Charmaine Homes v Australian Carers Pty Ltd
[2022] FWC 1219
•19 MAY 2022
| [2022] FWC 1219 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Charmaine Homes
v
Australian Carers Pty Ltd
(C2022/1000)
| COMMISSIONER PLATT | ADELAIDE, 19 MAY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant was dismissed – whether Applicant resigned - jurisdictional objection dismissed – certificate issued.
On 8 February 2022, Ms Charmaine Homes lodged a general protections application against Australian Carers Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 18 January 2022, she was dismissed in contravention of the general protections provisions of the Act.
On 23 February 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Ms Homes had not been dismissed.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On 29 April 2022, the matter was allocated to me and later that day directions were issued for the filing of material.
A Hearing was conducted on 18 May 2022 by videoconference. The Applicant and the Respondent were both granted permission to be represented on the basis of complexity and efficiency. The Applicant was represented by Mr Rick Manuel and the Respondent was represented by Mr Sean Richter (both of counsel). A recording of the Hearing was made and retained. At the conclusion of the Hearing, I conveyed my determination to the parties that the Applicant had been dismissed by the Respondent. My reasons for this determination follow below.
Evidence
The material filed by the parties was contained in a Digital Court Book which was distributed to the parties prior to the Hearing. All materials contained in the Digital Court Book were received as evidence without objection. To the extent that any of the information contained in the Digital Court Book contained hearsay or contained evidence irrelevant to my consideration it was given the appropriate weight.
The Applicant contends that she was dismissed at a meeting between her and Mr Reginald Vitnell, General Manager of Australian Carers Pty Ltd, on 18 January 2022. The Respondent contends that after that meeting, the Applicant handed her phone and office keys to a third person and that conduct represented the Applicant’s resignation.
The Applicant provided a statutory declaration[2] and gave evidence. The Applicant’s relevant evidence is summarised as follows:
·Ms Homes was employed as a Support Co-ordinator and her role included meeting with and assisting NDIS participants to meet their care needs.
·Ms Homes had sought permission from the Respondent to work from home for a period, but that request was refused. Ms Holmes had spoken to other staff about this topic.
·On the afternoon of 18 January 2022, Mr Vitnell asked to speak to Ms Homes in his office. Ms Homes was not aware of the purpose of the meeting.
·Mr Vitnell opened the discussion by stating that he had heard Ms Homes was unhappy. Ms Homes advised Mr Vitnell of her dissatisfaction with a decision to remove her remote access computer privileges. Ms Homes was upset by the discussion. The following interaction then took place:
Mr Vitnell: “If you’re not happy then don’t be here. So what do you want to do.”
Ms Homes: “I am not resigning. I think we both need to look at other options. I need to keep working until at least I find another job.”
Mr Vitnell: “No, you can go now.” (Mr Vitnell then asked Ms Homes when she wanted to finish up.)
·Ms Homes contended that Mr Vitnell spoke in a heated, angry voice.
·Ms Homes gave evidence that after brief further discussion, Mr Vitnell said, “we are done here” and left the room. Ms Homes left the room afterward and went to the bathroom to compose herself with the assistance of another staff member.
·Ms Homes received a message that her access to the Respondent’s internal ‘Commcare’ system had been cancelled.
·Ms Homes believed that her employment had been terminated.
·Ms Homes sent a text message to a person cancelling a meeting with them, advising that Reg (Mr Vitnell) had just told her to leave.[3]
·Ms Homes left the premises.
·At 8.43pm on 18 January 2022, Ms Homes emailed Mr Vitnell seeking confirmation that her employment had been terminated, the payment of her entitlements, and the provision of a separation certificate.
·At 8.55pm on 18 January 2022, Mr Vitnell responded stating that the cessation of her employment was as a result of her resignation, and that her resignation occurred when she handed her phone and carpark access tokens to another employee of the Respondent and said words to the effect of “I wish you well”.
·At 5.43pm on 19 January 2022, Ms Homes emailed Mr Vitnell and (amongst other things) rejected the contention that she had resigned.
Mr Vitnell provided a statutory declaration[4] and gave evidence. His relevant evidence is summarised as follows:
· He flew into Adelaide on 18 January 2022, and later that day asked Ms Homes for a chat in his office.
· Mr Vitnell previously was aware of Ms Homes’ preference to work from home and that she had been discussing this preference with other employees. He felt that Ms Homes’ conduct was negative, disparaging and disruptive.
· Mr Vitnell’s account of the conversation is as follows:
· Mr Vitnell told Ms Homes that she appeared to be unhappy and that he was aware she had been engaging in disruptive behaviour by complaining to other employees about not being able to work from home. He told her that her behaviour was unprofessional.
· Ms Homes agreed that she was unhappy and said words to the effect of, “If I can't ever work from home, then that doesn't work for me.” Mr Vitnell then asked Ms Homes, “well what do you want to do?”
· Ms Homes said words to the effect of, “I don't want to resign, but I think I should start looking for alternatives... I'm happy to keep working until you find my replacement.”
· At the end of the meeting, Mr Vitnell asked Ms Homes to reflect on whether this was the right place for her and told her to speak to him first thing in the morning with a decision on whether or not she was prepared to change her attitude.
· Ms Homes then walked out of the meeting. Mr Vitnell was told by another employee (Kylie) that a short time later, Ms Homes handed her work phone and car park key to that other employee and said words to the effect of "I wish you well". Ms Homes then left the premises.
· Mr Vitnell received an email from Ms Homes on 18 January 2022, and responded later that evening, contending that Ms Homes’ conduct in handing back company property to Kylie amounted to a resignation.
· Mr Vitnell was unable to explain why he chose not to contact Ms Homes to confirm her intentions having been told of her interaction with Kylie.
I have had the opportunity of observing both witnesses give their evidence. Ms Homes had a good recollection of the events. The same cannot be said of Mr Vitnell, who either could not recall or was uncertain on a number of matters, including who left the office first and what was said at the end of the chat/meeting.
Mr Vitnell’s evidence appeared inconsistent. He contended that Ms Homes was a valued employee and that she told him that she did not want to resign, but on being advised that Ms Homes gave her phone and access key to Kylie, he did not think it necessary to confirm that she intended to resign. Nor did he take any further action upon receiving her email on 19 January 2022 indicating that she had not resigned from her employment. I also observed the manner in which he answered questions in cross-examination. In my view, it is probable that he behaved in a manner which Ms Homes perceived as being hostile towards her.
I have determined to prefer the evidence of Ms Homes in so far as it differs with Mr Vitnell’s as to what occurred in their meeting on 18 January 2022.
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. [5]
There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[6]
The question of whether the act of an employer results ‘directly or consequentially’ in the termination of employment is an important consideration but it is not the only consideration.[7] It is important to examine all of the circumstances including the conduct of the employer and the employee.[8]
Conclusion
Having examined the evidence of the meeting of the 18 January 2022 and conduct of the parties afterwards (noting that I have preferred the evidence of Ms Holmes as to what occurred), I find that the Respondent dismissed Ms Homes during the meeting between her and Mr Vitnell, and that Ms Homes’ actions in handing over company property to Kylie was consistent with her being dismissed as opposed to a resignation. The Respondent’s jurisdictional objection is dismissed.
I advised the parties of my decision at the conclusion of the Hearing. The parties were given the opportunity, and they agreed, to attempt to resolve the matter through the conduct of a conciliation conference. Unfortunately, the matter did not resolve.
Being satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, I have determined to issue a certificate in accordance with s.368(3)(a) of the Act.
COMMISSIONER
Appearances:
R Manuel for the Applicant.
S Richter for the Respondent.
Hearing details:
2021.
Adelaide (by videoconference)
May 18.
[1] [2020] FCAFC 152 at [51].
[2] Exhibit A1
[3] See attachment CH6 to Exhibit A1
[4] Exhibit R1
[5] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205
[6] Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248, 256; citing O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23
[7] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904
[8] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.
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