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[120]
[2020] FWC 339
General information, not legal advice.
Fair Work Commission
2020-01-29
Original judgment source is linked above.
Section 394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - labourer - casual employee - extension of time - whether dismissed - whether minimum employment period served - dismissal not found - application dismissed
[1] On 12 November 2019 Steven Gannon (Mr Gannon or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by Millers Roofing Pty Ltd (Millers Roofing or the Respondent Employer).
[2] His application is opposed by Millers Roofing, who raise three jurisdictional objections: they assert that the application is out of time; that Mr Gannon was not dismissed; and that Mr Gannon did not serve the minimum employment period required by the FW Act.
[3] I heard the extension of time issue as a threshold matter at a telephone hearing on 17 January 2020. Mr Gannon was overseas at the time, from where he participated in the hearing. Dealing with the extension of time issue has necessarily involved considering if there was a dismissal and the date any such dismissal took effect.
[5] In advance of the hearing I directed Mr Gannon to file materials in support of his application for an extension of time. He did so. Millers Roofing also filed documents.
[6] Both Mr Gannon and Millers Roofing were self-represented at the hearing. Proceedings were audio recorded. I heard evidence from Mr Gannon and from Mr Miller.
[7] Each witness gave evidence conscientiously. The documentary record of text messages exchanged between the two and brought into evidence assisted their recall.[1] Mr Gannon's evidence was considered and delivered without particular gloss. Mr Miller made reasonable concessions resulting in the narrative of events being largely agreed.
[8] At the conclusion of proceedings I granted Mr Gannon permission to submit three further documents referred to in his evidence but which had not been included in his materials. I granted the employer the right to respond to those materials. Mr Gannon submitted those documents on 20 January 2020.[2] The Employer provided a response.[3] These materials and the response form part of the body of evidence before me.
[9] I make findings based on the manner in which evidence was given, its consistency with corroborating documentary evidence and inherent plausibility.
[11] Millers Roofing is a private roofing company operating in Adelaide, owned by Keith Miller and his wife.
[12] Mr Gannon was first employed by Millers Roofing on 22 or 23 August 2018.[4]
[13] Mr Gannon remained employed in this role until he worked his last shift on 16 July 2019.
[14] At all relevant times Mr Gannon was employed as a casual employee. He performed the work of a labourer.
[15] For financial reasons, Mr Gannon was keen to work as often as possible. Across these eleven months, Mr Gannon worked regularly. He worked full days on most days the business operated save for days when he was sick or absent by agreement with Mr Miller. Only rarely was Mr Gannon not rostered. I find that Mr Gannon, although a casual employee, was regularly and systematically employed. Whether he had a "reasonable expectation of continuing employment" on this basis (within the meaning of section 384(2) of the FW Act) is dependent on the findings and conclusions I draw later in this decision about the circumstances under which he came to be no longer rostered for shifts.
[16] For a brief period of three days in early 2019 when Mr Gannon was not rostered, he worked for a subcontractor to Millers Roofing. Save for this instance, Millers Roofing was his only source of employment.
[17] Mr Gannon was only paid for hours worked. He received no paid leave. Mr Gannon received no income from Millers Roofing beyond his last shift on 16 July 2019.
[18] Typically a shift was notified by Mr Miller texting his employees (including Mr Gannon) the work location a day or a few days in advance, and Mr Gannon responding with his availability.
[19] I make further findings concerning the events between 16 July 2019 and the alleged date of dismissal (10 October 2019) when considering whether Mr Gannon was dismissed, and his explanation for the alleged delay in filing.
[20] Mr Gannon filed his unfair dismissal application on 12 November 2019.
[21] On 28 November 2019 Mr Gannon booked flights for overseas. He left Australia in mid December 2019 and remained in Italy at the time of the hearing (17 January 2020).
[22] Mr Gannon claims that he was dismissed on 10 October 2019 being the day after he was told by the owner of Millers Roofing that the company considered that he had abandoned his employment. He also claims that his dismissal did not take effect until 4 November 2019 being the day he sought legal advice and expected Mr Miller to have done likewise.
[23] If his dismissal did take effect on 10 October 2019, Mr Gannon says he has a reasonable explanation for the delay of 12 days in filing his application, and that the circumstances are exceptional. In support of this submission Mr Gannon says that:
[24] Millers Roofing claims that following his last worked casual shift on 16 July 2019 Mr Gannon was no longer employed because he left his job to look after his new-born child. It says that Mr Gannon neither applied for leave nor was granted leave. He was not offered further shifts after 16 July 2019 as he no longer made himself available for work. It says, as a casual employee, he was not dismissed and that his actions amounted to an abandonment of employment.
[25] Millers Roofing say that it was unaware Mr Gannon was receiving government funded paid paternity and parental leave benefits (or holding himself out as being employed but on leave) until contacted by Centrelink in late August 2019, at which time it says it told the agency that Mr Gannon was no longer working for it.
[26] Millers Roofing also say that Mr Gannon did not make himself available for work after the Centrelink payments stopped because he went on an overseas trip in mid-December 2019. It says that no exceptional circumstances exist for the late lodgement, even if Mr Gannon was dismissed on 9 or 10 October 2019 as he alleges
[27] The minimum employment period objection by Millers roofing is framed around the proposition that Mr Gannon had no reasonable expectation of ongoing regular and systematic employment. An additional complication is whether the minimum employment period required by the FW Act in this case is six or twelve months. Though it employed 15 employees when Mr Gannon was first employed, at the time of alleged dismissal the employer says that it employed 14 employees, making it a small business employer for current purposes (requiring a 12 month period of service). Mr Gannon had worked eleven months until his last shift but fourteen months until the date he says he was dismissed.
[28] For Mr Gannon's application to fall within the Commission's jurisdiction it is necessary that:
[29] If Mr Gannon's dismissal took effect on 10 October 2019, he is out of time by twelve days. Having filed his application on 12 November 2019, any dismissal prior to 22 October 2019 would mean that Mr Gannon requires an extension of time. If, however his dismissal occurred on 10 October 2019, but did not take effect until 4 November 2019 (as he claims) his application is within time.
[30] Further, if Mr Gannon was not dismissed within the meaning of the FW Act then his application is outside of the Commission's jurisdiction irrespective of the date on which it was filed.
[31] In order to determine whether an extension of time should be granted, it is necessary to make findings of fact as to whether Mr Gannon was dismissed and, if so, when his dismissal took effect. Thus, I will first determine the former question.
[32] If I find that Mr Gannon was dismissed effective earlier than 21 days before filing his application, I will then determine if an extension of time should be granted. If I find that an extension of time should be granted I will then determine if Mr Gannon met the minimum employment period so as to be protected from unfair dismissal. It is only necessary to make a finding on this latter point if Mr Gannon was dismissed and if the application is out of time and the time for lodgement is extended.
[33] To determine if there was a termination on the employer's initiative, I make the following further findings of fact:
[34] Mr Gannon's daughter was born on 29 June 2019.
[35] Early in his partner's pregnancy, she had a motorcycle accident. Upon the infant's birth and once home, Mr Gannon became the primary carer of the child.
[36] Following the birth of the child, Mr Gannon worked for Millers Roofing on nine days: 4, 5, 8, 9, 10, 11, 12, 15 and 16 July 2019.
[37] Following the birth of his child, Mr Gannon claimed a government funded (Centrelink) Paid Paternity Leave for two weeks after the birth and then Paid Parental Leave for the following eighteen weeks as primary carer.
[38] Mr Gannon worked his last shift on 16 July 2019.
[39] At a worksite in the week prior to his last shift, Mr Gannon had an amicable conversation with Mr Miller. Mr Gannon told Mr Miller that he was the primary carer of the child and going to receive eighteen weeks Paid Parental Leave from Centrelink from 17 July 2019. Mr Miller replied with words to the effect "oh shit, that's good".[5] Mr Gannon then told Mr Miller that he and his partner hoped to go on an overseas holiday in December 2019. Mr Gannon then said words to the effect "hopefully I will have a job when I get back".[6]
[40] Mr Miller did not offer Mr Gannon work on any shifts after 17 July 2019 because he believed Mr Gannon had become the primary carer of his child and would then go overseas.
[41] Mr Gannon did not seek out work from Mr Miller after his last shift on 16 July 2019.
[42] Mr Gannon's eighteen week period of Paid Parental Leave from Centrelink commenced on 17 July 2019 and ended on 21 November 2019.
[43] When applying for Paid Parental Leave from Centrelink, Mr Gannon told Centrelink of his regular casual work with Millers Roofing over the preceding year. It was agreed between he and Centrelink that payment would be made directly to him and not via Millers Roofing (this being one of the options made available by the agency under the payment scheme).
[44] Centrelink did not contact or have contact with Millers Roofing at the time it approved Paid Parental Leave payments to Mr Gannon.
[45] Centrelink contacted Mr Miller's wife (who managed the accounts of the business) on about 29 August 2019 to check the salary level for payments that were being made to Mr Gannon. Millers Roofing told Centrelink that Mr Gannon had not worked since 16 July 2019 and did not consider him still employed.
[46] On 19 September 2019 Mr Gannon sent Mr Miller a text telling him that he had lost his driver's licence due to a driving breach and asked for a "reference". The text commenced:
"Afternoon Keith. I'm still getting my paid leave, we haven't had a chance to speak since the last day I worked. An[d] didn't get paid because I cannot work until the end of my leave."
[47] After being prompted by a further text, Mr Miller replied on 25 September 2019:
"Yea sorry forgot to reply. Not sure what your hoping to get paid? You were a casual so no annual leave was accrued."
"We spoke 3 weeks before my daughter was born. Centrelink are paying me 18 weeks off. That's why when we last spoke I asked if we could arrange cash for just a few days a week because I'm was already receiving my payment when I did my last day for you..."
[50] On 1 October 2019 Mr Gannon sent Mr Miller a text saying that he (Mr Gannon) was "writing that letter" and asked Mr Miller if he could also complete a form headed 'Employer's Certificate of Income' for a financial institution "ASAP as I just need this done to get approval so I can buy a house."
[51] A week passed with no response. The following exchanges by text then occurred between Mr Gannon and Mr Miller on 8, 9 and 10 October 2019:
Afternoon Keith, I emailed the letter to Karina's account as I do not have yours. Could you please sign and email back to me. That would be much appreciated, thanks
I thought you were after a reference...I cant sign forms saying that you still work for me
I am still considered as a current employee to you that's why Centrelink are paying me my leave. Initially they were going to send the money to you to be forwarded on to me I just said to them not to and put straight into my bank because I didn't want to put any extra work on you guys.
Morning Keith just wondering what your going to do??
I'm not doing anything. You just stopped coming to work one day that is classed as abandoning your job. You never told me you were taking paid parental leave. We told child support weeks ago you no longer work for us. I'll get you a separation certificate
If that's where your going with this Keith I have proof of you not messaging me for work anymore. Unfortunately I didn't write to you about the paid leave but I 100% spoke to you about it on a job you were doing on a facia an gutter while we did a lower section of a two story. You even said, shit that's pretty good an this was 3 weeks before I took the leave also that same day I told you I'm going to Europe for three months at the end of December. I'm just asking a favour to get my license back and to ask for a loan to buy a house for my family and I would really appreciate it if you can help us. Even if that means I don't have a job to go to, I'll have to find somewhere else once my leave is over, at the moment legally you are still my employer.
Morning Keith have you had time to recollect your thoughts at all?
I've just sent our lawyer an email asking what to do. If I can legally sign it for you I will. I don't want to get caught out committing fraud."
[52] Mr Gannon and Mr Miller spoke by telephone shortly after this text of 10 October 2019 was sent and received.[7] The conversation was a disagreement where each repeated to the other what they had communicated by text in the preceding days. Neither altered their position. The stalemate that had been reached by text remained.
[53] A final text exchange occurred on 4 November 2019 when Mr Gannon sent the following text to Mr Miller:
"Hey Keith have you heard back from your lawyer? I really need that form signed from you to get a loan to buy a house for my family. I really hope you can help me just one last time. Cheers."
[54] There was no further communication between Mr Gannon and Millers Roofing until Mr Gannon filed his unfair dismissal application on 12 November 2019.
[55] Mr Gannon was alarmed at Mr Miller's stance. He believed he was on leave and concerned at what Millers Roofing had apparently told Centrelink. He told Centrelink of the problem. On 30 October 2019 he made (by email) a freedom of information request of Centrelink for phone records of its apparent conversation with Mr Miller on 29 August 2019.[8]
[56] Mr Gannon also phoned a Legal Aid Advisory Service on about 4 November 2019. He was told that the Fair Work Commission is the place to go to claim unfair dismissal.
[57] Sometime between 9 and 11 November 2019 Mr Gannon accessed the Fair Work Commission web site. He completed the on-line quiz to assess his eligibility for making an unfair dismissal claim. He considered himself eligible but also learned, for the first time, that applications had to be filed 21 days from the day a dismissal took effect.
[58] On 12 November 2019, Mr Gannon filed his unfair dismissal application in his own right.
[59] It is a pre-condition to determining an unfair dismissal application under the FW Act that an applicant be a person who has been dismissed.[9]
(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."
"...there [needs] to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether the act of the employer [resulted] directly or consequentially in the termination of the employment...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."
[62] It is also noteworthy that the Commission's on-line unfair dismissal quiz at www.fwc.gov.au, which Mr Gannon accessed, contains the following information:
"The 21 day deadline can be confusing - it relates to when your dismissal 'becomes effective', which is the day your employment actually finished:
Put simply, generally your dismissal becomes effective on the day you stop attending the place of employment (regardless of any notice period), and that is when the clock starts ticking on the 21 day deadline."
[63] For Mr Gannon to have been dismissed, he needs to establish that the events which occurred fall into either (a) or (b) of section 386(1).
[64] Paragraph (b) does not apply as Mr Gannon did not resign from his employment.
[65] Was Mr Gannon's employment "terminated on the employer's initiative" within the meaning of section 386(1)(a)?
[66] The answer to this question is to be determined objectively by reference to the facts as found and as applied to the legal meaning of this phrase.[12] A subjective belief that a person was dismissed (or conversely was not dismissed) does not constitute objective evidence of that fact.
[67] The status of Mr Gannon's employment in the period 17 July 2019 to 10 October 2019 is relevant to this question. If Mr Gannon was not an employee on 10 October 2019, he could not have been dismissed from employment on that date.
• He had told his employer by text on 19 September 2019 that he was on "leave" and also told this to the Court on his licence disqualification proceedings in October 2019.[13]
[69] These factors are equivocal. They are not sufficient to draw the conclusion Mr Gannon seeks.
[70] I accept that Mr Gannon held a belief that he was on leave from the day after his last shift and until he read Mr Miller's text of 9 October 2019. However, the mere fact that Centrelink approved a payment of Paid Parental Leave does not establish his absence as having been "leave". Only his employer could grant leave from his employment (paid or unpaid), not a government agency. That Mr Gannon told Centrelink he was on leave when he applied for the payment was the expression of his genuinely held belief at that time, but it does not make that so.
[71] Whilst an Employment Separation Certificate issued by an employer may be evidence of an employer's belief of employment having ended, its non-provision does not mean the inverse. Its non-provision may simply be the case of an employer not having provided a certificate when it was obliged to have done so. Its non-provision by Millers Roofing in July 2019 is not evidence that Mr Gannon's employment had not ceased at that time.
[72] Mr Gannon's text of 19 September 2019 put Millers Roofing on notice that he considered himself to be on leave, but the texts received from Mr Miler in the two weeks that followed clearly showed that Millers Roofing held a different view.
[73] The more relevant evidence is what was said or done by Mr Gannon and Millers Roofing in the period before Mr Gannon worked his last shift on 16 July 2019, and subsequently.
[74] The conversation between Mr Gannon and Mr Miller at a worksite in early July 2019 is largely not in dispute. Mr Gannon's recall in his evidence was relatively clear, and that recall was supported by the content of his last text sent to Mr Miller on 9 October 2019. In that conversation Mr Gannon told Mr Miller:
[75] Mr Miller's reaction to learning of the payment by Centrelink was favourable, however in context it was not a grant of leave by the employer. It was a friendly reaction to news from Mr Gannon that he was apparently going to receive money from Centrelink. At that stage, Millers Roofing had received no contact from Centrelink and had made no representations about Mr Gannon's status. It was Mr Gannon, and Mr Gannon alone, who made those representations to Centrelink. Mr Miller did not grant a period of leave for parental leave purposes.
[76] That Mr Gannon also, in the same conversation told Mr Miller he was planning to travel overseas in December 2019 (soon after the parental leave period ended) adds weight to the objective evidence that Mr Gannon was not employed after 16 July 2019. Mr Miller did not grant a period of unpaid leave for travel purposes.
[77] The early July 2019 worksite conversation concluded with Mr Gannon saying words to the effect:
[78] This was an acknowledgement that an employment relationship needed to be re-created at some time in the future, not that it was ongoing.
[79] Mr Gannon repeated this sentiment in his text to Mr Miller on 10 October 2019 pleading for the reference and certificate of income:
"Even if that means I don't have a job to go to, I'll have to find somewhere else once my leave is over."
[80] Also telling against the conclusion sought by Mr Gannon is that after 16 July 2019 Mr Miller did not offer shifts, and Mr Gannon did not seek shifts.
[81] At the heart of this matter is a confusion borne out of a lack of clear communication between Mr Gannon and Millers Roofing, and Mr Gannon's unilateral pursuit of the Centrelink payment. Neither party are particularly to blame, as one is a labourer and the other operates a relatively small business. The casual status of Mr Gannon's employment contributed to that misunderstanding, as did the grant of Paid Parental Leave by Centrelink.
[82] Although it is understandable that Mr Gannon considered himself to have been on leave given the Centrelink payment, the objective facts are more consistent with the conclusion that Mr Gannon's regular casual employment ceased by mutual agreement on 16 July 2019. It was employment that was capable of being resurrected once he ceased to be the primary carer of his child or returned from overseas, but it was not continuing employment.
[83] I now turn to Mr Miller's text of 9 October 2019.
[84] I do not accept Mr Miller's statement in that text that Mr Gannon had abandoned his employment. Mr Gannon was never rostered to work a shift after 16 July 2019. He did not fail to turn up to work or make himself unresponsive or uncontactable to the employer. I do not accept Mr Miller's evidence that Mr Gannon was not rostered after 16 July 2019 because he had become unreliable. Mr Gannon had not become unreliable. He had become the primary carer of his child and was no longer available to work.
[85] Nor do I accept Mr Miller's claim that "you never told me you were taking paid parental leave". I have found that Mr Gannon said words to this effect during the early July 2019 worksite conversation. His text of 19 September 2019 to Mr Miller stated that as a fact. However, on both occasions those words were said in reference to the Centrelink payment, not as a request for leave from his employer.
[86] Mr Miller's text of 9 October 2019 informed Mr Gannon that his employment had ceased but it is not evidence of when it ceased or why.
[87] I conclude that Mr Gannon's employment came to an end at the time of the last casual shift he worked on 16 July 2019 because both he and his employer had an understanding that he (Mr Gannon) would thereafter be absent for an unspecified period as primary carer for his child and for his intended travel overseas.
[88] Accordingly, I do not find that Mr Gannon was "terminated on the employer's initiative" within the meaning of section 386(a) of the FW Act. Thus, he was not dismissed.
[89] In reaching this conclusion I emphasise that I am determining this matter by reference to the provisions of the Fair Work Act 2009 only. I draw no conclusion and make no determination on whether the circumstances gave rise to a valid claim for Paid Paternity Leave or Paid Parental Leave under the programme administered by Centrelink. I simply note that Mr Gannon was a regularly employed casual employee who genuinely believed at the time he made the claim that he would be on leave as primary carer (which he then was). His evidence in this regard was honest and plausible. Although this is not my objective finding, it was his subjective belief (maintained at the hearing of this matter), borne out of a lack of clarity in communication with his employer.
[90] I also observe that there is no impediment to Millers Roofing providing Mr Gannon an Employment Separation Certificate. Mr Miller undertook to do this on 9 October 2019 yet has not done so. During the hearing I informed Mr Miller that whether Millers Roofing has a legal obligation to do so is not a matter on which the Commission can advise. It is clearly apparent however that its failure to do so has the potential to cause Mr Gannon unnecessary hardship in seeking future work. In the interests of fairness, it should be provided forthwith.
[91] Nor is there any legal impediment to the parties patching things over and Mr Gannon making himself available to Millers Roofing for work as a labourer on his return from overseas. However, that is a matter for the parties, not the Commission.
[92] There not having been a dismissal, Mr Gannon's application is not within the Commission's jurisdiction.
[93] I am thus unable to consider whether his claim was filed within 21 days of a dismissal having taken effect or if circumstances for any late lodgement were exceptional within the meaning of section 394(3) of the FW Act.
[94] Nor do I need to determine whether Mr Gannon met the minimum employment period to be a person protected from unfair dismissal, though I have made findings of fact concerning his past employment and its regularity.
[95] For these reasons, Mr Gannon's unfair dismissal application is dismissed. An Order to this effect is issued in conjunction with the publication of this decision.
[1] A2 Bundle of text messages 19 September to 9 October 2019. By leave granted to Mr Gannon at the hearing, further text messages sent to the Commission (and the employer) by email on 20 February 2020 were included in this bundle
[2] (1) Additional text messages10 October 2019 and 4 November 2019 and photos; (2) Centrelink FOI Application 30.10.2019; (3) Letter to Court re licence disqualification (undated)
[3] Email, Keith Miller to Chambers-Anderson, DP, 22 January 2020 12:25pm
[4] There is a dispute on which of these dates work commenced. Though that dispute is not material to this decision, I prefer Mr Gannon's evidence that his first day of actual work was 22 August 2018
[5] Mr Miller denied he responded in this way, but on this issue I prefer the evidence of Mr Gannon as his recall was clear, specific and plausible
[6] Audio transcript 17 January 2020 at 1 hour 28 minutes
[7] Audio transcript 17 January 2020 at 40 minutes, 42 minutes and 1 hour 26 minutes
[8] FOI application 30.10.2019 forwarded by Mr Gannon to the Commission (and the employer) 20 January 2020
[11] ABB Engineering Construction Pty Ltd v Doumit cited in O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [22]
[12] ABB Engineering Construction Pty Ltd v Doumit (1996) N6999
[13] Letter to the Court entitled 'Your Honour', forward by Mr Gannon to the Commission and to the employer 20 January 2020
Printed by authority of the Commonwealth Government Printer
Steven John Gannon
Millers Roofing Pty Ltd T/A Millers Roofing [2020] FWC 339