Home - FWC rejects director’s claim he did not dismiss apprentice

UpdatesMay 24, 2019

FWC rejects director’s claim he did not dismiss apprentice

The Fair Work Commission (FWC) has taken a director to task for dismissing a young apprentice and then later denying he did so.

The Fair Work Commission (FWC) has taken a director to task for dismissing a young apprentice and then later denying he did so.

The 19-year-old apprentice at Solar and Batteries Direct Pty Ltd was employed on an ad hoc basis, where the employer would normally notify him on Sunday evenings whether he was required to attend work at 5am the following day.

When he was not contacted on a Sunday, he assumed there would be no work for the week.

However, one Monday at around 5:10am, when he hadn’t been contacted the night before, a co-worker texted him:

“[Y]ou coming in today? Have a think about it, if you are not in today there is a good chance you won’t have a job tomorrow. One missed paycheck isn’t worth throwing an apprenticeship away.”

The apprentice didn’t respond to the text or other calls he received from the company that morning.

Later that day, the following text exchange took place between the director and the employee:

“DIRECTOR: I take it by not showing up for work and ignoring everyone’s calls is your way of letting us know you have finished

APPRENTICE: I was told not to come in last week and then I didn’t receive anything about working on Monday until the morning. I haven’t been getting paid properly while being at TAFE and I haven’t even been paid from 2 weeks ago and I didn’t receive a reply after asking about that either.

DIRECTOR: Let’s just call it a day then if that’s your attitude”

The employee took the final text as notification that his employment had been terminated. He received no further contact from the employer until he filed an unfair dismissal application with the FWC.

A few minutes after the company was notified by the FWC about the unfair dismissal claim, the director tried calling the apprentice several times. He didn’t answer.

The next day the director sent him five texts:

“Are you coming back to work, your contract has not been cancelled, we’ve not been able to get hold of you, if you are not I need it in writing from you that you no longer want to work for us”

“If you are not coming back kindly return uniforms and any equipment supplied by the company, it’s been pleasure working with you so we do hope you come back to carry on the good work”

“I need to know when you’re coming back I have work for you if you are not coming back let me know ASAP”

“I need to know when you’re coming back I have work for you if you are not coming back let me know ASAP”

“I need to know when you’re coming back I have work for you if you are not coming back let me know ASAP”

The day after, the director emailed the apprentice telling him that the position was being held open for him, although stated he would be receiving a written warning for the day he did not attend work.

When the apprentice emailed the director back, he explained he had been advised not to enter into any conversations with him until the matter was dealt with by the FWC. The director replied with the following:

“I did not realise this had been done can you tell me what the problem is, you are aware you never showed up for work on the Monday.

Why don’t you just come in like a real man would and talk about instead of hiding behind people to do the work for you when you know you are in the wrong, stop wasting my time and everyone else’s time.

You were looked after whilst working for us and is this how you want to repay us.

If you want to come back to work you can no one has ever dismissed you.”

In the hearing, FWC Commissioner Jennifer Hunt quizzed the director about his understanding of apprenticeships.

“COMMISSIONER: So what’s your understanding of how an apprenticeship can end? What needs to happen?

DIRECTOR: Termination of the apprenticeship contract.

COMMISSIONER: And can that be unilateral?

DIRECTOR: It can be one – as far as I’m aware it can be the employer can terminate the contract, or the apprentice can terminate, yes.

COMMISSIONER: Well it has to be mutual. And if there’s difficulties then you bring the department out to help you; is that your understanding?

DIRECTOR: It is now.

COMMISSIONER: What, since I said it to you just now?

DIRECTOR: Yes.

COMMISSIONER: So it wasn’t your understanding?

DIRECTOR: No.

COMMISSIONER: So did you think that an employer could terminate an apprenticeship?

DIRECTOR: I suppose it has to be on both parties because both parties have got to agree.

COMMISSIONER: But there’ll be scenarios, won’t there, where an employee just doesn’t turn up?

DIRECTOR: Yes. And then I’d contact the apprenticeship department and find out my course of action.

COMMISSIONER: When did you contact the department in this case?

DIRECTOR: It probably wasn’t till November I contacted them.

COMMISSIONER: What did you advise them?

DIRECTOR: I just – I sent them an email saying that [the apprentice] was no longer working for me.

COMMISSIONER: Did you give a date? The date would be important for an apprenticeship, wouldn’t it?

DIRECTOR: Yes. I didn’t give a date.”

Commissioner Hunt then went on to grill the director about what he meant by ‘Let’s just call it a day then if that’s your attitude’.

“COMMISSIONER: So you write, ‘Let’s just call it a day then if that’s your attitude’. Isn’t that a dismissal?

DIRECTOR: Not really. I was referring to his wages.

COMMISSIONER: How?

DIRECTOR: By saying that the wages were right.

COMMISSIONER: How does, ‘Let’s just call it a day then if that’s your attitude’ mean, ‘Your wages are correct’?

DIRECTOR: In my mind that’s what I was implying but maybe the text didn’t sound that way.

COMMISSIONER: ‘Let’s call it a day’, that’s how you’d end something, isn’t it?

DIRECTOR: Possibly.

COMMISSIONER: I’m trying to understand how you think I could think anything other than that. ‘Let’s just call it a day then if that’s your attitude’. Isn’t that you ending the relationship?

DIRECTOR: No. I wasn’t terminating his employment.

COMMISSIONER: So when else would you use the expression, ‘Let’s just call it a day then’?

DIRECTOR: When you finish work at the end of the day.

COMMISSIONER: He hasn’t attended for the Monday and the Tuesday. He hasn’t rung to say, ‘Where am I working?’ He says, ‘I’m not being paid correctly’, and you say, ‘Let’s just call it a day then’. And then you don’t make any further contact with him until you receive notification from the Fair Work Commission; is that right?

DIRECTOR: No. I never received the email from Fair Work until after the – it was about the 17th maybe I got the email.

COMMISSIONER: So why do you call him on 8 October?

DIRECTOR: Just a coincidence that – that was when I was trying to find out what he wanted to do, because I still had a contract open and I’d heard nothing.

COMMISSIONER: So you’re giving evidence, are you, that it was 17 October when you first became aware of the Fair Work Commission matter?

DIRECTOR: Yes. Because they had to resend the email out to me.

COMMISSIONER: When you send an email on 10 October why do you write: ‘Why don’t you just come in like a real man would and talk about – instead of hiding behind people to do the work for you when you know you’re in the wrong? Stop wasting my time and everyone else’s time’. What does that mean?

DIRECTOR: Just because he wouldn’t stand and – – –

COMMISSIONER: Who is he hiding behind if you don’t know about the Fair Work matter and you and he are the only ones who are corresponding? You don’t – it’s pretty clear, isn’t it, that you received notification of the Fair Work matter and that’s why you wrote that email?

DIRECTOR: No. I didn’t receive it till after.

COMMISSIONER: Who is he hiding behind and who is everyone else’s time that he’s wasting? What makes you on 8 October and 10 October pursue him to come back to work?

DIRECTOR: I needed to know for his contract.

COMMISSIONER: I’m having trouble with this evidence, Mr Parke, and I don’t know why you would give such evidence. It doesn’t seem to me to be a hugely compelling issue. The most compelling issue for me is necessarily what happened on 18 September. So, I’m suggesting that your evidence is not truthful as to your first awareness of the Fair Work Commission’s involvement. Do you wish to change your evidence?

DIRECTOR: No.”

Commissioner Hunt dismissed the employer’s objection that the employee had not been dismissed and listed the matter for a hearing at a future date.

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