Geraldine Sturdy v Novacon Group Pty Ltd
[2022] FWC 3336
•20 DECEMBER 2022
| [2022] FWC 3336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Geraldine Sturdy
v
Novacon Group Pty Ltd
(C2022/3429)
| COMMISSIONER LEE | MELBOURNE, 20 DECEMBER 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not dismissed – determination that employment terminated on employer’s initiative – jurisdictional objection dismissed.
Introduction
This decision concerns an application made by Mrs Geraldine Sturdy to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). Mrs Sturdy contends that Novacon Group Pty Ltd (Novacon) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment as a traffic controller and labourer. Novacon disputes that Mrs Sturdy was dismissed and pressed a jurisdictional objection on that basis.
The Commission generally does not have a determinative function in relation to applications brought under s.365 unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that it dismissed the Applicant and objects to the application on this basis, the Commission is required to determine whether the Applicant was dismissed.[1]
Background
There are a number of factual contests in this matter. However, the key disputed fact is whether or not Mr Truong Do, Director of Novacon Group terminated Mrs Sturdy’s employment during a telephone call on the evening of 19 May 2022.
Mr Do provided evidence on behalf of the employer. Mrs Sturdy gave evidence on her own behalf.
The matter was listed for hearing in person on 14 November 2022. Permission for both parties to be represented by a lawyer was granted.
The Evidence
The Applicant worked as a traffic controller and labourer for the Respondent. She was engaged as a casual and worked predominantly at the Respondent’s Hampton work site under the direction of Mr Dilan Gamage, the civil manager of the Respondent. Mr Do attended the worksite from time to time to oversee the work.
The Applicant states that she worked between 40 to 50 hours per week on average, over 5 days of the week.[2]
Between 12 April 2022 and 8 May 2022, the Applicant was unavailable to work as she advised that she had a work-related injury to one of her ankles. No Workcover claim was submitted, and no workers compensation payments were received by the Applicant in respect to that injury.
On 9 May 2022 the Applicant returned to work and worked from 9 May 2022 through until 17 May 2022. It does not appear that the Applicant performed any work after 17 May 2022. The Applicant’s evidence, not disputed by Mr Do, is that she was paid weekly on Tuesdays.
The Applicant states that on 17 May 2022 at about 11:30am she telephoned Mr Do, as she was dissatisfied with advice from the payroll officer that she would not be paid until the following week. She asked Mr Do why she was not being paid. Mr Do said he would look into it.[3]
The Applicant says she become emotional during this phone call and that Mr Do told her to “take the emotion out of it”.[4] During the hearing, the Applicant advised she had another conversation with Mr Do in the afternoon of 17 May 2022.[5]
After two days, the Applicant had not received a response from Mr Do as to her query about her pay. At 4:50pm the Applicant sent an SMS to Mr Do asking “So any news on my pay ?”[6] not receiving a reply to that SMS, the Applicant then sent another SMS which stated, “20.3 Subject to clause 20.4, payments must be paid and available to the employee not later than the end of ordinary hours of work on Thursday of each working week”.[7] It is apparent that this was a reference to the clause in the Building and Construction General On-site Award 2020 that sets out the requirements for the timing of payments of wages to employees.
There was a telephone call between the Applicant and Mr Do which commenced at 5:58pm. There is a significant dispute as to what was said during that phone call.
The Applicant’s evidence is that during that phone call, the following exchange took place:
“(a) Truong yelled, “You’re out of your mind. I’ll pay you tonight, but don’t ever speak to me again” or words to this effect;
(b) I asked, “Does this mean you’re sacking me? I’m being sacked” or words to this effect; and
(c) Truong replied, “Absolutely, I’m sacking you”.”[8]
Mr Do denies that he said anything to the effect that he sacked Mrs Sturdy.[9]
Mr Do states the following:
“I had a telephone conversation with Ms Sturdy on 19 May 2022 as I called her to clarify
her concerns after receiving text messages from her. However, when I talked to Ms
Sturdy on the phone, she became very abusive and rude. She demanded to be paid ahead of the usual schedule. I explained to Ms Sturdy that payroll controls the process, but I would try to assist her in contacting payroll and ask them to speed up the process
for her, if possible.[10]During the said telephone conversation, I explained to Ms Sturdy about the process as
to when her wages would be paid to her and I told her that she needed to be patient
and to allow payroll time to follow the process. I explained that Ms Sturdy’s wages
would be paid in about a week. I did not raise my voice and I told Ms Sturdy to contact
me when she would be calm. I did not say anything to the effect that I sacked Ms
Sturdy.[11]Ms Sturdy’s accusation of me verbally telling her that she was sacked during the
telephone conversation with her on 19 May 2022 is a complete fabrication of the facts.[12]”
Subsequent to the telephone conversation there was a further extensive SMS exchange on the evening of 19 May 2022. This exchange included the following:
Mr Do:
“I’ve told Sharia to process your payments ahead of schedule
Please don’t talk to me in a rude manner. I respect your concerns but I’m extremely busy
too. In the future if you have problems and need my help, please talk to me in a nice way
and allow me time to sort it out”
Mrs Sturdy:
“Unfortunately I wasn’t rude to you at any stage of that conversation at 5.58 tonight remembering I’m not rude to my boss but you were only extremely rude to me… please don’t text me rubbish like you just did I have good hearing and now a good understanding of who you really are”
Mr Do:
“Geraldine, you’re very impatient and want things straight away … You’ve told me your issues and expected me to resolve it instantly. You then started being rude and threatened me with legal clauses. Please think about it and put yourself my perspective.”
Mrs Sturdy:
“Don’t forget you sacked me through that disrespectful conversation you also stated to me don’t ever speak to me again …”
Mr Do:
“Geraldine please don’t tell lies. I didn’t want to continue to speak to you as you were being rude and raised your voice on me …”
Mrs Sturdy:
“…yes my patience Tim (sic) very thin and now you state I’m casual I’m now angry at you for lying to me once again I hope your happy with the way you dealt with me over sending you a clause concerning my pay”
Mr Do:
“Geraldine, please take the night to think about it. You can contact me tomorrow. I’m now going to continue with my works”
Mrs Sturdy:
“You called me and now your continuously texting me I’m talking to no one in that company at that’s truth.
Don’t tell lies wow how interesting you now back peddle your words I’m not and never have been a liar …
I’m ok thanks Truong as you said you’d pay me but don’t ever speak to me again and then you sacked me! Please just pay me tonight as agreed and I absolutely have nothing more to say to you.”[13]
There is then a lengthy SMS sent by the Applicant which included “just because I sent you a clause don’t mean I was threatening you …”[14] and expressions of extreme disappointment about her continued status as a casual employee given that the Applicant understood from the conversations with Mr Do that she was made to be permanent. There is also concern expressed by the Applicant about the alleged withholding of the last week of pay. This SMS concludes with:
“…I feel it’s safe to say that you know that I know you’re a full on liar and I feel sad for you no one could be in a happy place knowing the amount of lies they have to speak just to get staff none”[15]
The final SMS exchange of the evening is as follows:
Mr Do:
“Geraldine, its very late now and I still have to deal with works. You reported to me about your payment concerns. I’ve told Sharia to make the payment for you ahead of schedule. There’s nothing else that I was to talk to you about at this late in the evening. Please communicate to me in a polite manner and refrain from further insults. You may contact me tomorrow if you have any other concerns or seeking any clarification”
Mrs Sturdy:
“I don’t work for you as you stated so please don’t tell me what to do ok and until I’m paid like You said you’d pay me tonight I’m going to text you that I need my pay tonight thank you.
Please pay me and I’ll stop texting you yes its wrong but I need my pay and you have no right holding my pay I did the hours so now pls pay me Thank you
Ahead of schedule not good enough my pay was due 5pm today please rectify tonight
your welcome to add in my 1st wk pay that your holding”[16]
I note that despite the fact that on three occasions during the SMS exchange the Applicant states words to the effect that Mr Do had terminated her employment during their phone conversation, Mr Do does not explicitly refute that claim in any of his exchanges. Mr Do’s evidence was to the effect that he did refute the claim when he replied “don’t tell lies”[17]
On 20 May 2022 there is a further exchange by SMS between the Applicant and Mr Do. This exchange was prompted by Ms Xerri, an employee of the Respondent, sending a message to the Applicant offering her work at Donvale the following Monday. The Applicant copied that message and sent it to Mr Do with the heading “Are you Serious”, then sent a further message stating “If I’m not full time as promised, I won’t come back”
Mrs Sturdy:
“Are you serious? “Hi Geraldine, hope you are having a great day. Can we please have you on site Monday 8am till 3pm at Donvale site. Thanks Rebecca”
If I’m not full time as promised I won’t come back”
Mr Do:
“Hi Geraldine, if you’re refusing the proposed shifts of work then let us know so we can book someone else in. Thanks.”[18]
Mrs Sturdy:
“You sacked me last night
You now need to clarify my work status”
Mr Do:
“No I didn’t I told you to not talk to me when you were rude and upset”
Mrs Sturdy:
“Thank you”
Mr Do:
“I told you to contact me today”
Mrs Sturdy:
“I was rude… seriously
Ok”
Mr Do:
“Your work status is the same as before no changes proposed or accepted”
Mrs Sturdy:
“No problem”
Mr Do:
“Please let us know if you’re going to be at work on Monday?”
Mrs Sturdy:
“Sure”
Mr Do:
“Ok great. We can have a disagreement but as long as we can put our egos aside we can work together. Have a great weekend Geraldine”
Mrs Sturdy:
“I still haven’t been paid either”
Mr Do:
“Sharia said she already processed”[19]
During the hearing Mr Do accepted that the Applicant was entitled to be paid in accordance with the terms of the Building and Construction General On-Site Award 2020, by 19 May 2022 for the pay period ending on 15 May 2022.[20] It is apparent that during the 19 May 2022 phone conversation the Applicant was asking to be paid at the time stipulated in the Award.
In his witness statement Mr Do stated the following:
“I replied to one of her messages by a text message stating: “Please don’t talk to me in a rude manner. I respect your concerns but I’m extremely busy too. In the future if you have problems and need my help, please talk to me in a nice way and allow me time to sort it out”[21]
Mr Do was cross examined on this evidence and asked what “does she say that's rude?”[22] Mr Do was unable to say what was rude about the Applicant’s SMS message. Stating “I can't recall.” Mr Do then suggested that his evidence related to one of the phone conversations he had with the Applicant. However, he provided separate evidence in his witness statement attesting to the Applicant being abusive and rude during the phone conversation. Mr Do’s evidence on this point was not credible.
In terms of the allegation from the Applicant that her employment was terminated during the phone conversation, Mr Do was clear in his denial that was what happened[23]
Mr Do was extensively cross examined on what he meant by his SMS referring to the Applicant being rude and threatening him with legal clauses. His responses were inconsistent and confused. Mr Do initially firmly denied that the sending of the award clause to him by SMS was the threatening behaviour he was referring to.[24]
Mr Do was then cross examined on what he was referring to as the threatening behaviour from the Applicant.
“What was the thing that was threatening?‑‑‑I wasn't threatened.”
You said in your text message?‑‑‑Yes.
'You threatened me'?‑‑‑I thought she tried to, yes.
But - - -?‑‑‑I wasn't threatened.
No. But what was the threatening thing? What caused you to say in your text message, 'And threatened me'?‑‑‑I just assumed that's something else that she tried to do.
So she sends you an award clause?‑‑Yes.
Which is a legal entitlement?‑‑‑Okay.
Were you aware that the award applied to your business? You said that before?‑‑‑Yes.
Yes. So she sends you that clause – and just quotes the clause?‑‑‑Yes.
And you say you've threatened me with a legal clause?‑‑‑Mm-hm.
You're now saying, it was something else that threatened you. You're also saying that you weren't threatened. But I mean you were threatened by the legal clause. That's what your text message says, doesn't it?‑‑‑No.
But it says 'You then started being rude and threatened me with a legal clause'?‑‑‑Yes.
So you're now saying that you didn't mean that she threatened you with a legal clause?‑‑‑No. I was just saying that I wasn't threatened. I didn't feel threatened.”[25]
This evidence was inconsistent with the SMS messages sent and not credible.
Mr Do then later contended:
“So it was the fact that she quoted that legal clause to you that you thought was her threatening you? I thought she was trying something new. Yes.”[26]
His evidence then changed to:
“So why would you say, 'You threatened me.' If you didn't think she was threatening you? I just simply say – I simply say that there's no need for her to be rude and quoting the legal clauses. Maybe I should have said – you know – being rude and quote legal clauses instead of threatening.”[27]
Mr Do then sought to characterise the Applicant sending the legal clause as “funny”[28]
Ultimately, Mr Do’s evidence was that he was not happy that she had used the legal clause against him.[29]
Mr Do denied he was angry on the day the phone conversation took place on 19 May 2022.
Mr Do conceded that he did not advise the Applicant on 19 May 2022 that she wasn’t sacked, he only did so the next day, on 20 May 2022[30]
The Applicant was challenged on her evidence that she remembered what happened during the phone conversation on the basis that she included “or words to that effect” in her statement. The Applicant was clear in her responses to questioning that she accurately recorded what was said to her during cross examination.[31]
The Applicant conceded that she was angry on the night of 19 May 2022. The Applicant claimed during cross examination that Mr Do laughed at her when she asserted she was not casual, consistent with an undertaking she claimed to have been given by Mr Do early on in her employment to only remain casual for a few weeks.[32] However, she made no reference to that evidence in her witness statement.
There was some contested and confused evidence about what was said on the Tuesday 17 May 2022 between the Applicant and Mr Do and whether it was said in one conversation or two separate ones on the day. In any event the Applicant was clear that she was frustrated and emotional in at least one of the conversations on 17 May 2022.[33]
It is after that conversation that the Applicant is not allocated work on the 17 and 18 May 2022, the Applicant conceded that on the evening of 19 May 2022 she was very upset, emotional and angry.[34]
The Applicant confirmed that it was only Mr Do involved in hiring her.[35]
The proposition was put to the Applicant that she engineered the situation in that she was lying in order to get more money out of the employer which the Applicant refuted.[36]
It was put to the Applicant that she knew she was never full time. The Applicant again referred to a letter stating as much and offered to produce it. The offer was ignored by counsel for the Respondent and the Applicant was not challenged further on her evidence on this matter.
When the Applicant was challenged as to why she continued to text Mr Do after she had been allegedly sacked her answer was plausible. That is because she wanted to be paid.
As to the text exchange on the 20 May 2022 the Applicant maintained that when she said “sure” in response to “tell me if you will be at work” that did not mean yes[37] and that she was being a “bit of a smart arse”[38] She characterised her response of “no problem” as her version of saying “sure whatever”[39]
Consideration
Findings as to witness credibility are necessary as part of the determination of this matter, The Respondent’s Representative made no particular submissions on how I should assess the reliability of the witnesses. The Applicant’s Representative submitted that Mr Do’s evidence was the less convincing of the two and set out reasons as to why I should make that finding.[40]
Mr Do was a courteous witness and, made some concessions, in particular he conceded that he had not been paying the Applicant within the time required by the provision in the relevant Award. However, he was also evasive when asked where in the SMS message from the Applicant, was she rude and abusive[41] Mr Do was unable to point to any SMS message that the Applicant sent that predates the 5:58pm 19 May 2022 telephone conversation that were rude. Ultimately, he indicated he was relying on the conversation as the source of the Applicants rudeness. However, this contradicts the clear reference in his witness statement to SMS messages. His concern about the Applicant’s rudeness in the phone conversation was separately identified in his witness statement[42]. His evidence on this point was inconsistent and unreliable.
There is also the evidence of Mr Do pertaining to his SMS message to the Applicant to the effect she was threatening him with legal clauses. His replies when questioned about this this was set out earlier and they were inconsistent and very evasive. In contrast the Applicant was generally responsive to questions and was prepared to concede that she was upset and emotional at particular moments where those propositions were put to her on cross examination. The Applicant, for the most part was very clear in her responses and evidence. Overall, I found her to be a credible witness. Having regard to the foregoing consideration, I have determined that where the evidence of Mr Do conflicts with the Applicant or any documentary evidence, the evidence of Mr Do is not preferred.
Was the Applicant dismissed on 19 May 2022 during the conversation at around 5.58pm
As stated earlier I find the Applicant to be a more credible witness and prefer her evidence that the conversation she had with Mr Do include an exchange consistent with that recorded in her witness statement[43] and concluded with Mr Do saying “Absolutely. I am sacking you.”[44] This finding is consistent with the fact that despite the Applicant claiming on three separate occasions via SMS that she had been sacked, Mr Do did not directly counter that claim beyond a general request that the Applicant should not tell lies. Mr Do asserts the Applicant has simply concocted a claim that she had been dismissed. If that was true and the Applicant continued to assert that falsehood by SMS on each occasion, one would think that would elicit a clear rejection of that specific proposition from Mr Do beyond a general retort of stop telling lies.
It is apparent from the exchange of texts the Applicant understands her employment is terminated and the employment relationship ended at that point. Thereafter, that evening the Applicant’s extensive texting was directed at securing her pay which she was concerned was at risk as well as venting her frustrations with the employer on various matters including her status as a casual employee.
The next day the Applicant was sent an SMS from Ms Xerri, an employee of the Respondent, offering her work. The Applicant did not accept that offer and instead sent a copy of the SMS to Mr Do saying “are you serious” and stating if she was not full time as promised she would not come back. The response from Mr Do was to ask if she was refusing shifts was met with a fourth clear statement from the Applicant that she had been sacked.
It is apparent from this exchange that there was contemplation from the Applicant of returning to work with the Respondent but only if certain terms were met. In any event she does not agree to return to work. Her replies of “sure” and “no problem” I accept were simply an acknowledgement of what Mr Do had sent by SMS. In any event the Applicant never actually returned to work after 19 May 2022.
This is consistent with my findings that the employment relationship ended on that day when Mr Do told the Applicant she was sacked. The Applicant was terminated at the initiative of the employer as this was action that either intended to bring the relationship to an end or had that probable result.[45]
Submissions were made by the Applicant that Mr Do as not in a position of authority to terminate the Applicant. It is a fact that Mr Do is a director of the company, he hired the Applicant without the involvement of anyone else. Suggesting he did not have the authority to end the employment relationship is without foundation and I don’t accept it.
Proceeding on the basis that the definition of “dismissed” in s.386 of the Act applies to applications under s.365 of the Act I am satisfied on the balance of probabilities that Mrs Sturdy’s employment relationship with Novacon was terminated at the employer’s initiative.[46] Mrs Sturdy’s employment ceased on 19 May 2022 when Mr Do advised her that she was being sacked. This was a clear communication he was terminating the employment relationship.
The jurisdictional objection is dismissed, and the application will be referred for conference pursuant to s.368 of the Act.
COMMISSIONER
Appearances:
A Jewell for the Applicant.
J Levine for the Respondent.
Hearing details:
2022.
Melbourne:
November 14.
[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365).
[2] Witness Statement of Geraldine Sturdy at [5].
[3] PN825.
[4] Witness Statement of Geraldine Sturdy at [6(e)].
[5] PN826.
[6] Witness Statement of Geraldine Sturdy at [9].
[7] Ibid at [10].
[8] Witness Statement of Geraldine Sturdy at [11].
[9] Witness Statement of Truong Do at [9].
[10] Ibid at [8].
[11] Ibid at [9].
[12] Ibid at [13].
[13] Witness Statement of Geraldine Sturdy at Annexure GS-1.
[14] Ibid.
[15] Witness Statement of Geraldine Sturdy at Annexure GS-1.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Witness Statement of Geraldine Sturdy at Annexure GS-2.
[20] PN162.
[21] Witness Statement of Truong Do at [4].
[22] PN254.
[23] PN323.
[24] PN424 - PN430.
[25] PN432 – PN444.
[26] PN450.
[27] PN463.
[28] PN481.
[29] PN489.
[30] PN514.
[31] PN702 – PN705.
[32] PN716.
[33] PN832.
[34] PN884, 861 and 862.
[35] PN896.
[36] PN929.
[37] PN970.
[38] PN972.
[39] PN975.
[40] PN1029 - PN1042.
[41] Witness Statement of Truong Do at [4].
[42] Ibid at [8].
[43] Witness Statement of Geraldine Sturdy at [11].
[44] PN523.
[45] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July 2011) at para. 24, [(2011) 212 IR 248]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].
[46] See Saeid Khayam v Navitas English Pty Ltd T/A Navitas English[2017] FWCFB 5162.
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