There are circumstances in which a conversation between an employee and an employer can be misunderstood, sometimes even as constituting a dismissal, thus
“Application for an unfair dismissal remedy – whether applicant dismissed
[1] Mr Dean Arecco was employed by Revive Disaster Recovery Pty Ltd (Revive) as a
Restoration Technician, initially for a number of years until March 2018 and then again from
11 July 2018 until 10 July 2023. On 30 July 2023, he applied in time for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Revive objects to the application
on the basis that Mr Arecco was not dismissed.
[2] A remedy for unfair dismissal is only available if the Commission is satisfied that an
employee has been dismissed.1 Relevantly, under section 386(1) of the Act, a person has been
dismissed if their employment has been terminated on the employer’s initiative.
[3] Termination “at the initiative of the employer” means a termination brought about by
an employer and which is not agreed to by the employee. A termination of employment can
occur at the initiative of the employer even if it is not done by the employer. It requires the
action(s) of the employer to be the principal contributing factor which leads to the termination
of the employment relationship.
[4] The question is whether Mr Arecco has been dismissed for the purposes of section
386(1) of the Act. These are my reasons for concluding that Mr Arecco has been dismissed.
History
[5] Mr Arecco and his partner, Ms Jessica Francis, are expecting their third child.
Mr Arecco worked for Revive for many years and had been friends with Mr Nathaniel Sierra,
his supervisor and Revive Project Manager, since school, although in recent times they had
drifted apart. In preparation for the baby, Mr Arecco started looking for a new job. He wanted
to find a higher paying job because of cost-of-living pressures and the impending loss of Ms
Francis’s income due to parental leave.
[6] One consequence of Mr Arecco’s job search is that the Director of Revive, Mr Darren
Wilson, and Mr Sierra, began receiving phone calls from prospective employers. On the
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morning of 10 July 2023, Mr Wilson spoke to Mr Sierra over the phone. He said, in words to
the effect:
“Dean hasn’t been at work for quite a number of weeks, he has not been working with
people, he hasn’t been communicating – he’s obviously looking for other work because
I have had a dozen people looking for references. Ask him if he wants to leave. He
obviously doesn’t want to be here. Offer him 2 weeks. He can go and find other work
elsewhere if that’s what he is after. We can focus on getting another staff member to
replace him.”
[7] After the toolbox talk on 10 July 2023, Mr Sierra asked for Mr Arecco to meet with him
and Mr Dylan Wilson (Project Manager) in the office. The meeting occurred at approximately
7.50am and the conversation was to the following effect:
Mr Sierra: “Darren and I have been receiving calls about you looking for other work. If you
just want to move forward from here, we can also move forward and start the
rehiring process. We will give you 2 weeks and you can focus on looking for
other work.”
Mr Arecco: “Yeah okay”.
Mr Sierra: “Have you got anything lined up?”
Mr Arecco: “No, not yet, but I’m hopeful about a job at Veolia.”
Mr Sierra: “Good on you.”
Mr Arecco: “Do you want me to work today?”
Mr Sierra: “No need. Darren just asked if you can leave your phone and any other stuff that
belongs to the business on site. You have to get all your data off and leave your
phone as it is so another employee can use it.”
[8] Shortly after this meeting, Mr Sierra left the warehouse to go to a job. He assumed
Mr Arecco was still on site removing his data from the phone and laptop. After Mrs Kim
Wilson, another Director of the business, called to say that Mr Arecco had taken the phone, Mr
Sierra sent a message to Mr Arecco at 8.52am on 10 July 2023 confirming the list of work
equipment to be returned.
[9] At that time, Mr Arecco was on his way to Wollongong to get a new phone. He had
taken the work phone with him because it had his driver’s licence on it. He needed this to get a
new phone and he also wanted to transfer his data to the new phone before returning the old
one to Revive. Mr Arecco says he arranged this with Mr Sierra in advance, but I do not accept
this evidence. I prefer the evidence of Mr Sierra and Mr Wilson in this regard, which is to the
effect that they were taken by surprise when they realised that Mr Arecco had left the premises
with the work phone. Their surprise is consistent with the actions of Mr Wilson that followed.
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[10] Mr Wilson called Mr Arecco and told him that he was not meant to take the phone with
him. After Mr Arecco explained why he had taken the phone, Mr Wilson responded:
“Have the phone back by 10am or watch out”.
[11] Mr Arecco did not take this as a serious threat, and he responded by saying: “Okay
Darren, no worries”. He organised a new phone and drove back to Revive’s Unanderra
warehouse. While on his way, he received a message from Mr Wilson reiterating the need to
also return his laptop.
[12] Mr Arecco arrived at the warehouse and sent through photos on his phone to Mrs
Wilson. He also transferred data from his old phone to his new one, reset the work phone,
returned it and then left.
[13] At 2.41pm, Ms Francis sent an email from Mr Arecco to Mr and Mrs Wilson on his
behalf. The email communicated Mr Arecco’s understanding that “upon my arrival at work
today I was advised by Nathaniel Sierra that I needed to hand the phone back and my
employment was being terminated effective immediately”. The email requested payment of his
entitlements and an employment separation certificate, as well as all documents pertaining to
his employment with the business.
[14] At 11.39am on 11 July 2023, Mr Wilson responded:
“Hi Jessica,
At no stage was Dean dismissed from his employment yesterday and at no stage did I
ask (or would ask) Nathaniel to dismiss Dean, as they are close friends and I am hoping
that remains. We have noted that Dean has been actively applying for employment
elsewhere in the last few weeks, as I have had many phone calls from companies seeking
a work reference for Dean. Dean was advised by Nathaniel yesterday morning that he
could take two week’s pay to allow time to apply for other jobs and attend further
interviews, and as far as we were aware he mutually agreed with Nathaniel to this offer.
I understand how this can be misconstrued or misunderstood; however dismissing Dean
was not our intention. However, we will have all entitlements owed to Dean paid and
his separation certificate forwarded in the coming days.
Yours Sincerely
Darren Wilson”
[15] There was then a subsequent chain of emails between them about payment of Mr
Arecco’s entitlements, which were finally paid by Revive on 3 August 2023.
Was Mr Arecco dismissed?
[16] It is unsurprising from the exchange between Mr Sierra and Mr Arecco on 10 July 2023
that Mr Arecco understood he was being dismissed. The emphasis of the exchange was on Mr
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Arecco leaving, straight away, and leaving the company’s belongings behind. There was very
little emphasis on his staying with the business.
[17] Mr Sierra’s communication to Mr Arecco lacked the precision necessary to make clear
to Mr Arecco that he had a choice about the matter. What started as an option (“If you just want
to move forward…) quickly became what sounded like a decision, using words that conveyed
a certainty of outcome. When Mr Arecco responded: “Yeah okay”, Mr Sierra assumed his
agreement to leave, when it was no more than his acceptance of what he understood to be
dismissal.
[18] I accept that it was not Mr Wilson’s intention to dismiss Mr Arecco. His intention was
nevertheless to achieve an end to the relationship. He assumed that it was also what Mr Arecco
wanted, but this was a wrong assumption. The misunderstanding became apparent to Revive at
2.41pm on 10 July 2023, when it received the first of a series of emails from Ms Francis about
the alleged dismissal of Mr Arecco.
[19] Revive did not then seek to correct or clarify what it accepted then (and still accepts)
might have been a misunderstanding. It could have done so immediately on 10 July 2023 by
return email. If calling Mr Arecco was no longer an option because his phone number had
changed, it could have called Ms Francis, who was authorised to communicate with Revive on
Mr Arecco’s behalf. Revive could also have made things clear in the email from Mr Wilson on
11 July 2023. It chose instead to proceed on the basis that the relationship had come to an end.
[20] I find that the principal contributing factors that led to termination of the employment
relationship between Revive and Mr Arecco were:
- on 10 July 2023, Mr Sierra (on behalf of Mr Wilson) telling Mr Arecco that if he wanted
to move forward, the business would give him 2 weeks; that he was not required to work
that day; and that he should leave his stuff on site, and
- once the possibility of a misunderstanding became apparent later that day, Revive’s
decision to proceed with termination of employment instead of telling Mr Arecco he
had not been dismissed or giving him the option to continue in his employment.
[21] On this basis, I am satisfied that Mr Arecco was terminated at the initiative of the
employer for the purposes of section 386(1)(a). Mr Arecco has been dismissed.
[22] The jurisdictional objection is dismissed.”
Arecco v Revive Disaster Recovery Pty Ltd [2023] FWC 2517 delivered 4 October 2023 per McKinnon C