Ken Takagi v BLJK Management Pty Ltd
[2023] FWC 2683
•13 OCTOBER 2023
| [2023] FWC 2683 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ken Takagi
v
BLJK Management Pty Ltd
(C2023/4303)
| COMMISSIONER HUNT | BRISBANE, 13 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee was dismissed at employer’s initiative – WhatsApp messages sent to applicant – dismissal at employer’s initiative – jurisdictional objection dismissed.
On 19 July 2023, Mr Ken Takagi 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. Mr Takagi stated that he had been dismissed from his employment with BLJK Management Pty Ltd (the Respondent). The Respondent trades as Nonda Gasworks, a Japanese restaurant in Newstead, Brisbane.
Mr Takagi nominates 11 July 2023 as the date of the dismissal.
The Respondent completed the Form F8A – Response to general protections application, raising a jurisdictional objection to the application on the grounds that Mr Takagi 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 Mr Takagi was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Takagi was dismissed in contravention of the general protections provision.
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 Mr Takagi dismissed from his employment?
Hearing
The matter was listed for hearing on 13 October 2023. Mr Takagi appeared and gave evidence. The Respondent was represented by Mr Jackson Win-Boh, General Manager together with Mr Jamie Kang, Director. Mr Takagi, Mr Win-Boh and Mr Kang all gave evidence and were cross-examined.
Evidence of Mr Takagi
In mid-December 2022, Mr Takagi commenced employment with the Respondent as a bartender. Mr Takagi had been completing his university studies in accountancy. His work at Nonda was his only source of income.
Mr Takagi stated that he casually mentioned to Mr Win-Boh that he would eventually leave bartending to pursue a career in accounting, but this was a general discussion, without a timeframe.
In the role of bartender, Mr Takagi made cocktails, washed glasses, sent food and beverages to customers, cleaned, and managed stock.
He would typically accept casual shifts when they were offered to him, even beyond those that he had advance notice of.
In around April 2023, Mr Takagi informed Mr Win-Boh of an overseas holiday he was taking from 20 June 2023 – 8 July 2023. Mr Takagi intended and expected to resume work on his return.
The following WhatsApp messages were exchanged between Mr Takagi and Mr Win-Boh on 8 July 2023:
Mr Win-Boh: Hows your trip?
Mr Takagi: Just landed.
It was great.
Mr Win-Boh: Welcome home!
On 10 July 2023, Mr Takagi sent Mr Win-Boh the following WhatsApp message:
“Hey Jackson, just letting you know I won’t be able to work Tuesday – Thursday next week.”
The following WhatsApp messages were exchanged between Mr Takagi and Mr Win-Boh on 11 July 2023:
Mr Win-Boh: Hey Ken, thanks for letting me know, right now I don’t have any shifts for you. Jamie has hired two new people for bar with Nhi leaving soon to go work in a lab and you going into a job interview before your holidays.
I will let you know if these new people work out or not.
Mr Takagi:That job interview I went for before I left fell through.
Wait so if the new guys work out will I just be out of a job.
Mr Win-Boh: We had to make a call on the bar position. We knew you were always going to leave to go be an accountant and with Nhi going also we needed to find replacements. So we are going to make the cocktail list simpler and have an allrounder.
Also the decision to find someone quickly happened naturally because we realised we needed someone who wanted to be at nonda and enjoyed working with the team. The last few months you didn’t show the right attitude. It was really hard to work with when it felt like you hated working here?
That’s why when you told me you went for an interview that you were ready to leave and wanted a change.
Mr Takagi:I just would have wanted some notice as opposed to me finding out now.
Mr Win-Boh: The new hires also don’t have any restriction.
Mr Takagi:I was happy to work at Nonda but you just assumed I wasn’t
Mr Win-Boh: When someone tells you that they went for a job interview you have to prepare. Its not easy to find people to be in the bar.
Mr Takagi:I understand its hard to find bartenders right now. But give me some notice please.
Mr Win-Boh: In comparison to the others team members you looked miserable to be here.
How much notice do you need? The same notice you gave me when you started looking for another job?
Mr Takagi:There’s a difference to looking for another job and starting another job. You should know that better than anyone else.
Also I told you I was looking for another job because you asked me if I was free to work a shift last minute.
Anyway, if your new hires don’t work out just let me know.
Mr Win-Boh: Will do.
I didn’t want to have a quiet quitter. You told me honestly which I am appreciative of which also reminded me that you are going anytime soon to be an accountant. I had to find people asap.
Mr Takagi:That doesn’t stop you from telling me you’re firing me.
I wish you would have just told me outright.
I wasn’t a quiet quitter either, I was still coming into shifts early, I was cleaning the bar above and beyond was as expected as per the cleaning list, I was doing stocklists for you, I was coming to shifts that weren’t rostered LAST MINUTE. Do not label me as a quiet quitter just because you the work environment was horrible.
Mr Win-Boh: Why was the work environment horrible?
Mr Takagi:Last minute shifts, shifts being cancelled last minute, prep not being done during quiet periods (weekday lunches), cocktails going out to the floor with terrible presentation, random new cocktail preps left to expire after the promotion (coconut foam), you not spiking your dockets, no-one cleaning lipstick off glasses except me, people wiping cutlery poorly so it’s not shining, using the glass washer to wash cutlery (your glass washer recycles water so all that rice and oil on the cutlery is getting used on glassware all ‘clean’ glassware having either watermarks, lipstick marks or a combination of all 3) (this is a huge problem if you’re serving a nice bottle of win and all the specialty glasses are dirty), glass bins not being emptied on busy lunches …..
Not to mention me finding out I’m fired indirectly and you coming at me personally by calling me a quiet quitter.
Mr Win-Boh: Cool thanks so it’s everyone else’s fault?
Mr Takagi: I mean rostering isn’t my job.
Neither is managing the business.
Mr Win-Boh: Exactly
Mr Takagi:The work environment is everything out of my control so it’s always going to be things that aren’t directly related to me.
Things like the management, fitout and coworkers.
Mr Win-Boh: I was going to make a roster to have you on for the next 3 weeks to give you time to make arrangements but I can hire an agency worker to do exactly what you are willing to do.
Mr Takagi:Ok go ahead, you haven’t given me any notice of what exactly you want from me so its nothing new.
I think I can handle it.
Mr Win-Boh: Ok
Thanks Ken for pointing out and providing feedback.
We will work on it.
Good luck with finding the accounting job.
Mr Takagi: Thanks, Goodluck with Nonda.
In oral evidence, Mr Takagi stated that he had informed Mr Win-Boh that if he took an accounting role, he would try to give the Respondent as much notice as possible, which he hoped would be around two weeks.
Mr Takagi submitted that he had been dismissed on receipt of the WhatsApp messages above.
Evidence of Mr Jackson Win-Boh
Mr Win-Boh is the General Manager of Nonda Restaurant. He commenced working there on 7 December 2022. His duties include administration, cash handling, rostering for front of house and bar team members, recruitment, marketing, customer feedback handling, contractor and supplier management, ordering of stock and ensuring high customer satisfaction.
Mr Takagi commenced working as a casual bartender on 13 December 2022. Two other casual bartenders commenced at around the same time. Mr Takagi was the most experienced of the three employees. He was offered a full-time role as Bar Supervisor in December 2022 on account of his performance, however he did not accept the offer.
On 20 December 2022, Mr Takagi was offered the role of Level 3 Food and Beverage Attendant so that he could train other employees. Mr Takagi did not respond to the offer. When Mr Kang spoke to him in person regarding the role, Mr Takagi advised that he was actively looking for an accounting role and recommended Nonda look for a replacement for his position.
On 22 December 2022, the following text messages were exchanged between Mr Win-Boh and Mr Katagi:
Mr Win-Boh: Hey Ken! Am I going to lose you next year?
Mr Takagi: Eventually, yea
Mr Win-Boh: [two sad face emojis]
Gonna be hard replacing you
Mr Win-Boh’s evidence is that he knew Mr Takagi would leave at some point and he would continue to offer Mr Takagi shifts until such time as Mr Takagi decided to leave.
On 15 June 2023, Mr Win-Boh sent a text to Mr Takagi, asking him to close the bar with a new starter so that the new starter could see how it is done. A new starter had been employed as both Mr Takagi and another employee, Ms Nhi Hoang, had indicated upcoming unavailability.
On 16 June 2023, the following text messages were exchanged between Mr Win-Boh and Mr Takagi:
Mr Win-Boh: Hey Ken, Emelie is sick. Wondering if you can do a double today?
Mr Takagi: I’m in a job interview
Mr Win-Boh: Ok
Good luck
You got the job bro?
Mr Takagi:They’ll tell me in a week or two. They have more applicants so idk
There was an incident at the restaurant on 16 June 2023 where Mr Takagi broke a glass in the bar and his conduct in front of customers was not to a suitable standard. The following text messages were exchanged on 17 June 2023:
Mr Win-Boh: Hey Ken San, can you talk?
Mr Takagi:I want to be honest, you are right about the door slamming last night. I did let my frustration show too much and want to say sorry. I know am hard to work with but I want to say thanks for bearing me. I appreciate the things you do Jackson and I want you to know I really do appreciate all the things you do for everyone at Nonda.
Mr Win-Boh: Don’t be so hard on yourself. In the army they never say sorry they just do better. You can do it! Look after the team for me while I am away. Thank you Ken San!
Mr Takagi’s last shift was 18 June 2023 before he went overseas.
It is Mr Win-Boh’s written evidence that when Mr Takagi advised his availability to work, Mr Win-Boh informed him that there was no shift for him right now and a new starter was going to complete their training by 18 July 2023. He does not believe that his message implies or suggests that Mr Takagi was terminated.
It is Mr Win-Boh’s written evidence that he was informing Mr Takagi of the changes to the restaurant, including a short drinks menu so that when he next worked a shift, he would be aware.
He suggests that his WhatsApp message conveyed to Mr Takagi that he would let him know how the new starters go as his experience as a skilled bartender would be needed, if required.
Mr Win-Boh’s written evidence is that he wanted to learn more from Mr Takagi as to why he believed he worked in a bad environment. When Mr Win-Boh realised the conversation was not going in the direction he had hoped it would, which he thought would be to motivate Mr Takagi, he ended the conversation.
Mr Win-Boh’s evidence is that he paused the conversation on WhatsApp because in his mind, he and Mr Takagi needed some time to evaluate the conversation and arrange some time when they were both available to resolve the working environment. Mr Win-Boh acknowledges that at no time did he further contact Mr Takagi to offer him any work.
In oral evidence, Mr Win-Boh stated that Mr Takagi had not shown Mr Kang appropriate respect as the owner and director of the business. He considered that the new starters needed to be given work, and if they were not given sufficient shifts, they could likely leave.
In closing oral submissions, Mr Win-Boh stated that this role is his first General Manager role.
Evidence of Mr Jamie Kang
Mr Kang is the director and owner of the Respondent. He provided a spreadsheet demonstrating the days and hours worked by Mr Katagi from January 2022.
The spreadsheet demonstrates the following days worked in each month, with shifts of a minimum of three hours, up to nine hours:
oJanuary – 19 days
oFebruary – 21 days
oMarch – 19 days
oApril – 12 days
oMay – 18 days
oJune – 11 days
On average, Mr Takagi worked 4-5 shifts per week.
Mr Takagi had been offered permanent employment which he declined. He had been offered to be a Level 3 employee, which he did not respond to.
Mr Takagi informed the Respondent that he wanted to be a casual employee so that he could take up an accounting role at some point.
Mr Kang stated that he is confused as to why Mr Takagi has made his claim as he considers that he left of his own volition and the Respondent made no effort to dismiss him.
In oral evidence, Mr Kang agreed that he was concerned Mr Takagi might find another job and leave the business without an experienced bartender. He said that Mr Takagi told other workers that he hated working at the restaurant.
Mr Kang considers that when Mr Takagi was asked to work other people’s shifts at short notice he was frustrated. Mr Kang did not discuss this issue with Mr Takagi.
Mr Kang considered it appropriate for the new bar employees to be provided with shifts at the expense of Mr Takagi on his return from his short trip. He considered that Mr Takagi was an experienced bartender and would easily be able to find employment in the industry as there are many jobs available. He said the Respondent needed to consider the new casual employees and ensure they had enough shifts to satisfy their living expenses.
Evidence of Ms Yeseul Lim
Ms Lim is a casual Section Waitress. She made a witness statement but was not required for cross-examination.
Ms Lim stated that she commenced on 16 December 2022. She took a holiday from 19 February 2023 to 5 April 2023, and was away from work for approximately six weeks. Before she left on holidays, she assured her manager of her intention to return. She continues to work at the restaurant.
Consideration
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]
A “termination at the initiative of the employer” is when two criteria are satisfied:
- the employer’s action “directly and consequentially” results in the termination of employment; and
- had the employer not taken this action, the employee would have remained employed.[4]
For there to be a “termination at the initiative of the employer” there must be action by the employer that either intends to bring the relationship to an end or has that probable result.
In Abandonment of Employment,[5] the Full Bench of this Commission considered the meaning of the “abandonment of employment” in the context of the four-yearly review of modern award. However, the comments of the Full Bench are relevant here:
“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”
Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship.[6] Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.[7] The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[8] as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it... Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term ... manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”
While Mr Win-Boh gave written evidence that Mr Takagi would be offered shifts by the Respondent for as long as he wanted them and before he took up an accounting role, this did not eventuate.
Understandably, the Respondent needed to find bartending staff to cover the period of approximately three weeks when Mr Takagi was not available on account of his advance notice of taking a holiday. The Respondent set about finding two appropriately skilled casual employees and commenced training them in the operations of the Respondent.
The Respondent, and particularly Mr Kang and Mr Win-Boh assumed that Mr Takagi was going to leave the Respondent’s business at short notice upon finding an accounting role to pursue his career. It was making contingency plans by hiring new casual employees. It did not, however, include Mr Takagi in those contingency plans. There was no intention to give the new casual employees some shifts, and Mr Takagi some shifts, and between them share what was available. Mr Kang’s evidence was to the fact that the new employees needed looking after, otherwise they would leave.
No consideration was given to the fact that Mr Katagi had a job, and expected to return from his short break to a job. His casual work was regular and systematic, and he had a reasonable expectation of returning to work further casual shifts.
Mr Win-Boh’s WhatsApp message to Mr Katagi of 11 July 2023 commenced by making it clear that “right now”, as of 11 July 2023, he did not have shifts for Katagi, and only if the new casual employees didn’t work out would he let him know. Mr Win-Boh confirmed the reasons for the decision were because Ms Hoang was soon leaving, and Mr Takagi had been for a job interview before he went on holidays.
Mr Takagi immediately informed him that he had been unsuccessful for the accounting job, and asked if the new casuals employees worked out, that means that he would be out of a job.
The language of Mr Win-Boh is then clear and unequivocal; the Respondent had to make a decision, Mr Takagi was ‘always’ going to leave, and the drinks menu will be made simpler to accommodate an all-rounder.
Mr Win-Boh then went further to provide another reason for the decision to hire new employees; Mr Takagi looked like he did not want to work there and they want employees who look like they want to work there.
Mr Win-Boh supported his position to Mr Takagi by asserting that the new hires do not have any restriction, and then, in my view, offensively asked Mr Takagi how much notice he needs to be told that he does not have any more shifts – the same notice Mr Takagi gave Mr Win-Boh that he was starting to look for another job.
Not content with having closed the door to Mr Takagi having any further shifts unless the new employees did not work out, Mr Win-Boh thought it appropriate to suggest to Mr Takagi that he would become a ‘quiet quitter’. Mr Takagi took exception to the phrase and informed Mr Win-Boh of all of the efforts he made within the bar. Mr Win-Boh then said that he was going to make a roster to include him for the next three weeks, but then said that he can hire an agency worker to do exactly what Mr Takagi is prepared to do. I understand that to mean that Mr Win-Boh considered that an agency worker is likely to do the bare minimum.
The suggestion that Mr Takagi was going to abandon the Respondent at some point because he would take an accounting role is no different from any employee who decides they need to leave their employment for various reasons. Employees are required to give the requisite notice which for casual employees is one hour’s notice and for permanent employees, as little as one week.
The Respondent was on notice since December 2022 that Mr Takagi might up and leave at some point in time. That is Mr Takagi’s choice to make. Of course, an employer can make contingencies by hiring additional casual staff, and Mr Takagi might have to share some hours with those other staff. The Respondent is not entitled, however, without ramifications to reduce Mr Takagi’s hours to zero.
There is no doubt whatsoever that the WhatsApp messages sent by Mr Win-Boh to Mr Takagi constitute a dismissal of Mr Takagi’s casual employment at the initiative of the Respondent. Mr Win-Boh’s evidence that he hoped it would constitute a pause in the conversation and efforts could be made to repair the relationship are not accepted.
I determine that Mr Win-Boh’s WhatsApp messages directly and consequentially resulted in the termination of the employment, and had the Respondent not taken this action, Mr Takagi would have remained employed.
Conclusion
I am satisfied that Mr Takagi was dismissed from his employment at the employer’s initiative and therefore s.386(1)(a) is satisfied. The jurisdictional objection is dismissed.
I will convene a conciliation conference between the parties in an attempt to resolve the dispute between the parties. If the matter does not resolve by conciliation, I will issue a certificate under s.368(3)(a) of the Act.
COMMISSIONER
Appearances:
K Takagi, on his own behalf.
J Win-Boh and J Kang, for the Respondent
Hearing details:
13 October 2023, Brisbane
[1] [2020] FCAFC 152.
[2] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75], see also Mohazab 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] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[5] [2018] FWCFB 139 [21]-[22].
[6] Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James[2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21].
[7] Abandonment of Employment [2018] FWCFB 139 at [21].
[8] [2007] HCA 61.
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