Fair work cases; what is a dismissal?

Oddly enough, many unfair dismissal cases of thed Fair Work Commion revoilve around whether an employee was dismissed. These passages froma decision of the Fair Work Coimmsision disclose just one of the circumsances in which this may arise as a fundamental legal issue.

“Consideration

[40] In order for an employee to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed. 44

[41] The term “dismissed” is defined in s 12 of the Act by reference to s 386. As noted at [33], it includes a person’s employment with his or her employer being “terminated on the employer’s initiative” (s 386(1)(a)) or resignation “because of conduct, or a course of conduct, engaged in by his or her employer” (s 386(1)(b)).

[42] It is not in dispute in the proceedings before me that the respondent is the “employer” for the purposes of s 386(1) of the Act.

[43] I turn now to consider Mr Koetsveld’s contentions.

Express dismissal

[44] As identified at [35] of this decision, in his written submissions Mr Koetsveld contends that he was “expressly terminated” 45 on 3 February 2022:

(a) during a telephone conversation with the Chief Executive Officer of PST, Mr Munday; and/or

(b) during a telephone conversation with the respondent’s Operations Manager – Gippsland, Mr Shirreff.

[45] Mr Koetsveld resiled from the contention that he was dismissed by Mr Shirreff during the hearing and proceeded on the basis that his employment with the respondent was terminated by Mr Munday. 46

[46] For the purposes of s 386(1)(a) of the Act, the termination of employment on the employer’s initiative may occur by clear words or conduct by an employer directed to an employee that the employee’s employment is to end or has ended. A termination of employment will also be on the employer’s initiative if an act of an employer was the principal contributing factor which led to the termination of employment and that act resulted directly or consequentially in the termination of the employment. 47

[47] A Full Bench of the Commission in NSW Trains v James 48 recently determined that the expression “employment with his or her employer has been terminated” in s 386(1)(a) of the Act means termination of the employment relationship and/or termination of the contract of employment.49 Section 386(1)(a) therefore encompasses both the situation where a particular contract has been terminated but the employment relationship persists in altered form, and the situation where the contract and the employment relationship has ended. To the extent that Mr Koetsveld’s submissions contend that the unfair dismissal jurisdiction is concerned with the termination of the employment relationship (and not necessarily termination of the contract),50 this is no longer an accurate reflection of the law.

[48] For the reasons that follow, I reject the contention that Mr Koetsveld’s employment with the respondent has been terminated on the respondent’s initiative. Specifically, I do not find that Mr Koetsveld was dismissed by the respondent during the telephone call with Mr Munday on 3 February 2022 as contended.

[49] It is not in dispute that Mr Koetsveld received a telephone call from Mr Munday on or about 3 February 2022. As earlier stated, Mr Munday is the Chief Executive Officer of PST and is not employed by the respondent. 51 During the proceedings, Mr Koetsveld accepted that Mr Munday could not make statements on behalf of the respondent when Mr Munday did not work for them.52 Mr Koetsveld’s position is that he was “shocked” that the respondent “thought it was okay for my former boss at Stoitse to explain why I no longer had a job. My employment had already changed over to McColl’s and he wasn’t my boss anymore.”53 However, Mr Koetsveld believed that Mr Munday “had the authority to make that call.”54

[50] There is no evidence supporting Mr Koetsveld’s belief that Mr Munday was acting as an agent of the respondent at the time of the discussion. In the absence of probative evidence of this fact, I do not accept that Mr Munday held the actual or ostensible authority to dismiss Mr Koetsveld from his employment with the respondent.

[51] In any event, Mr Munday was not called to give evidence. Despite this, Mr Koetsveld urges the Commission to make a finding about the statements made by Mr Munday during the telephone call on 3 February 2022, Mr Munday’s intention for making the call, and upon whose behalf he was calling. However, the evidence before the Commission regarding these matters is untested. In the circumstances, I can only attach limited weight to Mr Koetsveld’s summary of this discussion. 55

[52] Even if I were to assess Mr Koetsveld’s evidence of his discussion with Mr Munday at its highest, I would not be satisfied that the language used by Mr Munday had the probable effect or result of bringing Mr Koetsveld’s employment with the respondent to an end. Notwithstanding the alleged statement, “McColl’s don’t want you,” the telephone call concludes with Mr Koetsveld enquiring “So this is it? No more work?” to which Mr Munday allegedly responds, “Talk to Duane. Ring Duane” (being a reference to Mr Shirreff). I regard this as demonstrative of Mr Munday appropriately deferring questions regarding Mr Koetsveld’s employment to a representative of the respondent.

[53] Mr Koetsveld invites the Commission to draw an inference that Mr Koetsveld was dismissed by Mr Munday on account of the content of [12] of Ms Ranieri’s witness statement. This provides that PST employees “that were unsuccessful and had no potential to transfer to the Respondent were directed to the Peter Stoitse Chief Executive Officer – Mike Munday or their People and Culture Manager – Sue Kemp.” 56 Mr Koetsveld relies upon this statement to support his position that he believed that Mr Munday had the authority to terminate his employment with the respondent.57 The obvious difficulty with this argument is that Ms Ranieri’s witness statement was prepared for the purposes of these proceedings and post-dated Mr Koetsveld’s 3 February 2022 telephone call with Mr Munday by approximately three months. There is no evidence that Mr Koetsveld was aware, as at 3 February 2022, that unsuccessful PST employees were directed to Mr Munday. In any event, I decline to draw the inference sought. In the absence of evidence from Mr Munday regarding the reason for his calling Mr Koetsveld, there is no rational basis for concluding that Mr Munday called Mr Koetsveld for the express purpose of dismissing him from his employment with the respondent, noting that (a) Mr Koetsveld’s employment with PST ended on 31 January 2022; and (b) Mr Munday is the Chief Executive Officer of PST, not the respondent.

[54] Subsequent to his telephone call with Mr Munday, Mr Koetsveld spoke with Mr Shirreff by telephone on 3 February 2022. During the proceedings, Mr Koetsveld accepted that Mr Shirreff did not advise Mr Koetsveld that he had been dismissed or was no longer employed by the respondent, but rather that the respondent had no work for him. 58 On Mr Koetsveld’s own evidence, no one from the respondent ever told him that he had been dismissed or that he was no longer an employee.59

[55] While it is not strictly necessary to do so given the concession Mr Koetsveld made during the proceedings as described at [45] of this decision, I reject the contention that Mr Shirreff dismissed Mr Koetsveld from his employment with the respondent on 3 February 2022 or at all. Rather, I find that Mr Shirreff advised Mr Koetsveld during the discussion on 3 February 2022 to “see a doctor” 60 and “get another medical done”61 or “get a new medical”62 and proceeded on the basis that Mr Koetsveld understood what steps he needed to take in relation to these matters. Further, I find that Mr Shirreff said to Mr Koetsveld words to the effect of, “I can’t roster you ‘til you pass the requirements.”63 These statements do not amount to a dismissal.

[56] For completeness, I turn now to address the matters which Mr Koetsveld says support his contention that he was dismissed on 3 February 2022.

[57] Mr Koetsveld submits that he had been rostered to perform shifts to the end of June 2022. However, he says that he was given no further shifts after 3 February 2022. 64 I do not consider this to support Mr Koetsveld’s contention that he was dismissed on 3 February 2022 for two reasons. Firstly, the roster relied upon by Mr Koetsveld is titled “12 month Driver’s Roster” and applied to Mr Koetsveld during his employment with PST, the roster having commenced on 1 July 2021.65 There is no evidence that supports a finding that PST’s 12-month roster applies to Mr Koetsveld in his employment with the respondent, or that Mr Koetsveld will be engaged by the respondent to work pursuant to PST’s 12-month roster. On the contrary:

(a) The conditional contract of employment specifies, under the heading “hours of work” that Mr Koetsveld is employed as a casual employee and is required to work as per operational requirements. There is no mention of a roster. 66

(b) Both the conditional contract of employment and the 13 December offer letter 67 provide that Mr Koetsveld’s employment with the respondent will be in accordance with the Peter Stoitse Milk Enterprise Agreement 2021 (Agreement).68 PST’s driver’s roster is not a term of the Agreement. Mr Koetsveld relies upon clause 8 of the Agreement (which requires employees to be ready, willing and available for work at the times and during the hours for which they are rostered) in support of his position that the driver’s roster would continue to apply to him.69 However, a general reference of the kind in clause 8 of the enterprise agreement to being rostered to work does not support a finding that PST’s driver’s roster applies to Mr Koetsveld in his employment with the respondent.

(c) Ms Ranieri’s evidence is that as a casual employee of the respondent, Mr Koetsveld has no set shifts as it does not operate pursuant to a fixed roster. 70

[58] Secondly, Mr Koetsveld is engaged by the respondent pursuant to a conditional contract which remains subject to completion. I do not accept the contention that Mr Koetsveld’s employment became unconditional as of 1 February 2022. 71 Nor do I accept the submission that if the employment was not unconditional then Mr Koetsveld would not be employed.72 There is a distinction between a condition which is precedent to the formation or existence of a contract and a condition which is precedent to the obligation of a party to perform their part of the contract. In this respect, the High Court in Perri v Coolangatta Investments Pty Ltd (Perri)73 stated:

“In the first category the transaction creates no rights enforceable by the parties unless and until the condition is fulfilled. In the second category there is a binding contract which creates rights capable of enforcement, though the obligation of a party, or perhaps of both parties, to perform depends on fulfilment of the condition and non-fulfilment entitles him to terminate.”

[59] By its express terms, the conditional offer of employment between the respondent and Mr Koetsveld is “a binding employment contract” that is “subject to the satisfactory completion of all pre-employment information.” I therefore regard the conditional offer as falling into the second category identified by the High Court in Perri. The document plainly compels the completion of the conditions to the respondent’s satisfaction. Mr Koetsveld accepted employment with the respondent in accordance with the conditional contract and in these circumstances, I reject the submission that it was unreasonable for the respondent to seek compliance with its terms. 74 It is apparent from the material before the Commission, and the evidence of Ms Ranieri during cross examination,75 that the respondent has not waived compliance with the conditions. The performance of a shift by Mr Koetsveld on 1 February 2022 does not, of itself, alter this. In these circumstances, I accept the evidence of Ms Ranieri that the respondent elected not to roster Mr Koetsveld after 1 February 2022 until he had completed a further medical assessment and not because it had dismissed him.76

[60] Mr Koetsveld submits that he was not paid a second bonus relating to the transfer of business between PST and the respondent. 77 Mr Koetsveld says that this supports a conclusion that his employment had ended before the bonus payment date of 8 February 2022. However, the evidence before the Commission is that the second bonus was to be paid by the respondent to all transferring PST employees upon satisfaction of all pre-employment conditions. That is, once their employment became unconditional, they would be paid the second bonus of $600.78 While the terms of the bonus payment are not in evidence, I accept Ms Ranieri’s evidence that the second bonus payment was paid to employees offered unconditional employment contracts with the respondent.79 This is supported by Mr Shirreff’s evidence that some employees received the second bonus and others did not.80 Accordingly, I do not accept that the non-payment to Mr Koetsveld of the second bonus payment supports a conclusion that Mr Koetsveld has been dismissed.

[61] Mr Koetsveld contends that there was no effort by the respondent to arrange a medical assessment for him between 3 February and 7 April 2022. 81 I accept on the evidence that the respondent did not take steps to communicate with Mr Koetsveld during this time to arrange a medical assessment. However, Ms Ranieri’s evidence is that the respondent did not organise medical assessments for any of the 144 transferring employees on the basis that it would have been logistically impossible to do so without knowing their personal schedules and rosters.82 Rather, the transferring employees were provided with the “pre-employment pack” on 15 December 2021 setting out how they could make arrangements for a medical assessment at a time and place that was suitable for them.83 I accept Ms Ranieri’s evidence that the respondent did not arrange for any transferring employees to obtain a medical assessment,84 as this is supported by the content of the pre-employment pack, which contains instructions for completion of the health assessment for provision to a medical practitioner for the purposes of the medical assessment.85

[62] Ms Ranieri proceeded on the understanding that Mr Koetsveld was taking steps to undertake the medical assessment. 86 Mr Koetsveld did not make contact with Ms Ranieri at any time to seek clarity regarding the process for obtaining a medical assessment,87 notwithstanding the following:

(a) Mr Koetsveld (through his wife) had corresponded with the respondent’s Human Resources graduate, Ms Douglas regarding all matters concerning the transfer of Mr Koetsveld’s employment to the respondent.

(b) The correspondence from the respondent to Mr Koetsveld dated 15 December 2021 in which Mr Koetsveld was provided with a “pre-employment pack” invited Mr Koetsveld to reach out to Ms Ranieri in the event that he had any questions.

(c) The letter from the respondent of 15 December 2021 attaching the “pre-employment pack” identified that it includes a “Medical Assessment” as well as “Approved Medical Clinics.” 88 Mr Koetsveld’s evidence is that he assumes that he did not read this information because he had relied upon his September 2021 medical assessment for PST for the purposes of the transfer of his employment to the respondent.89 Nor did Mr Koetsveld revisit the material after 3 February 2022,90 notwithstanding that Mr Koetsveld had worked through the pre-employment pack by providing the respondent with other information required in accordance with it (such as the police check).91

(d) Mr Koetsveld gave evidence that he understood that he was able to call the respondent’s human resources department if he did not understand something and considered human resources to be responsive towards his concerns. 92 Mr Koetsveld does not know why he did not speak to either Ms Ranieri or her assistant in light of his confusion.93

[63] In circumstances where (a) the “pre-employment pack” contained information as to the process for obtaining a medical assessment, and (b) it is not in dispute that Mr Shirreff advised Mr Koetsveld to “see a doctor” and “get another medical done,” 94 or “get a new medical,”95 I reject the contention that by not arranging a medical assessment on behalf of Mr Koetsveld that the respondent’s conduct demonstrates that it intended to bring the employment relationship to an end or had that probable result. As earlier stated, the evidence discloses that the respondent did not organise medical assessments for any of the transferring employees.

[64] Mr Koetsveld contends that after 3 February 2022, he received no further communication from the respondent, with the exception of an automatically generated email attaching a payslip and all-staff emails (which he did not receive until after lodging his application for an unfair dismissal remedy). 96 The material before the Commission does not identify the extent to which the respondent corresponds with its drivers by email. Accordingly, no relative comparison can be made between other drivers and Mr Koetsveld. However, in circumstances where Mr Koetsveld does not use email for his role (the evidence being it was his wife who engaged with the respondent on his behalf during the transfer of his employment), I do not consider that the limited email correspondence between the respondent and Mr Koetsveld supports a finding that Mr Koetsveld had been dismissed on 3 February 2022 in circumstances where the respondent believed Mr Koetsveld was taking steps to undertake the medical assessment requested of him.

[65] Finally, I give no weight to the statement that Mr Stoiste spoke to the respondent regarding Mr Koetsveld’s “reinstatement” 97 in circumstances where Mr Stoitse was not called to give evidence about the discussion and the evidence is untested.98

[66] Having regard to the above matters and the conclusions reached, I reject the contention that Mr Koetsveld was dismissed by the respondent within the meaning of s 386(1)(a) of the Act. There is no conduct on the part of the respondent that was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Koetsveld’s employment. Rather, I find that Mr Koetsveld has mistakenly assumed that Mr Munday had the authority to, and did, dismiss him from his employment with the respondent by telephone on 3 February 2022. The evidence does not support this assumption as being correct. Mr Koetsveld accepted that he had “possibly” made this assumption but did not concede his primary position. 99

Repudiation of the employment relationship

[67] In the alternative, Mr Koetsveld contends that there has been a repudiation of the employment relationship. It is said this arises by reason of the following:

(a) a refusal to provide Mr Koetsveld with further shifts in circumstances where he was employed by the respondent pursuant to a single continuous casual contract; or

(b) the repudiation of a series of casual contracts covered by the extended roster. 100

[68] Much of Mr Koetsveld’s submissions focus on the question of whether Mr Koetsveld was engaged by the respondent under a single continuous casual contract of employment, or in the alternative, under a series of separate contracts of employment on each occasion he undertakes work. 101 It is not in contest that Mr Koetsveld was employed by the respondent on a casual basis.102 Nor does it appear to be controversial that Mr Koetsveld was engaged by his former employer, PST, pursuant to a 12-month roster.

[69] In relation to the repudiation of the employment relationship in the context of a casual contract of employment, 103 Mr Koetsveld’s submissions focus on the rostering practices adopted by Mr Koetsveld’s former employer, PST.104 For the reasons earlier stated at [57], there is no evidence that supports a finding that PST’s 12-month roster applies to Mr Koetsveld in his employment with the respondent, or that Mr Koetsveld will be engaged by the respondent to work pursuant to PST’s 12-month roster.

[70] Mr Koetsveld performed one shift for the respondent in accordance with the conditional contract of employment, before the respondent ceased offering Mr Koetsveld shifts pending a further medical assessment. Accordingly, there is simply no factual basis upon which it can be determined whether Mr Koetsveld’s service to the respondent has been given under a continuing casual contract or a series of separate casual contracts.

[71] In any event, for the reasons that follow, it is unnecessary to determine whether Mr Koetsveld was engaged under a single continuous casual contract or under a series of separate contracts. This is because I do not accept the submission that there has been a repudiation of the employment relationship.

[72] The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd 105 (Koompahtoo) described repudiation as referring to “conduct which evinces an unwillingness or an inability to render substantial performance of the contract” or “conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations” or “it may refer to any breach of contract which justifies termination by the other party.”106 Repudiation of a contract is a serious matter and is not to be lightly found or inferred.107 The test is “whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”108

[73] Whether there has been a repudiation of a contract of employment is determined objectively. 109 It is unnecessary to show a subjective intention to repudiate and whether there has been a repudiation is a question of fact not law.110 A repudiation of the contract by the employer gives the employee who is not in breach the option to decide whether to affirm the contract or to treat the contract as at an end by accepting the repudiation.111

[74] I reject the submission that the respondent has repudiated the conditional contract of employment by ceasing to offer casual shifts to Mr Koetsveld. Relevantly, the respondent’s conduct does not evince an unwillingness to be bound by the conditional contract. Nor does it amount to a breach of any of its terms. Rather, the respondent’s election to cease offering Mr Koetsveld casual shifts is permitted by Mr Koetsveld’s conditional contract of employment, which is subject to the satisfactory completion of all pre-employment information required by the respondent. The obligation on the respondent to perform under the conditional contract depends on fulfilment of the condition by Mr Koetsveld, in the sense described in Perri at [58] of this decision.

[75] It follows that I am not satisfied that Mr Koetsveld was terminated on the employer’s initiative within the meaning of s 386(1)(a) of the Act on account of the respondent’s repudiatory conduct, as contended.

Constructive dismissal

[76] As noted at [38] of this decision, a further alternative advanced by Mr Koetsveld is that he was constructively dismissed.

[77] Section 386(1)(b) of the Act is concerned with the resignation of a person from their employment where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. Rather, it depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party has said or done, in light of the surrounding circumstances. 112 It is the conduct of the employer that is the essential element.113

[78] I reject Mr Koetsveld’s contention that he has been dismissed within the meaning of s 386(1)(b) for two reasons.

[79] Firstly, I have earlier concluded that it was open to the respondent to rely upon its contractual rights to cease offering Mr Koetsveld casual shifts pending the completion of the conditional contract. The respondent took this approach in lieu of exercising its right to bring the employment to an end on account of the non-fulfilment by Mr Koetsveld of an essential term. The respondent’s actions cannot, in these circumstances, be described as conduct which is intended or likely to have the effect of bringing the employment to an end. Rather, it is the opposite.

[80] At [61] of this decision, I accepted the proposition that the respondent did not, in the period after 3 February 2022, organise a further medical assessment for Mr Koetsveld on his behalf. However, in light of the circumstances described at [61], this does not of itself, support a finding that Mr Koetsveld had no choice but to resign. It was open to Mr Koetsveld to make contact with the respondent to seek clarity in the manner identified at [62] of this decision but he chose not to.

[81] Secondly, and accepting that the primary focus of the s 386(1)(b) enquiry is on the employer’s conduct, there is no evidence supporting a finding that Mr Koetsveld resigned from his employment. The absence of an express statement of resignation is not fatal to Mr Koetsveld’s contention that he resigned, as the test is an objective one which depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances. However, in my assessment, the objective position is that Mr Koetsveld did not resign. Mr Koetsveld’s own understanding of the circumstances supports this conclusion. Mr Koetsveld’s evidence is that the respondent “had sacked me, so my understanding from conversations with Duane is that if I got that medical maybe they – we could get them to change their minds.” 114

[82] Accordingly, for the reasons given, I find that the respondent did not intend to bring Mr Koetsveld’s employment to an end and nor was termination of employment the probable result of the respondent’s conduct such that Mr Koetsveld had no effective or real choice but to resign. I am therefore satisfied that Mr Koetsveld was not forced to resign because of conduct, or a course of conduct, engaged in by the respondent within the meaning of s 386(1)(b) of the Act.

Conclusion and disposition

[83] Having regard to my findings and the conclusions reached, I find that Mr Koetsveld has not been dismissed within the meaning of s 386(1) of the Act. Consequently, Mr Koetsveld cannot have been unfairly dismissed for the purposes of s 385.

[84]
The respondent’s jurisdictional objection is upheld and Mr Koetsveld’s application for an unfair dismissal remedy is dismissed.”

Koetsveld v McColl’s Transport Pty Ltd (2022) FWC 1681 delivered 30 June 2022 per Millhouse DP