Julie Johnson v The Trustee for the Eid Family Trust T/A Friendly Grocer Everton Hills
[2024] FWC 3517
•17 DECEMBER 2024
| [2024] FWC 3517 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Julie Johnson
v
The Trustee For The Eid Family Trust T/A Friendly Grocer Everton Hills
(C2024/5408)
| COMMISSIONER HUNT | BRISBANE, 17 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee was forced to resign.
On 2 August 2024, Ms Julie Johnson made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Johnson stated that she had been dismissed from her employment with The Trustee for the Eid Family Trust T/A Friendly Grocer Everton Hills (the Respondent) on 26 July 2024.
In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms Johnson was not terminated on the employer’s initiative pursuant to s.386(1) of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Johnson was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Johnson was dismissed in contravention of the general protections provisions.
Legislative Provisions
Section 365 of the Act provides as follows:
“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.”
The meaning of “dismissed” is provided at s.386 of the Act:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined: that is, was Ms Johnson dismissed from her employment and if so, when?
Background
Ms Johnson commenced working with the Respondent on 3 September 2023 as a Shop Assistant. The Respondent is a small, family-run convenience store in Everton Hills, Queensland.
Ms Johnson had been unemployed for a long period and took advantage of the Queensland Government’s Back to Work program. She was supported in finding work by Mylestones, a provider in the support service/disability management sector. Ms Johnson suffers from anxiety.
In April 2024, Ms Johnson was made a permanent employee.
Multiple applications made
Despite asserting in this application that she was dismissed by the Respondent on 26 July 2024, Ms Johnson made multiple applications to the Commission prior to 26 July 2024. Below is a description of the various applications she made.
C2024/4336
Ms Johnson made a s.365 general protections application involving dismissal on 26 June 2024, asserting that she had been dismissed on 26 June 2024. On 1 July 2024, she informed the Commission in an email, “I’m not sure I have done the correct application, I may have to cancel it please. Sorry not sure what I’m doing.” Ms Johnson discontinued the application by email on 17 July 2024.
C2024/4494
On 1 July 2024, Ms Johnson made a s.372 general protections application not involving dismissal. The Respondent did not communicate with the Commission in respect of this application, and it was accordingly closed by the Commission on 30 July 2024.
C2024/4953
Ms Johnson made a s.365 general protections application involving dismissal on 18 July 2024, one day after discontinuing her earlier application. In the application, she stated that she last worked 20 June 2024. Ms Johnson discontinued the application by email on 26 July 2024.
C2024/5408
Ms Johnson made a s.365 general protections application involving dismissal on 5 August 2024. The Commission’s Client Services attempted on two occasions to reach Ms Johnson. A voice message was left on her phone on 20 August 2024, informing her that the application was deemed to have been lodged in error given C2024/5408 (this present application) was on foot.
Present application
Ms Johnson was represented by Mr Chis O’Callaghan of O’Callaghan Workplace Law in this present application. Mr O’Callaghan was unaware of the nature of the various applications Ms Johnson had made to the Commission until my Chambers provided the parties details of such on 2 October 2024, following a telephone conference with the parties on 26 September 2024. Ms Johnson had not been able to present to Mr O’Callaghan a clear and precise chronology of her various claims against the Respondent. Following the Hearing of this matter, Mr O’Callaghan filed a Form F54, advising that he no longer represented Ms Johnson.
Hearing
The matter was listed for hearing in-person on 4 November 2024. Ms Johnson was granted leave to be represented by Mr O’Callaghan. The Respondent was represented by its owner and operator, Mr Souheil (Anthony) Eid. I conducted the matter as a determinative conference.
It is helpful to understand, although quite difficult to comprehend, but Ms Johnson and Mr Eid have a very peculiar, platonic relationship. Text messages and emails exchanged between them both during the employment relationship and after it came to an end are produced below. The relationship is bewildering.
Evidence of Ms Johnson
Ms Johnson is a 45-year-old single mother with responsibility for the care of her adult son who has autism and mental disabilities. Ms Johnson has acute anxiety, recognised as a disability. One way in which Ms Johnson’s disability manifests is impulsivity and an erratic approach to her affairs. She stated that she changes her mind a lot.
Whilst dealing with Mylestones to try and secure employment for her son, Ms Johnson signed up for the Back to Work program and was placed to work with the Respondent.
Mr Eid not only operates the convenience store; he is a sole trader making and selling beef jerky within the store. Ms Johnson seemed to enjoy her involvement in making and selling jerky. She encouraged Mr Eid to sell jerky at markets. She increased sales of jerky while working in the store.
Ms Johnson only received one pay slip during her employment, in October 2023. Mr Eid’s daughter, Bianca did some paperwork for the Respondent.
Ms Johnson typically commenced work at 5:30am and worked through until 1:00pm and anywhere up until 4:00pm. Her legs became sore from not being able to sit down. She considered that she was doing higher duties and not being paid for the higher duties. She considered that young employees were not pulling their weight while at work.
Ms Johnson often sent emails to Mylestones, raising issues about the Respondent. The issues included whether she was appropriately classified as a Level 1 employee, penalty rates and overtime. Ms Johnson sent the following email to Mylestones on 7 December 2023:
“…I just wanted to check, I open 5:30 every morning is that penalty rates until 7am because I open outside of normal hours?
Also, I’m paid as a level 1, and I know I’ve only been there 3 months but I handle the cash outside of till and make calls for fixing eftpos machines often etc, I handle complaints, sometimes I close at 8pm.
Is that what a level 1 does?
I don’t want to complain but I don’t sit down for more than 10 mins my whole shift I try to always be doing something. I take 5 mins for lunch, my choice
Tony is lovely and I’m happy to help him but do want to make sure it’s correct because I am a good worker and don’t have days off.
I don’t want to put any stress on him he’s not well so just any advice?
Maybe it’s all good and I’m getting what I’m supposed to, and that’s fine I’m happy, maybe levels are nothing!!”
On Christmas Day 2023, Ms Johnson sent the following email to Mylestones:
“Hi Anna it’s Julie
Are you aware Tony doesn’t pay correctly?
I’m apparently supposed to get penalty rates between 5:30am and 7am and I do it every weekday. I’ve not had one day off
I’ve also worked Xmas Eve Xmas day and boxing day and is included in my 38 hrs over 6 days in a row, one I was called in for that day
He gave me 125 for the 3 holidays,
I also do a lot more than my duties describe as a level 1
He came up to me and said what would you want for working xmas, what am I supposed to say? He knows what it should be.
He’s only taking from me and makes me think I’m not appreciated, I do everything there, the café next door says I’m gold so wouldn’t be look after me if he wants to keep me?
I’m on the very minimum as it is and he has underpaid me since I started full time, makes sense now that I don’t get answers, he must think I’m not worth paying and keeping and that’s fine, he can easily replace me people apply all the time, in a hard worker and do alot more than I should be, somebody must deserve me?...”
On 26 December 2023, Ms Johnson sent the following email to Mylestones:
“Is this the reason he goes through a lot of staff? Apparently he is known for this and that’s not fair, I’m not 100% but from what I’ve heard he owes me
Penalty rates for 6 to 8pm Xmas Eve a Sunday, that was also a day I was called in
5:30 to 7am each morning since going full time for penalty rates
6 days in a rose this week Sunday to Fri
The correct retail level according to my duties since I started
And 11 hours public holiday Xmas and boxing day with 2 hour early start penalty rates
He gave me 125 cash in hand and said he will make it up to me
You absolutely know he does that?”
Ms Johnson was dissatisfied with both the Respondent and Mylesetones. She explained that by April 2024 her mood was fluctuating, she found it difficult to settle down and her actions became increasingly erratic.
Ms Johnson stated that in early June 2024 she complained about working so hard and others not pulling their weight. Mr Eid offered to cut Ms Johnson’s hours to 15 per week.
At some point she had the following email and text exchange with Bianca. The dates of the emails and text have not been provided:
Ms Johnson:Sorry to annoy you, can you tell your dad imagine if he did the morning shift and I did afternoons, the place would run better and the young ones come through the day to help us both, he pays the same just work is continuous because an adult is always there instead of me and tony doing everything and they come in to be lazy, always have someone serving the other working, tony can leave the fruit and veg to get done instead of waiting around for me to finish everything
May aswell see how it works then there’s no complaints, everybody works
It’s hard because we are not there, they are the problem so it fixes that
Or I still do mornings he do afternoons
………………
Ms Johnson:Oh sorry I thought you were the one to sort everybody’s hours for the week
Bianca:Because the girls uni/school schedule changes weekly the hours change. If you’re tired we can do less hours? Have a specific day off? Or if you can make a suggestion?
Ms Johnson:I will just be on when it’s all the work, I want to share the work, maybe Phillip shouldn’t have left, the truck is reliable again
I told the orange head on last night to do the drinks, she didn’t do a thing, I’m doing everything it’s just not fair that’s all, when they do nothing for their pay, I went from serving to doing everything now, I don’t sit down, of course it wears me out!
On 20 June 2024, Ms Johnson had surgery on her lip and planned to be on leave the following day as her mother was visiting from Melbourne.
On 23 June 2024, the following text messages were exchanged with Bianca:
Bianca:Good morning, is there anytime you can’t do while your mum is here? I hope Friday went well for your brother
Hi this week
Monday 5:30-1:30
Tuesday 5:30-2
Wednesday 5:30-2
Thursday 5:30-2Friday 5:30-10
Thank you
Ms Johnson:I need leave Tuesday 7:30 to take my mum to the airport, sorry I won’t be too long depending on traffic.
Bianca: Ok no problem
As I discovered during the Hearing, Ms Johnson has a restricted license, only permitting her to drive to and from work.
Her lip was still sore the following Monday and she didn’t feel well enough to attend work. The following text messages were exchanged on 24 June 2024:
Ms Johnson:Tony im so sorry I’m sick can’t make it, I’ve pick something up and feel lousy, hopefully in tomorrow
Sorry
Mr Eid: No problem
Thank you
Hi
Hope you are feeling betterHave to get someone for tomorrow morning to replace you, it’s hard to get someone last minute as you know. See you on Wednesday if recovered by then.
Thank you
Ms Johnson: So you don’t want me in at 5.30?
Tomorrow?Mr Eid: No have a rest tomorrow please
Thank you
On 25 June 2024, the following text messages were exchanged:
Ms Johnson:If you don’t need me this week I may as well use my last 2 days ive got and come in Friday, is that what you want?
I was today but you said no
Mr Eid: Always need you
Please come tomorrow. Back to normal, will give you day extra next week to make up for today. Thanks
Ms Johnson: What do you mean a day extra
Mr Eid: Maybe 6 days next week
Ms Johnson: It’s OK just pay me for the days I worked, see you tomorrow
Whilst Ms Johnson’s records are very muddled, I have pieced together the following evidence.
On 25 June 2024 at 7:05pm, Ms Johnson sent Mr Eid the following text message:
“Tony, I’ve been going through my hours and I’m sure you owe Me for penalty rates etc, you might need to check with the award but I think we should sort it before I come in because it’s been going on awhile, I’m not picking but I’m pretty sure I’m entitled to it and I do a lot of work so it’s only fair to check I’m getting paid right. I’m supposed to get a different rate when I work early mornings, close at night, less than 12 hrs between shifts, Saturdays, holidays, shifts over 9 hrs and the extra super for this.
So October there were 12 mornings
November 22 mornings
December 21 mornings 1 Sunday, 1 closing, 4 over 9 hrs and 3 holidays
January 17 mornings, 4 closing, 2 holidays, and 6 shifts over 9 hrs,
February 14 mornings, 3 closing, 2 shifts less than 12 hrs between, 5 shifts over 9 hrs and 2 Saturdays
March 15 mornings, 7 shifts over 9 hrs, and 1 holiday
April 1 shift 12 hrs between, 2 holidays, 5 closing, 14 mornings, 5 shifts over 9 hrs and 1 split shift but that’s OK
May 10 mornings, 5 closing. 1 holiday and 1 shift over 9 hrs
And June until last Friday 9 mornings.
That doesn’t include thr work load I do, when I’m paid to serve anyway shouldn’t I get more for all the work I do? I think you should get advice if you don’t know about that stuff, because that’s a lot of difference if I’m entitled to it, don’t you think?
I’m not complaining about the work just want to be paid fairly ive let it go over 10 months, I know you added 20 but I don’t think its right.
Maybe I should be on a different contract to the rest when they don’t do any of what I do?
I don’t know.
Or maybe you don’t want me there any more if you need to pay any me more. Being your main worker I should be able to ask without you getting angry about it, I work hard to get everything done and have taken most of the physical work from you and sue for months now.”
On 26 June 20224, Ms Johnson saw an advertisement and presumed Mr Eid had placed it.
From 5:24pm on 26 June 2024 the following text messages were exchanged:
Ms Johnson: ……..no option but to go to fair work commission
Mr Eid: Still shocked by your first message
Not sure if you want to work or just make trouble
If you want to discuss come over
If want to discuss. I do face to face
Good luck
Ms Johnson:Fair enough, thanks for getting back to me, I do appreciate you giving me a job, you know I do
Mr Eid: Come over tomorrow if you want to discuss
The messaging continued from 5:57pm on 27 June 2024:
Mr Eid: Hi
It looks like you’re sick of it and quitting
Can you please let us know so we can organise ourselves for next week.
ThanksMs Johnson:I don’t want to quit, I came in last night was going to do the fruit and vegis but there was only boxes of lollies and stuff up the back, she wasn’t doing anything, I just want you to see all I do and realise I’m worth keeping, you are supposed to pay me for the extra things I’m not making it up, check the award. I might be the only one complaining but I do everything, I barely sit down tony, its up to you if you want to keep me or not.
I know you don’t want to hear about my pay but fair is fair, I earn every bit I’m entitled to, you would winge too, I’m not asking for a raise
…I am entitled to the list I sent you, I tried to discuss this early January eventually we need to sort it, don’t you think?
Mr Eid: I am not good with messaging if you want to meet we can talk
Are you there
Hard to communicate with you
I understand
Won’t put you on for next week
Will talk to milestones tomorrow.
Thanks
Ms Johnson: Mylestones are useless they don’t know anything about work
Just check the award, that’s what you go by, anna obviously doesn’t know either she ignored me for months
I will come back if I do evening shifts, I don’t want mornings anymore
On 28 June 2024, the following text messages were exchanged:
Mr Eid: !!!
Ms Johnson: ?
Maybe your right, don’t owe Me anything
Mr Eid: Do you want to have a chat
Ms Johnson:I tried to, you don’t want to know about it, I’m not trying to get you in trouble I just want to sort it so it’s fair for both us, I can pull out at any time, I ‘ll talk to you next week, don’t worry about anything
Mr Eid:You know I want the best for you but things we agreed on in the pass and now the opposite. I feel like I am dealing with 2 Julie(The first 5 months and the second)
If I owe $1 I will pay you I am always fair
But things should work both ways not only your way
Anna is coming on Sunday to check your pay
You think that you’re underpaid but the award from the government
And if something wrong you must say it straight away not after few months
Ms Johnson: No worries
Mr Eid: Hi
Anna is working out how much we owe you legally, don’t stress you will get your money
I am not the type to rip people off specially you
I thought everything is fine
So hard to communicate with you
You are sick of working fair enough but we don’t have to fight
Ms Johnson:I don’t mind working it’s not getting paid for it, I get the same to sit and serve, how don’t I get any extra for all the work I get done, think about it how would you feel
Mr Eid: Am I forcing you to do extra work
On 1 July 2024 at 11:52am, Ms Johnson sent the following text message to Mr Eid, seemingly referring to the two applications she had made by this time; C2024/4336, the first s.365 application nominating 26 June 2024 as the day she was dismissed, and C2024/4494, being a s.372 application:
“Hi tony
You can disregard the papers from last week, I have made another application after noticing your ad replacing me last Wednesday, you obviously didn’t want to pay me anything or for me to stay so I’m going ahead with the Fair Work commission, I gave you time to fix it and think over the weekend. No hard feelings I still respect you.”
The text messages continued as follows:
Ms Johnson:No don’t force me, but I’m expected to get it done so you can head home, if I dont, more deliveries will come tomorrow, who else will do it, you don’t find a better worker than me, I proved I was there to stay but you obviously don’t think I was worth keeping, you go through too many workers and spend money and time doing it when you could pay properly and rest at ease knowing its covered
Mr Eid:How many times I asked you to serve and I do F&V and the meat but you don’t like serving
Ms Johnson:If you Truly believe you don’t owe Me anything you have nothing to worry about, maybe I’ve got it wrong
Mr Eid: I asked you to come and talk but didn’t
Why you left it so long without saying anything
How do I know you’re happy or not
On 2 July 2024, Ms Johnson sent the following email to Mylestones:
“I’ll be complaining about you both, all about the incentive and nothing else”
Ms Hanson of Mylestones replied as follows:
“Good afternoon Julie,
Apologies, I have refrained from replying to your emails as in your complaint you had requested to only be contacted by senior management.
Ben Opetaia who I have copied into this email has tried to call you to discuss your concerns.
I met with Tony on Sunday and he has given me copies of the wage book and the contract etc, I will work through the info he has given me and also the information you have emailed through.
Tony discussed that he will pay money owed when we let him know what it exactly is.
I will be going through the hours worked and earnings later this afternoon, it would be good to meet with you at some point in case I have missed something.”
On 4 July 2024, the following text messages were exchanged:
Mr Eid: Good morning
Anna is working out how much we owe you
Tried to call you few times
I found a very profitable little business for you
Thank you
Ms Johnson: Hi tony, what’s the business you had in mind?
No hurry
Mr Eid: Hi
No Hurry
The guy said August or September
Will let you know
Thanks
Ms Johnson took the suggestion of a profitable little business to mean Mr Eid’s jerky business.
On 7 July 2024, Ms Johnson heard a rumour that Mr Eid was selling the shop, so she sent him a text message, “Are you selling the shop? I’ll run it for you.” Mr Eid replied, “Visiting someone will talk later”.
On 23 July 2024, Ms Johnson replied to Ms Hanson as follows:
“Anna, how could you possibly work out what he owes when he’s been dishonest from the start, he hasn’t told you anything, did he tell you I worked 9 holidays, and the correct hours?
I gave him a list and he didn’t go by it.”
On the afternoon of 26 July 2024, Ms Johnson instructed Mr O’Callaghan to act for her. That same afternoon she sent the following resignation letter to Mr Eid:
“Dear Mr Eid
Resignation from my position at Friendly Grocer Everton Hills
I am writing further to the events of 25 June 2024 after which you said you would contact me on 30 June 2024 with my roster for the following week, but you have failed to provide me any further work since then.
This is formal notice that I am terminating my employment with immediate effect. You have forced me to resign because:
· You failed to contact me with a roster for work and not explained why.
· You have failed to rectify the underpayment of my statutory entitlements.
· You have failed to pay me while I have been waiting for you to roster me on shifts.
· You have failed to address my complaints about my employment, including:
o Pay slips
o Unpaid wages
o Superannuation contributions
o Penalty rates
o Allowances
o Back pay
o Allowances
o Loadings
o Rest breaks
o Workload; and
o My correct classification under the Award.
You conduct has left me with no income and no communication from you about these important matters and as such I have no other choice but to resign.
Yours sincerely
Julie Johnson
26 July 2024”
Ms Johnson made a multitude of applications to various federal agencies and to the Federal Court of Australia.
On 23 August 2024, Ms Johnson sent the following email to Mr Eid:
“Where’s this business deal you promised me? Or was that just to stop me going to the ato about all the staff underpayments over the years?
I think you were hoping I would disappear.”
Mr Eid responded:
“What’s wrong with you,”
On 23 August 2024, Ms Johnson replied:
“Tony, that was your last chance to do something decent to make up for what happened, you gave me false hope, there was never a business was just to stall and shut me up
I know now I can’t trust you so I’m not sorry anymore for what needs to be done, you won’t hear from me again
You take care”
On 25 August 2024, Mr Eid replied as follows:
“Hey Listen Girl
You went over your limit, I am a gentleman and kind and you are taking full advantage of it
You were overpaid all the way from day one, were giving you days and hours off and pay you for them to make up for what you are claiming (got it all written in the book), that why you didn’t say a word all the way, and you are the type of person who would complain, you don’t appreciate nothing, you are so rude.
You were supposed to give 2 weeks notice, you didn’t (read your contract), you just left with no appreciation, if I don’t say anything being a gentleman, doesn’t mean I can’t see what wrong you were doing(Paying someone $15 an hour on numerous occasion and getting full pay, Rotating the stock, putting wrong product wit wrong label, F&V packaging, lost so much on the meat packaging, you mentioned something about drugs), didn’t even call my lawyer, maybe will be forced to do so.
Gave you full time to help you out I thought you were honest, but I was totally wrong, Hired thousands of people over the years and still going, they all appreciated, but you don’t, Go ahead bring Albanese to the shop and I will show you the other side of me”
Ms Johnson responded:
“I’m not bringing anybody to the shop, but you didn’t have to fib about some business to me, I was never dishonest with you, told you about Sadie and got hated for it, and was honest when I sold jerky cheaper, kell I gave him 25 on 2 occasions just to cover the last hour for me so I could sort the vet and it was quiet both times, I gave him 25 not 15 he will verify that
I’m not arguing tony you told Me about the business I was waiting to hear about and I appreciate the thought
I won’t bother you anymore
Sorry”
In early September 2024, Mr Eid sent the following email to Ms Johnson:
“Re: Stealing is a criminal offence or allowing something to steal
Hi,
Went to see my Lawyer yesterday, had to say the truth, do you know
Stealing is a criminal offence or allowing someone to steal. You could get a fine or have to go to court. The maximum penalty for stealing if your case is dealt with in the Local Court is 2 years imprisonment and/or a fine.
Like if you tell a customers to put things from the shop in their bags without paying for, just warning you to be ready
Take care”
Ms Johnson’s evidence is that in January 2024, she allowed a customer to have two drinks for free because she had little money. Mr Eid informed Ms Johnson that he and his wife watched her on the cameras before informing her that they had witnessed the incident.
On 5 September 2024, Ms Johnson returned to the store and paid $15 for the cost of the two drinks. On 6 September 2024, the following text messages were exchanged:
Mr Eid:Will help you as much as I can
Ms Johnson:Thanks I appreciate it tony
Ms Johnson:The shop is looking good, felt nice and homey when I walked in last night
Mr Eid: Sorry Thanks for the money I wish you still there to beautify the place
Ms Johnson: Oh that’s nice
In other text messages of unknown date, the following was exchanged:
Ms Johnson:We need to go to conciliation, that’s what I paid the lawyer for, we don’t need to go to court, just to conciliation where we can work out what’s owed, we can be reasonably
Mr Eid:My Lawyer said we have to go to 2 hours conference and then maybe federal court
I asked you to come to work it out but you are not coming. It’s your call
Ms Johnson: No court just a conference to sort it out
Mr Eid: Up to you
Then I will send Fairworks my reply.But I have to say the truth and hopefully doesn’t effect you. I know did nothing wrong and happy to pay you legally what I owe you
Ms Johnson: Thanks tony
Mr Eid: Thank you
Still like you
Miss you
Ms Johnson: Me too
Mr Eid:You know I am honest and don’t rip off any one all my billed paid. I would feel guilty to rip you off.
Just guessing your holiday and sick pay would be $3500-$4000
Ms Johnson:We talk at mediation apparently, to work it out properly, that’s what lawyer said but it can finish there we don’t have to keep going, I appreciate you trying to sort it but has to go this way now, I tried to sort it earlier with you and anna, anna is silly for not responding your doing the right thing
Mr Eid: Wish you all the best always
Ms Johnson:Me too tony, I miss working there and helping you, I could have been nasty but I only wanted what you owed me, don’t need to worry about anything else, I am always on your side, and I hate that it ended that way, I thought I would work there a long time, I feel bad and also wish you and your family the very best, I always will, I know you are a great person I have nice memories of you
Mr Eid:We had a good time, I understand penalty rates and owe you I am not saying no but you don’t calculate the time off against it, but still will help you in the future regardless of the outcome Good Luck
Submissions of Ms Johnson
It was submitted that the Commission should be mindful of Ms Johnson’s disability when considering whether the circumstances resulted in her being forced to resign because of conduct or a course of conduct engaged in by the Respondent.
It was submitted that Ms Johnson thought that Mr Eid would come to his senses and the employment relationship would have gone on amicably.
Evidence of Mr Eid
Mr Eid’s evidence was not sophisticated, evidencing significant gaps in knowledge of his obligations as an employer, particularly relevant to the modern award applicable within his business.
It appears that Mr Eid has provided cash payments for the performance of work on public holidays. Despite there being some confusion at the hearing as to whether superannuation had been paid for work performed on public holidays, I understand that it has been paid.
Mr Eid stated that on 3 December 2023, Ms Johnson told one regular customer not to pay for expensive drinks and permitted the customer to put them in her bag. There was later an altercation between Ms Johnson and that customer at the customer’s home relating to a pet. The customer reported the matter to the police and then no longer attended the store.
In respect of Ms Johnson’s illness on 24 June 2024 following her surgery the week before, the day off was granted. The following day, 25 June 2024, Ms Johnson wanted to drop her mother to the airport. Mr Eid informed her to have the day off and he would provide her with an additional day’s work the following week.
Mr Eid noted that Ms Johnson then did not attend for work that week. He denies that he told her to take the rest of the week off work.
Mr Eid stated that when Ms Johnson was tired at work, she would ask a junior to work her final hours and while she received $31.27 per hour for the work, she would then pay the junior a much lesser rate and keep the balance.
Mr Eid was not happy when Ms Johnson stated in her text message that she will only come back to work if she did the night shift work. Mr Eid already had other employees to perform that work and was not agreeable to Ms Johnson ceasing working mornings to then work nights.
He noted that Ms Johnson did not message Bianca to update her availability for the week commencing 1 July 2024 and had declared she only wanted to work nights. That is why she was not given any work for the week commencing 1 July 2024.
Consideration in respect of whether there has been a dismissal
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]
When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]
Although applied under the previous Act,[4] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[5] in my view remains generally apposite to the consideration of s.386(1) of the Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)
A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[6] in the following terms:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
· the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
· a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
· the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· conduct includes an omission;
· considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
Date of Ms Johnson’s resignation
Ms Johnson made numerous applications to the Commission prior to resigning her employment in writing on 26 July 2024.
Was Ms Johnson forced to resign?
In light of the terms of the Act and the authorities, it is necessary to consider whether Ms Johnson was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.
The onus is on Ms Johnson to establish that she did not resign voluntarily, proving that the Respondent forced her resignation.[7] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Ms Johnson and the Respondent to an end.[8]
Ms Johnson was legally represented on 26 July 2024 when she resigned her employment in writing. Clearly, Ms Johnson had assistance in the drafting of the resignation letter.
There appears to me to be no satisfactory reason why Ms Johnson resigned her employment while legally represented, and why she could not have remained employed and pursued her claims. It is extremely common for employees to remain employed and put their employer on notice that they consider they have been underpaid. There is no need to end the employment relationship to pursue an underpayment of wages claim.
On 25 June 2024, the day that Ms Johnson was dropping her mother at the airport, and Mr Eid had told her to have the day off, Ms Johnson was proposing that she have the rest of the week off. Mr Eid said no, she was needed the next day, and she should come to work (at [33]). Ms Johnson confirmed that she would be at work the following day. However, she then sent a detailed underpayment of wages claim that evening (at [35]) and failed to attend for work as promised.
On the evening of 26 June 2024, Mr Eid noted that he was in shock regarding the message but was again inviting Ms Johnson to come to the shop to speak about her concerns. She had not attended for work on 26 June 2024, and she again failed to attend for work on 27 June 2024.
After not attending for work on 27 June 2024, but then declaring that she did come in on 27 June 2024 in the evening, proposing to do some work, Mr Eid again invited Ms Johnson to speak with him in person. She then declared on 27 June 2024 that she will “come back if I do evening shifts, I don’t want mornings anymore.”
Mr Eid repeatedly assured Ms Johnson that he was speaking with Mylestones and would be sorting out any underpayment owed to her.
Impetuously, Ms Johnson had already commenced litigation against the Respondent.
Shortly thereafter, when Mr Eid suggested there might be a business opportunity for Ms Johnson, she was very keen, offering to run the store for Mr Eid. It strikes me as very unusual that this is a person whom she suggests treated her so poorly, yet was jumping at the idea of a business opportunity.
As highlighted in ABB Engineering, a consideration of the employer’s conduct is necessary to determine if it was the principal contributing factor in the resultant termination. In this matter, Mr Eid was repeatedly requesting Ms Johnson come to the store so they could discuss her concerns in person. She never agreed to attend the store, and she chose not to work 26-28 June 2024 when she had capacity to do so.
Ms Johnson declared an unwillingness to work mornings. Understandably, Mr Eid had no desire to move other employees from their shifts, noting they are university and school students with limited availability.
While Mr Eid did not roster Ms Johnson to work the week commencing 1 July 2024, this is understandable given her statement that she would not come back to work if she had to work mornings.
Ms Johnson was unwilling to meet her responsibilities to her employer from 26 June 2024 and unwilling to meet with her employer to discuss her concerns.
I have had regard to Ms Johnson’s disability. It clearly has an impact on her life and the way she deals with circumstances. Ms Johnson removed herself from the business late June 2024 at her own initiative. She declared she that she did not wish to work mornings; all the while being unwilling to meet with Mr Eid.
It was not, however, Mr Eid’s responsibility to continue to pay to Ms Johnson wages on account of her refusal to attend for work and make herself available for her usual shift. It was her course of conduct that resulted in her not performing work and therefore not being paid wages. Mr Eid was keen for Ms Johnson to return to work, and he effectively gave up contacting her when she failed to attend or announce her return to work.
Having regard to all of the conduct between the parties as of 26 July 2024, I am satisfied that Ms Johnson’s resignation was voluntary, and not due to conduct or a course of conduct engaged in by the Respondent.
Heat of the moment resignation
It is an established principle that an employer is generally able to treat a clear and unambiguous resignation as a resignation.[9]
However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.[10] Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.[11]
Ms Johnson was legally represented when she formally resigned her employment in writing on 26 July 2024, more than one month after last attending for work. The resignation was not made in the heat of the moment.
Conclusion
For the reasons set out above, I have determined that the resignation of Ms Johnson was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Ms Johnson was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.
I must dismiss the application for lack of jurisdiction. An Order [PR782547] will be issued together with this decision.
Post-script note
I will request my Associate provide a copy of this decision to the Fair Work Ombudsman on the basis that it appears to me that Mr Eid requires some educational assistance in respect of employment-related matters and adherence to the modern award around public holidays and penalty rates and obligations to provide pay slips to employees. I consider it appropriate that Mr Eid obtains advice from the Fair Work Ombudsman and not necessarily from Mylestones.
COMMISSIONER
Appearances:
C O’Callaghan of O’Callaghan Workplace Law for the Applicant.
S Eid for the Respondent.
Hearing details:
2024.
Brisbane.
4 November 2024.
[1] [2020] FCAFC 152.
[2] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75]; see also Mohzaba v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[3] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75].
[4] Workplace Relations Act 1996 (Cth).
[5] [2006] AIRC 496 (PR973462).
[6] [2017] FWCFB 3491.
[7] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,
[(2009) 185 IR 359].
[8] 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].
[9] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12], citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362, citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
[10] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12], citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.
[11] Ibid.
Printed by authority of the Commonwealth Government Printer
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