Irene Tomaras v
[2024] FWC 696
•18 MARCH 2024
| [2024] FWC 696 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Irene Tomaras
v
Echlan Bakery Pty Ltd
and Alaa Al Echlan and Ors
(C2023/8194)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 18 MARCH 2024 |
Application to deal with contraventions involving dismissal
The Applicant, Ms. Irene Tomaras, has applied under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute relating to her alleged dismissal by Echlan Bakery Pty Ltd[1] (the First Respondent). The Applicant claims that her alleged dismissal by the First Respondent was in contravention of Part 3-1, General Protections, of the Act.
The First Respondent has objected to the application on the basis that the Applicant was not dismissed.
Section 365 of the FW Act provides:
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.
In order for the Commission to be able to deal with the dispute under s.368 of the FW Act it must determine that the Applicant has been dismissed within the meaning of s.365.[2] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[3]
Section 386 of the FW Act defines the circumstances in which a person is taken to have been dismissed for the purposes of s.365.[4] Section 368 provides, relevantly, as follows:
386 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.
By her application the Applicant contends that she was notified of her dismissal on 6 December 2023 at 5.33-5.34pm and that the termination of her employment took effect on 8 December 2023.
For the reasons which follow, I have concluded that the Applicant was not dismissed within the meaning of s.386 and consequently s.365 is not engaged.
Background and Evidence
The Applicant said that she commenced employment with the First Respondent in early 2023. The Applicant said that she was not being paid appropriately for the duties and number of hours that she worked. She said that in or around December 2023 she spoke with Mr Al Echlan, the owner and director of the First Respondent and asked to be paid appropriately in accordance with the relevant award and to be reimbursed for income lost over the preceding months. The Applicant said that her requests were denied and that Mr. Al Echlan became angry and told her not to come to work anymore. She said he ultimately terminated her employment by text message, with immediate effect. The Applicant’s witness statement was unclear as to the date of the alleged termination by text message. Paragraph 2 says the termination took effect on 6 December 2023. Paragraph 4(c) says the text message was sent on 7 December 2023.
The First Respondent said that the Applicant resigned from her employment of her own accord on around 6 or 7 December 2023 by text message without giving the required notice of her intention to do so. The First Respondent said that after the text message exchange, nothing further was heard from the Applicant until the present application was served.
The text message exchange on 6 December 2023 was tendered as evidence.[5] The exchange was in Arabic. In the course of the hearing, the parties agreed that the document was an accurate record of the text messages between the parties. At the conclusion of the hearing the document was translated into English by a certified translator at the request of the Commission. The parties were provided with the English text and given an opportunity to make any submissions about the English version of the document.
The translated text message reads as follows:
Wed, 6 Dec
A: Are you alive or dead or ignoring there are many reasons?
2:52pm
Don’t laugh at me because I am not idiot nor am I an animal or a slave like the slaves during the days of Qureigh, Ok
2:53pm
R: By the way, you’re the most stupid person I’ve ever seen
2:59pm
A: I’ve got all the stupidity from you I’ve inherited it from you after your influence that lasted for a year, you Superman!
3:05pm
Ironically Laughing face emoji 3:05pm
I cannot come this Friday [or: this week] as I’ve got an important appointment
5:31pm
R: You’ve been taking off a lot lately
5:32pm
A: Because you’re not looking after your “strong” workers Negligence creates boredom
5:34pm
R: That’s fine, if you don’t like it you can stop coming
5:34pm
A: I swear to God I won’t come anymore to you if you don’t mind because I’m not your slave that you’ve bought me for free for a year, I’m serious.
5:35pm
If you make the workers who are taking care of your shop that they’re neglected and uncared for I won’t come anymore and I don’t have any problem with this at all!
5:36pm
Don’t think that I’m a slave or a maid throwing myself at your feet
5:38pm
R: Please yourselves
5:38pm
A: Leave the money with the worker and I’ll take it from them. You will not see me anymore since you don’t have respect for me
5:39pm
R: Give Mary notice 2 weeks before you leave
5:40pm
In order for you to take all your entitlements
5:40pm
End of translation
The Applicant also gave the following evidence in a written statement (extract is as it appears):
I have also informed Malini whom discovered that I was working at the Bakery Café as she has been a customer for two years now and pumped into me I have complained to her as a friend what should I do that the owner is refusing to pay my correct wages, that I am too afraid to be sacked at early stages when I have noticed my duties were gradually changed into an overload of other positions, tasks and irrelevant duties I was not paid for. I only knew if I left then I lose all my entitlements and rights there for I have waited pressuring ALLA often to repay what he is owing me of an outstanding amount of hours in arrears he must pay me immediately.
When I have sensed and I was sure that ALLA is not planning or going to pay me and he is foal playing me, then I have given him notice and I have given Mariette notice and I have also informed Sara that I was not coming back and I am frustrated that ALLA is refusing to pay me my money of unpaid long hours and breaks accordingly to the tasks, shifts and the type of duties I was doing, is for four position titles in one position paid as a cashier only with a wrong pays….
Consideration and Disposition
On the basis of the evidence before me I am unable to conclude that the Applicant was dismissed under either limb of s.386. In the critical text exchange, the First Respondent suggested that the Applicant consider no longer coming to work and appeared entirely indifferent to the Applicant’s circumstances or her ongoing employment. However, I do not think there was anything from the Respondent in that exchange that meant that the employment relationship was being brought to an end by the employer and the termination was not agreed to by the employee.[6]
In Khayam v Navitas English Pty Ltd t/a Navitas English[7] it was said that in circumstances where the employment relationship is not left voluntarily by the employee the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially in the termination of the employment relationship.[8] Here, although there was insulting language and some goading from the First Respondent, I do not consider that the employer’s conduct, objectively considered, was the principal contributing factor that brought the employment relationship to an end. In my view, the text exchange and the Applicant’s own evidence about her giving notice show that the termination was on the Applicant’s initiative rather than the First Respondent’s. Nor was there sufficient evidence for me to be satisfied that the ostensible resignation by the Applicant was ineffective because it was given in the “heat of the moment” as discussed in Bupa Aged Care Australia Pty Ltd t/as Bupa Aged Care Mosman v. Tavassoli (Bupa).[9] I conclude that the Applicant’s employment was not terminated on the employer’s initiative.
On the face of the text message, the Applicant said that she was leaving her employment with the First Respondent because she felt the First Respondent had no respect for her. Without more, that would ordinarily be regarded as a voluntary resignation. The question here is whether or not the evidence establishes that what has the appearance of a voluntary resignation on the part of the Applicant, can be regarded as a “forced resignation” within the meaning of s.386(1)(b). In Bupa, the Full Bench said of that subsection:
The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[10]
The Applicant had a long list of grievances about the treatment and payment she had received from the First Respondent. These included claims that she had been consistently underpaid for the work that she had performed. I am unable to make orders relating to underpayments or otherwise deal with those issues to finality in this case. These are matters that would ultimately need to be determined by the courts. However, there are circumstances in which the failure to pay proper wages and entitlements have been held to amount to a dismissal.[11] I have therefore considered whether there may have been a repudiation of the employment contract by the First Respondent which forced the hand of the Applicant.
In some situations involving employer non-payment, resignation may be viewed as a possible and foreseeable result of an employer’s conduct. It may even be a perfectly reasonable response in the circumstances. But as the Full Bench in Bruce v. Fingal Glen Pty Ltd (in liqu)[12] said, this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. In this case there were arguments about the Applicant’s status as a casual or part-time employee, the work she performed, her working hours and her payments. However, the evidence here was insufficient for me to come to a view about whether or not the claims could be substantiated. That being the case, I am not able to conclude that the matters alleged amounted to a repudiation of the employment contract by the First Respondent which resulted in a resignation because, in the face of a repudiation, the Applicant had no option but to resign.
Ultimately, I cannot be satisfied that the Applicant was deprived of choice in the matter by the employer’s conduct here. The First Respondent appears to have been unresponsive to claims by the Applicant of mistreatment. However, I do not consider that viewed objectively, the First Respondent’s conduct was directed at obtaining a resignation or at putting the Applicant in a position where she had no option but to resign. The Applicant made an assessment that she should resign and pursue these matters outside the employment relationship, as she was entitled to do, but on the evidence, I am not satisfied that the Applicant was forced to resign because of any conduct on the respondent employer’s part.
As I have concluded that the Applicant was not dismissed within the meaning of s.386(1), the jurisdictional prerequisite in s.365(a) has not been met. This does not mean that the Applicant is unable to pursue a claim for breach of award or unpaid entitlements through the court system if that is her wish, but the present application can proceed no further in the Commission.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms. I. Tomaras for the Applicant.
Mr. A. Al Echlan for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEDT on Monday 26 February 2024.
[1] The application referred to the respondent as Lulu’s Bakery however this appears to be a trading name only (see Exhibit R1 paragraph 2). Payment records identify the payer as Echlan Bakery Pty Ltd. In the circumstances it is appropriate to amend the application under s.586 of the Act to refer to the First Respondent as Echlan Bakery Pty Ltd.
[2] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[3] Lipa op cit at paragraph [4].
[4] See s.12 FW Act.
[5] Exhibit A2.
[6] See Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625 cited in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].
[7] [2017] FWCFB 5162.
[8] Ibid at [75].
[9] [2017] FWCFB 3941 at [47].
[10] Ibid.
[11] Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF The Achilleus Accounting Trust [2012] FWA 2907 and on appeal FWAFB 5679.
[12] [2013] FWCFB 5279 at [24].
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