Jessica Griffiths v Birkin Australia Pty Ltd
[2025] FWC 511
•20 FEBRUARY 2025
| [2025] FWC 511 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessica Griffiths
v
Birkin Australia Pty Ltd
(U2024/13944)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 FEBRUARY 2025 |
Unfair dismissal application – applicant not dismissed – application dismissed
Jessica Griffiths has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Ms Griffiths was employed by Birkin Australia Pty Ltd (Birkin) as a childcare worker at its centre in Shepparton, Victoria. She commenced her employment in early November 2023. Ms Griffiths contends that she was dismissed by Birkin on 6 September 2024 and that her dismissal was unfair. Birkin denies that Ms Griffiths was dismissed.
Ms Griffiths gave evidence that on the morning of 6 September 2024, the centre manager, Mel Sakaria, sent a message to centre staff on a WhatsApp group in which she raised concerns about the work of Ms Griffiths and another worker, Alanna Birch, on the previous day’s shift. The message stated: ‘It appears the floors were not swept, staff room, learning space, foyer. Washing left unfolded in the storeroom. Kitchen bin left not taken out. Reminder to ensure all chairs are put up by the end of the day.’ The message also asked what time the last child was present in the centre the previous day. Ms Griffiths’ evidence was that she found the message embarrassing and that it amounted to bullying.
At work later that day, Ms Griffiths went to speak to Ms Sakaria about her message. She told her that the message was embarrassing and bullying and had singled her out, and that this was not the first time this had happened. Ms Sakaria said that the message was not bullying, that Ms Griffiths did not know what bullying was, and that the message was not about embarrassing people but making sure they knew what they were doing. Ms Sakaria said that the message was not made in public, and that she used the WhatsApp group so that Ms Griffiths would know that the message was coming from her. Ms Griffiths replied that the message was indeed a public one and that Ms Sakaria should have spoken to her about these issues at work rather than making comments in the WhatsApp group.
Ms Griffiths said that she found the conversation with Ms Sakaria frustrating, and that this led her at one point to use the word ‘shit’. She said that Ms Sakaria got angry about this and became ‘riled up’ and started speaking loudly, but without yelling. Ms Griffiths said that she became upset and started to cry, and was so stressed by the conversation that she could no longer work. She told Ms Sakaria that she needed to leave to go and see her doctor. Ms Sakaria said to her that if she left now, then ‘don’t come back next week’. Ms Griffiths said that she had no choice but to leave the centre and went directly to see her doctor.
Ms Griffiths said that later that afternoon, she called the centre’s owner, Anna Zhang, to let her know what had happened. She told Ms Zhang that Ms Sakaria had said that if she left work, she should not come back next week. Ms Zhang said words to the effect that ‘Mel could not do that, she can’t sack you for that.’ Ms Griffiths said, ‘Well, she has.’ Ms Griffiths also told Ms Zhang that she would not go back to work unless Ms Sakaria apologised to her, and that Ms Zhang would need to be present for the apology. Ms Zhang said that she was coming to visit the centre from Melbourne the following week and she would call her to have a meeting to discuss. Ms Griffiths said that she did not hear from Ms Zhang until 15 November 2024.
Ms Griffiths gave evidence that she did not go to work on 9 September 2024 because she believed that she had been dismissed, and in any event, she was too stressed to return to work. At around 3.00pm on 9 September 2024, Ms Sakaria sent her an email stating: ‘Good afternoon Jess, I just wanted to touch base and check in and see how you are going after the meeting on Friday. Please let me know if you wish to schedule a time for a chat. Thank you.’ Ms Griffiths replied to Ms Sakaria, stating that following their conversation on 6 September 2024, it was her understanding that she no longer worked at the centre, as Ms Sakaria had told her that if she left, she was not to come back. Ms Sakaria did not reply.
Ms Griffiths said that Ms Sakaria was the person with day to day management of the centre, including hiring and firing, and there had been several instances of Ms Sakaria’s predecessor dismissing employees. Ms Griffiths said that she had obtained a medical certificate from her doctor in respect of the absence from work on 6 September 2024 which was valid for several days. She said that she did not recall Ms Zhang telling her that she had not been dismissed or words to that effect. She said that, when Ms Zhang told her that ‘Mel can’t sack you for that’, she understood that Ms Zhang was saying that she would get into trouble for Ms Sakaria having dismissed her in that way, not that Ms Sakaria had no authority to dismiss her.
Ms Griffiths pointed to five acts and omissions on the part of Birkin that demonstrated that she had been dismissed. First, Ms Sakaria told her that if she left work, she should not come back next week. Secondly, during their telephone discussion, Ms Zhang had not told her that she was not dismissed. Thirdly, Birkin did not reply to her email response to Ms Sakaria on 9 September 2024 in which she stated that she understood that she had been dismissed. Fourthly, after the telephone discussion, Ms Zhang did not make a time to speak with Ms Griffiths or otherwise reach out to her. Finally, in the next pay period after 6 September 2024, Birkin paid out all of her accrued leave, which confirmed that her employment had been terminated.
Ms Griffiths submitted that, if the Commission concluded that she had been dismissed, there would be little doubt that the dismissal was unfair. She said that the following considerations in s 387 of the Act all weighed in favour of a conclusion that the dismissal was harsh, unjust or unreasonable: there was no valid reason for dismissal related to capacity or conduct; she was not notified of any such reason or given an opportunity to respond; she was not warned of any concerns about her performance; and other relevant factors included the adverse economic impact on her.
As to remedy, Ms Griffiths submitted that reinstatement was not appropriate because there had been a loss of trust and confidence in the employment relationship, and that instead it was appropriate for the Commission to award compensation. Ms Griffiths said that had she not been dismissed, she would have worked for the company for at least another 18 weeks, as she had planned on having long term employment at the centre and under the previous centre manager the centre had the best childcare environment that she had worked in. Ms Griffiths said that on 28 October 2024, she began working on a casual basis for another early learning centre, and that, to 9 January 2025, she had earned $7,204.28 from this employment. Ms Griffiths said that she was without work for 8 weeks, and that although she now has a new job, it is casual and therefore not secure employment.
Ms Zhang gave evidence that during her telephone conversation with Ms Griffiths on 6 September 2024, she stated not only that Ms Sakaria could not sack her, but also that she told Ms Griffiths not to worry and said that she was not dismissed. She said that she made it very clear to Ms Griffiths that her employment had not been terminated, and that she would drive up to Shepparton from Melbourne on Monday to discuss things with her. Ms Zhang said that when she arrived at the centre in Shepparton on the following Monday, Ms Griffiths was not there. She told Ms Sakaria to send her a message to come to the centre and have a discussion, but Ms Griffiths did not reply. Later that evening, Ms Griffiths sent a message to Ms Sakaria stating that she believed she had been dismissed. Ms Zhang said that she did not respond to this message. Ms Zhang said in her evidence that Ms Griffiths was being childish and that she knew that she had not been dismissed. Ms Zhang said that she did not want Ms Griffiths’ employment with the company to end and that at no stage did the company dismiss her.
Consideration
In my view, Ms Sakaria’s statement to Ms Griffiths that, if she left the workplace, she should not come back next week, was an ambiguous one. Ms Griffiths had said that she was unwell and was going to the doctor. If she was so unwell that she could not remain at work, it would be reasonable to assume that she might need time off work to recuperate. Ms Sakaria’s statement could have meant simply that she should take personal leave the following week. The words were not a clear statement that her employment was terminated. One would not expect a worker to be dismissed for having to leave work to go to the doctor.
In any event, I find that during the telephone conversation on 6 September 2024, Ms Zhang told Ms Griffiths that she was not dismissed. Ms Zhang’s evidence about this was clear and convincing and I prefer it to that of Ms Griffiths on this particular point. Ms Griffiths said that she did not recall Ms Zhang saying these words, but Ms Zhang was a credible witness and she was adamant that she did say this. I further find that when Ms Zhang told Ms Griffiths that Ms Sakaria could not sack her because of the incident, her meaning was objectively clear: Ms Sakaria could not dismiss her for such a thing because she had no authority to do so. She did not mean that she was worried about getting into trouble because of what Ms Sakaria had done. The words she used do not express this meaning. In my opinion, it must have been clear to Ms Griffiths that Ms Zhang, as the owner of the business and the person with ultimate authority, did not regard her employment as terminated.
I find that Ms Zhang told Ms Griffiths that she was coming up to Shepparton from Melbourne on Monday and that they would discuss what had occurred on the Friday. I find that Ms Griffiths understood this. But she did not telephone Ms Zhang over the weekend to tell her she would not be coming to work. Ms Griffiths acknowledged that she received Ms Sakaria’s email on the afternoon of 9 September 2024, but did not immediately respond to it, because she had told Ms Zhang on the Friday that she wanted her to be present at the meeting, and Ms Sakaria’s email made no mention of Ms Zhang being present. This is an unconvincing explanation. In my view, Ms Griffiths did not want to come to the centre because of her interactions with Ms Sakaria on 6 September 2024, which she had found upsetting. She knew that Ms Zhang wanted to meet with her, and knew, or should have known, that she had not been dismissed.
Birkin chose not to respond to Ms Griffiths’ message from the evening of 9 September 2024 to correct Ms Griffiths’ statement that she had been dismissed. But it did not need to do so. Ms Zhang had made clear to her on the telephone on the Friday that she was not dismissed.
Ms Griffiths’ annual leave was paid out in the next pay period. But she had not attended for work. It was reasonable for the company to treat her as having left her employment.
If I had concluded that Ms Griffiths had been dismissed and that the dismissal was unfair, I would not have ordered compensation in this case. Section 392(2)(c) requires the Commission to consider the remuneration that the applicant would have received, or would have been likely to receive, if the applicant had not been dismissed. This entails an estimate by the Commission of the period for which the applicant would have remained employed by the respondent if the dismissal had not occurred. Ms Griffiths said that she would have remained employed for at least 18 weeks. I do not accept this.
Ms Griffiths said that she was very upset by the WhatsApp message and regarded it as bullying. I find that it was not bullying. Ms Sakaria’s remarks were not rude or offensive. They were factual. Ms Griffiths did not contend that they were untrue. It is reasonable for such matters to be raised with a workgroup because it can remind other workers of what is required. Ms Griffiths was so upset by her meeting with Ms Sakaria that she was compelled to leave work and go to her doctor. But they had had a minor interpersonal disagreement. Ms Sakaria had spoken loudly but did not yell. Significantly, Ms Griffiths told Ms Zhang on 6 September 2024 that she would not return to work unless Ms Sakaria apologised to her. I find it most unlikely that Ms Sakaria would have apologised to Ms Griffiths because in my view an apology was not reasonably required. I conclude that if Ms Griffiths had not been dismissed, Ms Sakaria would not have apologised, and Ms Griffiths would therefore not have returned to work. The employment relationship would have ended at that time. There would be no compensable loss.
Conclusion
Birkin did not dismiss Ms Griffiths. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
S. Oski for the applicant
A. Zhang for the respondent
Hearing details:
2025
Melbourne (by Microsoft Teams)
19 February
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