Kelly Boes v Earlwood Hotel Operations Pty Ltd
[2023] FWC 818
•6 APRIL 2023
| [2023] FWC 818 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kelly Boes
v
Earlwood Hotel Operations Pty Ltd
(U2022/11267)
| COMMISSIONER MCKENNA | SYDNEY, 6 APRIL 2023 |
Application for an unfair dismissal remedy
Kelly Boes (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), alleging that a resignation she effected amounted to a dismissal/constructive dismissal and seeking certain remedies. The applicant was formerly employed at the Earlwood Hotel (“the hotel”) and her employer was Earlwood Hotel Operations Pty Ltd (“the respondent”). The respondent contends there was no dismissal; rather, the applicant resigned against the assumption she had been dismissed when this was not the case given her employment status as a casual.
Background
It is necessary to give some short procedural background, because the directions in relation to this matter did not follow the usual formulation for directions where an employer contends there was no dismissal. Shortly stated, however, the respondent significantly delayed providing its Form F3 Employer Response (“Employer Response”) which raised this no-dismissal matter. That is, the application was lodged on 25 November 2022. On 30 November 2022: (a) advice was given to the respondent to provide Employer Response by 7 December 2022; and (b) advice was given to the parties that the matter was listed for a conciliation by a staff conciliator on 15 December 2022. The respondent did not lodge its Employer Response by 7 December 2022. On 14 December 2022, James Morrison, Licensee of the hotel, sought an adjournment of the staff conciliation “until the new year”, setting out certain matters in support of the adjournment application. On 15 December 2022, the Commission advised Mr Morrison: (a) that the adjournment application was declined; (b) that the staff conciliation would go ahead; and (c) that a conciliator would contact him by telephone at the scheduled time. Commission correspondence to the parties dated 15 December 2022 indicated that the conciliation did not proceed because of the unavailability of the respondent. The Commission made the offer of scheduling a further staff conciliation. In consequence, a further staff conciliation was listed for 17 January 2023; that was brought forward to 12 January 2023, due to the availability of the applicant. On 9 January 2023, the Commission wrote to Mr Morrison noting that the Employer Response was overdue and advising it should be filed and served as soon as possible. It is unclear from the file record whether the staff conciliation scheduled for 12 January 2023 proceeded in the usual way, given it appears from correspondence on the file that the representative of the respondent did not have authority to act for the respondent. Further correspondence dated 13 January 2023 on the file from Myles Docker, Managing Director of the respondent, relevantly indicated that the respondent would not be accepting a settlement offer that had been made by the applicant.
On 16 January 2023, the file was allocated to me. Information about the listing details concerning the proceedings before me and the standard merits-only directions were sent to the parties. On 31 January 2023, which was the day before the initial pre-hearing conference and/or directions proceeding scheduled for 1 February 2023, the respondent filed (but did not serve) its Employer Response. This was in circumstances where the Employer Response was supposed to have been provided by 7 December 2022. My Associate forwarded the Employer Response to the applicant and her representative/support person that same day. Relevantly, the Employer Response contained text at various points of the document indicating that the applicant had not been dismissed - albeit without formally indicating a jurisdictional objection in response to Question 2.2.
My attempts on 1 February 2023 to assist the parties to reach a settlement did not result in a resolution of the application. The directions were confirmed and the arbitration hearing/conference date was rescheduled by consent to 24 March 2023, being a date which was later than the originally-scheduled date.
Consideration
It is a condition-precedent to making an application under s.394 of the Act for the termination of employment to have involved a dismissal. That is, s.394(1) of the Act identifies when a person may apply for an order – relevantly specifying “A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.” Here, the applicant effected a resignation in a letter to the respondent, but contends that the resignation amounted to a constructive dismissal. The respondent contends, in effect, that the termination of employment was a resignation simpliciter. For the reasons that follow, I find that the termination of employment amounted to a constructive dismissal/acceptance by the applicant of the repudiation of the contract of employment.
The applicant began working at the hotel on 30 June 2015. At that time, the applicant’s employer at the hotel was Lesday Pty Ltd (“Lesday”). In the period following June 2015, the applicant was a regularly rostered casual employee at the hotel. The applicant worked between two to four shifts a week for Lesday, with regular shifts on a Tuesday night and Sunday afternoon, plus some as-needs additional shifts, for a period of more than seven years. Around 22 July 2022, Lesday sold the hotel to the respondent or the sale was completed on or about that date. The new owners/the respondent’s management informed the employees that renovations were intended for the hotel.
In connection with the transmission of business, the respondent offered the applicant ongoing employment at the hotel and the parties entered a new contract concerning casual employment.
Lesday’s Managing Direction, Kent Walker, sent emailed correspondence to the applicant on 29 July 2022 which relevantly read (formal parts omitted):
“Firstly, I wanted to thank you for the support given to both [name] and I during the sale process for the Earlwood Hotel.
It was a lengthy settlement and I appreciate you remaining at the Hotel until the changeover occurred.
I wanted to let you know that on settlement we transferred to the new owners your accrued Long Service Leave as at the 22/07/22……Details below:
Start date 30/05/2015
LLS Weeks 5.8373
LSL Amount $ 1,896.45
Your LSL should continue to accrue while you remain employed by the Hotel as past service is recognised.
Finally, I would like to thank you for the years of service to the Earlwood Hotel and wish you all the best for the future.”
The respondent continued to regularly roster the applicant following the transmission of business, at least for a period of time. That is, after 24 July 2022, the applicant was working in both areas of the hotel as a bar and gaming attendant for two to three shifts a week ranging between 12-19 hours a week. The applicant indicated rostering unavailability for a short period in the first week of September 2022 (that is, 3-5 September 2022). Thereafter, the applicant’s rostering was reduced to one Saturday shift, and was worked exclusively in the main bar of the hotel; and new employees were brought into the hotel’s poker machine area.
On 9 November 2022, Mr Morrison sent a message to the applicant (among all other employees) via a work-related app named “Deputy”. That message read:
“Hello Team,
Just wanted to give an update on the status of the hotel moving forward. We will be commencing the renovation as of Monday the 14th of November [2022], this Monday coming. As such this will involve the complete closure of the Public bar area. This will obviously have a great effect [sic] on our roster, please bare [sic] in mind this was not the initial plan, but is a necessity to complete the major works we have ahead. My sincerest apologies for the late notice and disruption that this will evidently cause to those affected.
Regards
Jim”.
No shifts were offered to the applicant via the rostering app Deputy beyond 12 November 2022. Moreover, the main bar, where the applicant had been exclusively rostered to work since around September 2022, was closing for a lengthy period for renovations. As confirmed in the initial proceedings before me, it was anticipated by the respondent that the renovations commencing on 14 November 2022 would take the better part of a year to complete – i.e., until approximately October 2023 (although, around the time of the hearing in March 2023, that likely timeframe for the renovations/main bar reopening had been brought forward by some months).
In correspondence dated 10 November 2022 (but provided to the respondent on either 12 or 14 November 2022), the applicant advised of her resignation. The letter to the respondent relevantly read:
“As an employee of Earlwood Hotel from 30/5/2015, and with the change of ownership of the Hotel in the last three/four months, I can see what you have done to the staff of the hotel, having now no shifts offered to most of us due to renovations. You have forced my resignation as of Saturday 12 November 2022.
Kent [Walker] sent letter regarding long service leave, which is attached, hope this is to be paid as soon as possible.”
The position of the respondent was set out as follows in its case (as written):
“14. At no point during the course of July 22nd 2022 through November 12th 2022 which was Kelly Boes last rostered shift at that point in time, and the point at which Kelly Boes handed in her resignation, did Kelly Boes attempt to reach any of the Directors or the Licensee through the rostering app of deputy or any other form of communication, whether by email or telephone.
15. It was the understanding of the Licensee James Morrison, that Kelly Boes worked at the Earlwood Hotel supplementary to a full time job, as such in an effort to keep the other staff employed solely by the business with a higher level of consistent income, Kelly was given one shift per week, a longer Saturday shift generally, to which James Morrison received no complaint from Kelly Boes personally or passed on to any other personnel part of the Earlwood Hotel Operations Pty Ltd Management team. If such had occurred measures could have been taken to alter the shifts of Kelly Boes, but with no dispute given there was no requirement to do so as it was believed that the situation required no remedy.
16. It was common knowledge across the Hotel that renovations were going to begin in the latter half of 2022, as such various builders and trades people regularly frequented the Hotel every week leading up to the renovation beginning. Staff and customers were consistently talking of the renovations planned for the Hotel and the nature of which was no secret.
17. Earlwood Hotel Operations Pty Ltd did not have a definitive start date for renovation works across the period leading up to the closure of the Main bar area. At first notice of having a clear start date being the 14th Of November, the Licensee James Morrison made all employed staff aware with a post through the Deputy app on Wednesday the 9th of November.
…
18. No attempt at communication was made by Kelly Boes enquiring as to the status of her position within the Hotel, the only communication received was the letter of Resignation, given to the manager on duty for the Licensee James Morrison to receive the morning of Monday 14th of November. As such Earlwood Hotel Operations Pty Ltd saw this to be a genuine resignation from Kelly Boes duties to working at the Hotel as no conversations regarding the matter at hand occurred.
…
20. Kelly Boes may have formed an expectation of on-going employment as a result of past service to the previous organisation which was to be honoured by Earlwood Hotel Operations Pty Ltd, however nothing in Kelly Boes contract and status as casually employed dictates that despite her expectations there was any suggestion that the employment arrangement be on-going. There was no expectation or requirement given by Earlwood Hotel Operations Pty Ltd to Kelly Boes to prioritise or ensure on-going availability for the business. Rather the engagement of employment was at the need of the business if it suited the personal circumstance of Kelly Boes. Kelly Boes had the right to accept or refuse shifts, no alteration was made to the agreement that would state her position within the business was anything other than that of casually employed. As such there was no obligation for Earlwood Hotel Operations Pty Ltd to offer shifts or work if they were not suited to the required needs of the business at any given point in time. The lack of communication on the end of Earlwood Hotel Operation Pty Ltd does not enable the extrapolation of dismissal occurring as it does not factor the intentions of the Hotel and only allows for assumptions to be made, that cannot be confirmed due to changes in the situation occurring.
It is the position of Earlwood Hotel Operations Pty Ltd, that Kelly Boes was not dismissed from her position within Earlwood Hotel, the availability of shifts possible for Kelly Boes that suited the requirements of the business changed in a temporary capacity, and if said shifts were once again to become available the potential for Kelly Boes to Work again in the Hotel may have occurred, however without consultation to the Licensee or the Directors Kelly Boes opted to resign from her position completing her service at the Hotel. As such Kelly Boes is not entitled to redundancy, lieu of notice or Long service leave payments.”
The respondent’s case appears to rely substantially on the applicant’s lack of initiating contact with any of the respondent’s management in connection with: (a) the reduction of her rostered shifts from September to November 2022; and (b) her de-rostering effective 12 November 2022 associated with the closure of the main bar where she had most recently been working exclusively, in connection with the closure of that bar for what was anticipated to be the better part of a year.
The Employer’s Response noted that the employment was covered by the Hospitality Industry (General) Award 2020, as did the contract of employment between the applicant and the respondent. The respondent was bound by the modern award obligations to initiate consultation about major workplace change (clause 38) and about changes to rosters or hours of work (clause 39). That is, the modern award provides:
“38. Consultation about major workplace change
38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
38.2 For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).
38.5 In clause 38 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.
39. Consultation about changes to rosters or hours of work
39.1 Clause 39 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.
39.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).
39.3 For the purpose of the consultation, the employer must:
(a) provide to the employees and representatives mentioned in clause 39.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.
39.4 The employer must consider any views given under clause 39.3(b).
39.5 Clause 39 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.”
On what was before me, the highest matters can be taken is that the respondent informed employees around the time of the transmission of business in July 2022 that renovations were planned; that it was common knowledge that renovations were going to begin in the latter half of 2022; and that builders and trades people were visiting the hotel in the lead-up to the commencement of renovations. Then, on 9 November 2022, Mr Morrison sent a message through the Deputy app: (a) advising that renovations were commencing on Monday, 14 November 2022; (b) advising that the renovations would result in the complete closure of the public bar area; (c) noting that this would obviously have a great affect on the roster; (d) asking employees to bear in mind that this was not the initial plan; and (e) sincerely apologising for the late notice and disruption that this would evidently cause to those affected.
True it is that the applicant was a casual employee, but she had been a regularly rostered casual at the hotel for more than seven years (even though her shift hours were unilaterally changed/reduced in the period September to November 2022) and there was no consultation with her about the cessation of shifts from after 12 November 2022. Moreover, there was no likelihood of any future shifts, for at least for several months.
I find that the applicant’s letter of resignation was clearly brought about by the fact that the respondent intended to not provide any work/shifts, or any meaningful number of shifts, to the applicant for the better part of a year as a result of the renovations. Moreover, the respondent clearly failed to adhere to its obligations under the modern award. I note that the respondent is now (as at the date of the hearing) hopeful that the renovations may be completed in the nearer future. One way or the other, this means that the applicant would not have been given any shifts/work for somewhere between approximately half-a-year to approaching one year after 12 November 2022. That was plainly untenable for an employee who had been accustomed to wages received as a regularly rostered employee, and who depended on those wages. The applicant needed the wages from her (second) job at the hotel; she is a “solo parent” who lives in rental accommodation, supporting both an elderly parent and a school-aged child. The de-rostering was also reasonably proximate to the 2022 Christmas period and the additional expenses which that period of year can bring.
Section 386 of the Act provides the following meaning of “dismissed”:
“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.”
I am satisfied that the applicant was dismissed within the meaning of s.386 of the Act, in that she resigned from her employment as a casual employee but was forced to do so because of the conduct of the respondent in de-rostering her after 13 November 2022; not having any modern award-required consultation with the applicant; and in circumstances where the renovations meant there would be no likelihood of further casual work under the employment contract for an indeterminate/unspecified number of months. Moreover, the applicant was not informed that she would be offered any future shifts even if, for example, she nominally remained on the employment books as a casual employee of the respondent in the ensuing months. The dismissal was bad for want of adherence to the clearly-defined obligations imposed on the respondent by the modern award.
Conclusion
For the reasons that I will now explain, it is unnecessary to further consider the matters that ordinarily arise for consideration in relation to an application for an unfair dismissal remedy. Specifically, the applicant identified in the Form F2 application form that the outcomes sought by lodging the application were: (a) reimbursement of long service leave; (b) payment in lieu for insufficient notice; (c) a redundancy payment; and (d) reimbursement of the costs incurred in making the application. As a result of discussions I had with the parties, they are aware that the Commission cannot make any orders concerning (a), (b) or (c). As a casual employee, the applicant would not, in any event, have had an entitlement to payments with respect to (b) or (c). Moreover, as to (d), the applicant will not be reimbursed for her application fee in making the application as there is no basis for an order for costs.
I confirmed with the parties in the proceedings that this application had at its core the question of whether this was a termination of employment that amounted to a dismissal; and I have found that it was. The applicant confirmed that she was not seeking an order such as reinstatement or compensation; and would be content with a finding that the circumstances of the termination of employment constituted a dismissal – contrary to the respondent’s contention it did not. This was a relevant matter for the parties in circumstances where there is dispute as to whether the applicant had any entitlement to a pro rata long service leave payment in connection with the termination of employment. Here, Lesday had paid the respondent an amount of $1,896.45 in connection with the applicant’s long service leave accruals to 29 July 2022; and the applicant’s employment with the respondent continued to 12 November 2022, which gave her a few months of long service leave accruals additional to the accruals to 29 July 2022.
Given my finding that this case did involve a dismissal within the meaning of the Act (and, relevantly as to long service leave entitlements, not a dismissal arising from serious and wilful misconduct by the applicant), I recommend that the respondent revisit its earlier refusal to pay the applicant pro rata long service leave. Reliance should not necessarily be placed by the parties on Lesday’s calculations based on 5.8373 weeks of long service leave accruals to 29 July 2022, in circumstances where the employment commenced on 30 May 2015 (i.e., which would have been more than seven years to July 2022). The parties will need to check the calculations for themselves, independently of the calculations made by Lesday in connection with the transfer of money to the respondent on the transmission of business with respect to the applicant’s long service leave accruals and use 12 November 2022 as the date of dismissal, as service for long service leave purposes continued to accrue in the period 29 July 2022 to 12 November 2022. If this long service payment matter can now be agreed, it will avert the need for the applicant to make a complaint concerning non-payment.
The proceedings are concluded.
COMMISSIONER
Appearances:
K Boes on her own behalf.
M Docker for the respondent.
Hearing details:
2023.
Sydney:
March 24.
Printed by authority of the Commonwealth Government Printer
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