Jaimie Neal v Graychon Pty Ltd
[2023] FWC 2147
•10 OCTOBER 2023
| [2023] FWC 2147 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jaimie Neal
v
Graychon Pty Ltd
(C2023/2973)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 10 OCTOBER 2023 |
Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether applicant dismissed within meaning of s 386 – dismissed.
On 24 May 2023 the applicant, Ms Jaimie Neal, applied under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in which she alleges that she was dismissed in contravention of Part 3-1 of the Act. The respondent, Graychon Pty Ltd, raises a jurisdictional objection to the application, contending that the applicant was not dismissed within the meaning of s 386 of the Act. The applicant contends that she was dismissed on 3 May 2023 at the respondent’s initiative with no reason given for her dismissal.[1] The respondent operates a business which offers professional cleaning services, servicing domestic homes and commercial premises and it employs approximately 33 employees.
There is no dispute that the applicant commenced employment with the respondent in December 2022 as a cleaner.[2] The applicant believes she was employed on a part time basis as she had access to a company motor vehicle (vehicle) which she says is not provided to casual employees. The applicant says that the system used by the respondent for scheduling and timekeeping, Flowlogic, noted she was a part-time employee, and she believes she was paid accordingly.[3] Apart from expressing her belief, the applicant provided no corroboration for her contention that she was employed as a part time employee. Payslips issued to the applicant during her employment described her as a casual employee.[4] The respondent maintains the applicant was a casual employee.[5] And the applicant did not say that when she was offered employment, it was on a part time basis.
A person is a casual employee of an employer if an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work, the person accepts the offer on that basis and the person is an employee because of that acceptance.[6]
Ms Chontel Stephenson is the owner and director of the respondent and she gave evidence. The applicant did not put to Ms Stephenson that she was not employed as a casual employee, despite Ms Stephenson setting out in her witness statement given to the applicant in advance of the hearing that the applicant was a casual employee. The applicant did not put to Ms Stephenson that employment was not offered or accepted on a casual basis. Nor did she put to Ms Stephenson that employment was offered and accepted on a part-time basis. I note that in a text message from the applicant to Ms Bronwyn Vale, described in Ms Stephenson’s evidence as “Administrator of Graychon”,[7] the applicant wrote “I will also be looking into holiday pay and whether I’m entitled to that”[8]. This suggests that the applicant well knew that she was employed as a casual employee and was so regarded by her employer, because she was not receiving annual leave and would agitate whether she was entitled to it only after she believed she had been dismissed. I do not accept on the evidence that the applicant was employed on a part-time basis, and I prefer on this point, the evidence of Ms Stephenson that the applicant’s employment was as a casual employee.
Ms Stephenson also gave oral evidence that the applicant resigned.[9] Ms Stephenson’s oral evidence was inconsistent with her witness statement (which she adopted as true and correct) in which she stated the applicant “remains an active employee within the company’s system”.[10] The oral evidence is also inconsistent with the case theory advanced by the respondent that the Commission does not have jurisdiction because the employment has not ended, thus no dismissal. Ms Stephenson’s conflicting evidence on this important issue the subject of the respondent’s jurisdictional challenge, was not a momentary slip. She asserted the applicant had resigned on multiple occasions during her oral evidence as the extracts from the transcript below reveal:
MR TINDLEY: Ms Stephenson, it is said by the applicant, Ms Neal, that she attempted to log into Flowlogic which we understand is a platform that you utilise, and she got an error message saying that she had been blocked as a user. Can you explain the circumstances of that?
MS STEPHENSON: Yes, so at that point she was put in as an inactive user, which that happens with anybody, so we're charged per user while they're – while they're active. So, because she had already requested to have the week off and wasn't sure when she was going to be back, she was placed into inactive and she was not blocked on there or put into archive until she tendered her resignation.[11]
. . .
APPLICANT: Why would I have been inactive, Chontel, if I wasn't – sorry, Ms Stephenson, if I wasn't on a week's leave?
MS STEPHENSON: So, you were marked inactive the day from when we collected the vehicle - - -
APPLICANT: Okay, so - - -?‑‑‑
MS STEPHENSON: When you put through your resignation.
APPLICANT: I haven't put through any resignation and I actually have screenshots of the Flowlogic home page from that night that says I am blocked, 'user has been blocked.' I haven't had a chance to enter that into evidence but I did ask for an extension, so that there I do have. So, can you explain that for me?
MS STEPHENSON: I have explained the situation of what happened.[12]
. . .
APPLICANT: Late May, okay, so – but my employment was terminated on the 8th. That's the start of May?
MS STEPHENSON: Your employment was not terminated, you resigned.
APPLICANT: No, I did not?
MS STEPHENSON: We did not terminate your employment.
APPLICANT: No, it – well - - -?
MS STEPHENSON: We didn't - - -
APPLICANT: I would still be working for you if that was the case, because I haven't sent anything or resigned, any way, shape or form, electronically or otherwise?
MS STEPHENSON: Could you produce to the courts, a letter terminating your employment with us?[13]
. . .
THE DEPUTY PRESIDENT: So, you indicated, Ms Stephenson, that the applicant resigned, that was your evidence?
MS STEPHENSON: Yes.
THE DEPUTY PRESIDENT: And that occurred, you say, on 8 May, is that right?
MS STEPHENSON: I believe so. I haven't got everything open in front of me, your Honour.
THE DEPUTY PRESIDENT: Okay?‑‑‑
MS STEPHENSON: As I said, I have not been at work in the past week due to my own health - - -
THE DEPUTY PRESIDENT: Yes?‑‑‑
MS STEPHENSON: So, I can have a look at that to see what that states, there's text messages that went through to my admin. I did not have any direct correspondence with Ms Neal in that time after that Monday because I went in for major surgery.
APPLICANT: But you - - -
THE DEPUTY PRESIDENT: Sorry. Sorry, Ms Neal - - -
APPLICANT: Sorry, your Honour - - -
THE DEPUTY PRESIDENT: Ms Neal - - -
APPLICANT: I thought you said you went in before then?
THE DEPUTY PRESIDENT: Just wait, I haven't finished. Just take a seat for a moment.
APPLICANT: Thank you, your Honour.
THE DEPUTY PRESIDENT: Thank you. So, is it your evidence, Ms Stephenson, that the applicant sent you a text message indicating that she was resigning?
MS STEPHENSON: Through to my admin, not through to me.
THE DEPUTY PRESIDENT: Yes, but did you include any of that in your materials in your file?
MS STEPHENSON: I supplied all of that to HR Assured, yes.[14]
THE DEPUTY PRESIDENT: Now, Ms Stephenson, before we got cut off I was directing you to page 8 of your witness statement, which contains a screenshot of some text messages, and the very last message on that screenshot, is that the message to which you are referring as the resignation text?
MS STEPHENSON: No. I believe that there is another one as well, your Honour.
THE DEPUTY PRESIDENT: Well I don't have it, if one exists. Mr Tindley, do you want to take some instructions about that? I know we're in the middle of cross‑examination, it's a bit awkward, but it's a matter for you.
MR TINDLEY: Deputy President, our argument has not been that there was a resignation.
THE DEPUTY PRESIDENT: I understand that. That's why I'm raising it.[15]
. . .
THE DEPUTY PRESIDENT: Yes, all right. Ms Stephenson, just so that we're clear, I had not understood any part of your case as being, until you gave evidence today – as being that the applicant had resigned. I had understood your case that there had not been a dismissal based solely on the fact that the employer did not take any step to bring the employment relationship to an end but merely raised the prospect of some allegations in a meeting, and that thereafter because of the circumstances faced by Ms Neal that matter wasn't pressed further. But I did not understand there to be any suggestion that at some point Ms Neal resigned her employment and that that's the basis upon which it is put that there was no dismissal. So your evidence this morning, it must be said, comes as a surprise to me, and it appears also as a surprise to your lawyer. Ms Stephenson, is it your evidence that the applicant resigned?
MS STEPHENSON: I was under the belief that she resigned. For me this is all about the fact that she was not terminated by us. She's still sitting in the system and inactive, and from the messages and what was relayed to me, I believe that she had resigned from that, but we had not terminated her employment.[16]
. . .
THE DEPUTY PRESIDENT: In any event, Ms Stephenson, your evidence earlier was that you thought there was another text message which more clearly set out that the applicant resigned?
MS STEPHENSON: It doesn't state the words, ‘I’ve actually left’, as in, 'I resign', but I have sent it through. There is nothing that stipulates that. It was more so the fact of the messages that came through in stating that Ms Neal was asking for her pay to be paid in full before she would return the vehicle and the cleaning equipment in it. Usually, under my belief, when someone's asking for their last amount of their pay, that they have no intention to return to work.[17]
I will return to the import of the evidence extracted in the final paragraph above shortly, but for present purposes I note that Ms Stephenson’s contradictory evidence, in part disclosed above suggests that her evidence overall should be treated with caution.
Ms Stephenson gave evidence that on 28 April 2023 the respondent received a complaint from a client alleging that the applicant had stolen several items from the client’s home in which the applicant was performing cleaning services.[18] She said that on 29 April 2023 she contacted the applicant by telephone and requested that she attend a meeting to discuss the allegations,[19] however Ms Stephenson did not pursue the meeting as the applicant said she was experiencing domestic violence.[20] On or around 1 May 2023 Ms Stephenson again contacted the applicant by telephone to conduct a wellbeing check in which the applicant indicated that she was staying home and would not be attending work, contrary to the applicant’s evidence that she had 5 shifts lined up the week of 3 May 2023 and worked on 3 May 2023.
At hearing the respondent provided a copy of a text message sent by the applicant to Ms Stephenson on 2 May 2023[21] for the purpose of rebutting the applicant’s evidence that she had worked on 3 May 2023:
APPLICANT: hi Chontel just checking I've got nothing on this week? I wanted to make a dr's appointment to ask for a letter to take to court for support for my application for another intervention order is all
(sic)
I will return to the import of this text message shortly. The respondent says because the applicant was unavailable Ms Stephenson organised for the collection of the respondent’s vehicle, which contained a cleaning kit with products and equipment required for the performance of the duties (kit),[22] and the keys to the properties which the applicant serviced in the course of her duties (keys) in possession of the applicant. Several text messages were then exchanged between the applicant and Ms Vale on 3 May 2023 about Ms Alice Stephenson, supervisor, collecting the vehicle and keys. These messages, which all appear to be from 3 May 2023, included the following exchanges:
MS VALE: Hey jamie can you confirm your address and that you have received our messages as we will be picking up car and equipment around 6pm tonight Bron
APPLICANT: No I haven’t until now.. now I have.. im not available until 8 tonight but I’ll have it all ready I can’t talk right now, I’ll call U bavk
MS VALE: Ok Alice can’t do it that late can you leave keys in letterbox or meter box
APPLICANT: Yes When will whats owing be paid Bron?
…
APPLICANT: I got some legal advice about being fired on the spot U have to pay me 2 weeks pay aswell as whats owing for this fortnight along with super… I will also be looking into holiday pay and weather I’m entitled to that…U have dismissed me with no prior warning and no explanation
…
APPLICANT: Ok I will I’m on my way home as you can see I’ve got some really advised and ID like my pay and what not brought when you pick up the car thanks
MS VALE: How long will you be
APPLICANT: Half hr max That’s to get all my things out also but I will not be handing over the key until everything that I’m owed is paid I know my legal rights
MS VALE: Your employment hasn’t been ceased we need the car for a full time member. We are now calling the police
APPLICANT: No that’s not the case because bronze it earlier that…
…
APPLICANT: …to be out before the next pay cycle don’t take me for a full cal the police all you like Also if I was still working for you I still need the equipment now wouldn’t I
MS VALE: We need the kit for them as there kit was taken with the vehicle
APPLICANT: Ok well I’ve put everything in the car all im waiting for now is obviously whats owed and we are all sweet U can take the car and give it to the other person
(sic)
The vehicle, kit and keys were collected by the respondent on 3 May 2023, the police were involved. The vehicle had earlier been provided to the applicant by the respondent for business purposes to enable the applicant to attend various client premises to perform cleaning work because the applicant’s vehicle was unroadworthy and not presentable.[23] However the vehicle was not provided to the applicant as a term of her employment contract.[24] In essence it was a tool of trade vehicle rather than a condition of employment. But cleaning products and equipment constituting the repossessed kit was something that was required to be supplied by the respondent to the applicant under the terms of the employment contract.[25] Ms Stephenson said in her written evidence that it was her intention to conduct a show cause process to give the applicant an opportunity to respond to the allegations before a conclusion was made about the applicant’s ongoing employment.[26] However, as is evident from the transcript extracts earlier set out, Ms Stephenson’s evidence at hearing was that the applicant resigned on or around 8 May.[27] It seems clear that Ms Stephenson’s evidence about the date of the purported resignation is linked to her recollection of a period during which Ms Stephenson was ill and hospitalised.[28] Later in her evidence it became clear that Ms Stephenson had been hospitalised relevantly, on 3 May 2023,[29] and that she was equating the resignation with the date the vehicle was repossessed – 3 May 2023.[30]
The respondent says that the applicant has not been dismissed at its initiative. It says there was clear communication to the contrary – that the employment was not terminated. For completeness, the respondent submits that the applicant was not forced to resign by any action taken by the respondent and that collecting the vehicle and keys for other employees who were able to work is a standard operating procedure.
Contrary to the evidence of Ms Stephenson, the applicant gave evidence that the allegations were not communicated to her by telephone. She agrees that Ms Stephenson contacted her to ask how she was “mentally” however she does not accept that she told the Ms Stephenson that she could not work.[31] Instead, the applicant gave evidence that she worked on Monday, 1 May 2023 and Wednesday, 3 May 2023, the day which the vehicle, kit and keys were repossessed and the last day on which she worked for the respondent.[32] I accept the applicant’s evidence. For the reasons earlier explained, Ms Stephenson’s evidence is to be treated with caution. It was not put to the applicant that she did not work on 3 May 2023 and it appears not to be in dispute that she worked on 1 May, despite Ms Stephenson’s earlier suggestion that the applicant had not worked since 29 April.[33] As to the text message of 2 May 2023 extracted at [8] above, the applicant explained, and I accept, that she was asking if there were any shifts beyond her normal pattern of work that week.[34] The applicant gave evidence which was neither challenged nor contradicted that she had regular clients for who she cleaned on particular days.[35] The applicant said that when she earlier consulted Flowlogic to determine her work schedule, it showed that apart from Wednesday 3 May 2023, she had work scheduled for Thursday and Friday that week, and for Monday, Tuesday and Wednesday the next week.[36] The respondent was in a position to produce a record from the Flowlogic system to contradict this evidence but it did not. Nor was it put to the applicant that she was not so scheduled. Moreover, the applicant denied, and I accept her denial, that she said to Ms Stephenson during their discussion on 1 May 2023, that she would not be attending work for an unknown period of time, as Ms Stephenson suggested.[37] Apart from the caution with which Ms Stephenson’s evidence ought be approached, the text message of 2 May 2023, in which the applicant is checking she has “got nothing on this week”[38] is to say the least an odd request if the day before, the applicant had told Ms Stephenson that she would not be attending work at all for an “unknown period of time”. It speaks loudly against Ms Stephenson’s evidence.
The Applicant also gave evidence that in the evening of 3 May 2023 after the vehicle, keys and kit had been collected, she tried to access the Flowlogic system, but her access had been blocked and she received a message to that effect.[39] Ms Stephenson said that the applicant was not blocked but was marked inactive.[40] Ms Stephenson also said that the applicant “was placed into inactive and she was not blocked on there or put into archive until she tendered her resignation”.[41] As I earlier noted Ms Stephenson gave evidence to the effect that she believed that the applicant had resigned with effect on 8 May 2023, but that date was based on a faulty recollection as to the date Ms Stephenson was hospitalised (which was 3 May 2023). The sum of Ms Stephenson’s evidence is therefore that the applicant resigned on 3 May 2023. This suggests at the very least that on or shortly after 3 May 2023 the applicant’s access to the Flowlogic system was blocked or completely removed and is consistent with one of the exchanges during the applicant’s cross-examination of Ms Stephenson earlier extracted.[42]
Ms Stephenson’s evidence was also that “if someone is inactive, it will still show up with the same notification that it does as blocked because they haven’t… got direct access into the system because they’re inactive”.[43]
Ms Stephenson also explained the reason for rendering the applicant inactive as follows:
[S]o at that point she was put in as an inactive user, which that happens with anybody, so we're charged per user while they're – while they're active. So, because she had already requested to have the week off and wasn't sure when she was going to be back, she was placed into inactive and she was not blocked on there or put into archive until she tendered her resignation.[44]
During submissions the respondent suggested that the cost per employee per month of maintaining an employee on the system was $35. It was suggested that this was Ms Stephenson’s evidence.[45] It was not. Although as noted above Ms Stephenson said there was a cost she did not specify that the cost was $35 a month per employee. In any event, the respondent’s submission that this was a significant business cost,[46] cannot be accepted. The notion that $35 a month in respect of the applicant for a business employing 33 employees as the respondent does, is a significant business cost is frankly even beyond the normal realm of advocates hyperbole. The cost does not explain why the applicant’s access to the Flowlogic system was removed at around 3 May 2023.
The applicant also denies stealing any items from the respondent’s clients and says these are “excuses” “made up” by the respondent to terminate her employment.[47]
It is uncontroversial that save for contact necessitated by these proceedings, the respondent has made no effort to enquire about the applicant’s welfare or her availability to attend for work and to perform work notwithstanding its contention that the applicant remains employed.
The applicant says that she was “fir[ed]…on the spot” on 3 May 2023 and “never heard from [the respondent] again.”[48] The applicant contends, in effect, that the only inference to be drawn from the respondent taking back the vehicle, kit and keys, removing her from the Flowlogic system and receiving no response from Ms Stephenson when she attempted to contact her was that her employment was terminated.
By s 12 and s 386 of the Act 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.
…
For the reasons that follow, I am satisfied that the applicant was dismissed at the initiative of the employer on or about 3 May 2023.
First, a person’s employment with an employer is terminated on the employer’s initiative if, inter alia, the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. Here the respondent treated the employment relationship as at an end. On Ms Stephenson’s evidence, she believed, that when the applicant asked for her final pay (in circumstances where plainly the applicant was asserting, she was being dismissed) the applicant had no intention to return to work and was therefore resigning.[49]
Second, the applicant was blocked from the respondent’s Flowlogic system. The Flowlogic system is the means by which the respondent communicates the rostering of the employees’ shifts and employees log their hours worked, request leave and can submit documentation such as incident reports.[50] In the result the applicant had no access to any work and time keeping. This is in circumstances, where on the evidence I have accepted the applicant had been scheduled to work on and beyond 3 May 2023.
As I have indicated earlier I do not accept Ms Stephenson’s explanation that the cost of maintaining the applicant on the system was the reason to render her inactive. In any event on Ms Stephenson’s evidence the applicant was “not blocked on there or put into archive until she tendered her resignation”,[51] suggesting plainly that at a point in time on or shortly after 3 May 2023, the applicant was blocked from the Flowlogic system, and is evidence that is again contrary to Ms Stephenson’s earlier witness statement that the applicant remains employed and “remains an active employee within the company’s system”.[52]
Third, this is not a case where a casual employee remains “employed” but is simply not being assigned shifts for a period (there being an absence of a firm advance commitment to continuing and indefinite work). In my view, here it is evident by the respondent’s conduct that it brought the employment relationship to an end. The respondent repossessed the motor vehicle assigned to the applicant, and it repossessed the kit and keys which had been assigned to the applicant. The respondent also removed the applicant from the Flowlogic system. Ms Stephenson’s evidence suggests that the respondent treated the employment relationship as at an end. She maintained that the applicant had resigned. The applicant did no such thing.
Fourth, the respondent’s action of repossessing the vehicle, kit and keys removed the applicant’s capacity to perform work, in circumstances where work had been scheduled. As earlier noted, the applicant’s evidence, which I have accepted, was that she had been working on 1 and 3 May 2023 and that she had “5 days of shifts ready to go” on the Flowlogic system after 3 May 2023.[53] I consider these matters taken together lead invariably to a conclusion that the respondent treated the employment relationship as at an end and so the applicant’s employment was terminated at the respondent’s initiative.
Moreover, the respondent has taken no step, despite its suggestion that the applicant remains employed, to contact the applicant, ascertain her availability for work, inquire about her welfare, or take any step to conclude its investigation into the allegations said to have been made by one or more clients. In truth Ms Stephenson believed the employment to be at an end because of the text message sent by the applicant to Ms Vale on 3 May 2023 asking to be paid her entitlements. She believed that was a resignation and acted accordingly. She was wrong, but the conduct of the respondent thereafter meant that the employment relationship came to an end. A text message from Ms Vale - sent before repossession of the vehicle and kit, and before Ms Stephenson treated the employment as at an end – to the effect that the employment had not ended does not change the import of the respondent’s subsequent conduct.
Taken together I am satisfied that the applicant was dismissed. The jurisdictional objection is therefore dismissed, and the application will be listed for a conference so that the Commission may deal with the dispute as required by s 368(1) of the Act.
Order
I order:
The respondent’s jurisdictional objection is dismissed; and
The application in C2023/2973 is listed for an in person conference at 10:00am on Wednesday, 8 November 2023.
DEPUTY PRESIDENT
Appearances:
J Neal for herself
N Tindley for the respondent
Hearing details:
9 August 2023
Melbourne
Final written submissions:
Applicant: 9 August 2023
Respondent: 4 July 2023
[1] Form F8 – general protections application involving dismissal at 1.1
[2] Ibid; Form F8A – response to general protections application at 5.1
[3] Transcript PN575 and 601
[4] Ibid PN596
[5] Ibid PN597; Exhibit 1 at 7
[6] Fair Work Act 2009, s 15A
[7] Exhibit 1 at [12]
[8] Exhibit 1 at [13], and Exhibit 2 annexed there to
[9] Transcript PN130, PN268, PN281, PN282 and PN292
[10] Exhibit 1 at [19]
[11] Transcript PN115
[12] Ibid PN129-PN131
[13] Ibid PN268-PN271
[14] Ibid PN281-PN293
[15] Ibid PN318-PN321
[16] Ibid PN339
[17] Ibid PN353
[18] Exhibit 1 at 9
[19] Transcript PN180
[20] Exhibit 1 at 10; Transcript PN197
[21] Exhibit 3
[22] Transcript PN368
[23] Ibid PN451
[24] Ibid PN364-PN366
[25] Ibid PN366
[26] Exhibit 1 at 18; Transcript PN333-PN334
[27] Transcript PN285-PN286
[28] Ibid PN287
[29] Ibid PN386-PN404
[30] Ibid PN353
[31] Ibid PN464 and PN465
[32] Ibid PN466-PN471
[33] Ibid PN414
[34] Ibid at PN511-PN513
[35] Ibid PN452, PN513
[36] Ibid PN438-PN439, Exhibit 2
[37] Exhibit 1 at [11]
[38] Exhibit 3
[39] Exhibit 2, Transcript PN131-PN133, PN162-PN164
[40] Transcript PN165
[41] Ibid PN115
[42] Ibid PN129-PN131
[43] Ibid PN165
[44] Ibid PN115
[45] Ibid PN549–PN 555
[46] Ibid PN549
[47] Exhibit 2
[48] Exhibit 1
[49] Transcript PN353
[50] Exhibit 2
[51] Transcript PN115
[52] Exhibit 1 at [9]
[53] Exhibit 2; Transcript PN498
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