Erika Wilson v ACG Entities Pty Ltd
[2024] FWC 1729
•2 JULY 2024
| [2024] FWC 1729 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Erika Wilson
v
ACG ENTITIES PTY LTD
(C2024/2842)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 2 JULY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant dismissed – jurisdictional objection upheld – found that Applicant was not dismissed within the meaning of s 386(1) of Act – application dismissed.
On the 29 April 2024, Ms Erika Wilson (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 15 April 2024 by ACG ENTITIES PTY LTD T/A Lamezleigh’s coffee house and eatery (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that being the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386 of the Act.
Following allocation of the matter to my Chambers, Directions were issued on 22 May 2024 for the filing of material in relation to the jurisdictional objection. Both parties filed material in advance of the hearing listed for 1 July 2024. At the hearing on 1 July 2024 the Applicant appeared and gave evidence while Alanna Gobel, who is the owner, appeared and gave evidence for the Respondent.
Background and evidence
The Applicant commenced employment as a cook on a casual basis with the Respondent on 28 July 2023. On 26 February 2024 she advised Ms Gobel via text that she was unfit for work due to a back injury, indicated that she was in ‘excruciating pain’, would probably need to undergo scans and had an appointment with her specialist that day. She subsequently provided a medical certificate covering her absence from work for the period from 26 February - 11 March 2024.
On 5 March 2024, the Applicant had arranged to meet with Ms Gobel at the café for the purpose of providing an update on her health. The Applicant by that stage was aware that she would be off work due to her back condition for a longer period than she had initially expected. She says she wanted to give Ms Gobel as much notice as possible to arrange staff to cover her absence. A further medical certificate was provided by the Applicant to Ms Gobel at the meeting which covered the period from 11 March -16 April 2024.
The Applicant states that during their meeting Ms Gobel unexpectedly ‘demanded’ that she not speak with kitchen staff about any matters except essential work arrangements. While hesitant to agree to what she regarded as an ‘extremely strange’ request she nonetheless agreed to ensure that her conversations with staff would be confined to work matters during work hours. She also states that she happily agreed to provide a medical clearance certificate to Ms Gobel before her return to work and then left the meeting feeling positive about having an agreed arrangement and plan in place for returning to work.
Ms Gobel agrees that during their meeting on 5 March 2024 she had confirmed to the Applicant that she would have a job once she was fit to return to work, subject to the Applicant providing a medical clearance. She states she then raised with the Applicant concerns regarding the Applicant’s behaviour and her inability to hold professional conversations in person which had been the subject of previous warnings. She further states that the Applicant found it hard to treat Ms Gobel, other staff and sometimes members of the public respectfully, resulting in the Applicant displaying aggressive behaviour.
The Applicant further states that on 15 April 2024, she contacted Ms Gobel to inform her of an appointment she had on 19 April 2024 to obtain a medical clearance. The text message sent at 2.08pm on 15 April 2024 stated as follows;
“Hey Larns, quick update. I have Dr appointment later this week for return to work cert. Will be pumped to get back into the kitchen next week. I'd like to ask you to go through my time sheets and payslips and back pay me for the discrepancies. There have been 2 instances of a period of weeks that I was not paid for the total hours worked. Thanks heaps. Looking forward to seeing you next week.”
Ms Gobel then responded at 3.32pm as follows;
“Must be some misunderstanding. I haven’t heard from you in 6 weeks! Didn’t think you were returning. As for miss pay, please send me your pay discrepancy date/time. Any other correspondence give me a call when you need.”
The Applicant then replied at 3.38pm as follows;
“I told you I would be back around the 16th and you said I needed a return to work certificate. Been waiting 3 weeks for my appointment this Friday.”
A further exchange of texts took place at 3.39pm in which Ms Gobel questioned the Applicant “Wasn’t it 16th March?” to which the Applicant replied “No, April as my doctor’s certificate stated” and then followed up with “I gave you a copy”. Ms Gobel then replied “You said to the kitchen team you needed an operation” to which the Applicant sent the further message;
“Yep I do but I don’t have private health so I’ll have to wait 8 years on the public waiting list.
So I don’t have a job to come back too?”
On Tuesday 16 April, 2024, the Applicant sent the following text message to Ms Gobel;
“I’ve discussed with you on several occasions just how extremely hard phone calls are.
If you could please kindly send me every single time sheet. I will be happy to go through them. Thanks”
Ms Gobel states she was surprised by the Applicant’s notification on 15 April 2024 of an intention to return to work as she was reportedly seen in a wheelchair by staff the week before, a claim denied by the Applicant. Ms Gobel further stated that the Applicant had also previously told Ms Gobel and other staff that she needed a back operation. In responding to the Applicant on 15 April 2024 Ms Gobel says she was only concerned with the Applicant’s return to work condition, hence Ms Gobel’s request for a medical clearance which she says she never received from the Applicant. She says she sought to meet with the Applicant to discuss her physical capacity, but the Applicant declined to do so in her response on 16 April 2024.
The Applicant also states that on 16 April 2024, she logged into MYOB which the Respondent uses for payroll and rostering. She states that she is normally able to log in and access upcoming rosters as well past time sheets, payslips and personal details. Despite using her normal login details she found that her employment details were no longer linked to the Respondent and that her entire employment history had been deleted from the Respondent’s records at some time during her absence from work due to her medical condition. The fact that she was unable to access her information left her feeling ‘confused, worried and scared’ that she was no longer employed.
Ms Gobel denies that the Applicant’s removal from MYOB confirmed her dismissal. Rather, it reflected that the Applicant had been off work for several weeks, not that she had been dismissed. When cross-examined on the Applicant’s removal from MYOB, Ms Gobel stated that MYOB was primarily used by the Respondent for accounting/finance purposes, but it also had a rostering and payroll app which she used and was accessible to staff. She further stated that the app was primarily used by the Respondent for rostering although timesheets and payslips were also accessible via the app. She says she recalled removing the Applicant from the App shortly after she went off on sick leave as that was Ms Gobel’s practice when staff members took a period of leave as she found it easier to roster available staff.
Having been unable to access her MYOB records, the Applicant emailed Ms Gobel at 3.57pm on 17 April 2024 in the following terms;
“Dear Alanna
Request for Records
I am writing to request the records of my employment as a Cook at ACG ENTITIES PTY LTD. Can you please provide me with the following for the period of 02/08/2023 to 15/04/2024:·The business's legal name and ABN
·My start date
·My termination date
·The reason for my termination
·My employment status (such as, full-time, part-time or casual)
·The hours worked (including date/day of the week, start and finish times and breaks)
·Details of the overtime hours worked
·My rate of pay
·Gross and net amounts paid to me (including loadings, penalty rates, overtime, bonuses, incentive-based payments, allowances and other separately identifiable amounts)
·Any deductions from my pay
·Superannuation contributions made on my behalf.
Please note that as per Regulation 3.42 of the Fair Work Regulations 2009 I am allowed to obtain copies of my employment records (of the kind prescribed by the Regulations).
Please make these records available on the premises for me to pick up as soon as is practicable.
Yours sincerely,
Erika Wilson”
Ms Gobel replied to the Applicant at 3.58pm on 17 April 2024 as follows;
“All these details are in your possession. As for termination, I asked for a fit to work certificate…I haven’t received that.
I’ve kept all records of the times and dates of unprofessional doing and warnings. If I
Want to terminate your employment it’s well within my rights.
You’ve taken it to this, maybe a phone call would of meant you didn’t get the wrong
idea.
Good luck with future employment”
Ms Gobel sent a further email to the Applicant at 4.01pm on 17 April 2024 as follows;
“If you want to take me to fair work do it, but I’m not doing the power work for you.”
The Applicant immediately replied at 4.04pm;
“Hi Alanna,
As you have already removed me from your myob payroll system, it shows that i am no longer employed by any of your businesses. I am unable to access any of my employment details.
Please provide me with the aforementioned information in hardcopy ready to pick up from lamezleigh's Cafe within 3 days
Thankyou
Erika Wilson”
Ms Gobel then responded at 4.07pm as follows;
“You are emailed everything weekly.
I removed you from my rostering system since you have not worked in the past two months. Maybe when you can come to the cafe you can tell me what your problem is.”
The Applicant when cross-examined, stated that while she had not been advised of her dismissal, the conduct of the Respondent led her to draw an inference that she had been dismissed. The conduct the Applicant relies on is her removal from MYOB, the Respondent’s failure to confirm she still had a job on or after 15 April 2024 and Ms Gobel’s email of 17 April 2024 when Ms Gobel stated, “good luck with future employment”. Based on this course of conduct the Applicant believes her dismissal took effect on 15 April 2024.
The Respondent rejects that any of its conduct had the intention of bringing the employment relationship to an end. Ms Gobel confirmed that at no stage had she advised the Applicant that her employment had been terminated. She stated that she wanted a medical clearance from the Applicant before facilitating a return to work and at no stage had been provided with that by her. She also sought to directly discuss return to work arrangements with the Applicant, but this request was rebuffed by the Applicant.
Has the Applicant been dismissed?
The threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I discern from the Applicant’s case as articulated in the proceedings that she claims to have been dismissed within the meaning of the first limb of s. 386(1), that being she was dismissed at the Respondent’s initiative. It is to that I now turn.
Whether Applicant was dismissed within meaning of s 386(1)(a)
As set out above, the Applicant suffered a back injury which prevented her from attending work over an extended period from on or about 26 February 2024. She agreed with Ms Gobel in early March 2024 to provide a medical clearance certificate when she was able to return to work. She also provided Ms Gobel with medical certificates covering her absence up to 16 April 2024. When she alerted Ms Gobel on 15 April 2024 of her intention to attend her GP later that week for the purpose of obtaining a medical clearance, Ms Gobel was surprised in circumstances where the Applicant had previously advised Ms Gobel and other staff that she required an operation to address her back condition. The Applicant did not subsequently provide Ms Gobel with a medical certificate clearing her return to work. Nor did she provide evidence in the proceedings of having received such a medical clearance despite claiming to have obtained such a clearance.
What followed the initial 15 April 2024 text from the Applicant to Ms Gobel advising of her intention to return to work was what can only be described as an unsatisfactory communication exchange by text and email between the Applicant and Ms Gobel from which the Applicant drew an inference that she no longer had a job. She drew this inference from Ms Gobel’s failure to specifically confirm via text or email that she still had a job, by Ms Gobel wishing her well for her future employment and from her removal from MYOB. Ms Gobel explained her silence in response to the Applicant’s question on whether she still had a job as due to her request to the Applicant that they directly discuss return to work arrangements, a request that was surprisingly rejected by the Applicant. As to Ms Gobel wishing the Applicant well in her future employment, she explained that the sentiment expressed in her email on 17 April 2024 was on the basis she believed the Applicant no longer regarded herself as employed.
Tellingly and contrary to the Applicant’s belief, Ms Gobel’s email of 17 April 2024 did not confirm the termination of her employment in my view. The email restates the requirement for a medical clearance certificate prior to a return to work, advises that had Ms Gobel wanted to dismiss the Applicant she had numerous grounds on which to do so based on the Applicant’s conduct and also indicates that had the Applicant called to discuss the situation as invited she (the Applicant) would not have got the wrong idea. I am not persuaded that the email reveals an intention on Ms Gobel’s part to dismiss the Applicant from her employment. Ms Gobel also gave unchallenged evidence of her practice of removing staff from MYOB when they were off on extended periods of leave, which practice she followed in the case of the Applicant’s absence.
While I accept that the Applicant foreshadowed to Ms Gobel on 15 April 2024 her intention to return to work on receipt of a medical clearance, consistent with the agreement reached with Ms Gobel in early March 2024, no medical certificate was provided to the Respondent at any point prior to or subsequent to the claimed date of dismissal. Relevantly, there was also no discussion or correspondence between the parties that unequivocally established that the Respondent had terminated the Applicant’s employment. The Applicant’s belief was based on supposition in circumstances where she had not provided the Respondent with the required medical evidence that she was in fact capable of returning to work and had also declined to discuss the matter directly with the employer.
It is regrettable that the Applicant rejected Ms Gobel’s request for a direct discussion as it might have provided an opportunity for both the Applicant and Ms Gobel to clarify their respective understanding and intentions. It is also regrettable that Ms Gobel did not clearly disabuse the Applicant of her belief that she had been dismissed. Rather, the Applicant quickly moved to assume she had been dismissed and made an assertive request to Ms Gobel for employment information including with respect to the Applicant’s employment history, the reasons for her dismissal, pay details and timesheet records, a move Ms Gobel clearly took exception to and regarded as antagonistic and unnecessary. What is clearly revealed by the exchange of texts and emails is a failure to effectively communicate, on both the Applicant and Ms Gobel’s part. It is an excellent case study of where had direct discussion occurred, inferences and conclusions wrongly drawn by both parties might have been avoided.
Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. In the present case, there was no formal notice of dismissal. Rather, the Applicant drew an inference that she had been dismissed. I am not satisfied in the circumstances of this matter that there has in fact been a dismissal. The Applicant was employed as a casual employee and there is insufficient evidence for me to conclude that at the date of the alleged dismissal the Respondent had made clear to the Applicant that it would no longer offer her casual engagements. That no casual engagements were offered to the Applicant following 15 April 2024 is unsurprising when a precondition for the Applicant’s return to work, that of a medical clearance certificate, was not provided by the Applicant to the Respondent.
If it were accepted in the alternative that the employment relationship has been terminated, for the Applicant to succeed it would require a finding that the action of the employer was the principal contributing factor that led to the termination of the employment relationship. I am unable to conclude in the circumstances of this case that the principal contributing factor to the dismissal of the Applicant was the conduct of the Respondent. Rather, the principal contributing factor to the termination of employment, if it has occurred, was the inference the Applicant incorrectly drew from her communication with the Respondent. I am consequently not satisfied that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act.
It was not contended by the Applicant that she was forced to resign because of conduct, or a course of conduct engaged in by the Respondent. As such it is unnecessary for me to consider whether the Applicant was dismissed within the meaning of s 386(1)(b) of the Act.
Conclusion
I have found that the Applicant was not dismissed within the meaning of s 386(1)(a) of the Act and s 386(1)(b) is not relevant. Accordingly, at the time the Applicant made her application on 29 April 2024, she was not a person who had been dismissed for the purposes of s 365 of the Act. The respondent’s jurisdictional objection is therefore upheld, and the application must be dismissed.
The application is therefore dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
E Wilson, Applicant.
A Gobel for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
July 1.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
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