduce the number of hours he worked. The Applicant submitted that the purpose of this agreement was to ensure that he worked weekday mornings to assist with the morning rush period which includes conducting drug and alcohol testing of persons entering the site. This agreement was in place from March to August 2018 and during that time the Applicant gave evidence that he left early on a number of occasions if the "morning rush" was over. The Applicant's finish times varied during this period between 8.00 am and midday.[6] In response to questions as to whether 9.00 am was an earlier finish than usual even in the context of the agreement about finishing early, the Applicant gave evidence that the time he was required at work to assist with the morning rush was dependent on a range of factors including how busy the site was and the competency level of the person he was working with.

[18] Mr Curran's evidence, supported by a roster tendered as an appendix to his witness statement, was that the Applicant was rostered to work the following shifts between 9 and 20 August 2018:

• Thursday 9 August 5.00 am to 10.00 am (approximately);

• Friday 10 August 5.00 am to 10.00 am (approximately);

• Monday 13 August 5.00 am to 10.00 am (approximately);

• Tuesday 14 August 5.00 am to 5.00 pm;

• Wednesday 15 August 5.00 am to 10.00 am (approximately);

• Thursday 16 August 5.00 am to 10.00 am (approximately); and

• Friday 17August 5.00 am to 10.00 am (approximately).

[19] Mr Curran said that as a casual employee, the Applicant's finish time was flexible and generally he was able to leave site once the Gatehouse duties were completed but was required to contact Mr Curran by phone or email to advise that he was leaving the site. Under cross-examination Mr Curran accepted that it was not unusual for the Applicant to leave work anytime between 9.00 am and 12.00 midday on a given day but maintained that it was unusual for the Applicant to absent himself from shifts without providing an explanation.

[20] On 9 August 2018 at 9.09 am, the Applicant sent an email to Mr Curran in the following terms:

I'm leaving site now and sorry for the notice, but I won't be available to work again until Monday 20 August."[7]

[21] The Applicant said that he did not provide a reason for leaving as it was a personal and private matter and that there was not necessarily a connection between the reason he left the site and his inability to work again until 20 August 2018. The Applicant also said that before leaving the Mine site he had a discussion with Senior ESSO Mr Peter McLennan. In response to a suggestion that he left work at 9am on 9 August 2019 angry and upset over a disagreement about one of the site's Personal Protective Equipment (PPE) rules, the Applicant said that the only person present at the gatehouse when the Applicant left was Mr McLennan and that the evidence of Mr McLennan does not support such a position. The Applicant denied that a rule about PPE had anything to do with his leaving early on the day in question or his unavailability for further work until 20 August 2019.

[22] In relation to his discussion with Mr McLennan, the Applicant pointed to a statement made by Mr McLennan in relation to events at the gatehouse on 9 August 2018, obtained by the Applicant in response to a notice to produce to the Respondent and appended to the Applicant's witness statement as Annexure K. That statement is in the following terms:

"At approx. 9.00 am on the day of 09/08/2018, the morning rush had subsided. Ian Birchley said to me 'What's the weather doing today?' I looked at the BOM weather map and replied "Mostly calm this morning wind increasing in the afternoon. Ian said "I have some spraying to do, what's on the agenda today?' I looked at the Booking Sheet and observed that we had an unusually quiet day ahead. I said to Ian 'Not a lot for the rest of the day'. Ian said 'I might bail out and leave you to it' or words to that effect. Ian left at approximately 9.10 am. That is how I remember the morning of 09/08/2018."[8]

[23] Under cross-examination, the Applicant accepted that he had previously always advised Mr Curran of reasons for any absences from the workplace including his own illness and the need to care for his daughter who had sustained an injury in a bus accident, but maintained that he was not required to do this. The Applicant also agreed that Mr Curran had always responded to his requests to be absent from the workplace in an understanding and supportive way, including sending messages wishing the Applicant well with his own recovery or best wishes for the Applicant's daughter when the Applicant took leave in connection with caring for his daughter.

[24] Mr Curran said in his evidence that the Applicant had always advised of his availability and communicated this effectively and that when the Applicant was unavailable due to personal circumstances he contacted Mr Curran directly to provide regular updates on the situation and advise on his ability to return to work. Mr Curran said that the Applicant's conduct in leaving the site and indicating his unavailability until 20 August 2018, was uncharacteristic and caused him concern. Mr Curran said that he attempted to contact the Applicant by phone four times on 9 August 2018 and twice again on 10 August 2018. Mr Curran also contacted the Applicant's stepson as he was concerned for the Applicant's welfare and after being advised that the Applicant was at his home and safe he made no further attempt to contact him.

[25] Mr Curran said that based on not being able to get in touch with the Applicant he commenced making plans for gatehouse coverage. To cover shifts from 10 to 20 August 2018 Mr Curran communicated with other departments at the Mine to review their workloads and tasks and selected a suitably qualified candidate. Mr Curran said that in making those plans he was in doubt as to whether the Applicant would return to work on 20 August 2018, due to the Applicant's uncharacteristic behaviour in failing to respond to his telephone calls. Mr Curran also said that he was even more concerned because he had leave approved from 10 to 14 September and 17 to 21 September and 9 additional days in October and would not be available to rectify coverage issues. Mr Curran states that he put the coverage arrangements in place until 31 October 2018 because he was not confident, based on the Applicant's unreasonable behaviour, that he would work any shifts if scheduled. In his oral evidence Mr Curran said that there would have been disruption caused to other departments by replacing the Applicant on a short term basis and that long term cover was more appropriate.

[26] In this regard Mr Curran said that the employee sourced to provide coverage for the gatehouse up until 31 October 2018 was from another department and that arranging his secondment for a longer period of time allowed that department to find coverage for the seconded employee. Mr Curran stated that it is more disruptive to take an employee from another department for a short period than to utilise them for a longer period. By seconding an employee for a longer period the employee's availability can be blocked out and the plan can be communicated to other parts of the business to allow them to also plan.

[27] When queried as to whether he should have put the proposed coverage to the Applicant prior to making this arrangement and outlined his concern that the Applicant would not attend work if rostered, Mr Curran stated that it was for those reasons that he had called the Applicant a number of times. He stated that he did not want to conduct that conversation by email as he considered having this type of conversation in writing to be unprofessional.

[28] Mr Curran also said that while there is no fixed timeframe for rostering, it was his practice to draft a roster for three months in advance and that this was usually done each quarter.[9] The Applicant gave evidence confirming that most of the time Mr Curran was proactive in planning rosters in advance. Mr Mason gave also gave evidence supporting Mr Curran's practice of rostering in such a way.

[29] Under cross-examination Mr Curran agreed that it was not unusual for the Applicant to leave the site early but maintained that on the occasion in question the abruptness with which the Applicant left, his indication that he would not be available for rostered shifts and his refusal to return calls caused Mr Curran to put alternative arrangements in place to cover the gatehouse until 31 October 2018. Mr Mason said that he was informed by Mr Curran on 9 August 2018 that the Applicant had left the site after sending an email stating that he would not be available to work until 20 August. Mr Mason's view was that the Applicant had left the site suddenly and abruptly and Mr Mason said that he told Mr Curran to attempt to contact the Applicant to ensure that he was okay and had made it home safely. Mr Mason understood that Mr Curran made several attempts to contact the Applicant. In response to questions about why he formed the view that the Applicant left the site on 9 August 2018 suddenly and abruptly, Mr Mason said that he based his view on factors including that:

• There appeared to be no prior contributing incident or factor; and

• The Applicant advised that he was unavailable for previously rostered shifts; and

• The Applicant had a history of answering his phone and communicating "extremely effectively" and had not done so after leaving the site on 9 August 2018.

[30] Mr Curran sent an email to the Applicant on 14 August 2018 informing him that Mr Curran had attempted to make contact with the Applicant a number of times by telephone and had been unable to do so and that alternative arrangements had been made for gatehouse coverage in the Applicant's absence. That email was in the following terms:

I have tried to contact you Thursday and Friday and left you messages on both days to give me a call to discuss the below and your availability moving forward.

As you have not returned my call to discuss, I have been required to make alternative arrangements for gatehouse coverage in your absence.

I have put in place suitable coverage until the 31st of October 2018 to meet site requirements. If I have any additional leave or site requirements for additional coverage I will give you a call to discuss your availability when or if these occasions present.

Please feel free to contact me at any time if you wish to discuss further. ..."[10]

[31] Mr Curran also sent a text message to the Applicant on 15 August 2018 advising him that an email had been sent to him in relation to gatehouse coverage until the end of October 2018. The Applicant said that he considered the email of 14 August 2018 was a suspension for a period of ten weeks and two days. The Applicant also said in his oral evidence that when he received Mr Curran's email he was not psychologically or mentally in a position to have a telephone conversation with Mr Curran and that as the decision on gatehouse coverage had been made, there didn't seem to be anything to discuss. The Applicant conceded that there is no evidence before the Commission that he was suffering from any psychological illness at that time.

[32] The Applicant responded to Mr Curran's email by an email sent on 16 August 2018 advising that his unavailability until 20 August 2018 remained and stating that he did not understand the decision not to roster him to work until 31 October 2018. The Applicant further stated that in his view this was "unwarranted, disproportionate, unfair and punitive" and that "being a casual does not mean that one has to accept unfair treatment". The email concludes by informing Mr Curran that if the Applicant does not receive confirmation that he can return to work on Monday 20 August 2018 as originally planned, he will presume that Mr Curran's position is unchanged and will seek "redress".[11]

[33] Mr Curran said that he felt that the Applicant's response was aggressive and unreasonable given the number of times that Mr Curran had attempted to make contact with him and that the Applicant was being unfair. Mr Curran drafted an email to the Applicant setting out the number of attempts that Mr Curran had made to contact the Applicant and informing him that Mr Curran had just wanted to have a discussion if he would answer telephone calls. That email was not sent and Mr Mason advised Mr Curran that he would take over communication with the Applicant.

[34] On 17 August 2018 at 10.30 am, Mr Mason emailed the Applicant asking if he was available for a meeting on site on Monday 27 August at 10.00 am. The Applicant said in his evidence that Mr Mason arranged the meeting for a date that was seven days after the Applicant had been due to return to work in accordance with his earlier advice, but that he agreed to attend. Under cross-examination, Mr Mason said that he did not attempt to organise the meeting for an earlier date because he was busy. The email chain in relation to the meeting tendered by Mr Mason shows that the Applicant responded to the request by email on 17 August at 11.07 am stating:

"Yes I can be available. Could you please advise the purpose or agenda and who will be attending."

[35] As he did not receive a response to his email and the questions set out in it, the Applicant did not attend the meeting. The Applicant said in his oral evidence that he did not believe that he should be required to expend his money on fuel to drive out to the site for a meeting in circumstances where he had been without pay and where Mr Mason had not taken the time to respond to his email requesting details about the meeting. The Applicant also said he was concerned about the subject matter of meeting given the reaction to him leaving the site.

[36] On 27 August at 12.00 pm Mr Mason emailed the Applicant asking him to explain why he did not turn up for the meeting at 10.00 am that day. At 12.32 pm the Applicant responded by email stating:

"Sure. I received no response from you regarding the purpose/agenda and who would be attending."

[37] Mr Mason responded by email at 12.37 pm stating:

You said you could make the meeting. I don't think I need to explain myself or who would be attending. Can you please give me another suitable time?"

[38] The Applicant responded to Mr Mason's email by further email sent at 1.18 pm stating:

"Nick, I responded to your request for a meeting saying that 'I can be available'. That was conditional on your response to my questions that followed.

If you weren't willing to provide an adequate response to those questions I will not be willing to attend any meeting.

I have been 'suspended'? from work for over two months without reasonable grounds so I'm hardly going to use my own time to walk into an ambush meeting.

Alternatively, you could outline what you want to say or ask of me in an email."

[39] Mr Mason's response sent at 1.42 pm was as follows:

Sorry I took your I can be available as your attending the meeting.

You left work in a hurry with no explanation and when Charlie tried to contact you didn't answer. Charlie tried a lot more to find out your movements with no response. I tasked Charlie to put plans in place to cover your shifts for an extended period of time as we didn't know what you were doing.

The meeting was to give you a chance to explain your actions and your commitment to your role here at Meandu."[12]

[40] Mr Mason said that he did not provide an agenda to the Applicant or tell him who was attending the meeting because he simply wanted to talk to the Applicant about his availability going forward. Mr Mason also said that if it was a disciplinary meeting Human Resource Management staff of Downer would have been involved and the Applicant would have been offered a support person, which the Applicant should have known given the length of his employment with the Company. Further, Mr Mason said that he did not believe that this conversation warranted an agenda.

[41] Under cross-examination Mr Mason said that he did not respond to the Applicant's email asking about the purpose of the meeting because he assumed the Applicant was attending and he does not reply to every email he receives. Mr Mason maintained that the purpose of the meeting was to discuss the Applicant's sudden departure; his commitment to the role moving forward and his failure to communicate given his usual practice of advising reasons for his absences from site. Mr Mason also said that there were no previous concerns about the Applicant's commitment to the role but his failure to communicate over the days following his departure on 9 August 2018 led to concerns about his commitment. Mr Mason was shown the statement from Mr McLennan appended to the Applicant's statement as Annexure K and agreed that Mr McLennan had provided that statement to the Company and there was nothing in it to raise a concern about the Applicant's departure from site.

[42] The Applicant said that after the email exchange with Mr Mason, Mr Mason called him on 29 August 2018 and asked why he believed he was being stood down. The Applicant said that during this discussion he referred Mr Mason to the email from Mr Curran on 14 August 2018 and did not have any further conversation with him. In relation to this discussion, Mr Mason said that he rang the Applicant on 29 August as he wanted to understand why the Applicant thought he was suspended. Mr Mason states he explained to the Applicant that he had taken action at the time that he thought was appropriate because he was uncertain that the Applicant was available for work.

[43] Later on 29 August 2018 the Applicant sent an email to Mr Mason outlining his position. That email included the following:

"... I left work shortly after 9:00am when, as I recall, all drug testing, visitor processing etc, had been completed and it seemed that there were no further known arrivals. I have finished work between 9:00 and midday on a number of occasions recently if there seemed to be no further tasks to complete. Charlie has signed my time sheets accordingly and I'd imagine that he hasn't before raised it as a concern because it represents a saving for the department. There was certainly nothing unusual or hurried about my departure that day.

With respect to my intended absences the following day, and the Tuesday to Friday the following week; In the past, as a general courtesy, I have given reasons for any absences, planned or otherwise. However on this occasion, I chose not to do so then and I am not going to do so now merely to satisfy someone's curiosity. The reasons are my personal business and had I wished to discuss them with Charlie or anyone else, I would have done so prior to finishing work that Thursday. I clearly stated that I would be available again from 20 August in my first email, and repeated it in my email of 16 August.

There was no reason, past or present, for anyone doubt that that would be the case, or if it wasn't to be that Charlie would be again notified. So why plans needed to be put in place for an extended period is still a mystery to me. I gave Charlie all the information that he needed to fulfil his task of ensuring gatehouse staffing levels are maintained.

Also, it is not appropriate for Charlie, nor anyone else, to contact my work colleagues or family members to "find out my movements" - my "movements" are my personal business and Downer does not need to know "what I am doing" outside of work. Furthermore, I certainly don't feel as though I have any case to answer or explain regarding my commitment to work. Only a few weeks ago, Charlie phoned me at around 8:00pm one weekend night when I was sitting around a camp fire with visiting relatives to ask if I could go to work as Alex felt ill. I told Charlie that I would call him back in a few minutes, and when I did call him back to say that I would do it, he advised that Alex had decided that he would continue with work. Charlie was very appreciative of the fact that I was prepared to do that then, so why anyone is now doubting my commitment to work is not only baffling, it's offensive.

An alternative email from Charlie on 14 August might have read something like this: 'I haven't been able to get you on the phone but I hope everything is ok and you will be back to work on the 20th. If it looks like you can't be back then, please let me know asap.'

I guess August 14 wasn't 'Are you OK?' day at Meandu, rather it seemed more like a day for drawing some snappy conclusions about my circumstances and meting out some punishment.

As stated in my email of 16 August, I have been available to work since 20 August and remain so. I have now lost an additional eight days of work and before long will have to make irreversible arrangements with my superannuation fund to meet living expenses and commitments, and those arrangements will have a substantial impact on my future availability for work. If that occurs, I won't have any choice to seek redress and compensation, but I'd rather avoid litigation. ..."[13]

[44] The Applicant states that no response was provided by the Respondent to this email. Mr Mason's evidence is that upon reading the email he thought that the Applicant was being unreasonable and intentionally difficult. Further, the comments at the end of the email about compensation and litigation concerned Mr Mason. After consulting with his manager, Mr Mason referred the matter to Downer's Human Resource Management Department.

[45] The Applicant's evidence is that he viewed his email of 29 August 2019 as outlining his position that he had been stood down and advising that he was still available to resume work, just as he had been since 20 August 2019. The Applicant said that he expected that Mr Mason would be seeking advice from his managers and that the Company would "soon correct its stance". On 7 September 2018, having had no response to his email from the Respondent, the Applicant engaged a legal representative and instructed him to file an application with the Commission. The Applicant states that he was advised by his legal representative to write a letter of demand including a settlement offer prior to filing an application. Regrettably, matters degenerated at this point and the Applicant's legal representative did little to assist him with his dispute.

[46] In a letter dated 13 September 2018 the Applicant's legal representative wrote to the Respondent in relation to what was described as an "employment matter". Relevantly the letter stated that the Applicant had sent a personal leave notice to Mr Curran on 9 August 2018 and had been informed that Mr Curran had "put in place suitable coverage until the 31st of October 2018 to meet site requirements" and that if the Respondent had any additional leave or requirements for additional site coverage he would call the Applicant to discuss these when or if these occasions arose. The letter goes on to state that:

"Our client now has no option but to resign as he is not needed to return to work. Therefore this is considered to be a constructive dismissal or a forced resignation which is an unlawful termination of the contract of employment.

...In addition no formal or proper notice was given under the Contract." [14]

[47] After setting out provisions of the Act in relation to constructive dismissal, the letter went on to assert that the suspension and reduction of the Applicant's working hours repudiated his contract of employment so that he needed to cease work altogether, so that the dismissal was at the initiative of the employer consistent with the Decision in Field v The Returned & Services League (Mount Gambier Sub-Branch & Memorial Club) Inc t/a Mount Gambler Community RSL[15] where the Commission considered the reduction in hours repudiated the contract of employment and that as a result of the employee accepting the repudiation, the dismissal was at the initiative of the employer. The letter went on to make the following "final" and without prejudice offer to settle the dispute:

1. Our client will accept the sum of 9 weeks pay (from 20 August 2018 to 31 October 2018) and additionally 9 weeks remedy which will allow our client to have enough time to find another job; or

2. Alternatively 5 weeks pay (from 20 August 2018 to 23 August 2018) and return to work as previously on the same terms on 24th September 2018 or an earlier date as mutually agreed.

If 1 or 2 is not accepted then our client will make an unfair dismissal and or a constructive dismissal claim to the Fair Work Commission on the basis that our client has no choice but to resign without a proper notice.[16]

[48] On 20 September 2018, Mr Jarrett Goos responded to that offer on behalf of Downer rejecting the offer and denying that the Applicant had been dismissed. That response was in the following terms:

"I write to you following your correspondence of 13 September 2018 in which you allege that Downer EDI Mining Pty ltd (Downer) has terminated the employment of your client Ian Birchley.

Mr Birchley is engaged as a casual employee. His supervisor sought to roster Mr Birchley on for a number of shifts before he left site on annual leave. As a result of Mr Birchley not returning those calls prior to his departure, alternative arrangements with a different employee were made.

Downer deny Mr Birchley has been dismissed[17]."

[49] The Applicant said that he viewed this response as little more than a denial that he had been dismissed and a claim that he had made himself uncontactable for rostering, when in the Applicant's view the roster was organised and he was simply waiting for confirmation that he could resume working to the roster. The Applicant states that on 21 September 2018 he gave a further instruction to his legal representative to proceed with an application to the Commission. The Applicant's lawyer again wrote to the Respondent on 28 September 2018 (the day before the previous settlement offer expired) providing further evidence of the nature of the Applicant's employment including history of hours and past and future rosters. That correspondence stated:

"...Further to our letter dated 13 September 2018, we write to you that our clients was not a casual employee and has the same rights as permanent type employees in relation to unfair dismissal.

It has been decided in the recent case of WorkPac Pty Limited v Skene [2018] FCAFC 131 ("WorkPac v Skene"), the Full Court of the Federal Court ("Court") upheld a decision finding that an employee, who was described in her employment contract as a casual employee was in fact not a casual employee at law for the purposes of annual leave entitlements or under the workplace agreement because she worked a regular roster set a year in advance which made her a permanent employee.

As a consequence, the employee was entitled to annual leave or to be paid an amount in lieu of that leave entitlement under both the National Employment Standards known as "NES" and the enterprise agreement which applied to the employment.

The decision in WorkPac v Skene confirms that in considering whether an employee is a casual or permanent for the purposes of the Fair Work Act 2009, the approach adopted by the common law prevails. Essentially, this requires that in order to be considered a casual, an employee must have no firm advance commitment as to the duration of their employment or the days (or hours) worked. ..."[18]

[50] The letter went on to assert that the Applicant had regular starting times, had worked "nearly full time hours between 5 January and 9 August 2018 and had a clear expectation of continuing employment evidenced by his roster schedule." The letter further asserted that the Applicant had not been paid a casual loading and that the expectation that the Applicant would be available to work in accordance with a roster which operated almost 12 months in advance resulted in him being a permanent employee. An increased offer to settle the dispute was made in the following terms:

1. Our client will accept the sum of 10 weeks pay in the total amount of $22,922.04 ($20,933.37 plus employer superannuation contributions of $1,988.67);

2. Additionally the equivalent to the above amount of $22,922.04 to remedy to our client which will allow him to have enough time to find another job;

3. All other entitlements (at least the minimum requirements payable under the NES or the workplace agreement) for the duration of the 32 weeks which our client worked for you including:

• Paid annual or personal leave;

• Parental leave and related entitlements (unless a 'long term casual');

• Compassionate leave;

• Notice of termination;

• Redundancy pay; and

• Public holidays.

1. Our client's legal cost of $4,000.00.

If all the above is not accepted then our client will make an unfair dismissal and or a constructive dismissal claim to the Fair Work Commission on the basis that our client has no choice to resign without proper notice.[19]

[51] Mr Goos again responded re-iterating that the Respondent considered that the Applicant was a casual employee who provided consistent but irregular annual leave coverage and that he had not been dismissed. That correspondence relevantly stated that:

"...Mr Birchley is engaged as a casual employee and ...has not been dismissed. I note that your summary of Mr Birchley's engagement support our contention that Mr Birchley is a casual, who provided consistent, but irregular, annual leave coverage. His engagement across crews, working different patterns and shift lengths underline his 'casualness', as do his wages which fluctuate from week to week.

His employment can be distinguished from the employment of Skene in the matter of WorkPac Pty Ltd v Skene [2018] FCAFC 131 on the basis that Mr Birchley did not work a set roster. Mr Birchley further had flexibility to start and finish at varying times and the ability to accept or reject shifts; a flexibility exercised in the days preceding the erroneous termination claim. Mr Birchley was also paid a separate, distinguishable casual leave loading; another vital distinction between Mr Birchley's circumstances and those of Skene.

I also draw your attention to the following matters relating to your most recent letter of demand:

• The Fair Work Commission is a no-cost jurisdiction
• You must seek permission to act which Downer will oppose
• Your client will need to establish jurisdiction to claim constructive dismissal in circumstances where Downer sought to engage your client but he did not make himself available, where Downer deny the termination of your client and Downer have no record of his resignation; and

• Pecuniary penalties are not available in relation to unfair dismissal (other than a breach of an order). ..."[20]

[52] On 5 October 2018 the Applicant's representative again corresponded with the Respondent stating that if the Applicant had not been dismissed that the matter could be resolved by converting the Applicant's employment to full-time and paying other compensation. That correspondence stated:

"...If not terminated but then not giving our client to work will lead our client to no choice but to resign and this would constitute as constructive dismissal as mentioned in our letter of 13 September 2018.

Our client did not work on a set roster as shown in the roster schedule which was published in advance. He denies that he did not have such flexibility.

We note that as our client has received casual loading and therefore cannot 'double dip'.

If our client is not dismissed, then our client will offer to accept the following:

1. An immediate return to work (before 15 October 2018) as a permanent employee offering our client a full-time employment position;
2. 8 weeks pay of $18,337.60 (from 20 August 2018 to 12 October 2018) for the time that he would have worked; and
3. Our client (sic) legal costs of $4,000.00 to date.

Please forward us a full-time employment contract for our client to sign within 7 days.

If refused our client will have no choice but to resign and take the matter further. He assures that he has nothing to lose and willing to take it further if necessary."[21]

[53] On 9 October 2018 the Applicant emailed the Respondent advising that he was no longer legally represented and would be representing himself. In his email the applicant stated that he had incurred legal costs of $2,090 at that point and wished to amend his claim for legal costs to that amount. The Applicant also claimed that he had worked an average of 33 hours and 52 minutes per week in the preceding 12 months and that had Downer not prevented him from working since 20 August 2018 the hours he was originally rostered and would have worked were an average of 38 hours and 52 minutes in that period. The Applicant further claimed that he had worked an average of 38 hours and 17 minutes in the 45 week period to 17 August 2019.

[54] The Applicant claimed in the email that although he had not worked since 9 August 2018, dividing the total hours he had worked in the preceding 12 months (1,761) by 44 weeks (to allow for five weeks of annual leave paid to full time employees, 11 public holidays, two days compassionate leave, and two days personal leave) he had worked over 40 hours per week, an amount in excess of full time equivalent hours. The Applicant went on to claim that he had looked carefully at the relevant enterprise agreement and had formed the view that he was working the B/D roster and should have been paid penalty rates for the 8th to 10th hour he worked each day on the basis that he was working a continuous roster and had done so up until February 2018. The Applicant claimed that after that date, he was working a Monday to Friday roster. The email concluded as follows:

"...Only in February 2018 did I agree to my supervisor's request for me to work a Monday to Friday roster in future, with amendments to cover others' training commitments and absences, although that too did not see my employment converted to full time.

In short, it is clear that the Downer approach has been to use casual employees in any way that suits their purpose whilst paying them the least amount possible; exploiting the convoluted and implicit nature of the Agreement. While the Agreement provides for any roster which is agreed by management and the majority of affected workers (in the case of casual employees that may only be one), I would submit that that does not confer upon Downer a right to use casual employees as full time employees without paying them as such, with the threat of reduced hours if they do not agree to the roster/hours being offered by management. Indeed this is exactly the punishment that has been meted out to me.

I have not yet calculated the backpay that I believe is due, but will advise following the expiration of the current offer which [legal representative] has put to you. ..."[22]

[55] The Applicant said in his evidence that some twenty minutes after sending this email, he received an email from Mr Curran seeking his assistance in covering "some additional gatehouse coverage dates that have come up". The hours offered were from 5.50 am to 8.30 am on 16, 18 and 25 October.[23] The Applicant submitted that while this offer of work is consistent with Mr Curran's email of 14 August 2018, in reality those needs had not suddenly arisen but rather were Emergency Response Team training days which had been rostered since the beginning of the year and that there had already been several such dates during the Applicant's "suspension".

[56] On 11 October 2018 Mr Goos emailed the Applicant on behalf of Downer expressing regret for the Applicant incurring legal costs but maintaining that Downer was under no obligation to compensate for these costs.[24] The email also stated that Downer disagreed with the Applicant's additional arguments as set out in his email. Mr Goos' email stated that:

• There is no casual conversion clause under the Downer EDI Meandu Mine Enterprise Agreement 2016 and that award clauses referred to by the Applicant did not apply;

• The Applicant was not engaged on a roster irrespective of the fact that his hours of work aligned with a roster and he was therefore not a 7 day shift worker;

• The Applicant had received overtime payments in excess of those he would receive if his claims were correct; and

• Had been overpaid with respect to night shift allowance.

[57] The email stated that Downer had only ever engaged the Applicant as a casual employee and that while the Company had no legal obligation to do so it would consider the Applicant for full-time opportunities as a production operator. The Applicant was invited to arrange a meeting with the Human Resources Superintendent Ms McDuffie, if he was interested in pursuing this option. Further, the email stated that Downer refuted any underpayment as a result of work performed by the Applicant which coincided with roster patterns of employees for whom he performed relief coverage. The email concluded by pointing out that the method by which Downer had paid the Applicant overtime resulted in him being paid more than he would have been paid if treated as a seven day roster employee. The Applicant responded by email to Mr Goos and Ms McDuffie requesting a summary of alternative roles and rosters that might be available and indicating that such information would better assist the Applicant to respond to Mr Curran's offer of work at the gatehouse The Applicant also emailed Mr Curran on 12 October 2018 indicating that he would be available to work the hours offered at the gatehouse, subject to Ms McDuffie's directions when he heard back from her and requesting to have his password reset in the event that he needed to use the computer on those days.

[58] On 12 October 2018 Ms McDuffie corresponded with the Applicant providing him with information on current vacancies at Meandu Mine, as per a telephone call with the Applicant that afternoon.[25] Also on 12 October 2018 the Applicant emailed Mr Goos stating that Ms McDuffie had spoken with him and advised that there were no suitable vacancies for him at the Mine and that he did not hold the necessary qualifications for those vacancies. The email requested that Mr Goos urgently advise Downer's position as it did not seem that Ms McDuffie was working to resolve the matter. Mr Goos responded by email to the Applicant confirming that there were no suitable vacancies and stating:

"Downer have no obligation to transfer you to a full-time role and we otherwise have no liability with regards to your leave entitlements or pay. I have indicated to you that Downer review full-time opportunities for you as a production operator and that you needed to engage with Chrys [McDuffie]. This is a site operational issue only.

Our offer to review your employment was a goodwill gesture and should not be seen as flowing from an entitlement. To this end you need to continue to engage proactively and constructively with Chrys.

Should you wish to proceed with your underpayment/accrual complaints you are free to do so and could do so in tangent with seeking an alternative role. In regard to your complaint, you should engage with me.

Should you need, please give me a call."[26]

[59] The Applicant said in his evidence that in his view the engagement of the Respondent in relation to the question of full-time conversion was a diversion and on that basis the Applicant declined to work the hours requested by Mr Curran on 9 October 2018. The Applicant also tendered an email received on 14 October 2018 from Paul Oram, Project Manager/SSE for Downer, who requested the Applicant attend a meeting on 17 October 2018. That email stated:

Jarrett and Chrys have been keeping my in the loop. Can I suggest you and I catch up next week to discuss? I have availability on Wednesday 17th.

I can walk through what positions we have, which isn't many and/or not suitable but how it could work in terms of Jarrett's comments to consider you etc.

Let me know a time that suits on Wednesday. You are welcome to bring a support person if you would like.

[60] On 14 October 2018 the Applicant provided the following response.

I don't think that will be necessary as Chrys has already explained that you have no work for me. It's not that I didn't understand what she said, it's just that it really amounted to nothing more than 'check out website for vacancies'. That really made Jarrett's 'gesture' rather empty, and left me thinking that it was simply staged to bring about some contact between you and/or Chrys, and me which could later be held out as 'consultation' in relation to my request to convert to full-time. Despite Jarrett's position that it does not apply in this case, I'm sure he'd still like to cover off on that base.

Last Friday I agreed to Charlie Curran's request of 9 October for me to work some 'additional' hours during ERT training over the next two weeks, subject to what direction I received from Chrys. As there was wasn't any, I shall not be working those hours. I feel certain that he was directed to offer those few hours only to create the appearance that I have always been employed in a 'casual' manner. Indeed, after two months of hearing nothing from Charlie, he offered those hours by email just twenty minutes after my formal email request to convert to full time work.

Furthermore, the necessity to cover those 'additional' hours did not suddenly arise, they are merely the busiest morning hours of the ERT training days and have been on the ERT roster all year. In fact, since my planned return to work on 20 August, there has been no less than 26 such ERT days which have been covered mainly by Lindsay Laherty - another 'casual' who works full time hours Monday to Friday each week. In any case, I understand you have already interviewed, if not employed, others to replace me in the gatehouse.

Charlie's email of 14 August effectively suspended me and stated that he had arranged other coverage until the end of October, but still there has been nothing communicated about my work from November onwards (just two weeks away). Therefore Charlie's offer is not a genuine offer of meaningful or sustainable employment; six hours next week, three hours the following week, and no talk of anything beyond that - farcical.

Please feel free to correct me if I am off track here. If there really is something more for you to tell me about, other than what Chrys has already told me, could you please outline it in a reply email so it is recorded.

If there should be nothing further of substance received by 5pm Monday 15 October, and as Jarrett has not accepted anything offered in the letter of demand forwarded by my former legal representative, I shall commence the application process for Unfair (constructive) Dismissal via the Fair Work Commission. ..." [28]

[61] The Applicant's evidence was that as he received nothing of further substance from the Respondent he made an unfair dismissal application on 18 October 2019. In that application the Applicant asserted that he had been constructively dismissed. It was contended by the Applicant that the Respondent had not only failed to provide a valid reason for the dismissal but, by virtue of disputing that the termination of the Applicant's employment was caused by the Respondent, has failed to provide any reason at all. As a result the Applicant submits that the criteria in ss. 387(b)-(e) were not applicable. The Applicant submitted that as a reason for the dismissal had not been provided, he could not be notified of the reason, given an opportunity to respond, have a support person present during discussions or be warned about relevant past unsatisfactory performance.

[62] The size of the Respondent Company was also considered a factor of importance by the Applicant. He submitted that the Respondent is a large enterprise and part of a larger group of enterprises with commensurate resources and procedures to ensure that the process in relation to termination of employment provides fairness. It was contended that by virtue of its size, the Respondent also had dedicated human resource management specialists who were able to impact the procedures followed in effecting the dismissal and this is a factor weighing in favour of not reducing the standard of fairness required on the basis that the Respondent's staff were ill-equipped to progress the termination in a fair manner.

[63] The Applicant submitted that the suspension that led to the dismissal was harsh and unjust because of the summary and punitive manner in which it was imposed, causing a considerable loss of income. The Applicant contended that the suspension decision was influenced by Mr Curran's assumptions as to the Applicant's reasons for making himself unavailable. It was said by the Applicant that those assumption lead to a longer than necessary suspension and that it was unreasonable not to fill his position for the period of his unavailability only.

[64] The Applicant made submissions that the position of ESSO for the Respondent has been a historically difficult position to fill with any long-term security. The Applicant also submitted that a number of individuals over the previous years have stayed in the job for a only a matter of weeks, for reasons of dissatisfaction.

[65] The Respondent's written outline of submissions is somewhat contradictory. The Respondent initially states that the Applicant contends that he has been dismissed although he has not resigned or been terminated. The Respondent then submits that: "Despite this the Respondent accepts that dismissal has occurred and does not contest that employment has come to an end, however the Respondent submits that the dismissal was caused entirely by the unreasonable and capricious conduct of the Applicant." At the conclusion of its submissions the Respondent indicates acceptance that the Applicant's employment has come to an end and submits that if the Commission finds it has dismissed the Applicant, the dismissal was not harsh, unjust or unreasonable given the Applicant's conduct.

[66] In response to the claim by the Applicant that he was unfairly suspended, the Respondent submitted that it was the Applicant who left work without cause or explanation, failed to respond to attempts by the Respondent to communicate and refused to meet with supervisors or to accept additional shifts offered to him. The Respondent also submitted that while the Applicant maintains that its actions in organising gatehouse coverage were punitive, it was in fact the Applicant who caused the Respondent to reschedule shifts and engaged legal representation and threatened legal proceedings against the Respondent. The Respondent further submitted that since 9 August 2018 the Applicant has been argumentative, pugnacious and unreasonable, but despite this the Respondent has engaged constructively with, and demonstrated concern for, the Applicant.

[67] By virtue of s. 386(1) of the Act, 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.

[68] The Explanatory Memorandum to the Fair Work Bill 2008 states as follows in relation to this provision:

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign."

[69] In Mohazab v Dick Smith Electronics Pty Ltd[29] the Industrial Relations Court of Australia was dealing with a case where an employee resigned his employment after being directed to do so or the police would be called. The Court did not consider the issues in that case solely within the paradigm that has been described as constructive dismissal. Rather the Court considered the meaning to be given to the term "termination at the initiative of the employer" and held that:

"...it is unnecessary and undesirable to endeavor 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 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."[30]

[70] The Court went on to cite with approval the judgement of Wilcox CJ in APESMA v David Graphics Pty Ltd[31] where his Honour said:

"I agree with the proposition that termination may involve more than one action. But I think it necessary to ask oneself what was the critical action or what were the critical actions, that constituted a termination of the employment."[32]

[71] In relation to Mohazeb a Full Bench of the Australian Industrial Relations Commission said in O'Meara v Stanley Works Pty Ltd[33]:

"[23] 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... 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."

[72] Section 386(1) covers a wide range of circumstances whereby the employment relationship is not left voluntarily by the employee. These include, but are not limited to repudiation of the contract of employment by the employer which is accepted by the employee and constructive dismissal. It is well established that where there is conduct by the employer that amounts to repudiation of the employment contract which is accepted by the employee, it is the conduct of the employer that brings the employment relationship to an end.

[73] In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd[34] the High Court said in relation to repudiation of a contract that:

"Repudiation is not ascertained by an inquiry in to the subjective state of mind of the party in default; it is to be found in the conduct, where verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligation and not in any other way."[35]

[74] The High Court went on in that case to hold that the question is what effect the defaulting party's conduct would be reasonably calculated to have upon a reasonable person and that:

"It suffices that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it."[36]

[75] It is also the case that acceptance of repudiation must be clear. Acceptance of repudiation may be conveyed in a manner other than by the employee resigning (although this is often the manner of acceptance of repudiation of the employment contract). An employee may also convey acceptance of repudiation of an employment contract by means such as leaving the workplace and not returning, obtaining other employment, providing written advice to the employer that the employee considers the conduct is repudiation and accepts that the employer has ended the employment, making an unfair dismissal application or a combination of such actions.

[76] The term constructive dismissal is generally used to describe a situation in which the acts of the employer bring about the termination of employment even though the final act is the resignation of the employee.[37] It may be - as was observed by Young J in Brookton Holdings No 5 Pt Ltd v Kara Lar Holdings Pty Ltd[38] - that there is no real difference between repudiation of the employment contract by an employer or constructive dismissal, although his Honour also observed in that case that "some philosophers might find some ground for distinction".[39]

[77] It is clear that the concept of constructive dismissal is dealt with by s. 386(1)(b) and that s. 386(1)(a) covers other situations where the employee does not voluntarily leave employment so that termination of employment is at the initiative of the employer. There are a number of authorities for the proposition that a reduction in hours or pay for a casual employee can constitute termination of employment at the initiative of the employer. These cases variously deal with the subject on the basis of considering whether the reduction in hours constitutes a repudiation of the contract of employment so that the acceptance of the repudiation brings the employment relationship to an end or whether the reduction forces the employee to resign so that the termination of employment is a constructive dismissal. As previously noted there may be little if any distinction between these situations and in both cases the employee has been dismissed.

[78] In Field v the Returned and Services League (Mount Gambier Sub-Branch & Memorial Club) Inc T/A Mount Gambier Community RSL[40] the applicant had been employed as a casual Food and Beverage Attendant initially working 12 hours per week increasing to 38 hours after several months. Approximately 8 months after commencing employment the Applicant was offered a permanent full-time position on a probationary basis. The Applicant was given a letter advising her that she had been "promoted" from casual to full time on a three month trial basis and that should the applicant's performance during the probationary period be satisfactory her position "may possibly become permanent".[41]

[79] After a series of incidents the Applicant's hours were reduced so that she was offered only 2 shifts with a total of 7 hours in the weeks prior to the ending of her employment. the applicant in that case was also required to contact the employer to find out whether additional shifts were available for her to work. Deputy President Bartel found that this constituted a significant change in the applicant's employment arrangements. Further, the Deputy President found that the applicant was not a casual employee at common law for many months before her "promotion" to a full-time position.[42] After considering cases in relation to repudiation of employment, the Deputy President found that the respondent terminated the employment relationship when it reduced her hours of work which constituted a repudiation of the employment relationship. The Deputy President went on to find that the applicant accepted the repudiation when she refused to work any shifts unless her full time position was reinstated and that the applicant was dismissed at the initiative of the employer.[43]

[80] In Urand v Beaconsfield Children's Hub[44] Deputy President Hamilton considered that a reduction in hours from 4 to 2 shifts per week with a possibility only of additional shifts, was a very substantial reduction. The Deputy President concluded that the applicant was forced to tender her resignation and indicated this at the time and that this was a constructive dismissal so that the applicant's employment ended at the initiative of the employer. In Hogan v TAB Hotels Pty Ltd T/A The Jubilee Hotel[45] Commissioner Hunt considered whether the resignation of a casual employee was a constructive dismissal. The facts in that case were that the casual employee had been employed for some ten years and had usually worked for 30 + hours per week. Following a period of unpaid absence due to personal illness, the applicant's hours were reduced to 13.5 hours causing the applicant to resign her employment after informing her employer that she was forced to resign due to the reduced hours. In determining that the termination of employment was not a case of constructive dismissal, Commissioner Hunt noted that the reduction was temporary and the applicant had no reason to consider that it was permanent and that the applicant had other options which she had not utilised to complain of the reduction of her hours.

[81] In Goodwin v Shanaya Pty Ltd T/A Dominos Pizza[46] the Commission found that the applicant's resignation followed a period of 5 weeks in which his hours had been reduced to zero then maintained at a level significantly lower than the average for the previous 20 weeks and that in circumstances where the applicant had attempted to resolve the issue with the franchise head office it was reasonable for the applicant to resign. The Commission also found that the applicant in that case did not want to resign but that the respondent's conduct had forced the applicant into a position where he had no reasonable option but to resign.

[82] The decision of a Full Bench of the Commission in Wilson v Town of Victoria Park[47] involved an appeal against a decision of the Commission to the effect that a casual employee whose hours had been reduced had not been constructively dismissed in circumstances where he resigned his employment in protest at the reduction. In that case the Full Bench of the Commission noted that the applicant's written contract of employment provided that his casual hours would be rostered in accordance with the operational needs of the employer, could vary from week to week and were not guaranteed. In refusing permission to appeal the Full Bench said:

"[16] The appeal grounds which we have earlier set out contend that the Commissioner erred in making significant errors of fact. We are not satisfied that any of these grounds of appeal are arguable. Mr Wilson's case appears to depend on the proposition that the resolution of the September 2016 dispute concerning his working hours was resolved on the basis that he was indefinitely guaranteed 5.5 hours' work per week. The Commissioner, having carefully assessed the competing evidence about this, found that no such guarantee was given, and that to the contrary Mr Wilson was told that as a casual employee his hours might change again in the future according to Victoria Park's operational needs. This was consistent with the basis upon which he was originally engaged. Beyond the assertion that Mr Wilson's evidence should have been preferred, no basis has been demonstrated for considering that the Commissioner's finding about the resolution of the September 2016 dispute was attended by appealable error. Mr Wilson's contention therefore that the proposed alteration to his working hours in late December 2016 represented a repudiation of his employment contract is therefore misconceived.

[17] On the facts as found by the Commissioner, it was simply not open to find that any conduct on the part of Victoria Park had forced Mr Wilson to resign. It was entitled under its employment arrangement with him to alter his hours of work. Once he protested about this, Victoria Park made it clear to Mr Wilson that it was willing to discuss a resolution of the problem (as it had successfully done in September 2016). There are no facts demonstrating or supporting the inference that Victoria Park intended Mr Wilson's employment to terminate or that it foresaw that this would be the likely consequence of its conduct."[48]

[83] In City of Sydney RSL v Balgowan a Full Bench of the Commission considered whether an alteration to shifts, work location and duties performed by a casual employee was a repudiation of the contract of employment and whether there was a constructive dismissal. The Full Bench noted that the decision at first instance had not expressly determined whether the applicant had resigned her employment or that the employer had directly terminated the employment. Instead that decision proceeded to consider the concept of constructive dismissal and determined that the conduct of the employer was a repudiation of the contract of employment which the employee was entitled to accept, thereby bringing the contract of employment (and the employment relationship under it) to an end, with the consequence that it was the action of the employer

[84] The Full Bench in Balgowan expressed reservations about whether the concept of repudiation of an employment contract could operate with respect to casual employment rather than making a definitive finding that repudiation could not operate with respect to casual employment contracts as a general rule. The Full Bench also observed that a finding that a contract has been repudiated requires an analysis of the terms of the contract and not just the conduct of the repudiating party. The Full Bench set out a passage in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[49] (Koompahtoo), a case where the High Court considered repudiation. From that case the following principles can be derived.

[85] Firstly, the term repudiation may be used in the sense of renunciation, which can be described as conduct which evinces an intention to no longer be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. The test for renunciation is whether the conduct of one party is such as to convey to a reasonable person in the situation of the other party, renunciation of the contract as a whole or of a fundamental obligation under it. Secondly, the term may refer to any breach of a contract which justifies termination by the other party. A breach of contract by one party may entitle the other party to terminate where the obligation with which there has been a failure to comply has been agreed by the contracting parties to be essential or where breach of a non-essential term is sufficiently serious.[50]

[86] The Full Bench in Balgowan stated:

"[18] The question whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate and is a question of fact not law. Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee's consent17 or where there is a serious non-consensual intrusion on the nature of the employee's status and responsibilities in a way which is not permitted by the contract. Similarly, if an employer seeks to bring about a change in the employee's duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.

[19] Conduct of an employer which repudiates the contract of employment does not by that act alone bring the contract of employment to an end. A repudiation of the contract by the employer gives the employee who is not in breach the option to decide whether to continue, that is to affirm the contract, or to treat the contract as at an end by accepting the repudiation.

[20] As repudiation in the second sense referred to by the High Court in Koompahtoo involves conduct in breach of the contract of employment it is plainly necessary to identify the term or terms of the contract said to exist and which it is said has or have been breached. As was observed in North v Television Corporation Ltd:

"Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is ... a breach of such gravity or importance as to indicate a rejection or repudiation of the contract."[51]

[87] The Full Bench in Balgowan went on to find that although the applicant in that case was a casual employee engaged on a regular and systematic basis, her hours of work were not terms of a contract of employment of an ongoing nature which could only be altered by agreement. Rather, the number of shifts that the employee may be required to work, the location at which work would be undertaken and the duties to be performed in undertaking that work in the future, were matters of expectation - albeit reasonable expectation - but were not terms of a contract of employment.[52] The Full Bench in Balgowan also observed that there are a number of different characteristics of casual employment and that the fact that casual employees may have their period of employment recognised as continuous for the purposes of making an unfair dismissal application does not alter the fundamental contractual character of casual employment as a series of engagements each under a separate contract of employment. It was concluded in Balgowan that:

"[29] Since neither the future shifts, weekly hours and duties that the Respondent expected to work and perform nor the location at which that work would be undertaken were contractual, it was not open for the Commissioner to conclude that the proposed alteration, albeit short term, to the number of hours or shifts that the Respondent as a casual employee would be offered, the location at which work during those hours would be performed or the duties to be performed was a repudiation by the Appellant of the contract of employment. It follows that there was not a constructive dismissal."[53]

[88] In Khayam v Navitas English Pty Ltd t/a Navitas English[54] a majority of a Full Bench of the Commission made the following observations about the operation of unfair dismissal provisions in Part 3-2 of the Act with respect to casual employees:

"[70] Fourth, s 384(2)(a) gives a clear indication that casual employees who have been employed on a regular and systematic basis and during that service have had a reasonable expectation of continuing employment on a regular and systematic basis are intended to be included in the unfair dismissal scheme in Pt 3-2. Section 382(a) requires that, in order for a person to be "protected from unfair dismissal" for the purpose of the Part, the person must have completed a period of employment with the employer of at least the "minimum employment period". The "minimum employment period" is defined in s 383 to mean one year in the case of a small business employer and 6 months in the case of all other employers. Section 384(1) provides that an employee's "period of employment" with an employer is the period of continuous service the employee has completed with that employer. Section 384(2)(a) then provides:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; ...

[71] It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). 77 Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 386(2)(a)."[55]

[89] The concept of casual employment is also capable of a number of meanings. A "true casual" has traditionally been defined as working under informal, uncertain and irregular arrangements.[56] Increasingly however, there are casual employees who work for the same employer, for the maximum ordinary hours that can be worked in a week and who are rostered for extended periods. There are cases where casual employees have been found to be employed under a single continuing contract of employment although as the Full Bench in Balgowan observed, such cases are rare.

[90] Balgowan is not authority for the proposition that a casual employee can never be constructively dismissed. Nor is that case authority for the proposition that constructive dismissal can only occur in circumstances where there has been repudiation of the employment contract. The concepts of constructive dismissal on the one hand and the ending of the employment relationship by the acceptance of repudiation of the underlying employment contract on the other hand, do not cover exactly the same ground although they may overlap.

[91] To find that a casual employee who is within the scheme of the unfair dismissal provisions in Part 2-3 of the Act, could not be dismissed in circumstances where hours which that employee had been regularly and systematically rostered to work were removed by the employer, in circumstances where such conduct if perpetrated against a weekly employee would constitute dismissal, would also defeat the operation of those legislative provisions. An employee who has been dismissed and who is covered by the legislative scheme dealing with unfair dismissal is entitled to pursue an unfair dismissal application. The nature of the contract may be relevant to whether the dismissal is unfair but it is not determinative of whether the application can be made at all. Whether or not such conduct amounts to repudiation of an employment contract in the case of a casual employee is not determinative of whether the conduct of the employer ended the employment relationship with that casual employee so that the employee was dismissed. It is also possible that a casual employee can be employed under a continuous contract of employment which can be repudiated by the employer so that acceptance of the repudiation ends the employment relationship at the initiative of the employer.

[92] As the Applicant in the present case aptly expressed the matter, the fact that an employee is casual does not give the employer a right to treat that employee unfairly. If the employer's treatment of an employee is unfair to the extent that it repudiates or brings about the end of the employment relationship, and the casual employee is a person protected from unfair dismissal, then that employee is entitled to seek a remedy and to have the fairness of the dismissal tested against the legislative framework.

[93] In the present case I have considered the ending of the employment relationship between the Applicant and the Respondent in the context of both repudiation and constructive dismissal. On the basis of the evidence before me I am satisfied and find that the Applicant was a casual employee with a continuing contract of employment. This is evidenced by the fact that the Applicant was rostered to work at the Mine for a 12 month period and was specifically named on the roster as being assigned certain shifts. This goes beyond mere expectation that he would be provided with shifts. It is not a case where the only expectation that the Applicant could reasonably have had is that he would be offered work when and if the Respondent required his services.

[94] It is also clear that the Applicant's practice was to seek permission to be absent from the Mine when he needed to take leave for particular purposes notwithstanding that he was not paid for such leave and that the Applicant accepted that he had an obligation to notify the employer of such absences. Further, the reaction of the Respondent to the advice from the Applicant that he would be absent from the site for the period of 9 to 20 August evidences that he had a single ongoing contract of employment with the Respondent. So concerned was Mr Curran by the Applicant's absence that he felt the need to replace the Applicant on the roster with other particular employees, for a period of ten weeks notwithstanding that the Applicant had sought to be absent for only six shifts over a period of under two weeks. This decision was supported by Mr Mason, further evidencing the importance of the Applicant's position on the roster.

[95] The evidence also establishes that the Applicant was given a written letter of offer as a casual Emergency Services and Security Officer at the Meandu Mine on an hourly rate which included a 25% casual loading. The casual loading is not shown separately in the letter of offer. The letter of offer does not indicate that the Applicant could be employed at any other site or that there was anything irregular about his employment. Nor is there any contractual term indicating that the Applicant started a new period of employment on each occasion he worked. Further, the Applicant was employed under a site specific enterprise agreement referred to in the letter of offer and provided to the Applicant on commencement of employment, which provided for termination of employment on one hours' notice but did not otherwise indicate that casual employment would not be ongoing.

[96] Accordingly, the Applicant had a contract of employment to work until at least the end of 2018. The question is whether the conduct of the Company was such that it would convey to a reasonable person, in the situation of the Applicant, repudiation or disavowal of either the contract as a whole or of a fundamental obligation under it. In my view there was a repudiation of the Applicant's contract. The inclusion of the Applicant on the roster was a fundamental feature of his employment. While the Applicant was a casual employee, he had worked for the Respondent for almost two years when the relevant events occurred. The Applicant had worked regular hours on an almost full-time basis in a particular role. Whether or not the Applicant was working a particular roster, he was working shifts that aligned with a roster that was in place up until the end of 2018 and he was specifically nominated to work those shifts. The Applicant had been a reliable employee and there was no previous issue with his conduct or work performance. As I have previously noted the importance of his role is evidenced by the reaction of the Respondent to his absence and the issues it had replacing the Applicant on the roster.

[97] I accept that it was unusual for the Applicant to be unavailable for rostered shifts without advising of a reason and that Mr Curran and later Mr Mason were genuinely concerned about the Applicant's wellbeing and the need to cover shifts at the gatehouse. I also accept that Mr Curran made a number of attempts to contact the Applicant and that he failed to respond to Mr Curran's communication. However, notwithstanding these matters, to reduce the Applicant's hours of work to zero for a ten week period, and then to provide him with no guarantee that his position on the roster would be reinstated, was an over-reaction and disproportionate to the Applicant's conduct. This is so regardless of whether there was any intention on the part of Mr Curran or Mr Mason to dismiss the Applicant. For reasons I have set out in my consideration of whether there was a valid reason for dismissal, I do not accept that the matter of the Applicant's absence from work at the point Mr Curran decided to remove him from the roster was so pressing that Mr Curran's reaction was reasonable.

[98] The reduction in the Applicant's long established and rostered hours and the indication that his position on the roster would not be reinstated and that instead he would be offered shifts as required, fundamentally altered the basis upon which he had been employed and would convey to a reasonable person that the Respondent's intention was to repudiate the Applicant's contract of employment or a fundamental term of it - that he work the roster he had been allocated to, until at least the end of the roster period, 31 December 2018 and beyond.

[99] Accordingly, I am satisfied and find that the Respondent's conduct brought about the ending of the employment relationship with the Applicant and that the Applicant was dismissed. Even if the Applicant was not employed under a contract of employment that was capable of repudiation, I am also satisfied that the conduct of the Respondent was a course of conduct as described in s. 386(1)(b) and that it forced the Applicant to resign from his employment. Further, and in the alternative, if the Applicant's conduct fell short of being a resignation, I am satisfied that the Applicant did not voluntarily leave employment and that had the Respondent not take the action that it did, he would have remained in the employment relationship. The action of the Respondent in removing the Applicant from the roster and indicating that he would not be returned to it after 31 October 2018, was the critical action that terminated the employment relationship. The Applicant placed the Respondent on notice repeatedly that this was his view of its conduct and as I have previously stated, the Applicant's view was reasonable. I turn now to consider whether the dismissal was unfair.

[100] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[101] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.[57]

[102] The decision made by Mr Curran to reduce the Applicant's hours of work to zero and to indicate to him that his previous position on the roster would not be reinstated was based on views about the Applicant's conduct in absenting himself from the workplace without advising the reasons for his absence and failing to communicate with Mr Curran or Mr Mason subsequently. The reduction in the Applicant's hours of work and his effective removal from the roster was a dismissal regardless of the intention of the Respondent. A further reason was the operational need to fill the shifts on the gatehouse with minimal disruption to other parts of the Respondent's operations.

[103] To the extent that the dismissal related to the Applicant's conduct that conduct was not a valid reason for dismissal. The Applicant had advised that he would be available again on 20 August 2018. The Applicant had previously taken time off. There is no evidence that the Applicant was unreliable or that he had previously failed to attend for a rostered shift. The period over which the Applicant had advised that he was not available had not expired at the point the decision was made to effectively remove him from the roster and offer him no working hours. If Mr Curran could send an email advising the Applicant that he had been replaced on the roster for a ten week period, then Mr Curran could also have sent an email to the Applicant warning him that his failure to respond to communications could result in his removal from the roster. The failure to communicate in this way with the Applicant meant that he was not notified of the reason for his removal from the roster or given an opportunity to respond to that reason.

[104] I do not accept that there was a legitimate operational requirement for Mr Curran to have taken the action he took at the point he took it such that there was a valid reason for dismissing the Applicant. While I accept that the gatehouse is an important part of the Respondent's operation and that the Applicant's absence could cause disruption, at the point that Mr Curran decided to remove the Applicant from the roster, there was no pressing reason to do so. The Decision must have been taken at or around 14 August 2018 when Mr Curran sent the email to the Applicant advising him of this decision. At that point, the absence foreshadowed by the Applicant had not expired and Mr Curran was not due to go on his period of leave until 10 September. Further, by 16 August 2018 the Applicant had confirmed that he was planning to return on 20 August as he had previously stated. In short, the operational reasons advanced by Mr Curran and Mr Mason do not justify the action they took in relation to removing the Applicant from the roster and giving him no guarantee that he would be placed back on the roster.

[105] The criteria in s. 387(d) and (e) are not relevant in the present matter. The Respondent is a large employer with dedicated human resource management specialists and these matters do not mitigate the manner in which the Respondent dealt with the applicant. To the contrary, it is to be expected that the Respondent would have dealt more appropriately with what should have been a simple matter, before it developed into the present situation. There are also a number of other matters that I consider to be relevant to whether the Applicant's dismissal was unfair. The initial response of the Company to the Applicant's absence from the workplace was out of all proportion with his conduct in absenting himself and refusing to explain the reasons for his absence. Mr Curran or Mr Mason could and should have written to the Applicant prior to the date on which the Applicant notified that he would be returning to work, informing the Applicant that his absence was causing operational difficulty and that if he did not satisfy the Respondent that he would return at the advised time, he would be removed from the roster.

[106] Mr Curran was able to make a number of phone calls to the Applicant out of concern for his whereabouts. When Mr Curran corresponded with the Applicant and informed him that he had been removed from the roster until 31 October 2018, the Applicant responded to the email. The Applicant responded prior to 20 August 2018. If the email had advised the Applicant of the Respondent's intention to remove him from the roster if he did not explain his absence to its satisfaction, the matter might have been resolved at that point and would not have escalated to the impasse it has become.

[107] The Respondent complains of the Applicant's belligerent attitude in the face of its attempts to resolve his issues. I accept that the Applicant's attitude leaves much to be desired. Even at the point his application was heard, the Applicant refuses to provide reasons for his absence and maintains that he does not have to do so. This attitude is at odds with the Applicant's insistence that he should be treated as a permanent employee and that he had an expectation that he would be rostered at least until the end of 2018.

[108] However, the conduct of the Respondent's managers, including its Human Resource Managers, was also unreasonable. The Applicant's initial complaint was legitimate. On the evidence that the Respondent had when it decided to remove the Applicant from the roster for a ten week period and effectively reduce his hours to zero, the Applicant had simply left the site with the agreement of the Senior ESSO he was working with on that day and after sending a polite email to his supervisor advising that he needed to leave and would not be available until 20 August 2018. Quite appropriately Mr Curran attempted to make contact with the Applicant and the Applicant failed to respond. The Applicant's failure to respond was not reasonable and he has provided no excuse for it. However, the Respondent leapt to a conclusion that the Applicant was upset or angry when he left the site which appears to have affected the manner in which it dealt with him thereafter. There was no evidence to support this assumption and Mr McLennan's statement was to the contrary. Accordingly, I do not accept that the Respondent had a reasonable basis for forming this view. That view seems to have permeated future dealings with the Applicant by managers of the Respondent.

[109] I accept that Mr Curran was entitled to replace the Applicant on the roster. Mr Curran was also entitled to do so for an extended period if there was an operational reason for his inability to replace the Applicant for the limited period of his stated absence. I do not accept Mr Curran's evidence that he was not able to arrange short term coverage and needed to make a longer term operational change because of his scheduled leave. Mr Curran was not scheduled to commence leave until 10 September 2018. Further, for reasons set out above, Mr Curran had no reasonable basis for needing to make an arrangement for coverage of the roster until 31 October 2018 at the point he did so. I am also of the view that it would have been reasonable for Mr Curran to have at least warned the Applicant of his intentions before taking the significant step of removing the Applicant from the roster and indicating that he would not return to the roster after 31 October but would instead be offered shifts if additional coverage was required. If the Applicant had been informed that his failure to communicate with Mr Curran would have that result then he could not have legitimately complained when Mr Curran removed him from the roster. This is particularly so given the Applicant's refusal to explain his absence from 9 to 20 August 2018.

[110] However, the Applicant was not warned and when the Respondent's actions are viewed objectively, when the Applicant received the email of 14 August 2018, it was reasonable for the Applicant to believe that he had been stood down for a ten week period because he had sought to be absent for 6 shifts between 9 and 20 August and was informed on 14 August (before the period he sought to be absent had expired) that arrangements had been made for his shifts to be covered until 31 October 2018. It was also reasonable for the Applicant to believe that there was no guarantee that he would be returned to the roster after 31 October 2018 and that the actions of the Respondent were punitive, disproportionate and unreasonable. I share the Applicant's view. So disproportionate and unreasonable was the Respondent's conduct that it had the effect of repudiating the Applicant's employment contract or alternatively ending the employment relationship. The Applicant protested the unfairness of his treatment. In his email sent on 16 August 2018 responding to the advice that he had been removed from the roster the Applicant stated that the fact he is a casual employee does not mean that he has to accept unfair treatment. The Applicant also informed the Respondent in that email that his intention was to return to work on Monday 20 August in accordance with his previous advice.

[111] In my view, a reasonable employer would have allowed him to do so on the basis that the Applicant make himself available to discuss his conduct and the issues the Respondent had with his failure to return calls. The Applicant may have had an explanation that would have satisfied Mr Curran at that point. As the Applicant stated in his email of 29 August 2018 - albeit in a sarcastic tone - he had been available for work since 20 August 2018 and would have confirmed his availability from that date if the email from Mr Curran on 14 August requested such confirmation.

[112] I accept that the operational managers at the Meandu site are busy and had more important matters on their minds than engaging with an increasingly argumentative casual employee. However this does not diminish the unfairness of the Respondent's treatment of the Applicant. There were numerous points at which the Respondent's Human Resource practitioners should have intervened and resolved the situation before the situation reached a point where the Respondent repudiated the Applicant's employment contract. At the point that the Applicant obtained legal advice - which left much to be desired - the situation was intractable. While the Applicant must bear some responsibility for the repercussions of his intransigent attitude and his failure to properly engage with the Respondent's managers, the Respondent's conduct in response to the Applicant escalated the matter to the point that it brought about the ending of the employment relationship. The Respondent dealt with the Applicant on the basis that it was entitled to reduce his almost full time hours, worked in accordance with a roster, to zero, on the basis of its displeasure at his failure to return phone calls from his supervisor during a period when he had sought to be absent from the site. On balance, I am satisfied that as a result the Applicant was dismissed and the dismissal was unfair.

[113] The dismissal was harsh because of its personal and economic consequences for the Applicant. He is 57 years of age and without employment in a rural area where the local economy will make it difficult if not impossible for him to gain other employment much less with the same wages and conditions. The Applicant has been compelled to draw on his superannuation at a point which is earlier than he had planned. The dismissal was unreasonable because the actions of the employer which brought about the ending of the Applicant's employment were based on inferences which could not reasonably have been drawn from the material before the employer.

[114] Having determined that the Applicant's dismissal was unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that he was unfairly dismissed. I am also of the view that the Applicant should have a remedy for his unfair dismissal. The parties agree that their relationship has irretrievably broken down and cannot be re-established. I share their view and have concluded that reinstatement is not an appropriate remedy. I have made the necessary findings that are prerequisite to awarding compensation.

[115] In relation to the assessment of compensation, s. 392 of the Act provides as follows:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[116] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to the Applicant for his unfair dismissal.

The effect of the order on the viability of the Respondent - s. 392(2)(a)

[117] There is no evidence that the order I propose to make will have an effect on the viability of Downer.

[118] The Applicant had been employed by Downer for just 1 year 11 months and two weeks at the point his hours were reduced and he was removed from the roster.

Remuneration the Applicant would have or would likely have received - s. 392(2)(c)

[119] The Applicant was included in a roster which ran until 31 December 2018. But for his dismissal I can see no reason why the Applicant would not have remained in employment for at least that period. I am not able to conclude that the Applicant's employment would have continued past that date. The Applicant was a casual employee and the Respondent could have taken steps to employ additional ESSOs thereby reducing his hours or some other incident may have occurred whereby the Applicant's employment came to an end.

[120] The Applicant provided payslips evidencing that he had earned an amount of $41,726.99 in the 26 week period prior to his removal from the roster and maintained that this amount should form the basis for calculation of compensation. This equates to an average of $1,604.00 per week.

[121] The difficulty in assessing the remuneration that the Applicant would have received had he not been dismissed is that the date of his dismissal is unclear. In the Decision granting the Applicant a further period in which to make his application, I decided that the Applicant's employment had ceased by at least 15 October 2018. However, the Applicant lost remuneration as a result of being removed from the roster, with such loss commencing on 20 August 2018 when he was available to commence work. I see no reason why assessment of the Applicant's lost remuneration should not start from the point the Respondent repudiated the employment contract rather than the point at which the Applicant accepted the repudiation.

[122] Accordingly, I find that had the Applicant not been dismissed he would have earned $28,872.00 in the period between 20 August 2018 and 31 December 2018 when the current roster concluded.

The Applicant's efforts to mitigate loss - s. 392(2)(d)

[123] Notwithstanding his difficulty in obtaining alternative employment, the Applicant rejected offers from the Respondent to work certain shifts. In my view his refusal was unreasonable and had he worked those shifts more work may have been offered. I have also had regard to the fact that the Applicant made a choice to stop seeking work and draw on his superannuation. In all of the circumstances I am not satisfied that the Applicant made reasonable attempts to mitigate his loss and I have deducted an amount of 25% from the compensation awarded to the Applicant for that failure.

The amount of any remuneration earned since dismissal - s. 392(2)(e)

[124] The Applicant has earned no remuneration since his dismissal and no deduction is made in relation to this matter.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation - s. 392(2)(f)

[125] Given the period over which I have assessed compensation, based on my view about the likely period that the Applicant would have remained in employment, this matter is not relevant to the calculation of compensation.

Any other matter that the FWC considers relevant - s. 392(2)(g)

[126] I consider that the Applicant's intransigent and at times belligerent attitude played a significant role in the situation in which he found himself. I have deducted a further amount of 25% from the award of compensation to reflect this. In making this deduction I have also had regard to the fact that the Applicant's legal advice left much to be desired and doubtless contributed to his attitude.

[127] The Applicant did not engage in misconduct and the conduct complained of by the Respondent has been dealt with under s. 392(2)(g).

[128] I conclude as follows:

1. An order for the payment of compensation in the amount below would not affect the viability of Downer's business.

2. The period of the Applicant's employment was just under two years and no deduction from compensation should be made on this basis.

3. But for the dismissal, the Applicant would likely have earned an amount of $28,872.00.

4. Given the length of the period over which I have assessed compensation on the basis of how long the Applicant would have remained in employment and the other deductions I have made, I make no deduction for contingencies.

5. I have decided to make a deduction of 25% ($7218.00) for failure of the Applicant to mitigate loss.

6. The Applicant had no earnings from other sources during period over which I have assessed compensation and I make no deduction on this basis. I make no deduction for income likely to be earned during the period between the making of my order and the actual compensation.

7. I have decided to make a deduction of 25% for the contribution that the Applicant made to the termination of his employment ($7218.00).

8. I make no deduction in respect of misconduct.

9. The amount of compensation is less than the compensation cap calculated in accordance with s. 392(5) and s. 392(6).

[129] In all of the circumstances of this case I consider that it is appropriate that I make an Order for compensation. The Order will issue with this Decision and will require Downer to pay compensation to the Applicant in lieu of reinstatement of a gross amount of $14,436.00 to be taxed according to law. The order will require the payment to be made within 14 days of the date of this Decision.

[1] [2019] FWC 512

[2] Exhibit R1 - Witness Statement of Charles Curran.

[3] Exhibit R2 - Witness Statement of Nick Mason.

[4] Witness Statement of Nick Mason at [9]; Witness Statement of Charles Curran at [9]

[5] Applicant's witness statement annexure E

[6] Applicant's witness statement at para [11]

[7] Applicant's witness statement annexure F

[9] Witness Statement of Charles Curran at [7]

[12] Exhibit A1 Witness Statement of Ian Birchley Annexure G

[15] [2011] FWA 5930.

[16] Exhibit 1 Witness Statement of Ian Birchley Annexure M.

[29] [1995] IRCA 625; (1995) 62 IR 200.

[31] Unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ.

[34] [1989] HCA 23; (1988-1989) 166 CLR 623.

[36] Ibid at 658 per Deane and Dawson JJ.

[37] Sappiden, O'Grady, Riley Macken's Law of Employment Eighth Edition Law Book Company 2016 at 8.80 page 337.

[38] (1994) 57 IR 288 at 289.

[40] [2011] FWA 5930.

[44] [2014] FWC 2024.

[45] [2017] FWC 4662.

[46] [2016] FWC 4161.

[47] [2017] FWCFB 3906.

[51] [2018] FWCFB 5 at [18] - [20]

[54] [2017] FWCFB 5162

[56] Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425.

[57] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

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