Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal - s. 386 - employment not terminated on initiative of employer - application dismissed.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Tomas Rajnoha (the applicant). The respondent employer is Sauer's Bakehouse Pty Ltd t/a Sauer's Bakehouse (the employer).

[2] The application was filed at Sydney on 7 July 2020, and the employer filed a response (Form F3) on 20 July 2020. The application indicated that the date that the applicant was alleged to have been unfairly dismissed was 17 June 2020. Consequently, the application was made within the 21-day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer's Form F3 raised a jurisdictional objection to the application on the basis that the applicant was allegedly not dismissed from his employment. Notwithstanding the jurisdictional objection that was raised by the employer, conciliation was undertaken on 31 July 2020. Unfortunately, that conciliation was unsuccessful. Further conciliation of the claim was conducted, by consent, at the commencement of the scheduled Hearing held on 30 October 2020. Conciliation was again unsuccessful, and the matter proceeded to arbitration. The arbitration dealt with the substantive issues raised in the unfair dismissal claim, and logically first required determination of the jurisdictional objection raised by the employer, which involved the question of whether the applicant was a dismissed employee.

[4] At the Hearing, the applicant represented himself. The applicant gave evidence as the only witness who was called to provide evidence in support of the unfair dismissal claim. The employer was represented by its Managing Director, Mr Martin Sauer, who provided evidence as the only witness called on behalf of the employer.

[5] The applicant commenced employment with the employer on 19 August 2016. The applicant was engaged to work as a "Freezer worker", and his employment was governed by the terms of the Sauer's Bakehouse and United Voice Enterprise Agreement 2018 (the EA). The applicant worked at the employer's Sydney bakery plant located in the Sydney suburb of Minto. The employer conducts a wholesale bakery business, and it has in excess of 110 employees.

[6] The applicant's employment was without recorded complaint prior to March 2019. Between March 2019 to June 2020 the applicant received eight disciplinary reprimands for various minor issues. Despite these reprimands, the work of the applicant was considered by the employer to be generally acceptable.

[7] The applicant worked as a casual employee engaged on a regular and systematic basis. The engagements of the applicant were arranged by way of fortnightly rosters. The fortnightly rosters were posted electronically to all employees, and paper copies of the rosters were displayed at the workplace entrance. Prior to March 2020, the applicant regularly worked an average of three engagements each week including regular engagements on Wednesdays.

[8] From March 2020, the impacts of the Covid-19 pandemic dramatically reduced the number of rostered engagements that were provided to the applicant and other employees. Although the applicant had his rostered engagements reduced, it appeared that up until June he continued to work regularly on Wednesdays.

[9] On Wednesday, 17 June 2020, the applicant attended for work without first checking the electronic roster. Once he arrived at work the applicant was told by his Supervisor, Pavlina, that he had not been rostered on for work that day. The applicant checked the paper copies of the rosters that were displayed in the workplace, and he confirmed that he was not rostered on for that day.

[10] In response to the discovery that he had not been rostered on for work, the applicant told his Supervisor, Pavlina, that he knew "what was going on here" and that he would empty his locker. Pavlina responded by saying "Ok". The applicant then cleared out his locker, handed his locker keys to Pavlina, said goodbye, and left the workplace.

[11] Over the following 20 days, the applicant checked the electronic roster each week, noting that he had not been rostered on for any shifts. The applicant had not received any further contact from the employer, and on 7 July 2020, he filed his claim for unfair dismissal remedy.

[12] Following the termination of employment with the employer, the applicant looked for other employment, and he was successful in securing alternative employment in October 2020.

[13] The applicant provided written submissions dated 15 October 2020, and during the Hearing on 30 October 2020, he verbally elaborated upon his documentary material.

[14] The applicant stated that he had worked for the employer for almost 4 years and that for most of this time he was happy and had no problems with his Supervisors. However, the applicant said that in the last 3 to 5 months before the termination of his employment he had been humiliated and discriminated against by his Supervisors and Managers. According to the applicant, the treatment that he received from his Supervisors and Managers culminated in his unfair dismissal.

[15] The applicant said that he had been unfairly dismissed because he had been removed from the roster on Wednesday 17 June 2020, and he always worked on Wednesdays. The applicant said that he told the Supervisor, Pavlina, that "he knew what was going on here and that he would empty his locker and give her his locker keys." The applicant said that Pavlina has said "Okay". Further, the applicant said that he had received no further contact from the employer, and after waiting 20 days he lodged an unfair dismissal application.

[16] The applicant made further submissions which stated that he did not decide to quit from his employment because if he had made such a decision, he would have sent the employer a letter with a termination notice. The applicant said that it was very sad that his employment finished in this way.

[17] The applicant also said that he confirmed that he was sick of his job, and he actually couldn't stand it because of the behaviours of some of the Managers. However, the applicant said that if he was going to leave the Company, he would have made a notice of termination, and he had not done so. The applicant said that he did not understand that the employer asserted that it had never dismissed him.

[18] Mr Sauer, the employer's Managing Director, made verbal submissions opposing the unfair dismissal claim on the basis that the applicant had not been dismissed from his employment. Mr Sauer, also referred to written submissions that had been filed on behalf of the employer on 5 October 2020.

[19] Mr Sauer made submissions which rejected the applicant's assertion that he had been unlawfully discriminated against. Further, Mr Sauer submitted that the applicant had just quit his employment and he was not dismissed by the employer.

[20] Mr Sauer said that after working quite a few years for the employer in the freezer section, the applicant simply got sick of the job and this was reflected by his deteriorating attitude in the months leading up to the termination of his employment. Mr Sauer stated that the rostering Supervisor, Hana, had attempted to call the applicant on 28 May 2020, as she was preparing the rosters for the next fortnight. The applicant was not contactable, and he did not respond to a request from Hana to return her call. Mr Sauer said that in the circumstances of the applicant not being contactable, Hana simply left him off of the roster for Wednesday, 17 June 2020.

[21] Mr Sauer said that when the applicant arrived at work on 17 June 2020 and discovered that he had not been rostered for work that day, he "decided" that he had been dismissed, and he then quit. Mr Sauer submitted the applicant was a true casual, and when he handed in his locker keys and said goodbye, it was the applicant's decision. Mr Sauer said that subsequently the rostering Supervisor, Hana, was under the impression that the applicant did not wish to work for the employer anymore because he had returned his locker key.

[22] In addition, Mr Sauer stated that once he had been notified of the applicant's unfair dismissal claim he made contact with the applicant and indicated that the applicant could return to work if he wished. According to the submissions made by Mr Sauer, the applicant said that he did not want his stressful job back, but instead wanted monetary compensation of some $7,887. Mr Sauer submitted that the applicant had quit his employment and sought no other remedy than monetary compensation through lodging an unfair dismissal claim.

[23] Mr Sauer submitted that the employer had not dismissed the applicant, and the applicant had handed in his locker keys which meant that he had quit. Mr Sauer submitted that the applicant's unfair dismissal claim had no merit, and it should be dismissed.

[24] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[25] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of "dismissed". Relevantly, sub-section 386 (1) of the Act is in the following terms:

(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."

[26] In this instance the applicant did not provide any written resignation but instead he treated his removal from rostered work on Wednesday, June 17, 2020, and his subsequent omission from the fortnightly roster, as his dismissal. In effect, the applicant was treating the actions of the employer as representing his dismissal without there being any overt action taken by the employer to dismiss the applicant other than his omission from rostered work on June 17.

1. There are circumstances where an employee may be entitled to treat the actions of the employer as the termination of the employment at the employer's initiative without the employer taking overt action to dismiss the employee. Such circumstances may be comprehended by the concept of constructive dismissal as explained by the learned authors of the often-quoted source book, Macken's Law of Employment. [1] The following passage from that text is instructive:

"Alternatively, the employee may, in certain circumstances, treat herself or himself as discharged from further performance of the contract, and leave the employment without giving the requisite notice. This course will be justified where the conduct of the employer amounts to a repudiation of the contract, that is, the employer's breach or proposed breach is sufficiently serious to allow the employee to regard herself or himself as discharged from further performance of the contract. The term "constructive dismissal" is often used to describe this situation."

[28] Consequently, although it was not clearly articulated by the applicant, the circumstances in this instance involved an alleged constructive dismissal where the applicant has treated the conduct of the employer as the termination of his employment on the employer's initiative, but without any overt act of, or advice of dismissal. In such circumstances, the conduct of the employer must be carefully examined so as to establish whether it was sufficiently serious so as to be an egregious breach of the contract of employment which represented a repudiation of the contract of employment. If the evidence established that the employer's conduct was such an egregious breach, proper basis would exist so as to permit the applicant to regard himself as discharged from further performance of the contract. In such circumstances, the applicant would have been constructively dismissed.

1. There is a significant amount of case law authority on the question of constructive dismissal. One case which is often referred to is that of Mohazab v Dick Smith Electronics (No2)[2] (Mohazab), which succinctly summarised the concept of constructive dismissal as follows:

"However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer."[3]

1. In Mohazab, the Full Bench of the Court also referred to another authority in the case of Allison v Bega Valley Council [4] (Allison). The following extracts from the decision in the Allison case is particularly helpful for application in the present circumstances:

"Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?"

"In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee..."

[31] In the present case, the relevant actions of the employer involved the rostering Supervisor, Hana, omitting the applicant from a rostered engagement on Wednesday, June 17, 2020. The applicant was omitted from the roster after he failed to return a call from the rostering Supervisor on 28 May 2020. The applicant was a casual employee who was regularly and systematically engaged to work via a fortnightly roster, and he was usually rostered to work on Wednesdays each week. It is conceivable that the employer's actions in omitting the applicant from rostered work on his regular Wednesday engagements may have constituted the constructive dismissal of the applicant.

[32] The applicant may have been understandably concerned when he arrived for work to discover that he had not been rostered on for his usual Wednesday shift. However, his reaction to that discovery involved conduct whereby his actions, and not those of the employer, brought the employment to an end. Instead of protesting and enquiring about his removal from the roster, the applicant cleaned out his possessions from his work locker, handed his locker keys to his supervisor, said goodbye, and then left the workplace.

[33] During his cross-examination of Mr Sauer, the applicant provided evidence which disclosed that he recognised that his actions in cleaning out his locker, handing his keys to his supervisor, saying goodbye and leaving the workplace were actions that would logically be treated to represent his intention to finish the employment. The following extract from the transcript of the Hearing reveals that the applicant realised that he was acting in a manner that would be treated to represent his resignation from employment as he questioned why the supervisor, Pavlina, took no action to stop him:

"... I came to work on the - when I was unfairly dismissed, there was the supervisor, Pavlina, you know. Why the supervisor, Pavlina, didn't stop me to leave? I said to her, "I will leave, I will give you" - - -?--- That's not her job.

I'm sorry, I said, "I will leave the company, I will give you the key from my locker and I will go" and she said, "Okay." Why she didn't stop me or why she didn't say "Don't panic, we can solve it"? Why didn't she do that like this and she let me - let me go? Why? --- If you decide to leave, it's not the job of - - -

I didn't decide - - -? --- - - - the supervisor - please let me answer the question.

Okay? --- If you decide to leave the employment, it's not the job of the supervisor to convince you in some way to stay. That's not in her job description, sorry."[5] (emphasis added)

[34] Consequently, the applicant understood that his actions on June 17 would logically be treated by the employer as him leaving the employment. These actions of the applicant, and his failure to initiate any challenge or enquiry about his removal from the roster, meant that he was initiating the termination of the employment. The employer was not obliged to attempt to stop the applicant from taking actions that constituted the termination of his employment. Further, it was understandable and reasonable that the employer treated the actions of the applicant on 17 June 2020, as his unambiguous intention to no longer continue the employment. The actions of the applicant constituted his resignation from the employment, and therefore, as a casual employee, the employer no longer included the applicant in any of the fortnightly rosters.

[35] The determination of this matter has involved a contest about whether or not the applicant was a person dismissed from employment. Upon application of the relevant tests and an analysis of the evidence involving the circumstances of the termination of employment, it has been established that the actions of the applicant and not the employer, brought the employment to an end. Upon proper objective contemplation, the termination of the applicant's employment was not caused by conduct, or a course of conduct, on the part of the employer.

[36] Unfortunately for the applicant, his conduct on 17 June 2020, represented actions that on any reasonable and objective consideration, permitted the employer to conclude that the applicant no longer wished to be considered for engagement as a casual on the fortnightly roster. Without challenge or enquiry regarding the omission of the applicant from the roster on 17 June 2020, the actions of the employer could not be treated by the applicant to represent his dismissal. The conduct of the employer will be the true initiator of the termination of employment only if it can be objectively and properly established to have been incompatible with the continuation of the employment.

[37] As a matter of fundamental fairness, the applicant was obliged to test the reason for his omission from the roster on 17 June 2020 and clarify the extent to which the employer was prepared to return the applicant to the fortnightly roster. If, after further enquiry, the employer indicated an intention to or actually implemented further omissions of the applicant from the roster, only then could the concept of constructive dismissal be potentially enlivened. In this instance, the applicant did not have proper basis upon which to treat the actions of the employer as a repudiation of the employment.

[38] Consequently, a careful analysis of the circumstances in this instance has established that it was not the actions of the employer that operated as the real and effective initiator of the termination of the contract of employment. The applicant was not a person dismissed from employment in accordance with the meaning of dismissed contained in s. 386 of the Act. The jurisdictional objection as advanced by the employer must be upheld.

[39] The application for unfair dismissal remedy is dismissed as it is without jurisdictional foundation. An appropriate Order shall be issued accordingly.

Mr M Sauer, Managing Director appeared for the employer.

1. [1] Macken's Law of Employment , [Sappideen et al,] Seventh edition, Lawbook Co. @ [9.20] page 346.
2. [2] Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.
3. [3] Ibid @ page 207.
4. [4] Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.
5. [5] Transcript of proceedings @ PN241 - PN244.

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