A business owner tried to pull the wool over the eyes of the Fair Work Commission. Sometimes it helps to have an HR professional to help you navigate things.

Retroactively telling an employee that their ‘contract is still open’ will not hold up in court. A solar and electrical business owner (Garden*) found this out the hard way, when he tried to reframe the context of a text message which effectively fired his apprentice (Sutton).

Sutton brought an unfair dismissal case to the Fair Work Commission (FWC) and also claimed he was owed one weeks’ worth of pay which he never received.

His employer, Garden, tried to get the application dismissed prior to the hearing. He claims he never dismissed Sutton and referenced s.383 and s.386 of the Fair Work Act:

• Sutton was not employed for the minimum period of one year, therefore Sutton could not be protected under unfair dismissal (making it outside the FWC’s jurisdiction)
• Sutton was not dismissed due to conduct nor had Garden initiated termination

Both points were overturned (you can read the decision here). Sutton was found to be employed from January 2017-September 2018 and Commissioner Hunt ruled he had been terminated via a text message.

“Call it a day”

Sutton was working for Garden as an apprentice and was also studying at TAFE. A few weeks prior to his dismissal, Sutton had to take work off for TAFE and he was told not to come to work from the period of September 10-14 as it involved camping and remote work.

Throughout the entirety of his employment, Sutton was told via text message on a Sunday night when he would be expected to work. On Sunday September 16 he was not contacted and he assumed that meant he would not be needed that week.

At around 5.10am on Monday 17 September, Sutton received a text message and a missed call from his colleague. Sutton slept through both attempts at contact.

“[Sutton] you 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 text reads.

Sutton did not respond to the text or missed call which prompted Garden to get in touch the following day. The text exchange was the following:

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

Sutton: “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.”

To which Garden responded with the sentence, “Let’s just call it a day then if that’s your attitude.”

Commissioner Hunt referred to the case of Mohazab v Dick Smith Electronics to make a decision on whether or not Sutton was dismissed via that text exchange.

The case found that a termination at the employer’s initiative occurs 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.

Garden argued his text was intended to convey that he was in fact paying Sutton correctly. He says the only other time he would use the saying would be at the end of a working day.

“How does, ‘Let’s just call it a day then if that’s your attitude’ mean, ‘Your wages are correct’?” the commissioner asked Garden.  

He answered, “In my mind that’s what I was implying but maybe the text didn’t sound that way.”

This wouldn’t be the only time the commissioner’s scepticism was piqued.

Coincidental contact

Three weeks after being dismissed, on 4 October, Sutton filed for unfair dismissal. On 8 October, the FWC reached out to Garden and Sutton about the application. According to Sutton, ten minutes after this correspondence, Garden contacted Sutton with a chain of text messages, pretending he hadn’t fired the apprentice.

“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 [sic] working with you so we do hope you come back to carry on the good work.”

He sent the following text three times. “I need to know when you’re coming back I have work for you if you are not coming back let me know ASAP.”

That was then followed up by an email which read: “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 [sic] of hiding behind people to do the work for you when you know you are in the wrong, stop wasting my time and every one 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.”

Garden would later claim the timing of his correspondence and the Commission’s notification of the unfair dismissal were purely coincidental.

“No. I never received the email from Fair Work until after – it was about the 17th maybe I got the email,” he tells the Commissioner.

Again the commissioner finds Garden’s defence hard to believe, honing in on the phrase “just come in like a real man would and talk about instead [sic] of hiding behind people to do the work for you. Stop wasting my and everyone else’s time.”

The 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?”

Garden: “No. I didn’t receive it till after.”

The 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?”

Garden: “I needed to know for his contract.”

The commissioner found that Sutton was fired by Garden, and that the jurisdictional objection (that the FWC could not see the case because it was in the probationary period) was dismissed. The case about whether the dismissal was unfair has been listed for a future hearing.

*Name has been changed