Jerusha Castro v Espresso Warriors

[2021] FWC 2527

[2021] FWC 2527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jerusha Castro
v
Espresso Warriors
(U2021/141)

COMMISSIONER JOHNS SYDNEY, 5 MAY 2021

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time - date of dismissal.

[1] This decision concerns an application by Jerusha Rose Castro (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The application was made on 6 January 2021. The respondent employer is MD Espresso Pty Ltd (Respondent) trading as Espresso Warriors Mt Druitt.

[2] There is a dispute about when the dismissal took effect. The Applicant says it occurred on 6 January 2021 when she discovered that the Respondent had ceased treating her as an employee on 7 November 2020.

[3] The Respondent says the dismissal occurred on 7 November 2020 during a face-to-face conversation between Store Manager, Kristel Bates, and the Applicant.

[4] This is an important issue because:

a) if the Applicant is correct (i.e. that she did not know about the dismissal until 6 January 2021) her application for an unfair dismissal remedy is not out of time.

b) if the Respondent is correct the application is 39 days out of time and I must decide whether to grant the Applicant an extension of time.

[5] The parties filed witness statements. Having regard to the evidence before me I make the following findings of fact:

a) The Applicant’s employment commenced on 21 January 2018.

b) The Applicant was employed as casual working in a café.

c) The Applicant’s ordinary hourly rate was $26.03 per hour.

d) There was no suggestion that the Applicant was under-performing. 1

e) On 30 October 2020 Ms Bates had a discussion with the director of the Respondent, Trung Bui, about terminating the Applicant’s employment. Ms Bates was concerned about the Applicant’s lack of availability to accept shifts.

f) At about 1.00 pm on 7 November 2020 Ms Bates spoke to the Applicant.

The Applicant informed Ms Bates that she was “only available on the weekends from now on, due to her internship.”

Ms Bates advised the Applicant that she had “a full team on the weekend and no other shifts available for you.”

Ms Bates continued, “Moving forward there will be no further shifts for you from today. I can’t accommodate and change shifts for other employees to suit your availabilities. So, unfortunately, there are no more shifts.”

g) The 7 November 2020 was the Applicant’s last shift.

h) At some point between 9 and 13 November 2020 (possibly on 10 November 2020) Ms Bates told Mr Repake in Accounts Payable about the discussion she had had with the Applicant. Mr Repaka advised the Respondent’s accountants that the Applicant’s last JobKeeper fortnight would be the fortnight ending 8 November 2020.

i) The Respondent stopped paying the Applicant.

j) On 30 November 2020 the Applicant sent a text to Ms Bates in the following terms,

“Hey Kristel just wondering if I am still on the roster? As I don’t have any upcoming shifts but I still have any weekend available.”

Ms Bates responded, “Hey Juju, reason why is I have plenty of weekend staff atm.”

k) On 9 December 2020 the Applicant sent another text to Ms Bates pursuing shifts. She wrote,

“Hey Kristel I haven’t had any shifts this month so just wondering if I am still on roster? Also my internship finishes end of December so I will have a lot more availabilities after then.”

Ms Bates responded, “Okay kool, it is very hard as I have a full crew on the weekend.”

The Applicant replied, “all good well I’ll update my free days on deputy for when Jan starts.”

l) On Saturday, 19 December 2020 the Applicant contacted Mr Repaka asking about her JobKeeper payment.

m) On Monday, 21 December 2020 the Applicant followed up with Mr Repaka. Mr Repaka advised the Applicant by text as follows,

“As per our records and what Kristel has told me, your last week at [Espresso Warriors] was WE 7/11/20.

Your JobKeeper was claimed until that week.

The outstanding balance owing was $526.89. This was paid today.

n) The Applicant made further inquiries about JobKeeper on 21 and 22 December 2020. Mr Repaka told the Applicant he would forward the issue to the Respondent’s accountants. The accountants were closed until 4 January 2021.

o) The Applicant sent a follow up query to Mr Repaka on 27 December 2020. And again on 4 January 2021.

p) The Applicant requested contact details for Mr Bui. She was provided with his number on 5 January 2021.

q) On 6 January 2021 Mr Repaka again confirmed with the Applicant that her employed ended on 7 November 2020.

r) Also on 6 January 2021 the Applicant sent a text message to Mr Bui about not being rostered and not receiving JobKeeper. Mr Bui advised the Applicant by return text message to contact Mr Repaka.

s) Later on 6 January 2021 the Applicant made the present application for an unfair dismissal remedy.

[6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 2 That communication must be unequivocal.

[7] The Applicant never received a letter or other correspondence terminating her employment. She was not provided with an employment separation certificate.

[8] The Respondent relies upon the conversation that Ms Bates had with the Applicant on 7 November 2021. However, during that conversation Ms Bates did not unequivocally communicate that the employment was ending. The lack of clarity explains why, after 7 November 2020, the Applicant pursued Ms Bates for shifts.

[9] Even on 30 November 2020 and 9 December 2020 Ms Bates did not confirm that the reason the Applicant was not receiving shifts was because her employment had been terminated. It is perfectly understandable that the Applicant did not understand that her employment had been terminated, despite the Respondent taking action to terminate it and ceasing claiming JobKeeper payments.

[10] Before me Ms Bates appropriately conceded that she:

a) did not tell the Applicant she was being dismissed. 3

b) did not tell the Applicant that her employment was being terminated. 4

[11] The highest that it can be put for Ms Bates is that she told the Applicant that she (Ms Bates) did not have shifts for her. Ms Bates explained before me,

“Well, basically I was clear. I just said we are unable to give you any shifts. As she’s a casual worker I thought that was a good enough thing to say.” 5

[12] It was not “good enough”. Ms Bates’ words were not equivocal enough.

[13] Mr Bui submitted before me that telling a casual they do not have shifts is “a very … nice way to say to someone that they’re dismissed.” 6 I disagree. In any given week a casual employee may not have shifts allocated to them. It does not lead to the conclusion that their employment has been terminated.

[14] However, the text from Mr Repaka on 21 December 2020 is in a different category. On that date the Applicant was left in no doubt that her employment had ended.

[15] Having regard to all the evidence I find that the dismissal took effect on 21 December 2020.

[16] The application for an unfair dismissal remedy was filed on 6 January 2021, 16 days later.

[17] Consequently, I find that the Applicant’s application for an unfair dismissal remedy was not out of time.

[18] The matter will now be programmed for further mention/directions.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR729251>

 1   Transcript PN82 per Mr Bui.

 2   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

 3   Transcript PN21.

 4   Transcript PN22.

 5   Transcript PN24.

 6   Transcript PN73.