Kelly-lee Ruwoldt v B Confidential Pty Ltd T/A B Confidential

[2018] FWC 6777

[2018] FWC 6777

FAIR WORK COMMISSION

ex-tempore DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Kelly-lee Ruwoldt

v

B Confidential Pty Ltd T/A B Confidential; Confidential Club Pty Ltd T/A B Confidential

(C2018/4467)

COMMISSIONER HUNT BRISBANE, 1 NOVEMBER 2018

Application to deal with contraventions involving dismissal – jurisdictional objection – application made out of time – objection dismissed

1. This decision, now edited, was given ex tempore at the conclusion of proceedings on 1 November 2018.

1. Ms Kelly-Lee Ruwoldt has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed from her employment by B Confidential Pty Ltd T/A B Confidential and the Confidential Club Pty Ltd T/A B Confidential in contravention of the general protections provisions of the Act.

Introduction and Background

1. Ms Kelly-Lee Ruwoldt was employed to work at the B Confidential Club in Spring Hill, Brisbane from June 2016.  B Confidential is an adult entertainment venue.

1. Ms Ruwoldt was initially employed in the role of bartender and was promoted into the role of ‘hostess’ commencing from 11 September 2017.

2. Upon recent examination of her payslips, she has discovered that she was employed by Spring Hill Services Pty Ltd for the bulk of her employment.  It appears that around 11 June 2018 the employing entity became B Confidential Pty Ltd.  Both Spring Hill Services Pty Ltd and B Confidential Pty Ltd have gone into liquidation.

3. Ms Ruwoldt understood that around July 2018 the business was to be sold to another entity called Confidential Club Pty Ltd.  This sale took effect 24 July 2018.

4. In February 2018 Ms Ruwoldt informed her employer that she was pregnant.  She held concerns that since announcing her pregnancy the amount of shifts offered to her reduced.  The last shift worked by her at the club was on 29 June 2018.

5. Ms Ruwoldt sent numerous text messages to Ms Lisa Boorer, her employer, in early July 2018 inquiring about her next shift.  This was at or around the time the expected sale of the business was to eventuate.

6. The text messages from Ms Boorer to Ms Ruwoldt indicate that she was attempting to find shifts for Ms Ruwoldt to work, but she considered that given the sale of the business was imminent, she was not in control as she earlier had been.

7. On 10 July 2018 Ms Ruwoldt sent to Ms Boorer a text message that reads:

   “So still nothing at all for this week?  There are 9 hostess shifts available each week and you can’t even give me 1 of them?  Or a single R2 shift?”

1. No response was received.

1. On 12 July 2018 Ms Ruwoldt sent an email to Ms Boorer that reads:

   “Hi Lisa,

I would like to know when and how our EOFY Payment Summaries are expected to be issued?  I would also like some information around what award we are paid under and when we should expect our payslips for the month of June to be issued as I haven’t received any since May.

I would also like to know when my next shifts are expected to be or if my employment is being terminated as I haven’t been rostered for two weeks, despite continually asking for shifts. If I have been terminated I would like some information as to why, and also an Employment Separation Certificate as I will need to find out if I will still qualify for paid parental leave through Centrelink.  Thanks

Kelly.”

1. No response was received.

1. On 17 July 2018 Ms Ruwoldt sent the following email to Ms Boorer:

   “Hi,

Just wondering when this information will be provided?  According to the ATO website, payment summaries must be issued by 14^th July.  Payslips also must be issued within 1 business day of being paid and I haven’t received a payslip since May.  Please advise when we should expect these to be issued.

I also require an answer to my employment status as requested below, and an Employment Separation Certificate if I no longer have a position at the club, as this is currently holding up my submission to Centrelink for Paid Parental Leave.

Thanks

Kelly Ruwoldt.”

Evidence of the parties

1. At a hearing before me today, Ms Ruwoldt’s evidence was admitted.  She stated that she did not receive a response and accordingly, attended upon the Caxton Legal Centre Employment Law Clinic on the evening of 24 July 2018 to seek legal advice in respect of her employment.  She formed the view that she had been dismissed on the evening of 24 July 2018.

1. A s.365 application was made on her behalf by Minter Ellison and filed in the Fair Work Commission on 13 August 2018, some 20 days following Ms Ruwoldt’s determination that she considered that she had been dismissed. The claim is made against B Confidential Pty Ltd – the First Respondent – and Confidential Club Pty Ltd – the Second Respondent.

2. In a Form F8A – Employer response to general protections dismissal filed by the First Respondent, the following was stated:

   ‘The Applicant’s last shift for the First Respondent was 24 June 2018 not July.  The Applicant has brought her application after the period of 21 days.”

and:

“The First Respondent sent an Employee Separation Certificate on 13 July 2018 at the request of the Applicant even though she was a casual employee.”

1. If the Respondent is correct, and an Employee Separation Certificate was requested by the Applicant, and it was issued on or around 13 July 2018, the application was made well outside of the 21 day time limit.

Hearing of the jurisdictional objection

1. I called for evidence of the parties relevant to the First Respondent’s assertion that an Employment Separation Certificate had been issued to Ms Ruwoldt on 13 July 2018.  On 24 October 2018 correspondence was received from Mr Michael Rice, Accountant of Hall Chadwick, advising that given the First Respondent was in liquidation, the liquidator did not wish to attend the hearing scheduled for today.

2. The Second Respondent indicated that it could not assist with the out of time issue and I excused the Second Respondent from attending today’s hearing.

Consideration

1. Ms Ruwoldt’s evidence is that she did not receive an Employment Separation Certificate from Ms Boorer or any entity running the B Confidential Club.

2. I accept Ms Ruwoldt’s evidence.  Ms Boorer has not come before the Commission to give evidence contesting Ms Ruwoldt’s evidence; it was simply an assertion in the Form F8A completed by the First Respondent.  

3. Further, I do not accept that the First Respondent issued to Ms Ruwoldt an Employee Separation Certificate on 13 July 2018, particularly when she made inquiries in the email of 17 July 2018 to the effect of, she wished to receive an Employee Separation Certificate if she no longer had a position at the club. 

4. I accept Ms Ruwoldt’s evidence that any dismissal of her employment has not been properly communicated to her by her former employer.  She has concluded, after receiving legal advice on 24 July 2018 that her casual employment has ended at the initiative of the employer at some point. 

Conclusion

1. Ms Ruwoldt is at a disadvantage relevant to the date of the dismissal, in that no response was forthcoming from Ms Boorer.  I accept the date of her dismissal was 24 July 2018 when she received legal advice that caused her to draw that conclusion.  Accordingly, I determine that the application has been made within the 21 day time limit of the dismissal, and an extension of time is not required. 

2. A conciliation conference has already taken place before a Fair Work Commission staff conciliator.  The matter has not resolved, and I indicate to the parties that I am prepared to issue to the Applicant a s.368 certificate and will promptly do so.

COMMISSIONER

Appearances:

Mr P.M Zielinski, Minter Ellison, for the Applicant;
Ms J Mansell, Minter Ellison, for the Applicant;
Ms Kelly-Lee Ruwoldt, Applicant

The First Respondent did not appear at the hearing of this matter;

The Second Respondent was excused from appearing at the hearing of this matter;

Hearing details:

1 November 2018, Brisbane

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