Caroline Mayhew v Jani-King Australasia Hospitality T/A Jani-King
[2018] FWC 5934
•11 OCTOBER 2018
| [2018] FWC 5934 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Caroline Mayhew
v
Jani-King Australasia Hospitality T/A Jani-King
(U2018/2513)
| Commissioner Bissett | MELBOURNE, 11 OCTOBER 2018 |
Application for an unfair dismissal remedy.
Ms Caroline Mayhew (the Applicant) was employed by Jani-King Australasia Hospitality T/A Jani-King (Respondent) as a casual Housekeeping Attendant. At the time the employment relationship ended the Applicant worked for the Respondent at the DoubleTree by Hilton Hotel Darwin (116-122 The Esplanade, Darwin) as a public areas cleaner and houseman (sic). The Applicant commenced working for the Respondent on 4 May 2016. Her employment ended on 19 February 2018. She said that her employment ended due to the actions of the Respondent such that she was dismissed within the meaning of the Fair Work Act 2009 (FW Act). The Applicant said that the Respondent breached the implied term of good faith and such a breach resulted in a repudiation of her contract.
The Applicant says she was unfairly dismissed as defined in the FW Act. She therefore has applied to the Fair Work Commission (Commission) for relief from unfair dismissal pursuant to s.394 of the FW Act. She seeks compensation in lieu of reinstatement.
The Respondent is a service provider to the hospitality industry. At the time the Applicant’s employment came to an end the Respondent provided outsourced services to DoubleTree by Hilton Darwin, DoubleTree by Hilton Esplanade Darwin (122 The Esplanade) and the Hilton Darwin at 32 Mitchell Street (Hilton). The services provided to the DoubleTree Darwin and DoubleTree by Hilton (together DoubleTree) were separately managed by the Respondent to the services provided to the Hilton. Each of the three hotels delivers some services in-house with those and the workforce supplemented by the Respondent.
Both the Applicant and Respondent were granted permission to be represented pursuant to s.596(2) of the FW Act in the proceeding. The application proceeded to a hearing before me in Darwin.
Events leading to the end of employment
The Applicant commenced employment at the DoubleTree on 6 May 2016 as public areas cleaner. In early December 2016 she also took on the role of houseman. This resulted in an increase in the number of hours she (generally) worked each fortnight but no change in classification or rate of pay.
Maria and Helena were co-workers of the Applicant who initially worked for the Respondent in the laundry. In August 2016 DoubleTree by Hilton resumed direct provision of laundry services for DoubleTree. Maria and Helena were, from this time, engaged directly by the hotel and no longer employed by the Respondent.
On 23 January 2018 the Applicant said she had a verbal altercation with Maria in the staff toilet facilities (the January incident). During this altercation the Applicant said to Maria “…you are certainly showing your true colours...” As a result of this comment Maria complained to DoubleTree management who then raised the matter of the Applicant making a racial comment to Maria with the Respondent.
Ms Sophie Derwin, Human Resources Officer, of the Respondent, spoke to the Applicant about the matter on 24 January 2018. On 25 January 2018 Mr Mark Watson, National Operations Manager of the Respondent advised Ms Emily Hackney-Rothero, the Respondent’s on-site manager, that “the best option is to cancel all shifts [for the Applicant] starting Saturday.”[1] Effectively the Applicant was stood down without pay.
Mr Watson met with the Applicant on 7 February 2018 and proposed that she move to the Hilton (although there is a dispute as to the precise terms). Mr Watson indicated that in the interim he would further look into the January incident.
Further investigation into the January incident was then “left in abeyance” as Ms Derwin left her employment with the Respondent and the Applicant did not indicate a willingness to move to the Hilton which had separate management to DoubleTree.
On 19 February 2018 Mr Watson advised the Applicant in writing that he had further investigated the incident and her employment with the Respondent over the previous 24 months. As a result he determined that she be offered a role at the Hilton completing tasks in the public areas. The Applicant did not respond to this email or attend for work.
On 12 March 2018 the Applicant’s lawyer advised Mr Watson that as a result of the Respondent’s treatment of the Applicant and the significant reduction in hours, she considered the Respondent had repudiated her contract. Mr Watson replied acknowledging the email but noting that he had offered the Applicant an increase in hours.
The Applicant subsequently made an application seeking relief from unfair dismissal pursuant to s.394 of the FW Act.
The Applicant’s contract of employment
The Applicant gave evidence (that is not contested) that in early 2016 she undertook two shifts work at the Hilton but no further work was offered.
In April 2016 the Applicant was offered, and accepted, casual employment with the Respondent in a role variously stated to be a guest service attendant or housekeeping attendant. The Applicant commenced her employment on 4 May 2016 and was paid at classification of Level 1.
The Applicant’s contract stated that she “will initially be engaged to work as a Housekeeping Attendant” but that “[d]uring your employment we may direct you to perform other work, or at other locations, on a temporary or ongoing basis, subject to operational requirements.”[2] It is noteworthy that neither the contract of employment nor the covering letter provided an indication of the site at which the Applicant was to work although it is not contested that she commenced work at DoubleTree as a Housekeeper Attendant.
Admissibility of the transcript of recording of the meeting on 7 February 2018
The Applicant attended a meeting with Mr Watson on 7 February 2018. She was accompanied by Mr Eric Withnall, Lawyer, of Jude Lawyers. The Applicant gave evidence that she recorded the meeting without the knowledge of Mr Watson or Mr Withnall.
The Respondent objected to the admission of the transcript of the conversation. For reasons given in transcript I determined not to admit the transcript. Whilst I sought and received further submissions from the parties in relation to the Surveillance Devices Act (NT) following the hearing this has not altered my decision on admissibility. Given my findings below I do not need to further consider these submissions.
Both the Applicant and Mr Watson gave evidence at the hearing and both were cross-examined in relation to the meeting to which the transcript relates. Their direct evidence is suitable and assessable.
The evidence
The Applicant gave evidence on her own behalf and Mr Watson gave evidence for the Respondent. No other party involved in the January incident or the subsequent investigation by either the Respondent or DoubleTree gave evidence to the Commission.
The Applicant made her own notes in relation to the January incident. These indicate:
·The Applicant entered the staff bathroom and heard Maria “swishing water in the shower.”
·The Applicant asked Maria if she needed some accommodation with a working shower. Maria replied that she was washing her feet and asked the Applicant why she had asked her “this stupid question”. The Applicant replied that she thought there might have been something wrong with Maria’s shower at home so was going to offer her a place to use. Maria answered that she had a “3 bedroom house” and then said to the Applicant “you do not know me”.
·Maria again said to the Applicant “why you ask me this stupid question?” to which the Applicant responded that she did not understand “why this is turning into a drama – if I had known it was your feet you were washing I would never have asked the question and we wouldn’t be having this conversation right now.”
·The Applicant said that Maria then came up to her invading her personal space pointing a finger at her and yelling “you do not know me.” The Applicant said she had to lean back away from the pointing finger and replied “you are right I do not know you but you are certainly showing your true colours now.” Maria responded “so, are you calling me coloured now” and then gestured rudely to the Applicant. The Applicant explained that what she had said meant that Maria was normally a quiet, meek person and now she was “like a tiger about to rip my head off and I have no idea why.”
The Applicant said that on 24 January 2018 Ms Derwin contacted her and spoke to her of a complaint made by an employee of DoubleTree. Ms Derwin made a note of the conversation (dated 24 January 2018) which was provided to the Commission in the evidence of Mr Watson.[3] In that note Ms Derwin set out the Applicant’s version of the incident (which does not vary substantially from that outlined in the Applicant’s note set out above). Ms Derwin also noted that the Applicant indicated to her that a miscommunication had occurred and that “these people” do not understand Australian working environments because they do not speak English and therefore misconstrue information.
Ms Derwin’s notes indicate that she informed the Applicant that there were different versions of the story and that she would endeavour to contact the Human Resources department (HR) at DoubleTree (who directly employed Maria). Ms Derwin’s notes indicate that she attempted to contact DoubleTree HR but was not successful. She rang the Applicant back and informed her of this. She advised the Applicant to return to work as normal but not to discuss the matter with other employees. Ms Derwin noted that on 25 January 2018 she was advised by DoubleTree HR that the Applicant was discussing the incident with others. Mr Watson’s evidence is that it was this that lead to his decision to stand the Applicant down.
The Applicant said that at no time in the conversation with Ms Derwin was she advised of the detail of the complaint made against her. Further, she said that she was not told not to speak to others at work about the incident and agreed that she did discuss the matter with a co-worker.
The Applicant gave evidence that the note said to have been written by Ms Derwin was “not a contemporaneous record of any one conversation” but “is stitched together from at least three conversations [the Applicant] had with two separate people over a period of several days”.[4] No objection however was taken to its admission as part of the evidence of Mr Watson.
On 25 January 2018 Mr Watson instructed Ms Hackney-Rothero to remove the Applicant from further shifts pending a discussion he would have with the Applicant the following week when he was in Darwin.[5]
On 7 February 2018 Mr Watson met with the Applicant. The Applicant was accompanied by Mr Withnall.
The Applicant says that at that meeting:
·Mr Watson did offer her alternative employment at the Hilton. Mr Watson said she was a competent worker and he wanted her to return to work;
·She was not offered more hours but was offered similar hours but she did not know what this meant;
·She was not offered exactly the same role at the Hilton as she performed at DoubleTree;
·She was not interested in listening to the offer from Mr Watson until the January incident had been investigated;
·Mr Watson said DoubleTree had no control over who he placed on their site;
·Mr Watson had advised her that the management at the Hilton was different from that at DoubleTree but did not recall Mr Watson telling her she would not be required to work with Maria or Helena;
·Mr Watson did not say what would happen if she did not move to the Hilton;
·Mr Watson said he would investigate the January incident.
Mr Watson said that at the meeting of 7 February 2018:
·The Applicant was accompanied by a “young man” to the meeting who said he worked for a local law firm but was not present in any official capacity but as a support person. That person (Mr Withnall) did not say he was a lawyer;
·He had organised the meeting to consider a move by the Applicant to the Hilton which he considered an easy fix to the situation;
·He offered the Applicant a move to the Hilton as he could give the Applicant more hours;
·He offered the Applicant almost full-time hours at the Hilton as it had a bigger footprint (cleaning area) with about 90% of the area being cleaned manually and 10% being “auto scrubbed”;
·He understood that the Applicant was going to consider the offer of employment at the Hilton.
The Applicant said she did not want to go to the Hilton as she had worked there for two days at the beginning of 2016 and thought there were health and safety issues and she knew a couple of people who worked there and she did not want to work with them.
Mr Watson gave evidence that not long after the meeting of 7 February 2018 Ms Derwin, who had been investigating the January incident, left her employment with the Respondent and the matter remained unresolved until 19 February 2018.[6]
On 19 February 2018 Mr Watson sent an email to the Applicant which said:
Further to our conversation last week, I have investigated not only the incident, but your ongoing employment with JKAH over the past 24 months including meetings with Client’s HR and Operations Management team, hotel staff and JKAH staff. My findings have resulted in a decision to offer you a role at Hilton Darwin completing the same tasks in Public Areas. This decision is not based on your performance rather on your conduct over the past 24 months involving several altercations with Hotel Staff, JKAH management and staff at DoubleTree Hotel. As we are contracted to the hotel, we must ensure we are not disrupting the client and exceeding their expectations therefor the alternate offer to move Hotels is our only option at this stage.[7]
On 12 March 2018 the Applicant’s representative responded to Mr Watson:
I refer to your email of 19 February 2018 advising Ms Mayhew that she no longer be employed at 122 Esplanade (DoubleTree), and offering alternative employment at 32 Mitchell Street (Hilton).
In light of your treatment of Ms Mayhew, and the significant reduction in hours that your offer entails, my client considers your email of 19 February 2018 a repudiation of the employment and agreement and accepts such repudiation…[8]
Mr Watson responded on 15 March 2018 in which he said:
Eric
Thanks for your email, only one correction, that it was an increase in hours being a larger property.[9]
The Applicant agreed in her evidence that the houseman role was paid at the same rate as the public areas role she also fulfilled.
Mr Watson gave evidence that, through the contract between the Respondent and DoubleTree, DoubleTree had the right to advise the Respondent if it believed certain employees working on their premises were unwelcome or unsuitable.
Other conduct of the Applicant
In the email to the Applicant of 19 February 2018 the Respondent stated that (one of) the reason(s) for placing the Applicant at the Hilton was her conduct over the previous 24 months. Mr Watson’s evidence was that the Applicant’s conduct over the previous 24 months had already caused issues in the Respondent’s relationship with the DoubleTree.
The Applicant provided evidence of a number of incidents at work where issues were raised with her by her managers. These matters related to the performance of her work (e.g. throwing out shade-sails) or her conduct (e.g. rude to a guest). Each of the identified incidents resulted in a discussion with the Applicant but no apparent further action being taken. In September 2017 the Applicant received a first written warning signed by the Respondent’s Administration Operations Manager (Matin Tajik).[10] That letter suggested issues with respect to compliance with directions in relation to shifts and the Applicant’s interactions with employees of the Respondent and DoubleTree staff.
Whilst the Applicant, in her evidence, provided her “notes” of a meeting she attended with Mr Tajik and Emily in September 2017 which preceded the warning letter, there is no indication that she questioned or otherwise disputed the issue of the warning letter per se.
Findings
I have carefully considered the evidence of the Applicant and Mr Watson. With respect to the meeting of 7 February 2018, I prefer the evidence of Mr Watson to that of the Applicant. Mr Watson was honest and forthright in giving his evidence, even when it did not put him or the Respondent in the best light (e.g. letting the investigation go into abeyance). The Applicant’s reasons for not considering the offer of work at the Hilton was convenient and, at times, disingenuous - particularly her evidence that she had (unspecified) health and safety concerns about the Hilton based on two days’ work two years earlier.
I accept therefore that, in the meeting of 7 February 2018, Mr Watson spoke to the Applicant of the complaint made against her and put to her a possible resolution of a move to the Hilton. Mr Watson’s evidence is that a move to the Hilton was an easy solution as the Applicant was a good worker and the move would remove a point of tension between the Applicant and DoubleTree staff. I accept that Mr Watson offered the Applicant public areas work at the Hilton with about the same hours she was working at DoubleTree.
Whilst I acknowledge that Mr Watson may have advised the Applicant that the Respondent determined where it placed its staff, I do not consider this to be in conflict with Mr Watson’s evidence that the Respondent’s clients could require that certain staff not work at their business if they considered such staff not suitable. I accept that the Respondent can determine where it places its staff but within the obvious constraints of the contract with its clients. To the extent that there was no objection by the Hilton to the Applicant working at the hotel, there was no obstacle to the Respondent placing the Applicant there.
No evidence of any specific conduct or performance issues in relation to the Applicant beyond the January incident was put to the Commission by the Respondent. For this reason I accept the evidence of the Applicant as to the matters raised with her and her evidence in relation to the meeting leading to the issue of a first written warning to the extent they are briefly explained in her witness statement.[11] I do not, however, accept the Applicant’s notes of the incidents[12] to the extent that they are not a factual account of incidents or include what she thought might have happened or her view as to the motivations of others. I am satisfied that the Applicant’s notes suggest that the reasons for the first written warning do not support the issue of that warning.
I am satisfied that the circumstances that existed at the time the Applicant was directed to work at the Hilton on 19 February 2018 were that:
·The Applicant had been stood down without pay;
·On 7 February 2018 the Applicant had been offered, but rejected, work at the Hilton whilst the January incident was investigated;
·The offer of work at the Hilton involved similar hours to those the Applicant was working at DoubleTree at the same classification level but without performing the houseman duties;
·The January incident involved a conflict between the Applicant and a direct employee of DoubleTree;
·The Applicant had sought that the incident be properly investigated but following Ms Derwin’s departure this did not occur until Mr Watson issued the email of 19 February 2018;
·The Applicant’s contract allowed her to be directed to work at an alternative location for operational reasons;
·The contract between the Respondent and the client hotel allowed the client hotel to advise if employees of the Respondent were “unsuitable”;
·Working at the Hilton did not involve a reduction in rate of pay or involve any additional travel for the Applicant to travel to work.
There is no evidence that Mr Watson interviewed any of those involved in the January incident before issuing his email of 19 February 2018 although I accept that he reviewed whatever file notes may have existed. There is also no evidence that DoubleTree wanted the Applicant removed from its site.
Legislative framework
Both parties to the proceedings were represented by lawyers (for which permission pursuant to s.596(2) of the FW Act had been given). I was therefore satisfied that the matter could proceed by way of hearing.
Part 3-2 of the FW Act sets out the legislative scheme in relation to unfair dismissal.
I am satisfied that the Applicant is a person protected from unfair dismissal (s.382 of the FW Act). Whilst the Applicant was a causal employee I am satisfied (and it was not contested) that she worked on a regular and systematic basis for the Respondent. Further, I am satisfied that the application was made within the required period, that the Respondent is not a small business such that the Small Business Fair Dismissal Code is not a relevant consideration and the dismissal was not a case of genuine redundancy.[13]
Section 385 of the FW Act provides as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
Section 386(1) of the FW Act establishes the meaning of dismissed:
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…
Prior to determining if the Applicant was unfairly dismissed it is necessary to determine if she was dismissed, as defined by the FW Act.
Was the Applicant dismissed?
The Full Bench of the Commission gave careful consideration to the definition of dismissal as found in s.386(1) of the FW Act in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[14] (Tavassoli). In particular the Full Bench considered what falls within termination “on the employer’s initiative” as found in s.386(1)(a) of the FW Act and held that:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1)There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2)A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
In the case before me the Applicant did not resign her employment and there is no submission before me that this was the case. Further, there is no submission that the Respondent dismissed the Applicant from her employment on its own initiative such that s.386(1)(a) of the FW Act would apply.
Rather, I understand the submissions of the Applicant to be that the Respondent engaged in a course of conduct (including a failure to act), in particular, by not investigating the incident of 23 January 2018 and by sending the email of 19 February 2018, with the intention of bringing the employment to an end. Further, or in the alternative, the Respondent having engaged in such conduct left the Applicant with no choice but to accept a repudiation of her contract of employment.
Applying the findings of the Full Bench in Tavassoli, the conduct of the Respondent is essential, in fact, to determining if there was a dismissal within the meaning of the FW Act.
The particular conduct of the Respondent on which the Applicant relies is that:
·An allegation of misconduct was made against the Applicant;
·The investigation into the misconduct was insubstantial and insufficient or did not take place;
·The decision of the Respondent on 19 February 2018 that the conduct of the Applicant over the previous 24 months “involving several altercations with Hotel Staff, JKAH management and staff at Doubletree Hotel” was sufficient to warrant her transfer to a reduced role at the Hilton;
·The Respondent had pre-determined this action as evidenced by Mr Watson’s email of 25 January 2018 that the Applicant be stood down.
The Applicant submitted that it was objectively reasonable for her to assume that:
·The role at Hilton was of reduced status as it would not include houseman duties;
·The role at the Hilton would involve fewer hours.
The Applicant submitted that there was no other course of action reasonably open to her but to accept the repudiation of her contract of employment by the Respondent by its actions. She had sought a proper investigation into the allegations against her and this did not occur. Acceptance of a reduced role on reduced hours (with an associated reduction in pay) was not reasonable.
The Applicant also relied on what she said was a history of inaction by the Respondent in dealing with matters she had raised in respect to her employment over the period of employment.
The Respondent submitted that there was no evidence to support a finding that the Applicant had no choice but to resign. The Respondent said that, viewed objectively, there was nothing to indicate that the Respondent no longer intended to be bound by the contract of employment such that repudiation could be found. The Respondent submitted that the evidence showed a clear intention of the Respondent to be bound by the employment agreement in that the Respondent had dealt with complaints about the Applicant over the period of her employment and, after the January incident, determined to redeploy her to another site (the Hilton) which did not involve any further travel.
The Respondent submitted that if it had been its intention to terminate the Applicant’s employment it was presented with an opportunity to do so within the requirements of the FW Act but it did not do so but rather redeployed the Applicant.
I am not satisfied in this case that the evidence supports a finding that the Respondent intended to dismiss the Applicant from her employment or otherwise took action to repudiate the contract of employment when it directed the Applicant to work at the Hilton. Certainly the evidence does not support a finding that the Respondent intended to reduce the Applicant’s hours at the Hilton (the reason given by the Respondent’s lawyer for the Applicant’s acceptance of the claimed repudiation). Had dismissal or repudiation been the Respondent’s intention it makes no sense that it should direct the Applicant to work at the Hilton. This could have been achieved by a range of other means including by doing nothing. In the conversation of 7 February 2018 Mr Watson made clear that he was looking to provide the Applicant with at least similar hours to those she had been working at DoubleTree. It is reasonable to infer that he intended to abide by this and his response to the Applicant’s lawyer’s repudiation email reinforces this. Further, working at the Hilton involved no additional travel for the Applicant.
I am satisfied that the evidence supports a conclusion that the Applicant rejected the offer of work at the Hilton in circumstances where she did not have reasonable grounds to do so. That offer was made on 7 February 2018 and then, again, (as the only alternative) on 19 February 2018. The evidence before the Commission does not support a conclusion that the offers were made on the basis of “reduced hours” at the Hilton such that the offer would provide grounds for repudiation of the Applicant’s contract of employment. I am satisfied that the Applicant, on her own volition and for her own reasons, rejected both the 7 and 19 February 2018 proposals of the Respondent.
I do not accept the submissions that the role at the Hilton was of “reduced status” as submitted by the Applicant. The Applicant was employed as a housekeeping attendant Level 1 and it was intended that she would remain as such. This was her classification when she had been undertaking houseman duties at DoubleTree and, while her duties would not include houseman duties at the Hilton, there is insufficient evidence before the Commission to enable me to find that the removal of the houseman duties would result in a reduced “status”. I do not accept that the staff at any of the hotels would have assumed that the Applicant was guilty of the misconduct in the January incident because she had moved to the Hilton. It appears to me, on the evidence of the Applicant, that to the extent there was stability in the staff (which Mr Watson suggested was not the case) and they might gossip amongst themselves this would occur in any event and had possibly already occurred.
Further, the evidence before the Commission does not support a conclusion of a general failure of the Respondent to deal with issues the Applicant raised during the course of her employment. Rather, the evidence would appear to support a conclusion that when the Applicant did raise matters with respect to her pay or her hours of work these were addressed and errors rectified.
The evidence before the Commission does not support a conclusion that the Respondent had determined on 25 January 2018 to transfer the Applicant to the Hilton. I am satisfied that this was a proposal thought of by Mr Watson as an easy solution to the circumstances that confronted him when he met the Applicant on 7 February 2018.
Further, I am not satisfied that there is a course of conduct of the Respondent identified that could lead to a conclusion that the Respondent intended to bring the employment of the Applicant to an end. The conduct of the Respondent in offering the Applicant similar hours at the Hilton as an interim measure on 7 February 2018 is contrary to making such a finding.
Upon receipt of the email of 19 February 2018 it was open to the Applicant to seek clarification from Mr Watson as to what her hours and duties at the Hilton would be and to seek to understand the basis of his decision for the transfer but she did not do so. Rather, she waited three weeks to respond and then including baseless assumptions. Had the Applicant made such inquires she may then, depending on the answer, have had a basis for reaching the conclusion that she did. It appears however that she was premature in reaching her conclusion as to her future employment and relationship with the Respondent.
This finding does not absolve the Respondent of some responsibility for the Applicant not returning to work. The evidence before the Commission does not support a conclusion that it undertook anything beyond a rudimentary inquiry of the complaint against the Applicant. There is no evidence of an investigation or report of the complaint. The evidence does not support that Mr Watson followed up on the investigation or took steps to satisfy himself as to the views of the client hotel or that the transfer of the Applicant to the Hilton was the best outcome available. To this extent the applicant is correct in her criticism of the January incident, but this is not enough to substantiate her claim.
The Respondent is not a small employer. As Mr Watson said in his evidence it is a service provider to the hospitality industry. It must navigate the maze of interactions between its staff and those of its clients on a regular basis. That it had no apparent clear approach as to how to deal with a complaint made by a staff member of its client in relation to the conduct of its own employee is beyond belief.
However, these observations do not assist the Applicant in demonstrating that her employment was terminated by a course of conduct of the Respondent or that the Respondent had repudiated her contract of employment. There were deficiencies in the Applicant’s approach to this matter as well.
For the reasons set out above I am not satisfied that the Applicant was dismissed within the meaning of the FW Act. The Applicant therefore cannot have been unfairly dismissed. For this reason the application is dismissed. An order[15] to this effect will issue with this decision.
COMMISSIONER
Appearances:
E. Withnall for the applicant.
N. Gunasekera for the respondent.
Hearing details:
2018.
Darwin:
August 1.
Final written submissions:
Applicant: 25 September 2018.
Respondent: 2 October 2018.
<PR700728>
[1] Exhibit R1, attachment MW6.
[2] Exhibit R1, attachments MW1 and MW2.
[3] Exhibit R1, attachment MW 5.
[4] Exhibit A2, paragraph 24.
[5] Exhibit R1, attachment MW 6.
[6] Exhibit R1, paragraph 22.
[7] Exhibit R1, attachment MW 8.
[8] Exhibit R1, attachment MW 10.
[9] Ibid.
[10] Exhibit A1, attachment CM7.
[11] Exhibit A1.
[12] See for example Exhibit A2, attachment 10.
[13] Fair Work Act 2009, s.396.
[14] [2017] FWCFB 3941.
[15] PR701236.
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