Kirsty Stover v Little Kindy Pty Ltd

[2024] FWC 3493

[2024] FWC 3493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kirsty Stover
v

Little Kindy Pty Ltd

(C2024/7592)

COMMISSIONER MCKINNON SYDNEY, 16 DECEMBER 2024

Application to deal with contraventions involving dismissal – whether dismissed

1. Mrs Kirsty Stover was employed by Little Kindy Pty Ltd (Little Kindy) as the Nominated Supervisor of a childcare centre in Cairns from 4 April 2024. On 21 October 2024, Mrs Stover applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mrs Stover alleges that she was dismissed on a date unknown when she was “unexpectedly demoted” while on medical leave in contravention of the general protections.

1. An application under section 365 of the Act can only be made by, or on behalf of, a person who has been “dismissed”. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.[1] A person has not been dismissed if they were demoted but remain in employment without a significant reduction in remuneration or duties.[2]

1. No party submits that Mrs Stover resigned from her employment. The question is whether Mrs Stover has been “dismissed” for the purposes of s.386(1)(a) of the Act.

1. I am unable to find on the evidence that Mrs Stover was dismissed by Little Kindy. Accordingly, she is not eligible to apply to the Commission under s.365 of the Act. These are my reasons for decision.

Was Mrs Stover dismissed?

1. Between 4 and 9 September 2024, Little Kindy asked Mrs Stover to provide receipts for purchases and cash withdrawals made from the business account from April to June 2024. Mrs Stover did not provide the receipts as requested.

1. On 11 September 2024, Mrs Stover obtained a medical certificate certifying her as unfit to work from 12 to 15 September 2024. She was due to see her doctor again on 16 September 2024. There is no evidence of whether this occurred. Little Kindy does not have a medical certificate in relation to any absence of Mrs Stover after 15 September 2024. It is also not clear (but may be inferred from the materials) that Mrs Stover worked on 16 September 2024. According to Little Kindy, Mrs Stover ceased work after 16 September 2024.

1. On 17 September 2024, Little Kindy sent an email to Mrs Stover. The email is not in evidence and there is also no evidence of any response from Mrs Stover. Little Kindy continued to pay Mrs Stover her wages for the classification of Nominated Supervisor until approximately mid-October 2024.

1. On 21 October 2024 (the same day that she filed this application), Mrs Stover wrote to Little Kindy in the following terms:

“I am writing to express my growing distress and anxiety regarding my current employment situation at Little Kindy. There have been several insinuations that I may no longer be employed, yet I have not received any formal notice of termination or clarification of my employment status.

I was demoted during my probation period, however, I have been on medical leave since September. To date, I have not received any new contract regarding my new position.

My probation period ended at the start of October, and I have received no formal communication concerning my status. If I were terminated or demoted, there would be a mandatory notice period or payment in lieu, neither of which I have been provided.

Furthermore, last week I had to request my wages, as they were not paid on time. The payment was titled as “final pay,” and there was a note from accounts advising me to speak with Arzal regarding my employment status. This only adds to the confusion and distress, as I have not been formally informed of any termination.

I request immediate clarification on my employment status, including any relevant documentation regarding my demotion and position/wage information as stated in your email dated 17/09/2024.

The current lack of communication is causing significant emotional distress and uncertainty.

Thank you for addressing this as a matter of urgency.”

1. On 22 October 2024, Little Kindy responded to Mrs Stover:

“Thank you for your email.

Please be advised that we are still waiting for your response as per my email to organise a meeting with you to discuss about your situations including your employment clarifications.

Can you please respond with the time and date you are available?

While we have not terminated your employment at Little Kindy, you are required to perform your employment responsibilities and be present at the centre including providing us proof of evidence in your absence.

Please get back to us asap with your response.”

1. On the state of the materials, I am unable to conclude that Mrs Stover was dismissed by Little Kindy. Her email to Little Kindy on 21 October 2024 indicates that Mrs Stover also was unsure as to the status of her employment at that time. The contents of that email are to be treated with caution given the proximity of the email to the filing of this application after more than one month without any apparent communication between the parties, and statements that do not appear to be correct (such as that Mrs Stover had been “on medical leave since September”, where the last medical certificate that appears to have been provided to Little Kindy expired on 15 September 2024).

1. One can only guess at the contents of the email of 17 September 2024, particularly in light of the response from Little Kindy the following day. Perhaps it notified Mrs Stover of her demotion but it is equally possible that it said something else. It does not seem to be in dispute that Mrs Stover’s remuneration remained the same after 17 September 2024. Without this evidence, and because no duties were performed by Mrs Stover after 16 September 2024, it is impossible to know whether her duties were or would have been significantly reduced on or after that time.

Conclusion

1. I am unable to conclude on the materials that Mrs Stover was dismissed. The jurisdictional objection is upheld and the application is dismissed.

COMMISSIONER

Appearances:

No appearance for the applicant.
A Arzal for the respondent.

Hearing details:

2024.
Sydney (by video):
December 12.

[1] Fair Work Act 2009 (Cth), ss 12 and 386.

[2] Act. s.386(2)(c)

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