When is an employee dismissed?

Here is an extract from a recent Fair Work Commission case which sets out the circumstances in which the Commission will regard the conduct of an employer as constituting a dismissal under the Fair Work Act.

“Section 386 of the Act sets out the meaning of ‘dismissed’ and states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

……………………………………………..Consideration

[175] I must first consider whether Mrs Olver and Mrs Waldron were dismissed from their employment at Coast Cat’s initiative before I can consider whether the alleged dismissals of Mrs Olver and Mrs Waldron were harsh, unjust or unreasonable.

[176] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 79 (Mohazab), a Full Bench of the Industrial Relations Court of Australia, as this Commission then was, considered that a termination is at the employer’s initiative when:

  • the employer’s action ‘directly and consequentially’ results in the termination of employment, and
  • had the employer not taken this action, the employee would have remained employed.

[177] In O’Meara v Stanley Works Pty Ltd 80 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …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.”

[178] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, I must consider all of the circumstances in this scenario including the conduct of the applicants and of Coast Cat. 81

[179] For these matters, I must determine whether the applicants were dismissed as a result of the text messages involving Mrs Waldron, Mr Butler and Mr Perrott from 19 February 2019 to 27 February 2019, and perhaps particularly Mr Butler’s text message of 27 February 2019 to Mrs Waldron, “…Have no work for you, you are welcome to see Phil & I in the office tomorrow afternoon…”.

[180] Mr Butler’s text message must be considered in the context of the other text messages between him and Mrs Waldron, and Mrs Waldron’s text messages to Mr Perrot, and the discussions of 19 February 2019 regarding the applicants’ conduct towards Mr Madison and Mr Kelly. Either during or following the meeting of 19 February 2019, Mrs Waldron, on behalf of herself and Mrs Olver informed Coast Cat that they would be taking a ‘mental health day’ on 20 February 2019. Mr Butler responded to Mrs Waldron, “Well you will both be sadly missed.” Shortly thereafter Mrs Waldron sent a text message to Mr Butler asking whether she and Mrs Olver had been sacked. After receiving no response from Mr Butler she asked the same question in a text message to Mr Perrott, who also did not respond.

[181] None of the parties attempted to discuss the applicants’ employment for the majority of the time that the applicants were on leave. At approximately 4:45pm on 26 February 2019, the day before the applicants were scheduled to return from leave, Mrs Waldron inquired of Mr Butler what their jobs were for the next day. It was not until the next day, on the morning of 27 February 2019 that Mr Butler responded to Mrs Waldron that Coast Cat had no work for her (and it is to be taken to include Mrs Olver).

[182] Mrs Waldron immediately replied to Mr Butler and asked what time he and Mr Perrott wanted to meet with her and Mrs Olver. After receiving no reply from Mr Butler, Mrs Waldron attempted to clarify the time for the proposed meeting with Mr Perrott, but again received no reply.

[183] I note Mr Butler’s evidence that he called Mrs Waldron on or about 27 February 2019 after Mrs Waldron’s text to Mr Butler asking what time he and Mr Perrott wanted to meet with her and Mrs Olver and told Mrs Waldron that she should call Mr Perrott to arrange a time for the meeting. I note that Mrs Waldron denied having received a phone call from Mr Butler on or about 27 February 2019. Mr Butler was unable to provide any records of a telephone call to Mrs Waldron, and I accept Mrs Waldron’s evidence that no phone call was made by Mr Butler.

[184] In any event, Mrs Waldron sent a text message to Mr Perrott on 27 February 2019 asking when she and Mrs Olver should attend Coast Cat’s yard for the proposed meeting, which Mr Perrott did not respond to.

[185] I have determined that Mr Butler and Mr Perrott effectively ignored the applicants on their return from leave by not organising with them a meeting to discuss various issues, including Mr Butler’s concerns relevant to the treatment of younger workers. I accept on the evidence before the Commission that the Kanga was not in use during the relevant period 27 February – 6 March 2019, and there was no work available for the applicants.

[186] I do not accept, however, even taking into consideration the employment was casual employment, that Coast Cat could simply ignore the applicants and await their lack of interest in returning to conclude that the applicants resigned their employment. The applicants had been regularly and systematically employed for a period of five years, and they genuinely had a reasonable expectation of continuing work. The applicants reasonably concluded that they were being ignored by Coast Cat.

[187] I determine that there was a dismissal at the initiative of Coast Cat and that it took effect on 27 February 2019.

Olver and another v Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations (2019) FWC 4901 delivered3 September 2019 per Hunt C