Emma Murray v Murley Spring Pty. Ltd. T/A Complete Step
[2024] FWC 2732
•1 OCTOBER 2024
| [2024] FWC 2732 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Emma Murray
v
Murley Spring Pty. Ltd. T/A Complete Step
(C2023/7820)
| COMMISSIONER PERICA | MELBOURNE, 1 OCTOBER 2024 |
Application to deal with contraventions involving dismissal
PROCEDURAL HISTORY
On 13 December 2024, Ms. Emma Murray lodged a general protections application for the Commission deal with contraventions not involving dismissal under s 372 in relation to her employment with Murley Spring Pty. Ltd trading as Complete Step (“Complete Step”). In that application, Ms. Murray alleged her employment was terminated on 27 November 2023 after she made an inquiry in relation to her rate of pay.
On 12 February 2024, Ms. Murray applied to amend her general protections application to an application for the Commission to deal with a dispute involving a dismissal under s 365. By a decision[1] dated 3 May 2024, Deputy President Clancy amended the application in this proceeding to an application under s 365.
Complete Step raised a jurisdictional objection that the cessation of Ms. Murray’s employment was not a dismissal as required by s 365(a) as her employment had not “been terminated on the employer’s initiative”. The gravamen of the objection is elaborated the Form F8A which states:
“Emma’s employment has not been terminated by Complete Step. Emma commenced fulltime employment with another employer in October 2023 and as such was no longer available to work Monday to Friday. Emma was working on a Saturday at Complete Step however there was very little trade occurring on Saturdays and the business was running at loss. As such the business decision was made to close on a Saturday and the reasons for this decision were discussed with Emma. As Emma is no longer available to work Monday to Friday we have not been able to offer her any more work.”
I issued directions for the hearing of the jurisdictional objection which occurred by Microsoft Teams on 18 July 2024. Ms. Murray represented herself and gave evidence. Dr. George Samuel Murley appeared for Complete Step and gave evidence.
BACKGROUND FACTS
On 27 May 2021, Ms. Murray commenced her employment with Complete Step, a podiatry practice, as a receptionist. Her duties were to welcome customers, answer phones, process payments, book in and cancel appointments and to assist customers with the retail part of the business which sold shoes.
Ms. Murray “was offered extra work on Saturdays on a ad hoc basis depending on Ms. Murray’s availability”. In its written submissions, Complete Step noted “in her most recent 12 Month employment period, she worked twenty-one Saturdays out of 52”.
In October 2023, Ms. Murray accepted a full-time job with another employer but continued to work for Complete Step on Saturdays on a casual basis.
On 23 November 2023, by an e-mail at 9:08 AM to Dr. Murley, Ms. Murray initiated a discussion concerning the classification of her employment at Complete Step. There was an exchange of e-mails regarding her classification.
On 24 November 2023, there was an exchange of e-mails concerning superannuation payments for her Saturday work and questions concerning her pay rate.
On 26 November 2023, Dr. Murley contacted Ms. Murray on the telephone. Dr. Murley’s evidence was the first matter discussed was that he and his wife were reviewing the classification issues Ms. Murray had raised. According to his evidence, after that conversation, the following exchange ensued:
Dr. Murley said, “Emma, the other issue I need to discuss with you is that the Saturday sessions at the clinic are currently running at a loss.”[2]
Ms. Murray responded, “I know, I know” and “I understand.”[3]
Dr. Murley went on, “We’re going to have to close the clinic on a Saturday because we cannot continue to run the sessions at a loss.”[4]
Ms. Murray responded, “I understand.”[5]
At 8:13 PM on 27 November 2023, Dr. Murley sent Ms. Murray an e-mail which dealt with the alleged underpayment, classification and superannuation issues. That e-mail was entitled “Complete Step – award details and final payment” and contained the following two paragraphs:
“To be honest Emma, ending your tenure with Complete Step in this manner has left me feeling sad. I really didn’t expect you to claim a different level in this manner (when you have just started full time work after we delayed Katie starting her role to suit you). You’ve been a wonderful employee over the last 2.5 years and I wish you well with your career.
In light of this, I think it might be best if you and Nathan do not attend our work Christmas party. Could you please return the clinic keys soon?”
On 30 November 2023 at 6:36 PM, Ms. Murray responded to this e-mail. She continued to pursue her claim for underpayment. This e-mail also contained the following paragraph:
“It is devastating that after questioning my classification level with you, your reaction is to terminate my employment. This has made me upset as I did not think that this would cause such a negative response given our great employer-employee relationship.”[6]
On 3 December 2023 at 1:39 PM, Dr. Murley responded to this e-mail. He responded to the reclassification dispute and demanded Ms. Murray return the keys to the clinic. The e-mail set a deadline for the return of the keys of 8 December 2023. It noted if the keys were not returned by then, “we will need to deduct (the cost of changing the locks) from your backpay if the keys are not returned on time”.
The format of the 3 December 2023 e-mail was a response to the matters put by Ms. Murray in her 30 November 2023 e-mail with excerpts of her e-mails in red. It contained a response to the paragraph I have noted above in paragraph [12] of this decision as follows.
“Our decision to close our retail store on Saturdays is not related to the discussion about pay levels. As we discussed on the phone, and you agreed, the store was running at a loss on Saturdays. In August 2023, you advised me of your intention to stop working at Complete Step Monday-Friday as you were going to move into fulltime work. I sent you an email on August 29 requesting a change-over date for Katie to commence at Complete Step. I completed a professional referee interview for your new employer on Tuesday October 10, you accepted a full-time position with this employer that week and you ceased your regular hours at the end of October to take up the new job. I advised you on Sunday 26 November that our Saturday sessions have consistently been running at a loss and we can no longer open the retail store on Saturdays. This role/session hasn’t been replaced or fulfilled by another employee. As you are working full time for another employer, there are no other sessions you are available to work.”
RELEVANT LAW
Section 365 - there must be a “dismissal” to bring a proceeding
For the Commission to exercise its power to deal with a dispute under s 365, it must find as a jurisdictional fact the applicant has been dismissed. Section 365(a) is to the effect that if a person is “dismissed”, the person may apply to the Commission to deal with the dispute.
Under the table in s 342(1)(a), an employer takes adverse action against an employee if the employer “dismisses the employee”. The meaning of “dismisses” is governed by the definition in s 12 which directs the reader to s 386. Under s 386(1)(a), a person is dismissed if the “persons employment with her employer has been terminated at the employer’s initiative”.
Case law on termination at the employer’s initiative
The analysis of whether there has been a termination at the initiative of the employer under s 386(1)(a) is to be conducted by reference to the employment relationship, not by reference to the termination of the contract of employment.[7]
The Full Federal Court considered the issue of termination at the initiative of the employer in Mohazib:[8]
A termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship… (emphasis added).[9]
An important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, if the employer had not taken the action it did, the employee would have remained in the employment relationship (emphasis added).[10]
The question then is whether Complete Step “dismissed” Ms. Murray such as to found an action under s 365.
CONTENDING ARGUMENTS
Complete Step
Complete Step argues:
Ms. Murray was not dismissed from her employment. In the telephone conversation of 26 November she was notified the business had decided to close on Saturdays. Dr. Murley argued the decision to close on Saturday was not final or permanent.
In the written submissions it argues “Had Complete Step remained open on Saturdays, or had Emma been available to work Monday to Friday, when the business was open, we would expect Emma would have continued her casual employment at Complete Step.”
The reference to the “final payment” in the e-mail dated 3 December was “not intended to be a termination payment” or “you’re never getting paid again”. It was “I’m paying you in dribs and drabs of superannuation and back-payment; this is the final one.”[11]
The request for the return of the keys should be regarded as a neutral consideration because as “Emma was asked to return the key for Complete Step as we didn’t foresee her working regular shifts in the short term and she didn’t need a key to continue working at Complete Step.”
Ms. Murray
Ms. Murray argues:
· She was dismissed on 27 November 2023 through e-mail by Dr. Murley “requesting back the clinic keys and removing me from work events”.
· The “Respondent’s actions directly and consequently led to the termination of her employment and had Complete Step not taken action I would have remained employed”.
CONSIDERATION
The fact Ms. Murray was unable to work on Monday to Friday due to her employment with another employer is not relevant to the question of whether her employment relationship with Complete Step was terminated at its initiative.
Ms. Murray was only available to work on Saturdays. On 26 November 2023, Dr. Murley told her the clinic would be closed on Saturday because it was making a loss. This was a business decision by Complete Step alone. Ms. Murray had nothing to do with that decision. This analysis is confirmed by Dr. Murley’s e-mail of 3 December 2024, where he states “Our decision to close our retail stores on Saturdays is not related to the discussion about pay levels” (emphasis added). Dr. Murley claims in his evidence his discussion with Ms. Murray about the Saturday closure was not meant to convey the decision was permanent. This is not reflected in the correspondence which does not indicate the decision was temporary or subject to review.
The e-mail headed: “Complete Step – award details and final payment” states “ending your tenure with Complete Step in this manner left me feeling sad’. The e-mail also informed Ms. Murray that “it might be best” if she did not attend the work Christmas party. I do not accept Dr. Murley’s evidence that the “final payment” here was referring to the resolution of the claimed underpayment matters. The heading “final payment” in the context of an e-mail where Ms. Murray is being informed her “tenure at Complete Step” had ended and that “it might be best” if she did not attend the work Christmas party supports an interpretation that this was her final pay and her employment relationship was over.
In the e-mail dated 3 December 2024, Dr. Murley makes a demand that Ms. Murray return her key under threat of a deduction of her backpay. Threats of this nature are not consistent with an ongoing employment relationship. In that e-mail, he confirms “I advised you on 26 November 2023 that our Saturday sessions are consistently running at a loss and we can no longer open the retail store on Saturdays. This role/session hasn’t been replaced or fulfilled by another employee. As you are working full time for another employer, there are no other sessions you are available for work.”
Ms. Murray could only work Saturdays. Complete Step made a business decision to close the business on Saturdays. Informing her the business was no longer open on Saturdays had a direct and consequential result that her employment was terminated. Had the decision not been taken to close the business on Saturday, her employment contract would have continued.
All correspondence after the 26 November 2023 conversation supports a conclusion that a decision had been taken by the employer which brought about the termination of her employment. It was followed by a “final pay” e-mail that included that “no other sessions are available for work”.
CONCLUSION
I therefore find Ms. Murray’s employment with Complete Step was terminated at the initiative of the employer by the telephone conversation on 26 November 2023. It follows the jurisdictional objection is dismissed and I will list the matter for a conciliation under s 368.
COMMISSIONER
Appearances:
Emma Murray, the Applicant, for herself.
George Samuel Murley on behalf of the Respondent.
Hearing details:
18 July 2024
Microsoft Teams
[1] PR774510.
[2] PN189.
[3] PN195 and 203.
[4] PN210.
[5] PN211.
[6] DCB at p 32.
[7] Khayam v. Navitas English Pty Ltd[2017] FWCFB 5162 at paragraph [75].
[8] Mohazib v. Dick Smith Electronics Pty. Ltd (No 2) (1995) 62 IR 200.
[9] Ibid at 205-206.
[10] Ibid.
[11] PN789.
Printed by authority of the Commonwealth Government Printer
<PR779820>
0
0
0