Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdiction - whether dismissed - altercation between tradesman and owner - dismissal found - jurisdictional objection dismissed

• [1] On 7 August 2023 Nicholas Kershaw (Mr Kershaw or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.[1]

• [2] Mr Kershaw's application is against his former employer Stewarts Welding and Fabrication Pty Ltd (Stewarts Welding, the respondent or the employer), which he alleges committed the contraventions. It appears that Mr Kershaw claims that he had a workplace right to be protected from dismissal without notice.

• [3] The respondent opposes the application. It filed a response on 21 August 2023[2] raising a jurisdictional issue. It claims that Mr Kershaw was not dismissed.

• [4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[3] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Kershaw's application is to proceed further.

• [5] I issued directions on 28 August 2023.

• [6] I heard the jurisdictional matter on 4 October 2023.

• [7] Mr Kershaw was self-represented. Stewarts Welding and Fabrication was represented (with permission) by its external accountant Mr Colby.

• [8] I heard evidence from five witnesses:

• [9] The relevant evidence largely concerns a workplace altercation between Mr Bottrell, Mr Kershaw and Mr Pitcher on the late afternoon of 26 July 2023.

• [10] There are factual disputes. To the extent those disputes require fact-finding, credit is relevant. I make the following observations.

• [11] There was and remains clear antipathy between Mr Kershaw and Mr Bottrell. Mr Kershaw gave evidence with confidence and displayed a firm recall of events. Mr Bottrell was somewhat more conversational but nonetheless firm in his narrative. Given that the evidentiary disputes concern matters of detail about heated conversations and conduct over a thirty minute period more than two months ago, I take into account that differences in detail may largely be the product of recall of fast-moving events rather than an attempt to colour the narrative. However, given the antipathy between the two, I apply a degree of caution in assessing the evidence of each where findings are required on the disputed matters.

• [12] I also apply the standard tools available to first instance decision makers, including whether facts were directly observed and whether evidence is corroborated by the documentary record or the observation of others.

• [13] In this respect I found Mr Pitcher to be an impressive witness. Although he was also dismissed as a result of the same workplace altercation and I apply a degree of caution on that account, I do not consider that his evidence was manufactured to support Mr Kershaw even though in many respects it did. His recall was sound, he was consistent in answer to questions from me and the cross examiner, and when he could not recall exact detail he indicated as much.

• [14] The evidence of Ms Freeman and Ms Hann was of limited value as neither witnessed the events of 26 July 2023 except Ms Freeman at their very tail end.

• [15] Portions of the evidence of Mr Kershaw, Mr Bottrell, Ms Freeman and Ms Hann were based on hearsay, innuendo and speculation. I have no regard to that evidence and need not do so as largely those aspects do not concern matters necessary to determine the jurisdictional issue.

• [17] Stewarts Welding is a small private business of three or four persons plus Mr Bottrell. It operates from Wingfield in suburban Adelaide.

• [18] Mr Bottrell is a hands-on business owner who is not always present on site as he also travels locally and interstate for work.

• [19] At the relevant time (26 July 2023) both Mr Kershaw and Mr Pitcher were employed as full time boiler maker/welders.

• [20] Mr Kershaw commenced working in the business on 26 September 2022. He was terminated by Mr Bottrell for cause six months later on 23 March 2023. However, in light of a shortage of tradesmen and to give Mr Kershaw a second chance, Mr Bottrell agreed to re-employ him. He was re-employed as a casual and then on 28 April 2023, resumed full time employment.

• [21] Given this history, there were regular instances of tension and disagreement between Mr Bottrell and Mr Kershaw. I accept Mr Kershaw's evidence that there had been prior heated conversations between the two.

• [22] Both Mr Kershaw and Mr Pitcher were each supplied a company owned ute for work purposes, and permitted to use the vehicle to drive to and from work to home and vice versa.

• [23] Whilst at work, the utes were parked on public property in the adjoining street.

• [24] Both Mr Kershaw and Mr Pitcher kept some private work tools and property in the utes, as well as in the workshop.

• [25] In the lead-up to 26 July 2023 Mr Bottrell formed the view that Mr Kershaw was not working productively and believed that he regularly finished work before the appointed clock-off time (of 4.30pm) yet claimed in his time record that he had worked until then. Mr Bottrell believed this to especially occur on days he was absent, by subsequently viewing CCTV footage.

• [26] Mr Bottrell was absent interstate on 25 July 2023. He returned on site on 26 July.

• [27] Shortly prior to 4.30pm Mr Bottrell was driving a forklift and noticed Mr Kershaw and Mr Pitcher packing up for the day.

• [28] Mr Bottrell says that this was at about 4.15pm. Mr Kershaw and Mr Pitcher say it was about 4.27pm. I need not determine whether it was three minutes or fifteen minutes before knock-off time. What matters is what happened. The following conversations occurred.

Mr Bottrell (yelling): Why are you packing up? You're required to keep working until 4.30pm, then knock off."

• [29] Mr Kershaw and Mr Pitcher kept working until 4.30pm then turned their welders off.

• [30] At 4.30pm Mr Kershaw and Mr Pitcher walked off site and towards the parked utes. Mr Bottrell followed.

"Mr Bottrell (angrily): You are required to write down in the time book when you clock off and what you've done for the day. You haven't done it.

Mr Kershaw (aggressively): This is our time not yours. You don't pay us to do it now.

Mr Bottrell (standing alongside Mr Kershaw's car and losing his temper): I've had enough of this fucking bullshit. I'm over it. (Shouting to both) Have you done it? [recorded details before leaving].

Mr Bottrell then angrily kicked the driver's door of the ute driven by Mr Kershaw.[4]

Mr Pitcher: Nick [Mr Kershaw] has done it. I will do it in your time, tomorrow.

Mr Bottrell (shouting over the top): If you're not happy you can both pack your shit and fuck off.

Mr Bottrell: Leave the vehicle keys. Grab your tools and fuck off. Don't come back.

Mr Kershaw and Mr Bottrell then move close to each other's faces and shout and aggressively swear and abuse each other. They then move away from each other."

• [31] Mr Kershaw and Mr Pitcher unload their personal tools from the ute, and place them adjacent to the property on the kerbside. They then re-enter the property and go to the workshop and remove their personal belongings and personal tools. Mr Bottrell watches them do so. The atmosphere is tense.

• [32] There is a factual dispute about whether Mr Bottrell makes a brief telephone call to his accountant for advice. Mr Bottrell says he did not do so. Mr Kershaw recalls overhearing Mr Bottrell talking to a person named "Jeff". The evidence is not strong enough to make a finding that a call was made. In any event, whether a call was or was not made. it does not alter what was next said and done. A further conversation ensues.

"Mr Bottrell: I haven't fired you. It's you who is leaving.

Mr Bottrell (angrily): I haven't fired you, it's you who's left.

Mr Kershaw: Well, give me a termination certificate then.

Mr Bottrell (angrily): You've left. Get off my property."

• [33] Mr Kershaw and Mr Pitcher return keys to the utes. Mr Bottrell takes the keys and moves the company vehicles (including the utes) from the street into the yard. He drives himself around the block for a few minutes to absorb the events and calm down.

• [34] Whilst Mr Bottrell is doing so Mr Kershaw and Mr Pitcher telephone their respective partners and ask to be collected as they have no transport home. Whilst waiting for their partners to arrive, Mr Pitcher goes inside the property and takes two beers from the fridge that he said in evidence had previously been purchased by Mr Kershaw. Each drink a beer on the footpath whilst waiting to be collected.

• [35] When Mr Bottrell returns, Ms Freeman has arrived to collect Mr Kershaw. Assisted by Mr Pitcher, Mr Kershaw and Ms Freeman load Mr Kershaw's private belongings and tools from the footpath into their private vehicle. Ms Freeman directs abuse at Mr Bottrell. Mr Bottrell does not respond. Mr Kershaw and Ms Freeman leave.

• [36] Mr Pitcher remains waiting to be collected. When his partner arrives, not all his private belongings fit into the vehicle. He contacts his brother and waits for him to arrive with a larger car. Whilst waiting kerbside a brief discussion occurs between Mr Bottrell and Mr Pitcher.

Mr Pitcher: You want us to work in our own time or leave immediately. I don't come to work in my own time. I don't know what you want to talk about."

• [37] Mr Bottrell walks off. Having locked up the site, he leaves.

• [39] Neither Mr Kershaw nor Mr Pitcher attend for work. Each believe they have been dismissed. Neither contact Mr Bottrell.

• [40] Mr Bottrell considers that the employment of both Mr Kershaw and Mr Pitcher has ended by them leaving the night before when he told them to leave if they were not happy.

• [41] At approximately 12.30pm Mr Bottrell sends a text message to Mr Pitcher offering him his job back. Mr Pitcher rebuffs the request.

• [42] Mr Bottrell makes no similar overtures to Mr Kershaw.

• [43] Mr Bottrell contacts his accountant (Mr Colby) and instructs Mr Colby to make up final termination pays for Mr Kershaw and Mr Pitcher. Mr Colby does so. Although 27 July was a usual weekly pay day (payment for hours worked up to the day prior), Mr Colby adds a separate pay run concerning Mr Kershaw and Mr Pitcher in which a final payment is made that includes amounts of accrued leave. Final pays are deposited into their bank accounts that evening.

• [44] No notice in lieu is paid to either Mr Kershaw or Mr Pitcher as Mr Bottrell considers that they had left their employment.

• [45] Mr Kershaw makes immediate contact with 'fair work' once he sees that his pay includes final payments relating to his employment.

• [46] Mr Kershaw makes this general protections claim ten days later, on 7 August 2023.

• [47] Mr Kershaw submits that he was dismissed on 26 July 2023 without notice because he was told to collect his personal belongings from the workplace, to unload his tools from the company ute, to leave the premises and to return keys to the company ute. He says he complied with each of these directions. He says that these demands individually and collectively amounted to conduct initiated by the employer that brought his employment to an end.

• [48] Mr Kershaw also submits that the employer took the decision to instruct its accountant to make up a final termination pay the next day.

• [49] Stewarts Welding submit that Mr Kershaw was not dismissed. It submits that in the midst of a heated argument in which Mr Kershaw abused and swore at the owner he was told to leave if he was not happy, and he then left.

• [50] Stewarts Welding submit that Mr Bottrell never intended to dismiss either Mr Kershaw or Mr Pitcher. It submits that this is implausible because losing two tradespersons in an environment of labour shortages disadvantaged the business and not just the individuals concerned.

• [51] Stewarts Welding submit that Mr Bottrell believed that Mr Kershaw was intending to leave his employment and manufacture an incident by which he could claim that he was wrongly dismissed.

• [52] Stewarts Welding submit that it instructed its accountant to make up termination pay the following day because Mr Kershaw had left by resignation or abandonment the day prior, and this triggered an obligation to pay out final entitlements.

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [54] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[5] "Dismissal" for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:

(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."

• [55] It is relevant to note that the fact of dismissal is to be determined objectively by reference to all relevant circumstances. It is not determined subjectively based on whether an employer intended or did not intend to dismiss or whether an employee believed they had or had not been dismissed.

• [56] The submission by Stewarts Welding that there was no dismissal because it did not intend to dismiss Mr Kershaw is misconceived. Even were I to find that Mr Bottrell did not intend to dismiss Mr Kershaw, this would not determine the jurisdictional issue.

• [58] For the following reasons, I conclude that he was. I conclude that Mr Kershaw's employment with the respondent was "terminated on the employer's initiative" within the meaning of s 386(1)(a).

• [60] Firstly, the conduct of Mr Bottrell on 26 July 2023.

• [61] In the course of the altercation that occurred Mr Bottrell demanded that Mr Kershaw do three things:

• To "fuck off", to get his "shit out of here" and to not "come back";

• To return the keys to the company car he was driving; and

• [62] Mr Kershaw complied with each of these demands whilst being equally abusive and insulting in return. These three demands, individually and collectively, objectively amounted to the employer initiating the ending of its employment relationship with Mr Kershaw.

• [63] The employer's demand that he get "his shit out of here" was a foul but clear reference to Mr Kershaw being directed to remove his personal property from the company ute and the workshop. Given that his personal property included tools required to perform his duties, it signified the ending of his employment.

• [64] The demand that he return the keys to the ute also signified a fundamental change in circumstance. Until then, Mr Kershaw had been allowed to drive the company ute on work business and to and from home. Being told to return the ute and its keys was consistent with an indication by the employer that the vehicle would no longer be required to be used by Mr Kershaw because he no longer had a job.

• [65] Whilst occurring at the end of the day's shift, the demands to "fuck off" and "get off the property" were, in the context of the altercation, more than just a demand to leave for the day. In context, particularly having regard to the direction to not "come back", it was a demand to leave and not return because there would be no job to return to.

• [66] I take into account that Mr Bottrell made these demands in the heat of the moment and in the midst of a fiery and mutually volatile and abusive altercation. However, the demands he made were not retracted either at the time, nor after Mr Bottrell had driven himself away for a short break to calm down from the intensity of the altercation, nor on the following day. Further, after making the demands, Mr Bottrell watched Mr Kershaw remove tools and personal property from the ute and then the workshop and did not dissuade him from doing so. Nor, when the keys were returned, did Mr Bottrell change course. He took the keys, drove the utes into the yard, secured the yard and knowingly left Mr Kershaw on the kerbside to find his way home.

• [67] I take into account that Mr Bottrell prefaced his demands with words along the lines of "if you're not happy" then you can "fuck off and get your shit out of here". I do not however consider these words, in context, to be conditional in the sense of giving Mr Kershaw a meaningful choice not to comply. Mr Bottrell was outraged that Mr Kershaw appeared, as far as he was concerned, to again try to leave work earlier than the appointed time and further angered by the fact that his authority as owner had been challenged. Mr Bottrell considered this insubordinate and time theft, and it was in that context that the argument ensued. The words "if you're not happy" was less an open question than an assertion of the obvious.

• [68] The fact that Mr Bottrell on 26 July stated during the altercation that he (Mr Bottrell) was not firing Mr Kershaw but Mr Kershaw was himself leaving does not alter this finding. This statement by Mr Bottrell was a feeble attempt to try to re-write the narrative of dismissal he had authored moments earlier by way of demands that were being angrily complied with by Mr Kershaw.

• [69] It matters not whether Mr Bottrell injected this proposition after taking advice from a third party or not. Even after this attempt to re-write the narrative, Mr Bottrell continued to tell Mr Kershaw to get off the premises.

• [70] There was no sense in which Mr Kershaw left his employment of his own volition or abandoned his employment. Even were I to have found that to be so (which I have not) it would be more than tolerably arguable that the act of leaving occurred in the heat of the moment such that it could not have reasonably been relied upon or that the act of leaving was forced by the demands of Mr Bottrell (and thus would be a forced resignation within the meaning of s 386(1)(b)).

• [71] Nor do I accept the employer's submission that Mr Kershaw, intending to leave, manufactured an altercation to accrue termination rights. There is simply no direct or probative evidence before me on which a finding of intent or concocted altercation could be made.

• [72] Secondly, the conduct of Mr Bottrell on 27 July 2023. Unlike with Mr Pitcher, Mr Bottrell did not on the following day offer Mr Kershaw his job back. As far as Mr Bottrell was concerned Mr Kershaw's employment had ended, and he was satisfied with that outcome if not the circumstances in which it had occurred. It was the employer's initiative to have Mr Kershaw's final pay made up that day. In doing so Mr Bottrell formalised the ending of the relationship.

• [73] In finding that Mr Kershaw was dismissed at the initiative of the employer I make no finding on whether dismissal was merited or lawful. Nor do I make a finding on the conduct of Mr Kershaw other than the finding that he did not resign or abandon his employment and the finding that he was equally aggressive and abusive to the business owner once the altercation commenced.

• [74] Nothing in this decision should be interpreted as condoning either the abusive and aggressive conduct of the business owner nor its reciprocation and insubordination by Mr Kershaw.

• [75] As I have found that Mr Kershaw was dismissed within the meaning of the FW Act, application C2023/4762 is within jurisdiction. The jurisdictional objection is dismissed.

• [76] The Commission will exercise the powers conferred by s 368. A conference of the parties will be conducted for the purpose of conciliating the dispute.

• [77] An order[6] giving effect to this decision will be issued in conjunction with its publication.

Mr J Colby, with permission, on behalf of Stewarts Welding and Fabrication Pty Ltd.

[1] Mr Kershaw filed an amended application on 1 September 2023

[2] The Respondent filed an amended Response on 8 September 2023

[3] [2020] FCAFC 152

[4] I make this finding preferring the evidence on this point of Mr Pitcher and Mr Kershaw, despite contrary evidence by Mr Bottrell. Whether the kick was so forceful that it resulted in a dent, as alleged, I need not determine

[5] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]

[6] PR767053

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