Karen Davison v Evan Lu T/A Direct Chemist Outlet Central West

[2019] FWC 4592

[2019] FWC 4592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Davison
v
Evan Lu T/A Direct Chemist Outlet Central West
(U2019/2831)

COMMISSIONER BISSETT MELBOURNE, 9 JULY 2019

Application for unfair dismissal remedy – jurisdictional objection – whether termination at the initiative of the employer – jurisdictional objection upheld.

[1] Ms Karen Davison (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. The Applicant was employed by Evan Lu T/A Direct Chemist Outlet Central West (Respondent) from 11 September 2007. The Applicant says that on 22 February 2019 she was dismissed from her employment.

[2] The Respondent raises a jurisdictional objection to the application proceeding before the Fair Work Commission (Commission). The Respondent says that it did not dismiss the Applicant, that the Applicant is still an employee of the Respondent and that the Applicant is on personal leave.

[3] In these circumstances the first task of the Commission is to determine if the Applicant was, in fact dismissed. If the Applicant was not dismissed the Commission has no jurisdiction to deal with the application.

[4] At the commencement of the hearing I gave the Applicant permission to be represented by a paid agent.

[5] The Applicant was a witness on her own behalf.

[6] Mr Evan Lu (the owner of the business) and Ms Velvet Ting (Pharmacist with the Respondent) gave evidence for the Respondent.

The events of 21 February 2019

[7] Mr Lu gave evidence that on 21 February 2019 his mother was helping out generally in the pharmacy.

[8] He said that at the end of the day his mother “expressed concerns regarding the accuracy of the cash handling processes” and suggested he count the tills.

[9] Mr Lu said he counted the tills and found one had $207 over in it and the other $208 over in it. He also counted the change float and found it to be down $106. Mr Lu said he counted a second time but could not account for the discrepancies (totalling $309). That evening he brought his father to the pharmacy and they both counted the tills and came up with the same discrepancy.

[10] Mr Lu said only he, the Applicant and Ms Ting had access to the change float.

The meeting on 22 February 2019

[11] Mr Lu said that he decided he should speak to the Applicant about the discrepancy he had discovered. The Applicant manages the tills so could explain the discrepancies. The pharmacy was busy that morning so it was around lunch time that he met with the Applicant.

[12] Mr Lu asked Ms Ting to attend the meeting with him and the Applicant. Mr Lu said that the purpose of the meeting was to get some clarification from the Applicant about the till balances. Mr Lu said he asked the Applicant about the discrepancy and if the till was balanced three times. He agreed that the discussion became “heated” but said that he kept his cool.

[13] Mr Lu said that the Applicant got defensive and upset. The Applicant asked Mr Lu if she was being accused of stealing but his evidence is that he explained to her that he and his father had counted the tills and found them to be up which confused him.

[14] Mr Lu said that the Applicant announced that she was resigning. Ms Ting asked if she really wanted to do that. The Applicant replied that she was not sure and she was going on stress leave.

[15] Mr Lu explicitly denied that he said to the Applicant “give me back my $400” or that he said “get out and never come back” or “give me my keys back” and “never come back”. Mr Lu also denied screaming at the Applicant.

[16] Mr Lu agreed that he did ask the Applicant for her shop keys and that, while he had not done this in the past when she went on leave, he did this time as they had recently re-located and the Applicant had the only key to the letter box.

[17] Ms Ting gave evidence of an incident report she wrote on 23 February 2019. That report detailed the meeting of 22 February 2019. In that report Ms Ting said that she was asked by Mr Lu to attend a meeting with him and the Applicant. Mr Lu opened the conversation in relation to “money that he believed to be missing” to which the Applicant replied that she knew nothing of missing money. Mr Lu questioned the Applicant further resulting in tension building up between them.

[18] Ms Ting said the conversation got “heated” and the Applicant said she was resigning. Ms Ting intervened and asked her if that was a good idea to which the Applicant replied she was not resigning but was going on stress leave “until the matter is resolved”.

[19] In her oral evidence Ms Ting said she could not remember Mr Lu saying “give me the money back” or that he said to the Applicant to “never come back”.

[20] Ms Ting said Mr Lu got agitated in the meeting and raised his voice. She also said that she “wouldn’t say the Applicant did not have an opportunity to reply” to what Mr Lu asked of her.

[21] The Applicant gave evidence that on 21 February 2019 at around 1.00 p.m. she withdrew $400 in cash from the ATM which she had in her handbag. The Applicant also gave evidence that late in the day on 21 February 2019 she found Mr Lu’s mother going through her handbag. Nothing was taken from her bag.

[22] The Applicant said that on 22 February 2019 she balanced both tills and the change box which contained a balance of $1,900. The Applicant said that each of the tills contains a float of $200 that is not counted in the days takings as it is not part of the takings but rather a float in each till. The float is topped up at the end of each day by whoever closes the till off at closing time.

[23] The Applicant says that on 22 February 2019 Mr Lu and Ms Ting came into her office, Mr Lu asked her about the balance in the tills from the day before. The Applicant says she told Mr Lu it was all fine and that it all balanced. The Applicant’s evidence is that Mr Lu “screamed” “Karen you are lying”. When she suggested that he check she says he repeated “Karen you are lying, give me back my $400.”

[24] The Applicant said she was not given a chance to speak. She said she was begging Mr Lu to let her explain but he would not let her touch anything. The Applicant says that Mr Lu said that he and his father were in the pharmacy the night before trying to balance everything but could not do so. She said that Mr Lu told her that there was “$400 over in the tills” and asked her “where is the money now?”

[25] The Applicant said she stood up and said she was going on stress leave “effective immediately” as Mr Lu would not let her speak. She said Ms Ting said “are you sure you want to do this”. The Applicant says she collected her bag and was going through a doorway when Mr Lu said “[g]et out and never come back.” She replied that he could not do this without proof, he demanded the keys from her and repeated “[g]et out and never come back.” The Applicant said that Ms Ting had followed her and Mr Lu out although Mr Lu denied Ms Ting went to the doorway or was there when he asked for the keys to be returned. Ms Ting said in her evidence that Mr Lu did ask the Applicant for her keys back although could not recall the exact words he used.

[26] The Applicant denied saying in the meeting with Mr Lu and Ms Ting that she was resigning.

[27] The Applicant said that she has provided Certificates of Capacity to Mr Lu as her doctor told her to do so. She agreed that she had not been paid out her entitlements but said she had requested these from Ms Ting who had not responded to her.

After the meeting of 22 February 2019

[28] On 1 March 2019 the Applicant sent to Mr Lu a “Certificate of Capacity” signed by her doctor on 26 February 2019 for the period 26 February 2019 to 26 March 2019. Mr Lu sent a response to the Applicant in which he said:

Hi Karen,

I acknowledge receiving your medical certificate.

HR will be notified.

Call me in [sic] need.

Kind regards,

Evan Lu

[29] On 17 March 2019 Ms Ting texted to the Applicant a copy of the pharmacy roster for 4 – 10 March 2019. On 29 March 2019 the Applicant was sent the rosters for 1-7 April 2019 and 8-14 April 2019. The Applicant was shown on each roster as being on leave.

[30] Ms Ting said she sent the rosters to the Applicant at the Applicant’s request. The Applicant said that Ms Ting told her she had sent the rosters because Mr Lu’s legal advisor had told him to do so and he had directed Ms Ting to do so.

[31] The Applicant provided a further Certificate of Capacity dated 26 March 2019 for the period 26 March 2019 to 23 April 2019.

[32] Ms Ting’s evidence indicates that she updated her incident report of 23 February 2019 on 20 March 2019 under the heading “Follow-up required”. In that update she said that she followed up with Mr Lu on the Applicant’s pay and was advised that the Applicant had been paid the sick leave owing to her. The evidence also indicates that Ms Ting followed up with Mr Lu on the Applicant’s employment status and was advised that she was on stress leave.

[33] On 29 May 2019 Ms Ting further updated her report.

Legislation

[34] The legislation sets out the circumstances in which the Commission may deal with a dismissal dispute. Section 365 of the FW Act states:

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.

[35] Section 386 of the FW Act provides the meaning for “dismissed” as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer...

[36] If the Applicant has not been dismissed then she cannot have been unfairly dismissed.

[37] There is, in this case, no submission or evidence to support a conclusion that the Applicant resigned from her employment. For this reason s.386(1)(b) FW Act is not engaged and I do not need to consider it further.

[38] The Applicant’s evidence is that she intended to go on stress leave (personal leave) but that Mr Lu told her to leave and not return. The Applicant’s submission is that she took this as having been dismissed by Mr Lu from her employment.

[39] The Applicant submits that even if it is found that Mr Lu did not tell her to leave and never come back the evidence still supports a finding that there was a termination at the initiative of the employer. The Applicant submits that Mr Lu went into the meeting of 22 February 2019 believing the Applicant had stolen money from him based on things said to him by his mother and a count of the tills undertaken by him and his father. The Applicant submits that Mr Lu believed the Applicant was a thief and a liar in the meeting and told her to get out and never come back. The Applicant says it is telling that neither Mr Lu’s mother nor father gave evidence.

[40] The Applicant also submits that it is most likely money was not missing on the basis of a text message from Ms Ling to the Applicant in the afternoon of 22 February 2019 in which Ms Ting said “[n]othing is missing…Whatever money he said was missing, it’s probably in the till…”.

[41] The Respondent says that Mr Lu did not tell the Applicant to leave and never come back, that she proceeded on personal leave, has provided Certificates of Capacity, is still on personal leave and remains an employee of the Respondent. Further, the Respondent says that it has not filled her position except on a temporary basis until she returns.

[42] The Respondent submits that the evidence of Mr Lu and Ms Ting supports a conclusion that Mr Lu did give the Applicant an opportunity to explain the discrepancy in the tills but that Mr Lu did not tell the Applicant to leave and never return.

[43] The Respondent submits that the evidence of the text from Ms Ting is not evidence that there was no money missing as it is no more than speculation on Ms Ting’s part.

Consideration

[44] I do not accept the evidence of the Applicant that Mr Lu told her to leave and never return. I have reached this conclusion based on a number of critical facts.

[45] Firstly, neither Mr Lu nor Ms Ting supported the claim by the Applicant that Mr Lu told the Applicant to leave and not return. I accept the evidence of Mr Lu and Ms Ting in this regard because it is consistent and because the Applicant is adamant that Ms Ting followed Mr Lu and her out to the doorway and was present when Mr Lu demanded the keys back. If Ms Ting had been present – and she agrees that she was – she would also have heard Mr Lu if he had told the Applicant to leave and not return. She heard Mr Lu ask for the keys back but did not hear him tell the Applicant to leave and not return. She denied that Mr Lu did say so.

[46] Secondly, the “incident report” of Ms Ting provides the most contemporaneous record of what occurred at the meeting. It makes no mention of Mr Lu telling the Applicant to leave and not return. Further, Ms Ting’s follow up notes of 20 March 2019 do not suggest that the Applicant was dismissed by Mr Lu at the meeting of 22 February 2019.

[47] Thirdly, there is nothing in the text exchange between the Applicant and Ms Ting that occurred later in the day of 22 February 2019 which were included in the Applicant’s witness statement, to support the Applicant’s claim that she had been dismissed. The texts were about the missing money and make no mention of any shock or dismay that the Applicant had been dismissed. The Applicant’s exclamation that she was “100% not coming back” in conjunction with the rest of the evidence before the Commission does not support the conclusion the Applicant seeks I draw from the evidence.

[48] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 1 the Full Court of the Industrial Relations Court of Australia said:

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship...

[49] In O’Meara v Stanley Works Pty Ltd 2 (O’Meara) a Full Bench of the Australian Industrial Relations Commission, having considered the key authorities, found:

[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...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.”

[Underlining added]

[50] Given my finding that Mr Lu did not explicitly tell the Applicant to leave and not return, a consideration of his conduct and actions does not support a conclusion that Mr Lu intended to bring the Applicant’s employment to an end or that would even have that result. The Applicant has presented no evidence to support such a finding. Even if there was no money missing (Ms Ting’s view on where the money might have been does not allow such a conclusion to be drawn – she did not know) this does not support a conclusion that Mr Lu’s actions were intended to bring the employment relationship to an end.

[51] I do not find that Mr Lu accused the Applicant of stealing or of lying. I am however satisfied that he did seek an explanation as to how the discrepancy came about (and perhaps how the till balancing occurred).

[52] I do not know why the Applicant reacted as she did but I do not need to make a finding on this. I only need to be satisfied that there was no action of the Respondent that had the likely effect of bringing the employment relationship to an end.

[53] In reaching my conclusion I have taken into account the subsequent conduct of Mr Lu. He responded to the Applicant’s first Certificate of Capacity with a polite acknowledgement and invitation to contact him if needed. He took no action to have the Applicant’s entitlements paid out and did pay her personal leave that she had available. Ms Ting indicates, and it was not disputed, that in her conversations with Mr Lu he indicated that the Applicant was on stress leave. None of these actions suggest that he took any action to terminate the Applicant’s employment.

Conclusion

[54] For these reasons I am not persuaded that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent on 22 February 2019 or any date thereafter. I therefore find that the Applicant was not dismissed within the meaning of the FW Act. The Applicant therefore cannot have been unfairly dismissed within the meaning of the FW Act.

[55] The application is therefore dismissed. An order 3 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

T. Koletsos for the Applicant.

M. Nassios for the Respondent.

Hearing details:

2019.

Melbourne:

July 2.

Printed by authority of the Commonwealth Government Printer

<PR709925>

 1 (1995) 62 IR 200 at p. 205.

 2   PR973462.

 3   PR710165.