Crystelle Fakhri v MVS Business Partners Pty Ltd
[2021] FWC 4965
•12 AUGUST 2021
| [2021] FWC 4965 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Crystelle Fakhri
v
MVS Business Partners Pty Ltd
(C2021/3064)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 12 AUGUST 2021 |
Application to deal with contraventions involving dismissal – jurisdictional objection raised (no dismissal) – evidence supplied of no relevance - jurisdictional objection dismissed.
Introduction
[1] On 29 May 2021, Ms Crystelle Fakhri (Applicant), represented by Ms Mariah Khoury of Launch Legal, filed an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging MVS Business Partners Pty Ltd (Respondent) contravened the general protection provisions of the FW Act in dismissing her from her employment. Representing the Respondent was Ms Victoria Bocchetti, Managing Director of the Respondent.
[2] In Coles Supply Chain Pty Ltd v Milford 1 the Full Court of the Federal Court held that where an employer submits that the applicant to a section 365 application was not dismissed, the FWC must first determine whether the person was dismissed. On 3 June 2021, the Respondent indicated to the Fair Work Commission Case Management Team that the Applicant had resigned from her employment and was not dismissed (Jurisdictional Objection). The matter was therefore classified as a jurisdictional matter and allocated to my Chambers on 10 June 2021.
[3] The Respondent sent numerous emails to my Chamber indicating that they could not attend any Conference or Hearing in relation to this matter due to health-related concerns. On 21 June 2021, my Chambers requested the Respondent to confirm whether they consented for the matter to be determined on the papers. The Respondent confirmed that they were agreeable for the matter to be determined on the papers on 21 June 2021. The matter was listed for Mention on 21 July 2021, thus satisfying any requirement of a hearing. The Respondent did not make an appearance. During the Mention, the Applicant consented for the matter to be determined on the papers.
[4] I now turn to determine the Jurisdictional Objection. I have had regard to all submissions and evidence.
The FW Act
[5] Section 365 of the FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[6] The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
Authorities
[7] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 2 it was recognised that a termination will be at the initiative of the employer where:
a. the act of the employer results directly or consequentially in the termination of employment – that is had the employer not taken the action, the employee would have remained in employment; and
b. the employment is not voluntarily left by the employee.
[8] The acts committed or undertaken by an employer in relation to a termination of employment is not the only point of consideration. The following must also be considered:
a. the circumstances giving rise to the termination; and
b. the seriousness of the issues involved; and
c. the respective conduct of the employer and employee. 3
The ‘resignation’
[9] On 18 May 2021, the Applicant and Respondent exchanged several emails leading to the Applicant resigning. These emails are reproduced below. The Applicant wrote the following to the Respondent:
“Hello Victoria,
I appreciate you giving me the opportunity to work with you, however, I am disappointed with the fact that I have not been paid for the 5 weeks of work that I have done for the company. I understand your situation, however my contract states that payment will be made every fortnight, and the company has not met my contract agreement. I will require that payment be made by this week so I can resume my work.
In the future, I trust that the company will uphold our agreement in regards to payment on a fortnightly basis, and will in return require a correct payslip for my 50 hours of work per fortnight (as agreed upon in employment agreement).
I hope this email finds you well, and please keep in contact with me once payment had been made.” 4
[10] The Respondent replied to this query about payment of entitlements with a suggestion that the applicant resign if her reply was not enough:
“Hi Crystelle,
Thank you for your patience.
It’s not within my control as wage subsidy is controlled by government and not private.
As you have filled out the forms as promised you would be paid for that period of time.
We have been delayed in all areas not within my control.
I have been upfront and cc you in all of the emails.
For a 20 year old this is quite a strong demand, when you yourself run a business and work almost full time you would earn more than any senior person no doubt.
Apologies with the delay and to remind you are on probation and not achieved 3 months.
It is entirely up to you as you have received paid training with the experts.
I have ceased all productivity as we have a delay in moving plans.
Strong expectation and your email indicate you need to run your own business.
I cannot give you a timeline however I am well on top of your pays.
If you can be patient for a few more days as I received the latest update you would be paid on 21st May.
Should you find this not enough for you then you can make your decision to resigned as there is not enough paid work for you.
Let me know as I can terminate your contract organise your payout figure, as it is probation and you would just have to wait.
I do have very good grounds and facts.” 5 [emphasis added]
[11] The Applicant replied:
“Hi Victoria
Thanks for your email. Although I find the tone quite disappointing and disrespectful.
My age, along with my other jobs and sources of income are entirely irrelevant to me being paid for the hours that I have worked, consistent with what I am contractually entitled to as a permanent employee. As a senior operator/manager, I expect professional and courteous correspondence, especially when I’m simply enquiring about my pay. Bringing ageism into this is discriminatory conduct.
Further, the fact that I may have other sources of income is entirely irrelevant and doesn’t excuse that payment has been consistently delayed.
I understand that, at times, people and companies can experience financial difficulties and halts in operations. However, this in no means is ever an excuse for non-payment of wages to staff.
As to the suggestion that you “have very good grounds and facts”, I entirely disagree. In your email, you are engaging in adverse action and constructive dismissal, which is a blatant contravention of the Fair Work Act 2009. Regardless of the fact that I have not passed probation yet, you are treating me adversely because I raised a workplace right about my entitlements.
I request that payment of all hours worked which equal 98 hours be made no later than 5pm on Friday 21 May 2021. Once payment has been submitted, I request a payslip or transaction supporting this.
If this has not been provided to me by Friday, I will be exercising my rights to lodge an underpayment of wages claim and general protections claim with the Fair Work Commission.” 6
[12] The Respondent replied by urging the applicant to resign:
“Crystelle,
Please resign, your probation time is expired, we won’t put up with this at all and you demanding a lot from small employers.
We have given you a lot and have been transparent to you.
You will be paid as soon as the wage subsidy arrives on the 21st of May if you demand like this, in these times no one will stand for this.
I have been truthful and accommodating to you the best I can.
Your requests are noted and sent to my accountant.
He does the payroll.
Out of my control.
Hope you can understand.” 7 [emphasis added]
[13] The Respondent sent a further email which made a number of observations about the applicant’s conduct of an unpleasant nature:
“Crystelle,
Please read your text message.
It seems you have done this before gee you would even go to the General Protections Act what are they going to do?
Your demands are highly explosive.
Think before you act. We are not in normal times prior to COVID 19 2020.
If you read your message it clearly states the first milestone paid to our business account then to payroll of $1950.00 if there is a balance to pay we will accordingly.
I will ask our payroll team to tally up your pay as i take it you have resigned.
Under the Fair Work Act 2009 and General Protections legislation and fair practice guidelines you have been trained by the best experts, I was very easy going to allow to work and not being micromanaged like most employers are and you were paid above the award for your skill set.
Before you threat and act like you know everything you do not.
By the Way your Coco Bar is it legal that you unwrap Hersheys and re wrap them for profit??
I wish you well with journey in life.
Take care and we will submit the pay to you went it arrives.”
[14] The Applicant responded by resigning:
“Victoria
In relation to your email and text messages:
1. Please accept this email as confirmation of my resignation, effective immediately. I wish to note that this is constructive dismissal as you have forced me to resign and I will be lodging a claim with the Fair Work Commission.
2. COVID-19 is no excuse for non-payment of wages. I won’t accept that as an excuse and will be following up payment of all money owed, including a breakdown of tax and superannuation contributions.
3. Wage subsidies are not my problem, they are your problem. I am still entitled to me paid on a fortnightly basis regardless of any external assistance you receive to pay my wage.
4. I will be also be lodging a General Protections claim on the basis that you have engaged in bullying behaviour and adverse action simply because I raised a workplace right.
Please note that I have records of all text messages and emails you have sent in relation to this and have forwarded them on to my external workplace relations lawyer. They will be assisting me in lodging the above claims.
Again, I request my payslips and balance of pay owed by 5pm Friday 21 May 2021.” 8
Submissions of the Applicant
[15] The Applicant submits that on 12 April 2021, the Applicant was provided with a Jobs Victoria Fund Employee Consent Form to complete for a wage subsidy. At no point did the respondent stated that her employment was subject to the subsidy being approved. It may be that the Respondent intended to rely on the wage subsidy to support the Applicant’s employment. However, employers must still comply with employment agreements with employees, regardless of whether they are entitled to receive the subsidy.
[16] The Applicant states that she did not willingly resign from her employment, rather she was forced to resign after enquiring about her entitlements. On 14 May 2021, the Applicant messaged the Respondent via text message asking about her entitlements. On 18 May 2021, the Applicant followed up this enquiry by email explaining that she was disappointed that she had not been paid for 5 weeks of work she had completed and requested that the employment contract be honoured. The various emails exchanged leading to the cessation of employment are outlined below.
[17] The Applicant takes the view that there is no merit, substance or sensibility in the correspondence received by the Respondent to date. There are concerns that the Respondent is deliberately withholding the Applicant’s wages for time worked and has failed to pay what is owed. Further, the Respondent may have fraudulently retained the wage subsidy received from Jobs Victoria on behalf of the Applicant.
[18] Whilst the Applicant resigned from her employment, it was due to adverse action being taken because the Applicant exercised a workplace right.
Consideration
[19] The Respondent stated in separate emails to the Applicant on 18 May 2021:
“Should you find this not enough for you then you can make your decision to resigned as there is not enough paid work for you.”; and
“Please resign, your probation time is expired, we won’t put up with this at all and you demanding a lot from small employers.” 9 [emphasis added].
[20] The applicant made a legitimate request for payment of entitlements. The respondent replied by suggesting that she resign unless she accepted the respondent’s lack of payment. Some emails are also hostile even threatening and demeaning, for example:
“Before you threat and act like you know everything you do not.
By the Way your Coco Bar is it legal that you unwrap Hersheys and re wrap them for profit??” 10
[21] This appears to be an allegation that a business that the Applicant is engaged in is not legal.
[22] The Applicant submitted, with some force that:
“6. On 14 May 2021, the Applicant messaged the Respondent via text message asking about her entitlements. On 18 May 2021, the Applicant followed up this enquiry via email. See Annexure C.
7. As a result of the Applicant’s enquiry, the Respondent sought to respond with threats about the Applicant’s employment. This email is attached at Annexure D.
8. On 18 May 2021, the Respondent demanded that the Applicant resign from employment. See Annexure E.” 11
[23] The Respondent arguably had an evidentiary burden to displace given these and other emails in order to show that the resignation was not a constructive dismissal.
[24] The Respondent sent numerous emails to my chambers which are said to be submissions, but almost none address the objection taken by the Respondent, that there is no constructive dismissal. Rather they appear to if anything reinforce the submissions of the Applicant given their hostile tone. Almost none appear to be relevant.
[25] There seems to be little or no real attempt to explain the emails which led to the Applicant’s resignation, and which contain two references by the Respondent to resignation in response to a query about entitlements. The following is a summary of some of the emails provided by the Respondent:
| Email number | Email contents or description |
1 | Email sent from Respondent to Applicant on 19 May 2021. “Delete and close your email accounts and facebook, Instagram.” |
2 | Email sent from Respondent to Applicant on 19 May 2021. Outlined in paragraph [27] of this Decision. |
3 | Email correspondence between Respondent on 15 May 2021 concerning total hours worked over 5 weeks, taking time off work, provision of an iPad, and attending to broken links on an undisclosed website. |
4 | Email from Respondent to Applicant on 10 May 2021 forwarding a complaint made to the Victorian Ombudsman. The nature of the complaint is not disclosed. |
5 | Email from Respondent to Applicant on 7 May 2021 regarding hours worked, completion of tasks for Mother’s Day and the website, and if the subsidy is not received that the Applicant should take the following week off work. |
6 | Email correspondence between the Respondent to Applicant on 5 May 2021 regarding imagery used for Mother’s Day requiring the Applicant to take time off as the wage subsidy had not been received. |
7 | Email forwarded by Respondent to Applicant on 5 May 2021 concerning the wage subsidy confirming that the application has been progressed for approval. |
8 | Email from Respondent to Applicant on 5 May 2021 concerning the wage subsidy, making sure the Applicant is paid and requesting the Applicant to wait further. |
9 | Email from Respondent to Applicant on 4 May 2021 attaching x2 payslips. Pay periods: 18/04/2021 - 01/05/2021 and 04/04/2021 - 17/04/2021. |
10 | Email from Respondent to Applicant on 4 May 2021 attaching x2 updated payslips. Pay periods: 18/04/2021 - 01/05/2021 and 04/04/2021 - 17/04/2021. |
11 | Correspondence exchanged between Applicant and Respondent on 4 May 2021 concerning work undertaken on website and submission of time sheet. |
12 | Email from Respondent to Applicant on 4 May 2021 concerning working from home, missed payments to Applicant, setting up for Mother’s Day and creation of slide show |
13 | Email from Applicant to Respondent on 30 April 2021 concerning fixing broken links on website and proposal for new website content. |
14 | Email from Respondent to Applicant on 2 May 2021 concerning purchase of Apple Computers. “I will get the Apple computers etc for us tomorrow.” |
15 | Email from Respondent to Applicant on 4 May 2021 concerning use of imagery for Mother’s Day. |
16 | Email from Respondent to Applicant on 30 April 2021 “Website Lion image not inserted and the mobile version of the site is fragmented also. Please monitor instructions of the website online and on iphone. Let me know asap.” |
17 | Email from Respondent to Applicant on 29 April 2021 “HI CRYSTELLE, URGENT, PLEASE ADD THE LION IMAGE YOU TOOK HIM AWAY.” |
18 | Email from Respondent to Applicant on 29 April 2021 concerning use of Mother’s Day imagery. |
19 | Email from Respondent to Applicant “I cannot login to the facebook page? Wont send me a code.” |
20 | Email from Respondent to Applicant on 19 April 2021 concerning creation of business logo. |
21 | Email from Respondent to Applicant on 19 April 2021 concerning social media classes |
22 | Email from Respondent to Applicant on 13 April 2021 concerning Belong internet broadband |
23 | Email from Respondent to Applicant on 13 April 2021 concerning Belong internet broadband |
24 | Email from Respondent to Applicant on 12 April 2021 concerning use of imagery and requirement to obtain permission. |
25 | Email from Respondent to Applicant on 20 April 2021 “be the Victory red post please add to posting this week.” |
26 | Email from Respondent to Applicant on 21 April 2021 concerning budgeting and expenses. |
[26] On 18 and 19 June 2021, the Respondent sent further emails which are summarised below:
Email number | Email contents or description |
27 | Email sent from Respondent to Applicant’s Representative with letter attached on 19 June 2021 concerning overpayment, stand down, new rate of pay, and pending wage subsidy decision from Jobs Victoria. |
28 | Email from Respondent to Applicant on 21 May 2021 stating IVO may be sought against Applicant if they continue with Commission claim, discussion of previous behaviours, training being offered to Applicant as did not have required skill-set, new rate pay due to other income earned, “Once the payment hits payroll you will be paid out.”, “Got to admit, I never have met a hungry and greedy young person and BTW this subsidy as I have further looked into is for people who are job seekers, unemployed, mature people, people who are in adversity, homeless etc. You don't fit that criteria. I have checked this.” |
29 | Email sent from Respondent to Applicant on 11 May 2021 concerning draft grant agreement for signing. |
30 | Email from Respondent to Tony Dimitriadis of AD Partners on 20 May 2021 attaching Applicant’s employment contract and requesting advice on rate of pay. |
31 | Email from Respondent to Department of Jobs, Precincts and Regions on 24 May 2021 concerning wage subsidy |
32 | Email from Respondent to Department of Jobs, Precincts and Regions on 24 May 2021 attaching letter sent from Respondent to Applicant’s Representative |
33 | Email correspondence between Respondent and Jobs Victoria on 24 May 2021 concerning Applicant’s eligibility of wage subsidy and Respondent’s request that application for wage subsidy be withdrawn. |
34 | Email from Respondent to Applicant on 13 April 2021 concerning Belong Internet broadband |
35 | Further email exchanged on 13 April 2021 between respondent and Applicant concerning Belong Internet broadband. |
36 | Email from Respondent to Applicant on 12 April 2021 concerning inability to change images. |
37 | Email from Respondent to Applicant’s legal representative on 24 May 2021 alleging harassment, reports to police, adjustment of rate of pay for Applicant. Includes letter addressed to Applicant’s legal representative. |
[27] One email supplied and sent on 19 May 2021 by the Respondent to the Applicant is threatening, even abusive in nature:
“Dear Crystelle,
Upon your resignation and our employment agreement it states you will be learning and we provide paid training in which you have received.
Your resignation due to uncontrolled circumstances causing business interruptions and restrictions and your performance.
I noted on all occasions your online power point slides I would need to correct your grammar and I asked on all occasions to proof read before you post online.
You strongly wanted to run your own show whereby I clearly stated everything online needs to be authorised by me and our IP regulations.
I further note your recent emails of threats are vexatious to me given I was transparent all the way and if you made many errors online where you told to pull down posts unauthorised as you are considered a trainee on probation, it seems these aggressive threats are fabricated by an experienced person or as you say one of of your relatives in law and or yourself as you have done this before to other employers note they keep records of serial and vexatious complainers.
Your grammar with simple posting was poor but your online aggression indicates other.
Our agreement states one week wages whilst on probation to be paid in alignment with FAIR WORK plus what is owed as you were not hired as a senior operations manager at all.
Online website and social media marketing where we provided you with training makes your a trainee.
Before you load yourself with ammunition, get clear.
I also noted during the meeting with Brett you were aggressive and interrupting right through the meeting.
Lastly your illegal trade re Hershey/Coco Bar.
That is a problem you need to sort out.
You require counselling.
You will be paid for the actual physical time you worked plus one week.
Also that you could not operate without the IPAD as I offered to pay for your equipment and internet to make it suitable for you.
This means the hours you sent us do not reflect the hours you sent to us.
As you could no longer operate and were restricted.
Wising you well, I highly suggest you seek counselling.
You do not need to send further threats.
You will be informed of your payout figure direct from payroll.” 12 [emphasis added]
[28] By way of email dated 21 June 2021 the following was submitted by the Respondent:
“Cannot attend the hearing as previously stated, you are welcome to make the decision on behalf of me.
Please see below lodged harassment complaint re Mariah negligent conduct.
My partners and investigating this and their allegations.
The superannuation of $245.10 and portal has been opened and will be sent via accountant and payroll and no more.
Under the Section S 54, Employer rights, incontrollable circumstances and contract law, small business private agreement it is a reasonable decision to adjust and raise facts to not honour the alleged 50 hours at $30.00 per hour and not the $19.38 as a junior operator miscellaneous, as clearly stated in many occasions and as Jobs Victoria clearly stated, we will not support unqualified public, working more than 8 hours outside to Crystelle cash in hand business and permanent position at Officeworks.
Crystelle, was supported with all relevant training and materials and was not an apprentice, however we offered workplace training under the COVID-19 and flexible standards.
Crystelle would not have completed 50 hours as she is a millennial with quick reflexes to manage all IT and content from her IPAD, iPhone and in between by using the computers at Officeworks.
Facts are that her relative is supporting an argument that is not reasonable.
The level of life skills and maturity is simply sufficient for a claim of GP any other money they believe they can claim.
Greed and negligence on their behalf.
Aggressive tone by Crystelle, answering back during her work performance and irrational conduct that was clearly exposed that had aggravated my health and duress and further caused harm to me under the wrongs act along with all of the others as mentioned, today I hereby state that Crystelle Fakhri has received more than she would receive any other workplace as unqualified junior in a professional environment.
We acted with “bona fidas”, raising awareness, without prejudice during these pandemic times we feel her claim of GP is not applicable nor acceptable also under the Royal Commission Act of my own health.
Note all agreements will be heavily monitored and regulated, should we continue to employee knowing the issues in today’s climate.” 13
[29] Further, a letter provided to Ms Khoury on 23 May 2021 provides as follows:
“Under s.524 of the Fair Work Act, an employee who resigns/stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.” 14
[30] The letter to Ms Khoury also provides an extract from the Small Business Fair Dismissal Code:
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious breaches of occupational health and safety procedures.
For a dismissal to be deemed fair it is sufficient will need to be reported to the police.” 15
[31] The emails provided by the Respondent in this matter have limited to no relevance to the Jurisdictional Objection. The Respondent has done almost nothing to demonstrate or explain the relevance of these emails in relation to the objection they raised to the application made.
[32] Some of the emails sent by the Respondent are of some concern. For example, at one point the Respondent appears to suggest that the application is of no merit because of the Applicant’s (and her representative’s) age:
“The level of life skills and maturity of Crystelle and Mariah to make such damning allegations against us, is simply not sufficient for a claim of GP and any other money they believe they can claim” 16
[33] The submissions and evidence relied on by the Respondent have been largely chaotic and irrelevant. Correspondence sent by the Respondent to the Applicant’s representative on 23 May 2021 seems to suggest that the Applicant was stood down under section 524 of the FW Act, but then proceeds to quote the Small Business Fair Dismissal Code for summary dismissal. Later communications sent to Chambers then suggest that the Applicant was not dismissed, rather she resigned from her employment. Many of the emails received from the Respondent merely communicate the Respondent’s frustration with the Applicant (and her representative) by initiating proceedings before the Commission. Also, several emails concern the Applicant’s eligibility of the wage subsidy and the subsequent withdrawal of the application with Jobs Victoria. However, none of these emails provide any real substance to the objection raised, that being that the Applicant resigned from their employment and was not dismissed within the meaning of the FW Act.
[34] I agree with the submissions made by the Applicant in this matter. The emails relating to the Applicant being entitled or not to the wage subsidy through Jobs Victoria are largely irrelevant to the objection raised. The contract of employment was not subject to employer receipt of a subsidy, and the employer was required to pay the employee in accordance with the employment contract.
[35] The Respondent also states she is medically unfit. However, she is clearly willing to put extensive material to the Commission which suggests that she is fit to put a case, because she has done so. Further, on 6 July 2021, the Respondent sent an email to my Chambers, including the Applicant and their representative, indicating that they had submitted an application with the Victorian Civil and Administrative Tribunal (VCAT) alleging defamation against the Applicant and their representative. This action undertaken by the Respondent is again inconsistent with their claim that they were too unwell to attend any Conferences or Hearings in relation to proceedings at the Commission. The Respondent in this matter has been able to write and send numerous pieces of correspondence and has claimed to have instituted proceedings against the Applicant and her Representative in VCAT. The Respondent claims that they are too unwell to participate in any proceedings before the Commission but do have the capacity to initiate their own proceedings against the Applicant and their Representative. Such matters are considered relevant in decisions regarding an extension of time being sought by an applicant where an application has been lodged outside of the statutory time limits and illness is claimed as the reason for the delay. 17
[36] The respondent did not provide evidence of her alleged medical unfitness. She may have been unwilling to share this information as she deemed it to be in breach of various Acts referred to as the “Privacy Policy Act 1998”, the “Royal Commission Act”, the “Equal Opportunity and Human Rights Act”, the “Health Act”, the “Occupational Health Bans Safety Act”, the “Small Business Disputes”, and “general commercial protection for employers from motivated by greed employees who are in to squeeze employers for every cent”. 18 The Respondent did not provide any submissions on how these various Acts or policies applied to her situation or how they operated to precluded her from defending her business against the application made by the Applicant. For example, on 21 June 2021, the Respondent wrote the following email to my Chambers:
“Under the Section S 54, Employer rights, incontrollable circumstances and contract law, small business private agreement it is a reasonable decision to adjust and raise facts to not honour the alleged 50 hours at $30.00 per hour and not the $19.38 as a junior operator miscellaneous, as clearly stated in many occasions and as Jobs Victoria clearly stated, we will not support unqualified public, working more than 8 hours outside to Crystelle cash in hand business and permanent position at Officeworks.” 19
[37] The name of the Act being cited is omitted and the submission is of no assistance to the Respondent’s objection. It tends to suggest that the either the Applicant’s remuneration was altered, or the employment was terminated or deemed void due to the Applicant no longer becoming entitled to the wage subsidy that had been applied for due to the Applicant allegedly undertaking work outside of the employment arrangement with the Respondent. This if anything supports the Applicant’s case in this matter.
Conclusion
[38] On the material before me, I am not satisfied that the Respondent’s Jurisdictional Objection has been made out. On the material before me the Applicant resigned from her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by her employer within s.386(1), for the reasons given by the Applicant. The material tendered by the Respondent is largely irrelevant to the objection raised. I therefore dismiss the Jurisdictional Objection raised by the Respondent with an Order to this effect being contained in PR732757.
[39] The Respondent said that it will not participate in any Conference before the Commission for the purposes of conciliation and mediation. I will therefore issue a certificate as I am required to do under section 368 of the FW Act.
DEPUTY PRESIDENT
Appearances:
Ms Crystelle Fakhri, the Applicant
Ms Mariah Khoury, of Launch Legal for the Applicant
Hearing details:
Melbourne (via teleconference)
21 July
2021
Printed by authority of the Commonwealth Government Printer
<PR732756>
1 [2020] FCAFC 152.
2 (1995) 62 IR 200, 205.
3 Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000)
4 Digital Court Book, 171.
5 Ibid, 174-5.
6 Ibid, 177-8.
7 Ibid, 179.
8 Ibid, 182.
9 Ibid, 175; 179.
10 Ibid, 124.
11 Ibid, 164.
12 Ibid, 66-7.
13 Ibid, 112-4.
14 Ibid, 88.
15 Ibid, 89.
16 Ibid, 118.
17 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5654.
18 Email from Respondent dated 16 June 2021, 18 June 2021.
19 Digital Court Book, 113.
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