Ally Hyde-Nawell v Children's Rights Australia Limited T/A Children's Rights Australia Op Shop

[2024] FWC 30

[2024] FWC 30

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ally Hyde-Nawell
v

Children’s Rights Australia Limited T/A Children’s Rights Australia Op Shop

(C2023/3838)

DEPUTY PRESIDENT LAKE BRISBANE, 4 JANUARY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – abandonment of employment – jurisdictional objection dismissed – matter to be listed for conference.

1. Ms Ally Hyde-Nawell (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 28 June 2023. The Applicant claimed that adverse action was taken against her by Children's Rights Australia Limited T/A Children's Rights Australia Op Shop (the Respondent) under ss.340, 343, 351 and 352 of the Fair Work Act 2009 (Cth) (the Act).

1. The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

1. The matter was heard by video using Microsoft Teams on 9 October 2023.

Background

1. The Respondent is a registered charity which is run primarily by volunteers which sell donated items. The background covers the dismissal aspect only.

1. The Applicant commenced employment with the Respondent on or around 6 June 2022, in a retail role on a permanent part-time basis after being a volunteer with the Respondent since 21 February 2022. Ms Hyde-Nawell was given a role on the basis that she was eligible for a government wage subsidy if she was offered 15 or more hours a week.

1. The Applicant was provided her role based on reintegrating her back to the workforce after dealing with personal issues that affected her ability to be employed. The Respondent had been aware of the Applicant’s conditions as she was an employee monitored through Disability Employment Services. The Applicant made a request that she did not wish to work two consecutive days which the Respondent accommodated, and the Applicant’s two paid days were prioritised. After accepting the part time offer for 2 days per week, the Applicant also chose to volunteer on additional days during the week.

1. During Ms Hyde-Nawell’s employment, the Respondent stated it was common the Applicant not to attend for her shifts and call in sick. Between April 2023 to early June 2023, the Applicant was often uncontactable during this period.[1] The Applicant stated she took two and a half weeks of work because she was sick.

1. The Applicant had failed to report to work or communicate regarding her absence besides a medical certificate. The medical certificates only explain an absence from 16 May 2023 to 17 May 2023. The Applicant states the reason why she could not obtain a medical certificate was the costs involved, and that she would send a text when she was sick.

1. The Applicant only appeared for 1 shift on 6 June 2023 after two-and half-week absence.  The Respondent states that the Applicant abandoned her employment 8 June 2023 after receiving no response and had failed to attend her shift.

1. On 9 June 2023, the Applicant states that Mr Clarrie Holden had advised her that they would rather have her resign than terminate her and was advised that she was no longer required by the business.

Consideration

1. Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.

1. Section 386(1) of the Act relevantly provides that 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.

1. The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

1. While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

1. All the circumstances – including the conduct of both the employer and employee – must be examined.[6] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

1. The Respondent argued that the Applicant had abandoned her employment, and therefore the employment relationship came to an end at her initiative.

1. In Abandonment of Employment,[7] the Full Bench of this Commission considered the meaning of “abandonment of employment” in the context of the four-yearly review of modern awards. However, the comments of the Full Bench are relevant here:

“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”

1. The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[8] as follows (references omitted):

   “In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as 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. It may be termed renunciation. 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... Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”

1. In summary of the above authorities, abandonment occurs when the following is established:

·   an unexplained or unauthorised absence from the workplace.

·   a reasonable period of time where the employee has been absent without explanation or authorisation.

·   whether there was any communication from the employee during the absence, or the communication from the employee clearly displays an intention of not returning to work.

·   whether there was any enquiry by the employer in the time period where the employee is absent.[9]

1. A dismissal takes effect when the employment relationship has ended by the employer, rather than the termination of the employment contract.[10] The Respondent noted in their submissions that the Applicant did not formally resign, nor she was officially terminated, but that she had abandoned her employment.

1. The bulk of the evidence provided is oral evidence by the Applicant and Respondent. As a result, there are a lot of contentious facts. I reiterate the Briginshaw principle and the assessment of fact on the balance of probabilities, Dixon J said:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[11]

1. In assessing the conduct of the Applicant and Respondent, the Applicant had not substantially performed her obligations in attending work or informing her employer sufficiently of her sickness. There was a prolonged unexplained absence from the workplace.

1. The Applicant states she was forced to take two and a half weeks of sick leave as she had caught a bad flu. She provided a medical certificate only covering absences on 16 May 2023 and 17 May 2023.

1. The Applicant attended one shift on 6 June 2023 after being absent from mid-May. Her attendance of this shift indicates that she did not abandon her employment. The Applicant did not attend work on 8 June 2023 when she was rostered on this date. The Applicant’s non-attendance of one day would not be sufficient to consider the Applicant to have abandoned her employment.

1. However, there are questions regarding whether the Applicant was willing to work for the Respondent, or whether she had resigned given her lack of attendance and ambivalence with the Respondent.

1. The Applicant had demonstrated multiple indications of wanting to resign such as ‘I’m gonna ask Clarrie to fire me’, ‘Morning…I can’t make it in tomorrow… You’ll have to find someone else to cover me’, ‘I absolutely love this shop, but I’m ready to walk away’.[12] The Respondent had accommodated the Applicant despite not attending certain days or leaving early on certain days.

1. On 9 June 2023, Mr Holden and Ms Hyde-Nawell provide different accounts regarding the call surrounding termination or resignation. Mr Holden states that he did not ask Ms Hyde-Nawell to return the keys to the shop. The Applicant states that he did. Mr Holden states that Ms Hyde-Nawell was highly upset and was going to call her later to discuss matters regarding her employment, but the Applicant had lodged an application with the Commission.  Ms Hyde-Nawell states that she was asked to resign or be terminated.

1. The Respondent did not demonstrate a request for discussion through any written communication, nor indicate that the Applicant would be rostered on any future shift after 8 June 2023 which would have supported their assertion. I consider the Respondent’s multiple accommodations for the Applicant such as being flexible with her working days. However, without evidence to support a future scheduled meeting, and the Applicant had received no more shifts, it appeared that the employment ended at the initiative of the employer. 

Conclusion

1. The Applicant was dismissed at the initiative of the employer on 9 June 2023 in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.

DEPUTY PRESIDENT

Appearances:

G. Adams from GLR Law appearing for the Applicant.
C. Holden on behalf of the Respondent

Hearing Details:

9 October 2023
Hearing via Microsoft Teams
Brisbane

[1] Witness Statement of Caroline Barton 19.

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[3] Ibid.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care[2021] FWC 650at [77].

[7] [2018] FWCFB 139 at [21]-[22].

[8] [2007] HCA 61.

[9] Thompson v Zadlea Pty Ltd t/a Atlas Steel[2019] FWC 1687 (Gregory C); Moein Abbasi v Deluxe Interiors Oz Pty Ltd, Hoang (Danny) Lam [2023] FWC 2283.

[10] Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 at [33].

[11] (1938) 60 CLR 336 per Dixon J, at pp.362-363

[12] Statement of Caroline Barton Annexure CB-F.

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