Phillip Seitz v Iron Bay Pty Ltd T/A City Beach IGA [2017] FWC 6926

Phillip Seitz v Iron Bay Pty Ltd T/A City Beach IGA [2017] FWC 6926 - FWC 2017 case summary — Zoe

[5]

[1] On 15 May 2017, Mr Phillip Seitz (Mr Seitz) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Iron Bay Pty Ltd T/A City Beach IGA (City Beach IGA).

[2] On 7 June 2017, City Beach IGA lodged a Form F3 Employer Response noting it objected to the FWC's jurisdiction in determining the Application on the ground that City Beach IGA was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (Code). On 19 July 2017, City Beach IGA lodged a revised Form F3 Employer Response noting it also objected to the FWC's jurisdiction in determining the Application on the ground that Mr Seitz resigned and was not dismissed from his employment.

[3] The parties attended a conciliation conference before me on 11 August 2017, but the issues in dispute remained unresolved. At the conclusion of the conference, both parties were advised that directions would be issued for the hearing and determination of the jurisdictional objections and the merits of the Application.

[4] The Application was listed for hearing on 10 October 2017 (Hearing). Taking into account the parties circumstances, and their wishes, it was determined that a Determinative Conference would be the most effective and efficient way to determine the matter.

[5] Directions were issued on 17 August 2017 to ensure the efficient conduct of the Hearing (Directions). Those Directions required Mr Seitz and City Beach IGA to file and serve an outline of submissions, copies of authorities on which they proposed to rely at hearing, witness statements of any witnesses they proposed to call, and copies of any documents on which they sought to rely as evidence on or before close of business, 31 August 2017 and 14 September 2017 respectively. The Directions also required any party who sought to be represented by a lawyer or paid agent at the Hearing to file written submissions to this effect addressing the provisions of section 596(2) of the FW Act.

[6] On 31 August 2017, City Beach IGA sought permission to be represented at the Hearing.

[7] Section 596 of the Fair Work Act 2009 (Cth) (FW Act) provides as follows:

[14]

[9] City Beach IGA submitted that permission should be granted for it to be represented by Mr David Vilensky (Mr Vilensky) of Bowen Buchbinder Vilensky Lawyers at the Hearing because:

Mr Vilensky had prepared the materials filed in accordance with the Directions and his familiarly with the matter would enable the matter to be dealt with more efficiently.

City Beach IGA would otherwise be represented by Mr Yuhai (Jack) Cao (Mr Cao) who was not fluent in English and would be unable to make oral submissions which would be of assistance to the FWC.

The existence of a jurisdictional objection added an element of complexity to the matter.

There would be a denial of natural justice if Mr Cao was required to represent City Beach IGA because all the documents filed to date had been prepared by Mr Vilensky.

[10] The submissions in support of permission to be represented were not supported by reference to any relevant authorities. I have taken this into account when determining whether the granting of permission for Mr Vilensky to represent City Beach IGA would enable the matter to be dealt with more efficiently.

[11] The granting of permission to be represented to City Beach IGA was opposed by Mr Seitz, who did not seek leave to be represented at the Hearing. In his submissions objecting to the granting of leave filed on 18 September 2017, Mr Seitz asserted that:

Unlike City Beach IGA, he had prepared his materials without legal assistance and was therefore already at a disadvantage as compared to City Beach IGA.

Mr Cao's use of English in his running of the business demonstrated a sufficient proficiency in the English language.

The fact that City Beach IGA's materials had been prepared with legal assistance was not a basis for granting leave to be represented at the Hearing.

There would be unfairness as between him and City Beach IGA if leave to be represented was granted to City Beach IGA.

[12] Mr Seitz is a butcher by trade. He appeared on his own behalf at the Conference and did not seek permission to be represented at the Hearing. At the Conference and the Hearing he was supported by his son. During the Conference, Mr Seitz required the assistance of his son to articulate information he was having difficulty articulating independently. It was not a ground relied upon by City Beach IGA but, if it were, I am not satisfied that it is unfair not to grant permission for City Beach IGA to be represented taking into account fairness as between the parties based on my observations of the parties at the Conference and their communications with Chambers.

[13] The existence of complexity is not a separate ground for the granting of permission but instead a factor to take into account in determining whether the matter might be more efficiently dealt with if permission is granted. The jurisdictional objection relied upon by City Beach IGA as a basis for granting leave is that Mr Seitz resigned and was not dismissed. This is largely a question of fact. I am not satisfied that this jurisdictional objection makes the matter unduly complex or that the matter as a whole is excessively complex. Given that the question of whether the business is a small business was not contested and that the Code is specifically drafted to be accessible by the operators of small businesses, I am not satisfied that a jurisdictional objection on this ground makes the matter unduly complex.

[14] Notwithstanding that English is not Mr Cao's first language, it was apparent at the Conference that he could speak and comprehend English. I was satisfied that the provision of an interpreter at the Hearing without cost to City Beach IGA would enable City Beach IGA to represent itself effectively in the event Mr Cao appeared on its behalf. Subsequently, the evidence tendered at the Hearing in the form of text messages exchanged between Mr Cao and Mr Seitz indicated that Mr Cao had an equivalent grasp of the English language, at least in that form of written communication, as Mr Seitz.

[15] The fact that a party has chosen to engage the services of a legal practitioner to prepare its materials is not of itself a ground upon which permission to be represented might be granted pursuant to section 596 of the FW Act.

[16] In Warrell v the Commission [2013] FCA 291 at [24], the Federal Court held that:

[48]

[34] I am satisfied that Mr Cao did not accept the 24 January 2017 resignation and that the resignation was withdrawn by Mr Seitz.

[35] Mr Seitz asserts that, as a consequence of stress arising from unreasonable work demands imposed on him by Mr Cao, he subsequently became unwell and on 17 April 2017 informed Mr Cao that he was going to see a doctor.

[36] Between Monday 17 April 2017 and Saturday 27 May 2017, Mr Seitz and Mr Cao exchanged a series of text messages which were tendered by Mr Seitz.[12]

[37] During this text exchange, Mr Seitz ventilated a number of concerns he had about the manner in which Mr Cao operated the business and the way in which Mr Cao treated Mr Seitz and other employees.[13]

[38] On Tuesday 18 April 2017, Mr Seitz forwarded a medical certificate to Mr Cao certifying him unfit for work until 19 April 2017.[14]

[39] In a number of the text messages, Mr Seitz requests copies of his payslips and makes reference to emails and phone calls made by himself and his wife seeking the same to clarify his assertions that Mr Cao had underpaid him.[15]

[40] On Wednesday 26 April 2017, Mr Seitz forwarded a medical certificate to Mr Cao certifying him unfit for work from 19 April 2017 to 26 April 2017. The same doctor certified Mr Seitz unfit for work from 27 April 2017 until 30 April 2017.[16]

[41] On Sunday 30 April 2017, Mr Cao instructed Mr Seitz by text to commence three weeks annual leave. Mr Seitz responded by text declining to do so, asserting that he was still on sick leave and forwarding a medical certificate certifying him unfit for work from 1 May 2017 until 5 May 2017.[17]

[42] On Friday 5 May 2017, Mr Seitz advised Mr Cao by text that he would be fit to return to work on Monday 8 May 2017.[18]

[43] Later the same day, Mr Seitz on several occasions indicated to Mr Cao that he would be happy if Mr Cao terminated his employment and that he would prefer to be paid what he is owed and 'say goodbye'. Mr Cao did not take Mr Seitz up on his offer, so Mr Seitz endeavoured to confirm what time he should attend work on Monday morning. Mr Cao eventually advised Mr Seitz that he should attend at 11:00 am on Monday 8 May 2017 for a meeting.[19]

[44] Between 4:27 pm on Friday 5 May 2017 and 11:33 am on Sunday 7 May 2017, Mr Cao sent Mr Seitz 33 text messages. At best, in terms of content and/or repetition, the texts might be characterised as nuisance texts. At worst, as was asserted by Mr Seitz, they might be perceived as containing an implied threat. This included numerous texts overnight on Saturday and into the early hours of Sunday morning. On multiple occasions Mr Seitz asked Mr Cao to stop texting him.[20]

[45] On Monday morning at 7:32 am, Mr Seitz texted Mr Cao informing him that, due to the exchange of text messages over the weekend, he was not comfortable attending the meeting and that whatever Mr Cao wished to discuss he should put it in an email and send it to him:[21]

[62]

[48] It is submitted on behalf of City Beach IGA that, even if it is wrong in its assertion that Mr Seitz resigned on 25 January 2017, the facts are that Mr Seitz resigned a second time without notice and walked out of the business on 17 April 2017 without warning and never returned.[23]

[49] However, the evidence demonstrates the contrary. Mr Seitz informed his employer on 17 April 2017 that he was unwell and intending to take sick leave. Mr Seitz's absence from the workplace between 17 April 2017 and 5 May 2017 was supported by medical certificates which are unchallenged by City Beach IGA. In the text exchange which occurred on 8 May 2017, Mr Seitz repeatedly confirms that he does not intend to resign. When Mr Seitz asserts that he has been terminated, Mr Cao does not challenge this.

[50] I am not satisfied that Mr Seitz's message on the morning of 8 May 2017, in which he indicated that he was not comfortable attending the meeting scheduled for 11:00 am that day, amounted to an abandonment of his employment. It is clear from the surrounding texts that Mr Seitz wanted Mr Cao to clarify any concerns he had so that he had an opportunity to respond to them. Such an opportunity would be unnecessary if Mr Seitz planned to terminate his employment.

[51] Mr Seitz explained that his concerns about attending the meeting arose from the spam-like texting he had experienced from Mr Cao over the preceding two days, including texts sent in the early hours of the morning. He says he also interpreted Mr Cao's repeated messages that 'friends' were waiting for Mr Seitz on his return as a veiled threat. Mr Seitz says this was reinforced by Mr Cao's refusal to allow Mrs Seitz to attend the meeting as a support person. In all of these circumstances, it was not unreasonable for Mr Seitz to be reluctant to attend the meeting. Mr Cao did not press Mr Seitz to attend and did not make clear that his failure to attend would be treated as abandonment of employment or as a disciplinary matter.

[52] It was not unreasonable for Mr Seitz to have concerns about attending the meeting in light of the spam-like texts by Mr Cao over the preceding two days, including in the early hours of the morning.

[53] City Beach IGA asserts that, in a series of text messages prior to the text exchange on 8 May 2017, Mr Seitz initiated the termination of his own employment "and almost goaded the Respondent to terminate his employment". To support this assertion, City Beach IGA cite the following text messages sent by Mr Seitz on the following dates:

18 April 2017: "if u want to sack me thats up to u."

28 April 2017: "Both my wife and i tried contacting u. U do realise that ignoring is a form of being a bully... obviously you don't want me back... thats fine just pay me up. If u can't respond shows a very unprofessional attitude."

29 April 2017: "Do u want me to return or finish up jack?"

[54] When these text messages are read in context, Mr Seitz evidences an intention to continue in employment subject to Mr Cao deciding to terminate his employment. There is no language on Mr Seitz's part evincing an intention to resign. While an invitation to an employer to terminate an employee's employment might be tempting fate, it is not evidence that the employee has brought their own employment to an end.

[55] For example, when read in context, it is clear in the text exchange which occurred on Tuesday 18 April 2017 that Mr Seitz proposes to return to work when certified fit to do so:

[102]

[66] At the Hearing, I invited Mr Cao to identify the reasons City Beach IGA sought to rely on to justify Mr Seitz's dismissal in the event I found that Mr Seitz had, in fact, been dismissed for the purposes of the FW Act. Mr Cao alleged that Mr Seitz had been stealing from the business. Mr Cao claimed to have viewed video footage of the theft. However, this evidence was not tendered at the Hearing. Mr Cao says that he reported the alleged theft to the police. Mr Cao conceded that he did not raise these allegations with Mr Seitz before he was dismissed. Mr Seitz says that he first became aware of these allegations when the F3 Employer Response was filed. Mr Seitz says that he has since contacted the Western Australian Police, who have told him he has no case to answer. This is confirmed by an email from Constable Ryan O'Driscoll of the Wembley Police Station which was tendered by Mr Seitz at the Hearing.[25]

[67] Any assertion that Mr Cao believed on reasonable grounds that the Mr Seitz's conduct was sufficiently serious to justify immediate dismissal is inconsistent with the submissions of City Beach IGA and the evidence of Mr Cao that Mr Cao was endeavouring to encourage Mr Seitz to return to the workplace. See for example, the Respondent's Supplementary Submissions on Jurisdictional Objection and Merits of the Application Pursuant to Paragraph 9 of the Directions of Deputy President Binet Dated 17 August 2017 at [11] which state that "[t]here is no evidence even remotely suggesting that the Applicant was not welcome to return to his employment if he was medically cleared to do so."

[68] An assertion that Mr Seitz's conduct justified immediate dismissal is particularly inconsistent with Mr Cao's evidence that he would like Mr Seitz to come back to work again.[26]

[69] Even if Mr Cao did, at the time of Mr Seitz's dismissal, believe there were grounds to justify Mr Seitz's immediate dismissal, there is insufficient evidence before me to satisfy me that Mr Cao's belief was reasonable.

[70] It is also conceded by Mr Cao that Mr Seitz was not informed of the allegations of theft before his employment with City Beach IGA ended.[27] Mr Seitz therefore did not have an opportunity to respond to the allegations and/or a reasonable chance to rectify the problem.

[71] In all the circumstances, I am satisfied the dismissal of Mr Seitz was not consistent with the Code.

[118]

[75] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.[28] The reasons should be 'sound, defensible and well founded'[29] and should not be 'capricious, fanciful, spiteful or prejudiced.'[30] The reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.[31]

[76] Despite being described as "Respondent's Outline of Submissions on Jurisdictional Objection and Merits of the Application" and "Respondent's Supplementary Submissions on Jurisdictional Objection and Merits of the Application Pursuant to Paragraph 9 of the Directions of Deputy President Binet Dated 17 August 2017", respectively, the written submissions prepared by Bowen Buchbinder Vilensky and filed on City Beach IGA's behalf in accordance with the Directions contain no submissions in relation to the criteria set out in section 387. The position maintained throughout the written submissions, and by Mr Cao at the Hearing, was that Mr Seitz resigned and was not dismissed by City Beach IGA.

[77] As previously noted, at the Hearing I invited Mr Cao to identify the reasons City Beach IGA sought to rely on to justify Mr Seitz's dismissal in the event I found that Mr Seitz had, in fact, been dismissed for the purposes of FW Act. Mr Cao alleged that Mr Seitz had been stealing from the business. Mr Cao claimed to have viewed video footage of the theft. However, this evidence was not tendered at the Hearing. Mr Cao says that he reported the alleged theft to the police. Mr Cao conceded that he did not raise these allegations with Mr Seitz before he was dismissed. Mr Seitz says that he first became aware of these allegations when the Form F3 Employer Response was filed. Mr Seitz says he has since contacted the Western Australian Police, who have told him he has no case to answer. This is confirmed by an email from Constable Ryan O'Driscoll of the Wembley Police Station which was tendered by Mr Seitz.[32]

[78] There is no evidence before me to satisfy me that Mr Seitz stole from the business or engaged in conduct which might form the basis of a valid reason for his dismissal for stealing.

[79] Consequently, I find that there was not a valid reason for the dismissal.

At a glance

Court

Decision date

Source

Judgment (180 paragraphs)

Phillip Seitz v Iron Bay Pty Ltd T/A City Beach IGA [2017] FWC 6926 (22 December 2017)

Parties

Legislation Cited (2)

Cases Cited (6)