[2021] FWC 6244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Claudette Petkovic
v
Francie’s Pizzeria Pty Ltd ATF The Pattinson Family Trust
(C2021/4236)

DEPUTY PRESIDENT BOYCE

SYDNEY, 8 DECEMBER 2021

Application to deal with contraventions involving dismissal – jurisdictional objection – respondent contends applicant not dismissed – respondent says applicant resigned from full-time role on 23 December 2020 to become irregular casual – no casual shifts performed – applicant suffered workplace injury on 29 December 2020 - respondent says applicant’s employment ended on 4 January 2021 – no evidence respondent notified applicant of employment ending until 30 June 2021 - applicant denies resignation and alleges fabrication of dismissal – witness credibility – plausibility and reliability of witness evidence considered objectively against all the circumstances of the case – respondent says application filed out of time – determination of date of dismissal – applicant advised by WorkCover Queensland on 11 June 2021 that date of termination was 4 January 2021 – whether communication of termination by third party constitutes dismissal taking effect.

Introduction

[1] On 21 July 2021, Ms Claudette Petkovic (Applicant) filed a general protections involving dismissal application (Application) alleging that she was dismissed by the Respondent in contravention of Part 3-1 of the Fair Work Act 2009 (Act).

[2] As I understand it, the Applicant alleges that adverse action (in the form of dismissal) was taken against her by Francie’s Pizzeria Pty Ltd ATF The Pattinson Family Trust (Respondent) for exercising workplace rights flowing from a pay inquiry, workplace injury, lodging a worker’s compensation claim, and/or because she took a temporary absence due to illness or injury. She relies upon ss. 340 and 352 of the Act in this regard, 1 and seeks remedies in the form of compensation, general damages, and pecuniary penalties against the Respondent and its General Manager (see ss. 545, 546, 547 and 550 of the Act).

[3] For its part, in denying the assertions as to contravention made against it, the Respondent says that the Application is misconceived and jurisdictionally barred in that:

(a) it did not “dismiss” the Applicant from her employment; 2 or

(b) even if it did dismiss the Applicant, the Application has been filed outside of the 21-day time limit, and there are no exceptional circumstances warranting the grant of an extension of time. 3

[4] At the hearing, the Applicant appeared for herself; and Ms Rebecca Gall, of Counsel, appeared with permission for the Respondent, instructed by Ms Naomi Cooper, Senior Associate, and Ms Jennifer Moran, Lawyer, of Kennedys Lawyers. 4

[5] The Applicant relies upon her affidavit, sworn 1 September 2021. The Respondent relies upon the witness statements of Mrs Claudia Elizabeth Rose Pattinson (Mrs Pattinson), dated 16 September 2021 and 22 October 2021.

No-dismissal Contention

[6] The Respondent contends that it has taken no adverse action against the Applicant because it did not dismiss her. 5

[7] In making this contention, the Respondent says that the Applicant verbally resigned from, or otherwise agreed to bring to an end, her 2IC position as a full-time employee (on one-week’s notice), so as to thereafter convert to irregular casual employment (at the end of the notice period), with an agreement between the Respondent and the Applicant that such casual employment would only continue for a very short period of time (i.e. until such time as the Respondent could replace the Applicant in her former 2IC full-time role) (Cessation Agreement). As it turns out, the Applicant was never offered any shifts as a casual employee, and did not perform any work as a casual employee. On the Respondent’s case, the Applicant’s employment ended when her notice period ended, with the Cessation Agreement never actually taking effect or otherwise commencing. 6

[8] In response to the Respondent’s no-dismissal contention, the Applicant says that any suggestion that she resigned or otherwise entered into, or agreed to enter into, the Cessation Agreement is not only pure fabrication, but wholly implausible and counterintuitive having regard to all of the circumstances of the case. The Applicant says that she was dismissed by the Respondent, within the meaning of ss.12 and 386(1)(a) of the Act, when she was first notified of her dismissal by the Respondent, by way of letter from the Respondent dated 30 June 2021.

Disputes as to “dismissal” in s.365 applications

[9] The Commission’s capacity and role to deal with disputes about “dismissal” in general protections applications are summarised by Deputy President Easton in Ryan Mount v Dover Castle Metals Pty Ltd, Matthew Haindl, George Tucker, Simon Tripp: 7

“Generally, the FWC’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368 of the FW Act. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute.

The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (Milford) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:

(a) The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).

(b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).

(c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).

(d) that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).

(e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).

(f) in so determining the limits of its authority the FWC may determine matters of fact (at [71]).

(g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and

(h) the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).” 8

[10] I approach this decision adopting the foregoing conclusions of Deputy President Easton, and more specifically on the basis that:

(a) The Commission does not have jurisdiction to entertain a general protections involving dismissal application where an applicant employee is unable to establish that there was a “dismissal”, relevantly in this case, at the initiative of the employer within the meaning of s.386(1)(a) of the Act. 9

(b) I do not consider this to be an appropriate or permissible case to which I would simply determine that the employment relationship came to an end on a particular date, and make a determination only as to the out of time aspect of the claim. 10

(b) The onus is upon the Applicant to prove that she has been dismissed at the initiative of the Respondent. 11 This especially so where the Respondent in this matter comes before the Commission and positively insists that the Applicant has not been dismissed.

(c) For the purposes of s.386(1)(a) of the Act, the phrase “terminated on the employer’s initiative” is a reference to a termination of the employment relationship that is brought about by an employer and not agreed to by an employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. There must be action by the employer that either intends to bring the relationship to an end, or has that probable result. 12

Facts not in dispute

[11] The Respondent relevantly operates as a pizzeria restaurant, Francie’s Pizzeria, in Coolangatta, Queensland, employing around 14 employees, 10 of which are casual. 13 Mrs Pattinson owns and operates the pizzeria with her husband.14 The pizzeria operates Monday to Sunday, and is open to the public between around 5.00pm and 9.00pm.15

[12] The management structure of the pizzeria (prior to the appointment of the Applicant as full-time 2IC), comprised of Mrs Pattinson as General Manager, and Ms Sinead Flanagan (Ms Flanagan), as Manager. 16 Mrs Pattinson shares decisions relating to recruitment and managing employees with her husband and Mrs Flanagan, and the three ordinarily met weekly to discuss the business (including staffing).17

[13] Mrs Pattinson first met the Applicant whilst the Applicant was working as a casual barista at a local bakery café. Mrs Pattinson and her husband frequented the café, exchanged pleasantries with the Applicant, and were able to observe her general attitude and approach to work (including as to the manner in which she interacted with café customers and other café staff). 18 From her observations of the Applicant at the café, Mrs Pattinson understood that the Applicant possessed the requisite skills and attributes to work at the pizzeria.19

[14] In mid to late 2020, Mr and Mrs Pattinson decided that they needed to recruit someone to assist Ms Flannagan, and relieve her on her days off. They decided to recruit for the role of full-time “2IC” at the pizzeria. 20 Mrs Pattinson offered the 2IC role to the Applicant, and they agreed upon the following terms:

(a) the 2IC role was full-time (not casual);

(b) the Applicant would need to cease working at the café, so as to give 100 percent commitment and focus to the pizzeria;

(c) the Applicant would be able to continue to work as a casual barista at the café until such time as the café was able to recruit another barista; and

(d) during the time that the Applicant was to continue working at the café, she was to start at the pizzeria on a casual basis (as a waitress/team member). After the Applicant had ceased working at the café, she was to commence working in the full-time 2IC role. The initial transitional casual role at the pizzeria would not only enable the Applicant to slowly move away from her casual barista role at the café, but also allow for the Applicant to obtain some familiarity and experience at the pizzeria, and get to know other staff and customers. 21

[15] The Applicant started working at the pizzeria on 6 October 2020 as a casual waitress/team member, for regular shifts each week (three to five shifts per week, of no more than five hours per shift). 22 During her shifts as a casual, the Applicant performed a combination of customer orientated and service hospitality duties, including:

(a) working on the restaurant floor, taking customer orders;

(b) meeting and greeting customers upon entry, allocating tables, finalising bills and payments, and allocating takeaway customers;

(d) working behind the bar by preparing and serving beverages. 23

[16] The Applicant commenced the full-time 2IC role at the pizzeria on 6 December 2020. 24 At this time, the Applicant continued to work at the café on a casual basis,25 due to the owner of the café suffering an injury (broken collar bone) that saw the Applicant extend her cessation date at the café to assist in his absence.26 It was the Applicant’s intention to leave her employment at the café, or to use her words, “I’m going to sort it out”.27

[17] On 16 December 2020, the parties executed a document titled “three month probation period contract” which placed the Applicant on probation for the first three months of her full-time employment in the 2IC role with the Respondent. On the same day, the parties executed a job description for “Front of house shift supervisor and 2IC”. This document provided that the position was full-time, five shifts over five days per week (working 38-45 hours per week), two rostered days off per week, three months probation, and an annual salary of $45,000. Relevantly, the job description provided for the Applicant to undertake the following duties:

“Set up: Daily set up and pack down (5 days per week).

- Communications:

- answering machine

- preorders

- general emails and calls

- customer enquiries and management (vouchers, preorders, t-shirts, issues).

- Kitchen + front of house communications:

- being the main channel of communication between both sections for a variety of reasons including but not limited to: chilli oil, dried oregano, issues/complaints, compliments, improvements, staff hours/maintenance.

- Cleaning: Ensuring all cleaning of restaurant is done daily/weekly and properly, including both bathrooms, back shed and stockroom.

- Maintenance: Ensuring any maintenance needed is done and/or communicated to Claudia and Tony.

- Plants: Maintaining the plants, ensuring they stay alive and well or are replaced.

- Shift Management:

- organisation, staff, customers, food quality, communication.

- Stock management:

- Ensuring all stock is ordered, maintained and available

- Stock – wine, beer, bar items, soft drinks, stationary, condiments, menus, signage, cleaning products, crockery, cutlery, glasses

- Stocktake reporting

- Cleaning and organising upstairs regularly

- Gas bottles

- Empty kegs.”

[18] On 23 December 2020, the Applicant sent Mrs Pattinson a text message requesting a meeting to discuss salary, and a meeting later that day occurred between them (23 December meeting). Mrs Pattinson’s evidence is that the Applicant verbally resigned from her full-time 2IC role at this meeting, on one-week’s notice, and agreed to convert to a casual role (on an irregular basis) at the pizzeria (post the end of the one-week notice period), but only until such time as the vacant full-time 2IC role could be filled, at which time the Applicant would cease working for the Respondent at the pizzeria altogether. This is completely denied by the Applicant. I resolve this dispute below.

[19] On 24 December 2020, a Christmas party for management and staff of the pizzeria occurred. There is no dispute that there was no mention of the Applicant resigning at this Christmas party, or otherwise moving to a casual role. 28 Nor is there any evidence of a discussion or the mention of the Applicant’s replacement in the 2IC role (on an interim or permanent basis).29

[20] On 29 December 2020, the Applicant suffered an injury to her knee whilst at work. 30 She lodged a claim for worker’s compensation, which was accepted by WorkCover Queensland.

[21] The pizzeria closed between 24 and 26 December 2020, and on 1 and 2 January 2021. 31

[22] Between 31 December 2020 and 17 January 2021, the Applicant and Mrs Pattinson exchanged various text messages, as follows:

Thursday 31 December 2020

Applicant: “Haha Hi honey, so I went to the hospital yesterday after I slipped while carrying the big wooden table during set up on Tuesday. It’s my knee that I have already had a knee reconstruction on. They are concerned of how bad it could be. The hospital have given me the forms for workers comp, all we have to do is put it through. Then once that’s done, I can get an mri through them and see what the go is. At this point I’m completely out of action at both francies and cubby. Just wondering when suits you so I can give you the forms and get the ball rolling? X”

Saturday 2 January 2021

Applicant: “Hey, just wondering if you got my last message. Can I drop the forms off to you today?”

Mrs Pattinson: “Hey claw! Sucks about your knee. Can you please send me photos of them?”

Applicant: [Screenshots of Work Capacity Certificate for Workers’ Compensation].

Monday 4 January 2021

Applicant: “Good morning, just wondering if we’ve head [sic] anything back yet? Hope you had a good weekend. X”

Mrs Pattinson: “Hey claw. It was just New Years and the weekend so no business [sic] have been open until today? So no”

“I’ll be finding out info today and I’ll get back to you when I’ve got it. How is your knee feeling? I saw you are off your crutches”

Applicant: “Sweet thanks. Knee is not any better. It’s sore, achy [sic], swollen, and hard to sleep with because of the pain. I’m still on my crutches 90% of the time. Unfortunately they are difficult to do things with, I can still hobble a little without them. But definitely still relying on them most of the time.”

Wednesday 6 January 2021

Applicant: “Hi Claudia, hope you’ve had a good week so far. Just wondering if there were any updates? My knee is getting worse and obviously this is impacting me greatly both physically and financially. Hope to hear back from you soon.”

Mrs Pattinson: “Hey Claw, sorry to hear that. I have been trying to contact my accountants who deal with the work cover policy but they are still on holidays for Christmas unfortunately. Is there someone you want me to contact or do you have more information?”

“I hope you sent thank yous to all the staff too they have been working so hard to cover all your shifts”

“I lodged the claim with work cover and they are going to call you”

Applicant: “Hi, thanks for keeping me in the loop. I just need to know whats going on. So I called workers comp, they were very helpful. Apparently they didn’t have the documents ect [sic]. So I sent them all through and confirmed a few things ect [sic]. Everything is done on my end. Apparently they need some more details from you and will give you a phone call. They did say that if you don’t receive a call, to just phone them up tomorrow and then they’ll be able to finish the claim. I definitely don’t want to be injured. I want to be at work. So the faster this all goes through, the better for everyone. And obviously the faster my recovery.”

Sunday 17 January 2021

Applicant: “Hi, just thought I’d keep you in the loop…So I got the results from my MRI, have a torn MCL and its now got cysts growing on the tare [sic]. So I’ll hopefully I’ll [sic] see a surgeon this week coming and they’ll make a decision on if they want to operate. Unfortunately I’m still on crutches and the doctor said I can weight bare [sic] a little, but as before using them 90% of the time. Hope you’ve been well. Cross eyed Mary looks amazing, congratulations!”

Mrs Pattinson: “Thanks for the update claw. I hope your knee starts getting better soon. Thanks it’s going great.” 32

[23] On 2 January 2021, the Applicant had the following text message exchange with her Manager (“Sinead” [Ms Flannagan]):

[Applicant]: “Hi honey, I’m just double checking that Claudia has told you I won’t be in tonight, or up until 8^th (depending on mri results). Hope you had a good couple of days off x”.

[Sinead]: “Thanks for letting me know”. 33

[24] On 6 January 2021, the Applicant was paid out her accrued full-time employee entitlements, along with her wages for the period 28 December 2020 to 3 January 2021. 34 The payslip contains the following relevant details:

“Pay Frequency: Weekly.

Pay Period: 28/12/2020-03/01/2021.

Payment date: 06/01/2021.

Reference: francies wages.

Messages: Hi Claw, this payslip looks a little crazy but I tried to use all your annual leave and sick leave that you have accrued. Let me know if you have any questions.” 35

[25] On 25 March 2021 at 8:24am, Ms Cathy Buchbach, Customer Advisor at WorkCover Queensland, corresponded with Mrs Pattinson as follows:

“Good Morning Claudia,

Sorry for another email, I forget to attach this to the last one,

On speaking with Ms Petkovic she claims that the employer has not paid her the attached excess period?

Ms Petkovic advises that she was initially paid from her personnel entitlements: sick leave/annual leave.

If this is the case can you please reinstate whatever personnel entitlements Ms Petkovic was paid from.

As the claim has been accepted for an injury sustained at work, Ms Petkovic should not have the excess payment paid out of the personnel entitlements.

If the excess has been paid correctly are you able to provide a payslip of some kind that I can forward to Ms Petkovic to show the excess period has been paid.

Kind regards

Cathy Buchbach” 36

[26] At 11:59am (25 March 2021), Mrs Pattinson replied as follows:

“Hi Cathy,

Upon a previous conversation about this I sent all the payslips for Claudette through to you guys for clarification on what needed to be paid or if everything was right.

I know the case got passed over to you so it might have gone to someone else but as I’ve said before if you guys can tell me exactly what needs to be done then I’ll do it.

Thanks

Claudia” 37

[27] At 12:07pm (25 March 2021), Ms Buchbach further replied as follows:

“Hi Claudia

I had attached the excess notification to the previous email.

Please review and if this amount has been paid to Ms Petkovic then there is nothing further for you to action.

Can you please advise on the termination date for Ms Petkovic?

Kind regards,

Cathy Buchbach” 38

[28] At 2:00pm (25 March 2021), Mrs Pattinson replied again as follows:

“Hi Cathy,

I;ve [sic] attached the payslips here, maybe you could check and see what you think?

Regards,

Claudia Oswin”

[29] On 26 March 2021 at 8:35am, Ms Buchbach further wrote to Mrs Pattinson as follows:

“Good Morning Claudia

Can you please provide the termination date for Ms Petkovic.

Kind regards

Cathy Buchbach” 39

[30] At 11:40am (26 March 2021), Mrs Pattinson replied that the “Termination date was set at 04 Jan 2021”. 40 There is no evidence that this email, or its contents, were ever communicated to the Applicant, by Mrs Pattinson or WorkCover Queensland.41

[31] On 11 June 2021, the Applicant received the following email from Ms Buchbach:

“Good Afternoon Claudette

As discussed this morning in regards to the excess payment please contact the pay roll department of the employer to request clarification of excess payment not paid from your sick/annual leave entitlements.

WorkCover Qld has attempted several times to get an answer from the employer. On last email from the Employer they asked if I could check the payslips and confirm if paid correctly. I am unable to do this as I am not able to access the employers payroll. You will need to check leave balances prior to injury and then leave balances post injury on payslips to confirm if Emp has paid correctly.

Regarding termination the Employer advised WorkCover Qld via email that termination of employment was on 04 January 2021.

The employer did not advise of the reason.

WorkCover Qld has received the request for file from Iconic Legal. A copy of the file will be forwarded today.

Kind regards,

Cathy Buchbach” 42

[32] On 23 June 2021, the Applicant replied to Ms Buchbach as follows:

“Hi Cathy, thanks for your email. I was wondering what the total amount was of the lump sum that Francies owes me, and if the following is accurate to send to Claudia.

Hi Claudia

This comes with great confusion as termination of my full-time employment has not yet been confirmed by you. It is your legal obligation to provide me with a termination letter outlining my final date of employment.

As this was never addressed, I am waiting for my final pay slip including the correct sum of accrued annual leave and sick pay from the 4^th of January 2021 until present. This comes to a total of 24 weeks of accumulated leave, which you can confirm on my final pay.

Please don’t hesitate to call if it’s easier.

Kindest, Claudette” 43

[33] Ms Buchbach replied to the Applicant on 24 June 2021 attaching the excess letter sent to the Respondent which confirmed the remaining excess payment due. 44 In her email, Ms Buchbach did not comment upon, or otherwise engage with, the Applicant’s draft email to Mrs Pattinson.

[34] On 29 June 2021, the Applicant sent Mrs Pattinson the following email:

“Hi Claudia

After contact with Cathy it has been brought to my attention that I have not been paid correctly, despite your claims to have done so otherwise. The last payment I received from you was the remaining sum of my annual leave up to the 6^th of January 2021. As well as not receiving the excess I am owed from my injury while working for you. The excess amount is $865, as Cathy has informed you previously.

Kindest, Claudette” 45

[35] On 30 June 2021, Mrs Pattinson responded to the Applicant’s email:

“Hi Claudette,

Thanks for getting in contact, happy to get this sorted out for you.

Your termination was lodged with the ATO on 04/01/21 through our payroll system. However I have attached a letter of termination for your records.

I apologise that the amount of $865.00 is outstanding as it was my understanding that all payments had been made as per conversations I had on the phone with Cathy. I will make sure that payment is made today. Please allow a few days for it to reach your account and please contact me if it doesn’t arrive.

I also saw in your forwarded emails that Cathy states she doesn’t know the reason for termination however that was discussed in depth with her on the phone during the claim period. This has been outlined in the attached termination letter.

Please feel free to let me know if there is anything else you need for your records Claudette.

Kind Regards,

Claudia Pattinson

General Manager of Francie’s Pizzeria + Cross Eyed Mary” 46

[36] The email attached the following termination letter (Termination Letter):

“Dear Claudette,

I am writing to you about the termination of your employment with Francies Pizzeria on 04 January 2021.

During your employment you met with Claudia Pattinson on a weekly basis to discuss your work performance and to guide you through your new role. In those meetings, you were advised that you were not performing as the role you were hired for, that you weren’t assisting the manager with leadership for the team. You were counselled on some tactics to use and improvements to make as soon as possible to ensure you are completing the job you were employed to do.

In the third week meeting you stated that you weren’t cut out for the job role and that you are more suited to casual employment. Verbally we agreed that his was your notice to leave and we begun advertising for a new person to fill this role. It was at the end of this week that your injury occurred, and you were no longer able to complete your notice period. As a kind gesture you were not penalised for not completing your notice period.

As this process was interfered with by your injury we were faced with an unusual procedure. The claim was taken over by Cathy Buchbach at Work Cover as there was some queries and discussions needed to be had for both parties. The conclusion of the claim as communicated by Claudette on 30 June 2021 (as Cathy had not communicated clearly the conclusion) the amount of $865.00 less tax payable will be transferred to Claudette today – 30/06/2021.

Based on your length of service, your notice period is 1 week.

All accrued entitlements were paid on 06 January 2021.

Yours sincerely,

Claudia Pattinson

General Manager of Francies Pizzeria” 47

[37] The Applicant filed her Application with the Commission on 21 July 2021.

Resolution of facts in dispute – approach

[38] Whilst there are many facts not in dispute, making findings on the ultimate issues in these proceedings requires the resolution of various disputed facts. Given that my findings on the ultimate issue in this case primarily concerns disputed accounts as to what occurred at the 23 December meeting (between the Applicant and Mrs Pattinson), it is necessary for me to assess the credibility of the evidence of both the Applicant and Mrs Pattinson. In undertaking this task, I adopt what was said by Manousaridis J in O’Kane v Freelancer International Pty Ltd & Anor 48:

“[19] Credibility may be defined as “the quality or power of inspiring belief”. When applied to testimony, credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the witness to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities, of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” has a broader meaning. It may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. I propose to use “credibility” in both senses.

[20] Whether or not any given testimony will inspire satisfaction in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact-finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”. That means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”. Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”. It has also been said that credible evidence is “that which meets the test of plausibility”.

[21] There have been a number of statements about how a court should assess testimony. For example in The Ocean Frost, Robert Goff LJ said:

‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

[22] And in EPI Environmental Technologies Inc v Symphony Plastic Technologies Peter Smith J said:

‘(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.

(ii) Second, witnesses can regularly lie. However, . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.’

[23] Finally, there is the approach to fact-finding described by Justice MacKenna.

‘This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.’ ” 49

(footnotes omitted)

Evidence concerning the 23 December meeting

[39] The Applicant’s evidence as to her discussion with Mrs Pattinson at the 23 December meeting is as follows:

(a) the purpose of the Applicant requesting the meeting was to discuss her salary, as evidenced by her text message to Mrs Pattinson at 11.47am that day. The Applicant’s concern in relation to her salary was that she had agreed to take on the 2IC role on a salary of $65,000 per annum, not the $45,000 per annum as set out in her employment contract. The Applicant says that she did not pay attention to the salary set out in the contract she signed, but became aware that her salary was not $65,000 shortly after she started the 2IC role; 50

(b) no discussion of the Applicant’s resignation was raised or otherwise occurred at the meeting;

(c) the Applicant did put it to Mrs Pattinson that if her salary was not going to be $65,000 per annum (paid pro-rata) she would be better off working her same full-time hours as a casual employee at the higher hourly rate for a casual employee (i.e. as compared to an hourly rate based upon a $45,000 per annum salary);

(d) Mrs Pattinson expressed her displeasure at the Applicant moving to a casual role as it would “hinder the business” and that the Respondent would have wasted its time in training the Applicant for the 2IC role;

(e) to the extent that any issue of performance was discussed, the Applicant’s evidence is that the only issue as to performance that was discussed related to an incentive to receive the $65,000 per annum salary into the future:

“From my understanding and from what she [Mrs Pattinson] had told me it was - the pay discrepancy was to give me initiative to improve on certain things within the business. Not regarding my performance, rather my understanding of policies and procedures, and the role itself. She wanted me to get more comfortable and be able to take on further managerial duties.” 51

(f) Mrs Pattinson and the Applicant concluded the meeting by agreeing that the Applicant would stay in her 2IC role on her salary of $45,000 per annum, and that the Applicant’s salary and status as a full time or casual employee would be reassessed on one month’s time. 52

[40] Mrs Pattinson’s evidence as to her discussion with Applicant at the 23 December meeting is set out in her statement, as follows:

[Applicant]: “I’m not happy in this role [2IC Role], the duties are not what I thought it was going to be. It’s not enough money and I want to save to buy my apartment. I need to be on $65,000 a year or work two casual jobs. If I work [the Casual Role and the Barista Role], I can make that kind of money.”

[Mrs Pattinson]: “$65,000 won’t work for the business. This is a permanent job, you’ve got the benefit of a salary, job security and superannuation. You won’t have that with the [Casual Role]. I never said your salary would be $65,000. Your salary was always $45,000, we can't afford any more than that.”

[Applicant]: “Well, if the pay issue can’t be sorted, I would like to move back to the [Casual Role]. That way, I can work the [Casual Role] and the [Barista Role] at the same time. I’ll make more money that way.”

[Mrs Pattinson]: “I can see that [the 2IC Role] is not right for you. We can’t pay you more than $45,000. If this isn’t working for you, I’m happy for you not to be in the [2IC Role] any more - good on you for giving it a go, but let’s not drag it on. But we can only provide you with casual shifts until we recruit a replacement for the [2IC Role], because we need a 2IC.”

[Applicant]: “Ok, I understand. I want to move back to the [Casual Role].” (Resignation).

[Mrs Pattinson]: “Alright, at the end of a week you will move back to casual [(Notice Period)], and I'll give you casual shifts until I can replace the 2IC.” 53

[41] Mrs Pattinson says that as part of the foregoing exchange, she accepted the Applicant’s verbal resignation. 54 She also says that:

(a) she never (at anytime) offered the Applicant a salary of $65,000 per annum in the 2IC role. Further, whilst Mrs Pattinson does not recall if salary was ever discussed with the Applicant prior to her commencement with the Respondent, Mrs Pattinson was aware that the Respondent could only offer the Applicant $45,000 per annum for the 2IC role; 55 and

(b) there was no agreement to “reassess the matter in 1 months’ time”. Rather, the agreement that was reached was that the Applicant would convert to irregular casual employment, with casual shifts only to be offered to the Applicant until such time as a replacement (for the now vacant) 2IC role had been recruited and commenced employment. 56

[42] Mrs Pattinson accepts that the only written communication she provided to the Applicant about the Applicant’s cessation of employment was the Termination Letter dated 30 June 2021. 57 Further, she cannot recall if she made any notes about the Applicant resigning,58 or whether the Applicant’s resignation was discussed with the “team” (i.e. other staff).59 However, Mrs Pattinson is clear that the Applicant’s resignation from her full-time 2IC role was never discussed with the team.60

What really happened at the 23 December meeting?

[43] For its part, in addition to Mrs Pattinson’s version of the discussion that occurred at the 23 December meeting, 61 the Respondent submits that the following facts objectively point to the Applicant resigning from her employment in the full-time 2IC role:

(a) the absence of contemporaneous documents supporting the Applicant’s version of events; 62

(b) the Applicant’s acknowledgement that she was unhappy with her pay, including her request to Mrs Pattinson at the 23 December meeting that her salary be increased from $45,000 to $65,000 per annum; 63

(c) Mrs Pattinson’s evidence that the pizzeria could not afford to pay the Applicant an annual salary of $65,000 per annum; 64

(d) Mrs Pattinson’s evidence that the Applicant was a poor performer, who was not cut out for the 2IC role (this being a matter that was allegedly acknowledged by the Applicant herself at the 23 December meeting), 65 as well as the Applicant continuing to work at the café despite her promise to only continue working at the café for only a short period (post starting work with the Respondent);66

(e) the Applicant’s failure to raise the withdrawal of her login access to the Respondent’s computer or internet system with Mrs Pattinson, despite this login access being required by the Applicant to see rosters, emails and ordering systems; 67

(f) the evidence that the Applicant held aspirations to buy an apartment (and thus wanted to earn more money than her 2IC salary); 68

(g) the Applicant’s failure to query her termination payslip, noting that the notation message at the bottom of same states “let me know if you have any questions”; 69

(h) the hearsay nature of Ms Flanagan’s evidence; 70

(i) the file note in the WorkCover Queensland Communication Report which appears to refer to a conversation (on 12 January 2021) between Mrs Pattinson and a WorkCover Queensland Claims Representative (Kim Jameson) which states “was on salary then asked to go casual so she could work the 2 jobs”; 71

(j) Mrs Pattinson’s evidence as to the Applicant referring to “casual work as a whole”, 72 not just casual work at the pizzeria, when purportedly resigning;73

(k) the absence of any indication by the Applicant in her 29 June 2021 email to Mrs Pattinson that she was seeking to return to work; 74 and

(l) the failure of the Applicant to make contact with Mr or Mrs Pattinson during the period 18 January 2021 to 29 June 2021, and/or provide updates to them as to her fitness for work, or the status of her claim for worker’s compensation. 75 In other words, so the Respondent submits, this failure to communicate with Mr and Mrs Pattinson between 18 January and 29 June 2021 (at all) is consistent with Mrs Pattinson’s version of the discussion that occurred at the 23 December meeting, and the Applicant being aware and accepting that her employment had come to an end in early January 2021.76

[44] I do not accept the Respondent’s contention that the evidence concerning the Applicant’s request to be paid $65,000 per annum, or otherwise revert to temporary irregular casual employment as a waitress/team member, is consistent with Mrs Pattinson’s evidence as to the Applicant resigning (at the 23 December meeting) and entering into the Cessation Agreement. In my view, singling out the desire by the Applicant to be paid a higher salary in the 2IC role is very much a narrow view of the facts and circumstances in this case. In this regard:

(a) I accept the evidence of the Applicant that the purpose of her requesting the meeting with Mrs Pattinson on 23 December 2020 was to discuss her salary in the 2IC role. 77

(b) I note that it is agreed between both the Applicant and Mrs Pattinson that the Applicant requested to be paid $65,000 per annum (in the 2IC role) at the 23 December meeting.

(c) As to why the figure of $65,000 per annum was raised or otherwise inquired upon by the Applicant at the 23 December meeting, the Applicant’s evidence is that this figure was discussed and agreed to by Mrs Pattinson prior to the Applicant starting in the full-time 2IC role. Mrs Pattinson’s evidence is that she cannot recall if salary for the 2IC role was ever discussed with the Applicant prior to her starting in the 2IC role. 78 To the extent that Mrs Pattinson implies that she was surprised by the Applicant’s inquiry as to her salary in the 2IC role at the 23 December meeting, I accept the evidence of the Applicant that, notwithstanding the terms of the employment contract signed by her, a salary of $45,000 per annum for the 2IC role was “not what we discussed before I said yes to working full time with francies”.79

(d) Mrs Pattinson’s evidence, and indeed the Respondent’s submissions, cast the Applicant’s position at the 23 December meeting as a straight-out demand or ultimatum by the Applicant to be paid an extra salary of $20,000 per annum, or revert to casual employment and work at least two casual jobs (“Well, if the pay issue can’t be sorted, I would like to move back to the [Casual Role]”). 80 However, in my view, the plausibility and credibility of this evidence collapses when one comes to consider Mrs Pattinson’s evidence as to the Cessation Agreement (which I elaborate upon following).

(e) Despite the evidence that the Applicant wanted to earn more money, and was holding aspirations to buy an apartment, Mrs Pattinson’s evidence is that in reliance upon the Cessation Agreement, the Applicant resigned (or agreed to resign) from her full-time 2IC role (on one-week’s notice), and thereafter converted to casual employment, with such casual employment to be on the basis of no guaranteed hours or shifts per week, for only a very short period of time (i.e. until the 2IC role was filled). As Ms Gall put it in closing submissions:

“Accordingly, from at least 4 January 2021, Ms Petkovic's employment as a full time employee had come to an end and she was a casual employee with no advance commitment of days or hours of work.” 81

(f) In my view, the Applicant’s circumstances (i.e. needing/wanting to be paid more salary) speak against her resigning from the 2IC role two day before Christmas day. I consider it counterintuitive that the Applicant would put forward or agree to an arrangement that ends her full-time employment in the 2IC role on the proviso that she would thereafter become a casual employee (with no guarantee of hours or shifts), and with that casual employment itself to end in the very near future (i.e. when the 2IC role is filled). Indeed, there is no suggestion that the Applicant had other additional employment already lined up, and the assertions of Mrs Pattinson that the Applicant was still working at the café do not travel about mere assertions. Even if it be accepted that the Applicant was still working at the café as at 23 December 2020, there is certainly no evidence as to how much work she was actually doing at the café. Rather, on the evidence before me, taking Mrs Pattinson’s evidence at its highest, the Applicant was resigning from the 2IC role to become an irregular casual employee for a very short period of time, with no other employment (casual or otherwise) already lined up. In my view, these circumstances are totally against the Applicant’s own interests, making them improbable and implausible. 82

(g) The plausibility of the Cessation Agreement must also necessarily be considered in the context of what it actually meant for, or gave to, the Applicant. In my view, having regard to the evidence of Mrs Pattinson that the 2IC role was so important to the business that it needed to be filled immediately (and was in fact filled immediately by Mr Carlos Lara), the true effect of the Cessation Agreement (from the Applicant’s perspective) was that the Applicant would be leaving her employment with the Respondent at the end of the purported notice period (putting aside the Applicant’s injury on 29 December 2020). In other words, the Cessation Agreement was otiose before it even began, and represents little more than an agreement to agree to undertaking no further work with the Respondent after the purported notice period (in respect of the 2IC role) had expired. In short, the clear evidence of Mrs Pattinson is that despite agreeing to offer the Applicant casual work post the end of the purported notice period (i.e. until the 2IC role was filled), there never any possibility that the Applicant would be offered any casual work because Mrs Pattinson, at the time she made the Cessation Agreement with the Applicant, already had Mr Lara in mind to fill the 2IC role immediately. I draw two alternative conclusions from Mrs Pattinson’s evidence:

(i) firstly, Mrs Pattinson misled and/or deceived the Applicant in relation to the true effect of the Cessation Agreement, rendering the Applicant’s alleged resignation, based upon the Cessation Agreement, being grounded upon a non-bona fide premise; or

(ii) secondly, alternatively, there was never any agreement by the Applicant to enter into the Cessation Agreement, as the Cessation Agreement was never raised or otherwise made with the Applicant at the 23 December meeting, because the Applicant never resigned, agreed to relinquish her 2IC role, or otherwise decided or agreed to leave her employment at the Respondent (on notice or otherwise) during her discussions with Mrs Pattinson at the 23 December meeting.

[45] Either way, the term “Morton’s Fork” is apt, in that notwithstanding the existence of two counter factual scenarios, following either will lead to the same outcome, i.e. that the Applicant was “dismissed” by Mrs Pattinson (on behalf of the Respondent) within the meaning of s.386(1)(a) of the Act.

[46] I do not accept Mrs Pattinson’s evidence as to the so-called performance issues that she asserts were experienced with the Applicant. None of the performance issues (as asserted by Mrs Pattinson in her evidence) are supported by any documentary evidence (let alone contemporaneous documentary evidence). Nor are any of the performance issues particularised beyond their stated generality, i.e. Mrs Pattinson’s evidence does not refer to any specific dates or times as to the occurrence of the performance issues, words used, or other information that might identify witnesses, and/or persons involved. Rather, in my view, at their highest, the performance issues relied upon by Mrs Pattinson constitute broad based allegations that, because of their generality, are incapable of a response (beyond a mere denial). Further, whilst I make no findings in this regard, having regard to my findings in relation to other aspects of Mrs Pattinson’s evidence, the advancement of the performance issues in these proceedings appear to have been raised to suit Mrs Pattinson’s narrative in respect to the 23 December meeting (i.e. that the Applicant was a poor performer, not cut out for the 2IC role, and constantly complained about being tired and down on energy, so that Mrs Pattinson was happy to let the Applicant resign, it was a ‘blessing in disguise’). More significantly, Mrs Pattinson’s evidence as to the Applicant’s performance issues is yet another example of the counterintuitive nature of her overall evidence. In other words, Mrs Pattinson’s evidence is that despite the Applicant displaying a whole raft of performance issues from when she first started working at the pizzeria as a casual waitress/team member (in the period prior to her taking up the 2IC role), Mrs Pattinson still appointed the Applicant to the 2IC role. And whilst the Applicant continued to regularly display the same kind of performance issues after she commenced the 2IC role, Mrs Pattinson maintained her in the 2IC role despite the Applicant being on a probation period during that time. In my view, if the performance issues that Mrs Pattinson identifies were in fact occurring, it makes no sense (especially in a small pizzeria where customer service, customer satisfaction and waiter/team member leadership are crucial to the reputation and survival of the business), that the Applicant’s employment would have been permitted to continue, noting that Mrs Pattinson’s evidence is that despite her repeatedly raising her concerns as to performance with the Applicant, such poor performance continued or became worse.

[47] In relation to the remaining matters relied upon by the Respondent in support of its contention that the Applicant resigned, I make or draw the following findings and conclusions:

(a) I accept the Applicant’s evidence that she was unaware shortly after her injury that the Respondent had changed her computer login access. Given that the Applicant was injured and unable to attend for work, and had advised the Respondent of same, I do not consider that the Applicant would have necessarily had any need to login to the Respondent’s computer or internet systems (at least in early to mid January 2021, when the Applicant’s ability to login was apparently removed); 83

(b) I accept the Applicant’s evidence as to her not raising any issues as to her termination payslip with the Respondent (I deal with this in more detail at paragraph [48(g)] of this decision below);

(c) I take into account but give no weight to the words contained in the WorkCover Queensland Communication Report. 84 The words contained in this Communication Report are hearsay, and at their highest constitute representations made by Mrs Pattinson to a WorkCover Queensland Claims Representative. They do not constitute the truth of the underlying fact asserted by Mrs Pattinson to the Claims Representative. Further, the representation in the Communication Report conflicts with the email from Mrs Pattinson to WorkCover Queensland on 26 March 2021, where she advises Ms Buchbach that the Applicant’s “termination date was set at 04 Jan 2021”85;

(d) I concur with the Respondent that the fact that the Applicant had no contact with Mr or Mrs Pattinson from 18 January 2021 to 29 June 2021 is unusual and might be said to infer that the Applicant was aware that she had left (or resigned) her employment with the Respondent. However, given my findings, both specifically and generally in relation to Mrs Pattinson’s evidence, I am unwilling to make an ultimate finding that the Applicant was not dismissed on the basis of her non-communication alone. Indeed, the case law requires me to have regard to and make findings in respect of all the circumstances of the case in determining whether a dismissal as a matter of fact, by reference to the law, has occurred; and

(e) Even if it might be said that the Applicant’s email to Mrs Pattinson on 29 June 2021 identifies that the Applicant was not asking for any shifts, or otherwise indicates that the Applicant was not intending to return to work at the Respondent, other text in that email clearly shows that the Applicant (at that time) had not been told by the Respondent that she had been dismissed.

[48] Confronted with two significantly different versions of the discussions that occurred between the Applicant and Mrs Pattinson at the 23 December meeting, I prefer the version deposed to by the Applicant. In this regard, I consider that a number of objective facts and circumstances do not sit comfortably with Mrs Pattinson’s evidence, as follows:

(a) There is no evidence that Mrs Pattinson’s version of the 23 December meeting was ever reflected in any of the express communications between her and the Applicant during the period 29 December 2020 (date of the Applicant’s injury) and 17 January 2021 (the date of the last text message between the Applicant and Mrs Pattinson). Indeed, there are no text messages or other communications between Mrs Pattinson and the Applicant that directly refer to resignation or casual employment (i.e. even the Termination Letter fails to expressly mention these matters). 86 In my view it is especially extraordinary, even strange, that there was no mention of resignation or casual employment in any of the text messages between the Applicant and Mrs Pattinson between 23 December 2020 and 17 January 2021. This is especially so in circumstances where Mrs Pattinson regularly communicated with the Applicant via text message, and was comfortable in doing so.87 In short, if the Applicant had resigned from her 2IC role, and converted to casual employment, I consider it incredulous that, given the nature of the text messages between the Applicant and Mrs Pattinson (concerning the Applicant’s injury, her fitness for work, and her ability to attend work and perform her shifts), that there would not have been any text messages referring to the Applicant (pre or post her injury) having ceased her full-time 2IC role, and/or her being placed or not being placed on the work roster for ‘casual’ shifts.

(b) Further to (a), in my view, two text messages in particular, one between Mrs Pattinson and the Applicant, and one between the Applicant and her former Manager (Ms Flanagan), directly indicate an understanding by all involved that the Applicant remained employed by the Respondent, either in her full-time 2IC role, or as casual (post the 23 December meeting, post 4 January 2021, and/or post the Applicant being paid her termination entitlements on 6 January 2021). For example:

(i) on 6 January 2021, the Applicant texted Mrs Pattinson stating “I definitely don’t want to be injured. I want to be at work. So the faster this all goes through, the better for everyone. And obviously the faster for my recovery.” Mrs Pattinson did not respond to this text, for example, to suggest that the Applicant’s employment as 2IC had ended, or that the 2IC position had been filled on 4 January 2021 such that the Cessation Agreement had come to an end and there were no further casual shifts to be offered to the Applicant; 88 and

(ii) on 8 January 2021, the Applicant texted Ms Flanagan stating “Hi honey, I’m just double checking that Claudia has told you I won’t be in tonight, or up until 8^th (depending on mri results). Hope you had a good couple of days off x”. Ms Flanagan’s response was simply “Thanks for letting me know”. 89 It is evident from this exchange that the Applicant still considered herself employed by the Respondent as at 8 January 2021, in that she notified Ms Flanagan that she would not be attending for her shifts until she was at least aware of her MRI results. Ms Flanagan did not disabuse the Applicant of this understanding. I consider it safe to infer that if the Applicant had resigned her 2IC position on 23 December 2020, and become casual from 4 January 2021, that Ms Flanagan would have been aware of same as at 8 January 2021 (i.e. especially given there is no dispute that Ms Flanagan was still attending the pizzeria to work as at 8 January 2021, and attended weekly business meetings with Mr and Mrs Pattinson to discuss staffing).90

(c) Mrs Pattinson’s evidence is that at the 23 December meeting the Applicant agreed to provide one-week’s notice of her resignation from the 2IC role. 91 If that be so, the Applicant’s last day of work in the 2IC role should have been 30 December 2020. However, Mrs Pattinson says that she extended the agreed one-week notice period to the end of the pay week, 3 January 2021. She then says that she considered the end of the Applicant’s notice period to be 4 January 2021 (i.e. the day after the end of the pay week on 3 January 2021).92 The difficulty here is that there is no evidence, nor any suggestion, that Mrs Pattinson ever discussed this extension to the notice period with the Applicant. In other words, Mrs Pattinson’s evidence is that she and the Applicant essentially agreed at the 23 December meeting that the Applicant would resign from her full-time 2IC role, and provide one-week’s notice to convert to casual employment. Mrs Pattinson gives no evidence that at the 23 December meeting, or thereafter, she advised the Applicant that she was extending the notice period beyond 30 December 2020. Nor has Mrs Pattinson sought to explain why she did not advise the Applicant of the notice period extension, either prior to the end of the notice period, at the time she made the termination payment to the Applicant, or in the Termination Letter. Further, the extension to the Applicant’s notice period is not referred to in the Respondent’s Form F8A, its written submissions dated 16 September 2021, or Mrs Pattinson’s witness statements.93 Again, I consider it incredulous, even accepting that it might not have been raised at the 23 December meeting, that Mrs Pattinson would not have thereafter advised the Applicant that her notice period was being extended, or otherwise sought to deal with the issue as a material fact directly in her witness statements. In my view, this objectively weighs against Mrs Pattinson’s assertion that the Applicant resigned from her 2IC role at the 23 December meeting on notice, or otherwise entered into the Cessation Agreement.

(d) There is no evidence that Mrs Pattinson ever mentioned to anyone else in the workplace that the Applicant was ceasing the 2IC role, converting to casual employment, or resigning from her employment. Indeed, it is common ground that none of these matters were ever mentioned by the Applicant or Mrs Patterson, in passing or otherwise, to any of the staff at the Respondent’s Christmas party on 24 December 2020 (i.e. conducted only one day after the 23 December meeting). Mrs Pattinson says that she did not consider it necessary to “announce” the Applicant’s resignation at the Respondent’s Christmas party because the Applicant had only been in the 2IC role briefly, and would continue to work at the Respondent on a casual basis post 30 December 2020. 94 However, this does not account for the Applicant also failing to make any mention of her resignation as 2IC, and her reversion to casual employment (but only until such time as the 2IC role was replaced), at the Respondent’s Christmas party. Indeed, the Applicant’s evidence is that she mentioned it to no one because it never happened. I find it counterintuitive that in a small pizzeria restaurant of only 10 to 14 employees, with a management structure made up of three of the four full-time employees (i.e. General Manager, Restaurant Manger and 2IC), that neither Mrs Pattinson nor the Applicant said anything about the Applicant resigning from the 2IC role and becoming casual (the latter only until such time as a replacement 2IC could be recruited), at the Respondent’s Christmas party.

(e) The Termination Letter, as drafted and signed by Mrs Pattinson, states “verbally we agreed [the Applicant and Mrs Pattinson] that this was your notice to leave and [the Respondent] begun advertising for a new person to fill this [2IC] role”. 95 However, Mrs Pattinson’s evidence (in her witness statement) on the issue of the Applicant’s replacement in the 2IC role, is as follows:

“[34] Francie’s Pizzeria did not take any steps to advertise the 2IC role at the time of the Resignation and/or conclusion of the Notice Period because Francie’s Pizzeria immediately internally filled the 2IC Role (see further paragraph 38 deposed below). In any event, there is rarely a need for Francie’s Pizzeria to formally advertise for available positions because our workforce comes via multiple avenues, including word of mouth (in the small regional town), from people handing resumes into the shop and from inquiries through our website.”

…

[38] Given the importance of the 2IC Role as a support to the Manager, Francie’s Pizzeria required Ms Petkovic’s rostered shifts to be filled immediately, so that the business could continue to operate effectively. As a result, between 30 December 2020 and 4 January 2021, two existing employees worked additional days to cover [the Applicant’s] shifts. Further, I requested that Mr Carlos Lara (Mr Lara), Team Member, perform higher duties the higher duties that would have been performed by [the Applicant] in her capacity as 2IC, because I understood that [Mr Lara] wanted additional responsibility, and because [he] shared a good working relationship with Ms Flanagan (which was necessary to perform the 2IC role).” 96

(f) Flowing from the foregoing evidence, in my mind, if the Respondent did not advertise at all for a 2IC replacement, and rarely needs to advertise to fill any vacancies, the statement in the Termination Letter that the 2IC role was in fact advertised casts significant doubt upon the other assertions and representations made in the Termination Letter, including (even indirectly) as to the Applicant’s Resignation on notice, and the Cessation Agreement. This is especially so in circumstances where Mrs Pattinson in her witness statement (adopted under affirmation), is adamant that:

(i) the 2IC role is such an important role at the Respondent, that it needed to be “immediately internally filled”, and was immediately internally filled; and

(ii) despite the 2IC role being such an important role at the Respondent, and needing to be “immediately internally filled” by another employee (Mr Lara), there was no need to mention the Applicant’s resignation from the 2IC role, or it being immediately internally filled (on an interim or permanent basis) by Mr Lara, at the Respondent’s Christmas party. In other words, Mrs Pattinson’s evidence is wholly inconsistent with the Applicant’s resignation being of essentially no moment given her short period of tenure, especially in circumstances where (on Mrs Pattinson’s evidence) the Applicant would be continuing to work at the Respondent as a casual, and reporting (along with other waiters/team members) to the new 2IC, Mr Lara.

(g) The Applicant’s evidence as to what she understood her final payslip dated 6 January 2021 to reflect was as follows:

[Ms Gall]: “Yes. Thank you. You understood that your pay of 6 January was intended to include a payout of your employment entitlements as a full-time employee; correct?”

[Applicant]: “No, not correct. That was never discussed. My understanding of this pay slip was that as a result of my injury they were trying to pay me what I was owed to help me until I was then on my workers compensation.” 97

In my view, the foregoing understanding of the Applicant is consistent with the notation at the bottom of the payslip which reads “Hi Claw, this payslip looks a little crazy but I tried to use all your annual leave and sick leave that you have accrued. Let me know if you have any questions.”. 98 Again, in my view, this objectively weighs against the assertions by Mrs Pattinson that the Applicant resigned from her 2IC role, entered into the Cessation Agreement, or was otherwise aware that the final payment she received on 6 January 2021 was a termination payment.

(h) Finally, but significantly, I consider the contents of the Termination Letter to be inherently inconsistent and contradictory to the evidence of Mrs Pattinson. In this regard, the Termination Letter refers to the “termination of [the Applicant’s] employment with Francies Pizzeria on 4 January 2021” and states “based on your length of service, your notice period is 1 week”. Compounding these inconsistencies and contradictions between the Termination Letter and Mrs Pattinson’s evidence is the fact that the Termination Letter does not:

(i) use the term/s “resign” or “resignation”;

(ii) refer to the Cessation Agreement; or

(iii) mention any specific period of notice (as purportedly provided by the Applicant on 23 December 2020), or an extension to the original period of notice provided.

I note that counsel for the Respondent, Ms Gall, submitted that the contents of the Termination Letter should be read as being drafted by an unsophisticated employer, not versed in employment law. 99 In my view, the sophistication of Mrs Pattinson in terms of employment law is not to the point. Such lack of sophistication does not explain the fact that the contents of the Termination Letter (as drafted by Mrs Pattinson) seek to confidently portray very specific conclusions based upon well structured and articulated layers of narrative which are asserted to be the truth of events that have happened. In other words, the content of the Termination Letter (as drafted by Mrs Pattinson) can hardly be said to constitute the off-the-cuff scribblings of a time poor unrefined small business employer. Indeed, having considered all of the evidence, my overall impression of the Termination Letter is that it goes to great efforts to explain matters that would not need to be explained if the Applicant had simply resigned from her employment in the 2IC role. Further, its contents drift into the arena of gratuity where it boldly and provokingly states “As a kind gesture you were not penalised for not completing your notice period”, i.e. this statement is made in circumstances where Mrs Pattinson was well aware that the Applicant was unable to attend for work during her (purported) notice period as she was suffering from a work injury that caused her to be unfit for work.

Finding regarding Applicant’s dismissal

[49] On the evidence, I am not persuaded that the Applicant resigned from her 2IC role, on one-week’s notice, and pursuant to the Cessation Agreement, at the 23 December meeting. I consider Mrs Pattinson’s overall evidence to be contradictory, implausible, and in some cases, completely counterintuitive, making it both unreliable (both specifically and generally) and devoid of credibility.

[50] Based upon the uncontested facts contained at paragraphs [11] to [37] of this decision, and applying my findings and conclusions as set out in paragraphs [43] to [48] of this decision, I find that the Applicant, at the 23 December meeting:

(a) did not resign from her 2IC role or employment with the Respondent, on notice, or otherwise;

(b) did not agree to end her employment in the 2IC role with the Respondent, on notice, or otherwise; and

Respondent’s Out of Time Contentions One and Two

[51] In the alternative to its No-dismissal Contention, the Respondent says that even if it be found that it dismissed the Applicant:

(a) Her Application is out of time because it was filed 175-177 days after the expiry of the 21-day time limit (taking the Applicant’s dismissal date as 4 or 6 January 2021), and the Fair Work Commission (Commission) cannot be satisfied that there are exceptional circumstances enlivening its discretion to extend time to file her Application (OOT Contention One). 100

(b) In the further alternative, her Application is out of time because it was filed 19 days after 2 July 2021. In this regard, on 11 June 2021 the Applicant was advised by Ms Buchbach of WorkCover Queensland, via email, that her employment had been terminated by the Respondent on 4 January 2021. The Respondent submits that taking the Applicant’s case at its highest, and accepting that the Applicant only became aware through Ms Buchbach (on 11 June 2021) that she was dismissed, the Applicant should have filed her Application on or before 2 July 2021 to be within the 21-day time limit, and the Commission cannot be satisfied that there are exceptional circumstances enlivening its discretion to extend time to file the Application (OOT Contention Two). 101

[52] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to “exceptional circumstances” (s.366(2) of the Act). I reiterate that the Applicant filed her Application on 21 July 2021.

On what date was the Applicant dismissed?

[53] In order to determine whether the Application has been filed out of time, I first need to determine the date of the Applicant’s dismissal.

[54] The Respondent accepts that prior to the Termination Letter being sent to the Applicant on 30 June 2021, it never directly communicated to the Applicant that she had been dismissed. However, the Respondent puts its case, as to the date of the Applicant’s dismissal, by reference to when the Applicant first became aware, or ought to have became aware, of her dismissal. In this regard, the Respondent says that even accepting that the Applicant did not resign or otherwise agree to end her employment, the Applicant should have known or been otherwise aware that she had been dismissed, taking into account:

(a) the payslip issued to the Applicant on 6 January 2021 (paying out the Applicant’s entitlements);

(b) the absence of any payments being made to the Applicant (by the Respondent) post 6 January 2021;

(d) the absence of any communication or other contract from the Respondent between the period 18 January 2021 and 30 June 2021 (including the absence of any request or offer by the Respondent for the Applicant to work any shifts at the pizzeria); and/or

(e) the notification the Applicant received from WorkCover Queensland via email on 11 June 2021, conveying to the Applicant that the Respondent had advised WorkCover Queensland that her termination date was 4 January 2021. 102

[55] In Ayub v NSW Trains 103 (Ayub), a Full Bench of the Commission considered when a dismissal takes effect:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

‘[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).’

[35]We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee...

[41]We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision…

[48]… Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[49]In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.” 104

[56] Whilst Ayub considered when a dismissal “took effect” under s.394(2)(a) of the Act (in the context of an unfair dismissal application), the Full Bench of the Commission in Leigh Forster v Bunnings Group Limited 105 stated:

“It may be accepted that the reasoning in Ayub is equally applicable to s.366(1)(a), since there is no difference in the language used and it is apparent that the provision has essentially the same legislative purpose as s.394(2)(a).” 106

[57] Applying Ayub, and also relying upon the reasons set out in paragraphs [43] to [50] of this decision, I reject that the Applicant’s dismissal took effect:

(a) because the Applicant should have been aware (directly or via implication) that her employment had been terminated by reference to her final payslip, her non-performance of work at the pizzeria, the absence of any direct payments made to her by the Respondent post 6 January 2021, and/or because of an absence of communication by the Respondent with her between 18 January 2021 and 30 June 2021; 107

(b) by virtue of Mrs Pattinson’s email communication to WorkCover Queensland on 26 March 2021 (advising WorkCover Queensland that the Applicant’s employment was terminated on 4 January 2021); 108 or

(c) by virtue of Ms Buchbach’s email communication to the Applicant at 1.04pm on 11 June 2021, advising the Applicant that her “termination of employment was on 04 January 2021” 109 (presumably communicated to the Applicant on the basis of the email previously received by WorkCover Queensland from Mrs Pattinson on 26 March 2021).

[58] Further to the foregoing findings, and my findings at paragraphs [43] to [50] of this decision, I find that:

(a) the Applicant was dismissed by the Respondent on 30 June 2021 within the meaning of s.386(1)(a) of the Act, pursuant to the Termination Letter of same date; and

(b) the Applicant’s dismissal took effect on 7 July 2021, being the end of the one-week notice period stated in the Termination Letter. 110

[59] It is therefore unnecessary for me to determine the Respondent’s out of time objections, i.e. the Application was filed within the 21-day time period prescribed by s.366(1)(a) of the Act.

Conclusion

[60] By way of summary, in relation to each of the two jurisdictional objections contended by the Respondent in these proceedings, I have found that:

(a) the Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act; and

(b) such dismissal was communicated to the Applicant on 30 June 2021, and took effect on 7 July 2021.

[61] It follows from these findings that the Respondent’s jurisdictional objections in respect of no-dismissal, and out of time, are both dismissed. Orders will be issued contemporaneously with this decision in the following terms:

“The Commission orders that:

1. The Respondent’s objection to the Application filed on 21 July 2021, that the Applicant was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009, is dismissed.

2. The Respondent’s objection to the Application filed on 21 July 2021, that the Application has been filed out of time, is dismissed.”

[62] In view of the foregoing Orders, the Application will be referred back to the Commission’s General Protections National Practice Leader to further progress.

DEPUTY PRESIDENT

Appearances:

Ms Claudette Petkovic (Applicant), appeared on her own behalf.

Ms Rebecca Gall, Counsel, instructed by Ms Naomi Cooper, Senior Associate, and Ms Jennifer Moran, Lawyer, of Kennedys Lawyers, appeared for the Respondent.

Printed by authority of the Commonwealth Government Printer

1 Item 3.2 (and the Annexure) of the Form F8 Application filed 21 July 2021.

2 Respondent’s Submissions, 16 September 2021, at [3.5]-[3.12]. It being accepted that a “dismissal” is a jurisdictional requirement to bring an application pursuant to s.365 of the Act, noting decision of the Full Court of the Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146.

3 Section 366 of the Act.

4 Hearings were conducted via telephone on 22 September and 8 October 2021, with final written submissions received on 22 October 2021. The Applicant was legally represented by Twomey Dispute Lawyers when she filed her Form F8, but represented herself at the hearings (Applicant’s Affidavit, 1 September 2021, at [15]). I granted permission for the Respondent to be represented by a lawyer in these proceedings. I did so taking into account the necessary considerations under s.596 of the Act, having regard to the Respondent’s submissions as to permission for legal representation dated 16 September 2021 (at [2.1]-[2.6]), and noting the complexity of the legal and factual matters in dispute between the parties.

5 As required by s.365(a) of the Act. See Items 2.2 and 5.1 of the Form F8A Employer Response dated 9 August 2021. Also note the meaning of the term “dismissed” under ss. 12 and 386 of the Act.

6 Respondent’s Submissions, 16 September 2021, at [3.5] and [3.10] (employment ended at end of notice period on 4 January 2021). See also at [3.13] (employment ended at end of notice period on 4 January 2021), and [3.18] (employment ended when termination payment was made on 6 January 2021).

7 [2021] FWC 6043.

8 Ibid, at [3]-[5].

9 Coles Supply Chain v Milford [2020] FCAFC 152; (2020) 300 IR 146, at [65]-[67]; Yi Zhang v Medlab Clinical Ltd [2021] FWCFB 2453, at [1]. Respondent’s Submissions, 16 September 2021, at [3.1] and [3.5].

10 Transcript, 8 October 2021, PN49-PN52.

11 Australian Hearing v Peary [2009] AIRCFB 680;(2009) 185 IR 359, at [30].

12 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75(2)]; Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769, at [24]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, at 205; O’Meara v Standley Works Pty Ltd (2006) 58 AILR 100-528; [2006] AIRC 496, at [19]-[23]; Mendicino v Tour-Dex Pty Ltd[2010] FWA 9114, at [9].

13 Witness Statement of Mrs Claudia Elizabeth Rose Pattinson (Pattinson Statement), 16 September 2021, at [5] and [7].

14 Ibid, at [8].

15 Ibid, at [6].

16 Ibid, at [8]-[9].

17 Ibid, at [10].

18 Ibid, at [11].

19 Ibid, at [19]-[20].

20 Ibid, at [12].

21 Ibid, at [14].

22 Ibid, at [17]-[18].

23 Ibid, at [18]. I observe that these duties are not wholly dissimilar to the duties that the Applicant would have been performing at the café, or was performing when she commenced the 2IC role (i.e. customer service, serving food and preparing/serving beverages, allocating food orders for service staff, communication with customers, staff and management) (Compare 2IC duties at paragraph [17] of this decision).

24 Pattinson Statement, at [24].

25 Ibid, at [26].

26 Ibid, at [24].

27 Ibid, at [27].

28 Pattinson Statement, 16 September 2021, at [35]. Affidavit of Ms Claudette Petkovic (Applicant’s Affidavit), 1 September 2021, at [2].

29 Mrs Pattinson gives no evidence that this was mentioned or otherwise announced at the Christmas party on 24 December 2020.

30 Applicant’s Affidavit, at [3].

31 Transcript, 22 September 2021, PN107-PN111.

32 Applicant’s Affidavit, 1 September 2021, Annexures A to D, and F and G.

33 Ibid, Annexure E.

34 Pattinson Statement, 16 September 2021, at [35], and Annexure ‘CP-1’.

35 Ibid.

36 Second Witness Statement of Mrs Claudia Elizabeth Rose Pattinson (Second Pattinson Statement), 22 October 2021, at [4], and Annexure ‘CP-5’.

37 Ibid.

38 Ibid.

39 Ibid.

40 Ibid.

41 Albeit, the Applicant was advised of her termination date of 4 January 2021 by WorkCover Queensland on 11 June 2021.

42 Second Pattinson Statement, at [3], and Annexure ‘CP-4’

43 Ibid.

44 Ibid.

45 Applicant’s Affidavit, Annexure H. This email is substantially the same email that the Applicant sent to Ms Buchbach on 23 June 2021, requesting that Ms Buchbach advise her as to its accuracy.

46 Applicant’s Affidavit, 1 September 2021, Annexure I.

47 Form F8, dated 21 July 2021, Annexure ‘CP-1’.

48 [2018] FCCA 933.

49 Ibid, at [19]-[23].

50 Transcript, 22 September 2021, PN177.

51 Ibid, PN174. See also, PN169-PN171.

52 Applicant’s Affidavit, at [1].

53 Pattinson Statement, at [30]. See also Respondent’s summary of Mrs Pattinson’s evidence in Respondent’s Submissions, 16 September 2021, at [3.6].

54 Transcript, 22 September 2021, PN43, PN47.

55 Pattinson Statement, at [16]. See also at [31].

56 Ibid, at [32].

57 Transcript, 22 September 2021, PN26 -PN28.

58 Ibid, PN49.

59 Ibid, PN50-PN52.

60 Ibid.

61 Pattinson Statement, at [30]. Note also, in respect to all the circumstances, the evidence of Mrs Pattinson set out in her Witness Statement (16 September 2021) at [11]-[29].

62 Transcript, 8 October 2021, PN34.

63 Transcript, 22 September 2021, PN180 and PN186; Respondent’s Submissions, 16 September 2021, at [3.8(a)]; Transcript, 8 October 2021, PN27-PN28, PN68.

64 Pattinson Statement, at [17] and [31]; Respondent’s Submissions, 16 September 2021, at [3.8(b)].

65 Pattinson Statement, at [21]-[23], and [29]-[30]; Respondent’s Form F8A (dated 9 August 2021), Item 2.2, [3]; Respondent’s Submissions, 16 September 2021, at [3.6].

66 Note, Transcript, 8 October 2021, PN41.

67 Transcript, 22 September 2021, PN198-PN199.

68 Ibid, PN165-PN166.

69 Transcript, 8 October 2021, PN29 and PN33.

70 Respondent’s Submissions, 16 September 2021, at [3.9].

71 Applicant’s Affidavit , Annexure ‘K’; Transcript, 8 October 2021, PN30-PN31.

72 Transcript, 22 September 2021, PN56.

73 Transcript, 8 October 2021, PN41.

74 Ibid, PN35-PN37.

75 Transcript, 22 September 2021, at PN200-PN204; Pattinson Statement, at [45]-[47]. Transcript, 8 October 2021, PN32.

76 Transcript, 8 October 2021, PN43-PN44.

77 Applicant’s Affidavit, 1 September 2021, text message found at Annexure ‘A’.

78 Pattinson Statement, at [16].

79 Applicant’s Affidavit, text message at Annexure ‘A’. I find it hard to accept that there would have been no discussions about wages or salary at the time that the Applicant and Mrs Pattinson were discussing the Applicant taking up the full-time 2IC role.

80 Pattinson Statement, at [30].

81 Transcript, 8 October 2021, PN43.

82 Noting paragraph [43(j)] of this decision, I say this whether or not the Applicant was referring to “casual work as a whole”, or otherwise.

83 Note Pattinson Statement, at [42].

84 See paragraph [43(i)] of this decision.

85 Pattinson Second Witness Statement, p.8, Annexure ‘CP-5’.

86 See text messages set out in paragraph [22] of this decision.

87 Transcript, 22 September 2021, PN88-PN89.

88 See paragraph [22] of this decision.

89 See paragraph [23] of this decision.

90 Note Pattinson Statement, at [8]-[10]. Also noting that the Respondent is small pizzeria, made up of only 14 employees, three of which are in managerial roles (General Manager, Manager and 2IC).

91 I note that the Respondent’s Form F8A (dated 9 August 2021) appears to suggest that the provision of the one-week notice period by the Applicant was somehow based upon notice requirements under the Restaurant Industry Award 2020 (Award) (see also Transcript, 8 October 2021, PN19). Two things can be said about this. Firstly, Mrs Pattinson’s evidence is that the notice period commenced on 23 December 2020 and ended on 4 January 2021 (i.e. being a period of more than the one-week). Secondly, I am not aware of any requirement under the Award, or as a matter of contract or other law, for the Applicant to have provided notice when converting from her full-time 2IC role to a casual waitress/team member role (i.e. this could occur immediately by agreement between the parties).

92 Transcript, 22 September 2021, PN64-PN67, and PN82-PN83. See also Respondent’s Submissions, 16 September 2021, at [3.6], [3.12]-[3.13], and [3.18]; Respondent’s Supplementary Submissions, 22 October 2021, at [2.1] and [2.4]; Pattinson Statement, at [38]-[39], and [49(b)]; Transcript, 8 October 2021, PN20 to PN21, PN38, PN43-PN44, PN47, and PN52-PN53; Termination Letter (30 June 2021), found at Annexure ‘CP-1’ to Applicant’s Form F8 (filed 21 July 2021) and paragraph [36] of this decision.

93 It is apparent from reading the Applicant’s Affidavit (at [13]) that the Applicant was not aware that her alleged notice period had been extended. Note also Transcript, 22 September 2021, PN60 to PN70, and PN82 where the Applicant’s questioning of Mrs Pattinson highlights that the Applicant is completely unaware of any so-called extension to her notice period. There is no reference to any extension of the Applicant’s resignation notice period (see Pattinson Statement, at [30], [34], [36]-[39], and [43]-[49]). See also Respondent’s submissions, 16 September 2021, at [3.6], [3.10] and [3.12], which fail to make any mention of an extension to the purported resignation notice period.

94 Pattinson Statement, at [35].

95 The Termination Letter is set out at paragraph [36] of this decision.

96 Pattinson Statement, at [34] and [38].

97 Transcript, 22 September 2021, PN197.

98 Ibid. I observe that the payslip, other than in respect of annual leave, identifies that 12.6 ordinary hours and 4.6155 hours personal/carer’s leave was paid to the Applicant in her final pay. The payslip contains no payment for the New Years’ Day (1 January 2021) public holiday (Pattinson Statement, at [35], and Annexure ‘CP-1’).

99 Transcript, 8 October 2021, PN92-PN93, and PN116-PN117.

100 Item 2.2 of the Form F8A Employer Response dated 9 August 2021; Section 366 of the Act.

101 Respondent’s Supplementary Submissions, 22 October 2021, at [2.1]; Second Pattinson Statement, Annexure ‘CP-4’ (Email from Ms Buchbach to Applicant, 11 June 2021, 1.04pm); Section 366 of the Act.

102 Respondent’s Supplementary Submissions, 22 October 2021, at [2.1]-[2.9].

103 [2016] FWCFB 5500; (2016) 262 IR 60.

104 See also Mihajlovic v Lifeline Macarthur[2013] FWC 9804, per Hatcher VP, at [7]-[15].

105 [2017] FWCFB 3923.

106 Ibid, at [17].

107 Whilst not specifically discernible from the evidence, I note that the Applicant was either injured, undertaking rehabilitation and/or recovery, and/or covered by an active worker’s compensation claim during a substantial part, or all, of the period 18 January 2021 to 30 June 2021. She was also in contact with WorkCover Queensland during this time.

108 Noting that there is no evidence that the Applicant was ever told about the 26 March 2021 email, by the Respondent, or WorkCover Queensland.

109 Second Pattinson Statement, p.4, Annexure ‘CP-4’.

110 Mihajlovic v Lifeline Macarthur[2013] FWC 9804, per Hatcher VP, at [7]-[15].

Claudette Petkovic v Francie's Pizzeria Pty Ltd ATF the Pattinson Family Trust