Kim Starkey v Nicole Chemello, Early Years Learning and Development Pty Ltd
[2024] FWC 1484
•6 JUNE 2024
| [2024] FWC 1484 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kim Starkey
v
Nicole Chemello, Early Years Learning and Development Pty Ltd
(C2024/2546)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 6 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection that there was no dismissal – Applicant not dismissed
Issue and outcome
On 18 April 2024, Ms Kim Starkey (the Applicant) lodged a general protections application under s 365 of the Fair Work Act 2009 (Cth) (the Act) against Nicole Chemello (the First Respondent) and Early Years Learning and Development Pty Ltd (the Second Respondent) alleging that on 12 April 2024 she was dismissed from Landsdale Gardens childcare facility (or Centre) in contravention of the general protections provisions of the Act.
The Respondents raised a jurisdictional objection to the application on the basis that the Applicant had not been dismissed within the meaning of s 386 of the Act, because she remained an employee of the Second Respondent.
Whilst the parties were provided the opportunity to file materials in the lead up to the hearing, the Applicant did not file a witness statement or submissions. Instead, she relied upon her application, her several emails to Chambers and multiple documents of screenshots of maps, which appear to have been submitted in support of the Applicant’s contention that she had been offered work at the Second Respondent’s other child care centres, but the distance to walk to them was, in her view, too far. Similarly, the Respondents did not file witness statements, relying instead on their Form F8A – Response to a general protections application involving dismissal, and documents filed in the lead up to the proceedings.
The definition of ‘dismissed’ in s 386(1) takes as its predicate the prior existence of an employment relationship. Part 3-1 of the Act is given the title ‘General Protections’. Section 340(1) relevantly provides that a person must not take ‘adverse action’ against another person because the other person has exercised (or proposes to exercise) a ‘workplace right’. As s 342(1), item 1 and s 342(3) of the Act make clear, ‘adverse action’ is taken by ‘an employer’ against an employee if, relevantly, the employer dismisses the employee, and that action is not authorised by or under a specified law. Adverse action in the form of a dismissal cannot be taken by a person against an employee other than by the employer of the employee.
Section 12 of the Act defines ‘dismissed’ by reference to s 386. That section relevantly provides:
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.
That which is readily apparent from the meaning ascribed to the word ‘dismissed’ is that dismissal describes the ending of the employment of an employee at the initiative of the employee’s ‘employer’ or by reason of the conduct or course of conduct in which the employer engaged. The expression ‘employment … has been terminated’ in s 386(1)(a) of the Act means termination of the employment relationship and/or termination of the contract of employment.
For there to be a dismissal there must be in existence immediately before the dismissal takes effect, an employment relationship and/or contract of employment. Put another way, there can be no dismissal for the purposes of s 365 unless the Applicant was an employee employed by the Respondent.
The Respondent’s objection therefore has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
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.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of s 386(1)(a) and/or (b) of the Act.
The Applicant advances that she did not resign. She argues that the Second Respondent terminated her employment at its initiative when it removed her shifts off the roster at the Centre and offered her work at its other centres.
The Second Respondent presses that the Applicant’s shifts were removed from the roster at the Centre as the Applicant was not required that week, and, in addition, given the Applicant’s child attended the Centre and the father of the Applicant’s child had lodged a complaint about the Coordinator of the facility, the Second Respondent considered it was best to move the Applicant to another centre in light of the ongoing conflict and tension that had arisen.
For the reasons that follow, I have concluded that the Applicant was not dismissed. It follows that I uphold the jurisdictional objections of the First Respondent and the Second Respondent, and the application is dismissed. An Order[3] issues concurrently with this decision.
Background
The broader context and events leading to the Applicant making her application were as follows.
The Applicant’s general protections dismissal Form F8, sets out that she started employment with the First Respondent and Second Respondent on 12 April 2024, she was not told about being dismissed, but that her dismissal took effect on 12 April 2024, the day her employment started. At hearing, the Applicant clarified that she had started employment well before 12 April 2024 and that the reference to her start date, was a typographical error.
The Applicant was employed on a casual basis pursuant to ‘The General Terms and Conditions of Employment with Early Years Learning and Development pty ltd (Landsdale Gardens OSHC) for Kim Starkey’ (Employment Contract) which stated, amongst other things:
This document, the General Terms and Conditions of Employment, set out the basic terms and conditions of your (Kim Starkey) employment with Early Years Learning and Development pty ltd and forms the basis of our legal relationship.
It is important that you review this document carefully and we encourage you to obtain independent legal advice regarding the document as a whole or if you are unsure about any particular aspect of it.
General
These terms and conditions (as amended from time to time by Early Years Learning and Development pty ltd) form the terms and conditions applicable to your employment with Early Years Learning and Development pty ltd and supersede any previous terms and conditions. By accepting these terms and conditions of employment, you warrant that you have had the opportunity to obtain and/or have obtained independent legal and financial advice on the terms and conditions of this agreement.
If any provision of these terms and conditions is not enforceable at law, then that provision is to be severed and will not affect the validity of any other provision of these terms and conditions.
Position (Casual)
You are employed by Early Years Learning and Development pty ltd in the position set out in Item 1 of the Schedule as set out in Item 2 of the Schedule. Your classification is set out in accordance with the Award in Item 1 of the Schedule.
Your commencement date is specified in Item 3 of the Schedule. You are required to report directly to and be accountable to the person specified in Item 4 of the Schedule.
…
Location
Your normal place of work will be at the location specified in Item 7 of the Schedule; however, this may be changed by Early Years Learning and Development pty ltd to meet business requirements.
Item 7 of the ‘Schedule’ set out the Applicant’s ‘Location’ as 50 Amistad Road Landsdale WA 6065 Australia.
The Employment Contract was issued on ’21-11-2023 13:00:17’ and was read on ’28-11-2023 12:52:28’, with it having been signed by the Applicant on ’28-11-2023 12:53:23’.
In respect of her purported dismissal, the Applicant stated the following at question 2.2 of the application:
Due to educator coordinator being nasty to my “child” and they took it out on me saying I can no longer work there I have a choice to go to there [sic] sister centre I was emailed while at work no call and they took my shifts off me with out [sic] even telling me being biased because my “child’s” dad make a complaint about an educator and I had nothing to do with it and then the educator would cut my shifts and not talk to me leading to this.
An email/text message dated 5 April 2024 titled ‘Roster’ reads:
Dear Kim,
I hope you are doing well. Following our recent review of the situation at Landsdale Gardens OSHC, I wish to discuss some important updates regarding your employment and the options available moving forward.
Firstly, I want to affirm your decision to be employed as a casual educator with us. We deeply value the flexibility and contribution of all our staff members and strive to create an environment that respects individual choices while meeting our service needs.
After a thorough review of all footage from the past week, we have made some critical observations regarding the ongoing conflict and tension at Landsdale Gardens OSHC. Based on our findings, we believe that it would be best for all parties if we explore alternative arrangements for your continued employment within our organisation. It’s important to note that during our review, we found no evidence of mistreatment by any staff member towards “your child”…
Considering the current circumstance, we have concluded that continuing your role at Landsdale Gardens may not be the best fit. However, we are pleased to offer you the opportunity to continue your employment as a casual educator at our Kingsway location or Landsdale OSHC. This change aims to provide a positive and supportive setting for your professional growth and contribution.
…
As a casual employee, your flexibility is crucial to us, and our rostering decisions are designed to prioritise the needs of our services. While we consider individual preferences, our primary focus remains on delivering the highest quality of care and support to the children in our services.
Moving forward, I would appreciate that the incessant demands set upon management and my team no longer continue in regards to your requests/demands to suit your personal situation. We have over 30 employees with their own situations to make work so these demands are unreasonable and unwarranted.
As we provided multiple opportunities to become a permanent educator in which you have respectively declined, please keep this in mind that choosing a casual position, these shifts are accommodated for after all permanent educators are rostered on.
If you would like to discuss these developments and how we can support you through this transition [sic]. Please let me know a convenient time for you to meet and discuss further…[4]
Following the text message from Sarah Chemello to the Applicant dated 5 April 2024, Mr Deon Morgan, the partner of the Applicant, emailed Nicole Chemello and Sarah Chemello both of whom appeared to run the Centre in addition to other centres in the area. Mr Morgan’s email dated 6 April 2024 and titled: ‘RE: Concerned Parent’, stated the following:
I will be seeking further external advise [sic] as this had had an impact on my “child” and I will not settle for nothing happened, and my “child’s” claims made out to be connected to adult tension.
Please ignore Kim’s last email its [sic] never an easy thing to accept when placement is lost due to in my opinion no wrongdoing, she has taken my advice to cease her casual employment with the company.
I apologise to have wasted anyone’s “time” it has taken to investigate my “child’s” claims of bias caregiving![5]
The email from the Applicant’s partner was followed by a series of text messages between Nicole Chemello and the Applicant, which read as follows:
Text messages exchanged between ‘Nicole’ and the Applicant:
11 April
Hi nicole [sic] I received my payslip but haven’t received my pay
Hi Kim Sarah has a message but it didn’t send, if you do not want to return to our sister services, uniforms will need to be returned as per handbook for pay to be processed.
12 April
Hi nicole [sic] as my reply to Sarah I have not other ways of getting to the other centres I would be using Uber and gardens is my only option as I walk
Hi Kim they can be left at the long day care
24 April
Hi nicole [sic] is the option still on the table to work at other centres it’s hard being out a job[6]
Relevant principles
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section, as set out in paragraph [5] of this decision, is relevant for present purposes given the Commission’s acceptance that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa).[7] In Lipa Pharmaceuticals Ltd v Jarouche[8] the Full Bench endorsed the principles established in Bupa, in respect of s 386(1)(b). In Bupa it was said:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably [sic] result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[9]
A later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a) and (b) and in doing so expressed the following:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s 386(1)(b) and that concept is not subsumed in s 386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment.’”[10]
It is, of course, to be appreciated that where there is a termination of employment by way of resignation, there is a need to objectively assess the circumstances surrounding the termination. In Bupa, the Full Bench cited the decision of the Federal Court in Koutalis v Pollett, where Rares J observed:
The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances.[11]
Consideration
Essentially, the Applicant contends her employment with the Second Respondent was terminated at the initiative of the Second Respondent because:
a) after her partner raised an issue regarding the treatment of his and the Applicant’s child by the coordinator of the Centre, the Applicant had her shifts removed from the roster;
b) thereafter, the Second Respondent informed the Applicant that she would be offered casual shifts at the Second Respondent’s other centres, which the Applicant said she was unable to attend due to the distance to those centres and her lack of transportation; and
c) the First Respondent requested the return of the Applicant’s uniforms.
The First Respondent pressed that the Applicant was not dismissed as she was employed under an umbrella company, and was offered casual work at alternate locations, the offer of which, was rejected by the Applicant notwithstanding that the centres were three kilometres away from the Centre in which the Applicant had been working.
The Second Respondent argued that the Applicant remained employed, and it had offered the Applicant work at the Centre’s sister services in the same area. Further, as the Applicant was a casual employee, she was given shifts dependent on the number of children in the service. As the service was new, the number of children was low and inconsistent, and the allocation of shifts to part-time staff had to be prioritised over casual employees.
As to my findings in this matter, first, I find that the Applicant is no longer an employee of the Second Respondent, notwithstanding the Second Respondent’s assertion that the Applicant was ‘still on the books’. The evidence is such that the Applicant has not worked in the Centre or for the Second Respondent since, or slightly before, the email from Mr Morgan dated 6 April 2024.
Second, the email from Mr Morgan was unequivocal in its terms, stating that the Applicant had taken Mr Morgan’s advice to cease her casual employment with the Second Respondent. The evidence does not suggest that Mr Morgan lacked the Applicant’s authority to communicate the cessation of her employment with the Second Respondent, and at hearing no submission or otherwise was made by the Applicant that such communication from Mr Morgan had been sent absent her consent, or that Mr Morgan’s communication that she was ceasing employment with the Second Respondent, was not to be believed.
Third, whilst the Applicant submits that she did not resign from her position, the communication from her partner to the Second Respondent speaks to the contrary, and as such I have found that the Applicant resigned.
Fourth, I have considered whether the principal contributing factor which led to the termination of the employment relationship between the Applicant and the Second Respondent, was the action of the Second Respondent – the Applicant’s employer.
The Applicant clearly considers that her transfer to work at the other centres of the Second Respondent was contrary to the terms of her Employment Contract, and she understood she had been employed to work at the Centre. However, the Applicant’s submission is misconceived. Whilst the Employment Contract refers to the Applicant’s normal place of work as the Centre, in item 7 of the Schedule, the Employment Contract allows for the Applicant’s ‘normal place of work’ to be changed by the Second Respondent to meet business requirements. In circumstances where the alternative work locations were situated only three kilometres from the Centre in which the Applicant had worked and given the situation that had arisen within the Centre, it was open to the Second Respondent to have formed the view that the Applicant was better placed in one of its alternative centres. In this regard, I refer to the Second Respondent’s reference to the potential conflict of interest arising in circumstances where an educator had direct oversight of their own child utilising the Centre’s services (the Applicant’s child). It was therefore the case that the Second Respondent had simply exercised its rights under the Employment Contract to change the Applicant’s normal place of work, which it was entitled to do.
As to the removal of the Applicant’s shifts, the evidence before me did not allow for findings as to the shifts or pattern of work the Applicant usually engaged in. It is therefore difficult to find whether the removal of shifts was a regular occurrence or out of the ordinary. I note that the Applicant said to the effect that she was not notified by either the First or Second Respondent about the removal of the shifts before she saw she had been taken off the roster. However, I further note that the Second Respondent submitted that the Applicant was excess to requirements that week given a downturn in numbers and the Second Respondent had allocated any available shifts to a part-time employee. In light of the Applicant’s casual engagement, and observing that whilst shifts for a particular week had been removed and that the First Respondent had offered the Applicant shifts at the other centres, stating, ‘Let me know if you would like me to accommodate shifts at these services’, I am unable to find that the Second Respondent’s conduct was, in this respect, the principle contributing factor which led to the termination of the Applicant’s employment. Further, in respect to the First Respondent’s request to return uniforms, it is evident from the context in which the request was made that the uniforms were only to be returned in circumstances where the Applicant declined to work at the other centres. In my view, the First Respondent’s request for uniforms to be returned, was not suggestive that the Second Respondent had, or was, terminating the employment of the Applicant.
Fifth, whilst the Applicant contends that she did not resign and that I have found that she did, I have further considered whether the Applicant was forced to resign from her position because of conduct, or a course of conduct, engaged in by the Second Respondent. I have found that not to be the case for the reasons detailed at paragraphs [34] and [35] which are apposite to this consideration. The Applicant’s resignation was voluntarily provided, and it was not the case that she was left with no choice but to resign.
Conclusion
The Applicant was not dismissed by the Second Respondent. A such, her application does not meet the requirements of s 365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by the Applicant pursuant to s 365 of the Act against the First Respondent and Second Respondent is dismissed.
Insofar as it is necessary to address, it is not apparent from the Applicant’s materials that the Applicant named the First Respondent to the application for the purpose of the accessorial provisions of the Act. Notwithstanding, neither party sought to have the First Respondent removed and I have therefore proceeded on the basis that both First and Second Respondent, were parties to the proceedings.
DEPUTY PRESIDENT
Appearances:
Kim Starkey, the Applicant
Nicole Chemello, the First Respondent
Sarah Chemello of the Second Respondent
Hearing details:
2024
Perth (by telephone):
30 May.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[2] Ibid 602 [51].
[3] PR775751.
[4] Digital Hearing Book, 6, 12-16 (DHB).
[5] Ibid 96.
[6] Ibid 35.
[7] (2017) 271 IR 245 (Bupa).
[8] [2023] FWCFB 101.
[9] Bupa (n 7) 268–9 [47].
[10] (2018) 273 IR 126, 129–30 [10]–[11] (references omitted).
[11] (2015) 253 FCR 370, 379 [43].
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