Liane Trainor v Wild West Pty Ltd
[2024] FWC 567
•5 MARCH 2024
| [2024] FWC 567 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Liane Trainor
v
Wild West Pty Ltd
(U2023/11194)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 5 MARCH 2024 |
Application for an unfair dismissal remedy
On 14 November 2023, Liane Trainor (the Applicant) made an application to the Fair Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Wild West Pty Ltd (the Respondent). The Respondent objects to the FWC dealing with the application on the basis that the Applicant resigned her employment and the termination was not at the initiative of the Respondent.
Background
The Applicant was employed by the Respondent at its recycling facility in Mandurah, Western Australia, and commenced this employment on 21 May 2021. The Applicant was employed on a casual basis and typically worked five days a week from 9am to 2pm. On 25 October 2023, it appears the Applicant had a difficult discussion regarding her work duties with Ms Suezette West, a director of the Respondent. As a result of this discussion, the Applicant left work early having received permission to do so from Mr Terry West, the other director of the Respondent. When the Applicant returned for her next shift there was another discussion with Ms West. The parties are in dispute about the content of this discussion and its implications. Notwithstanding this, the Applicant left the Respondent’s premises after this discussion and did not return.
Permission to appear
Both the Applicant and the Respondent sought to be represented before the Commission. The Respondent made relevant submissions regarding s596(2)(a) and the efficient conduct of the hearing, and also s596(2)(b) with respect to the Respondent lacking any experience in Commission matters. As I need only find one of the circumstances in s596(2) to be applicable, I was persuaded that the Respondent did not have the necessary experience or capacity to effectively represent itself and as such I granted permission for the Respondent to be represented.
The Applicant made relevant submissions addressing s596(2)(a) and s596(2)(b). From the submissions addressing s596(2)(b) I was persuaded that the Applicant would not be able to represent herself effectively and as such I granted permission for the Applicant to be represented.
Witnesses
The Applicant gave evidence on her own behalf.
The following witnesses gave evidence on behalf of the Respondent:
· Ms Suezette West (Ms West), director of the Respondent
· Mr Terry West (Mr West), director of the Respondent
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
The parties are in dispute about whether the Applicant was terminated at the initiative of the Respondent. As such, I need to make a determination on this issue before considering any of the other relevant matters.
Submissions and Evidence
The Applicant submits that she was terminated by the Respondent on 27 October 2023. The Applicant submits that she was subjected to hostile, unjustified and aggressive allegations from Ms West on 25 October 2023. The Applicant submits that Ms West also gave her an ultimatum on that day, to the effect that she needed to comply with the instructions issued by Ms West or leave her employment. Following this, the Applicant submits that she was upset and given permission to leave work by Mr West and advised to return on 27 October 2023. However, on her return, the Applicant submits that Ms West queried why she was in attendance, on the basis that she was no longer employed. It was the Applicant’s submission that Ms West’s words to that effect were communicating a termination of her employment.
Notwithstanding this, the Applicant submits that a conversation with Mr West ensued and then a further conversation with Ms West. The Applicant submits that she was abused by Ms West during this subsequent conversation and advised that she could finish her employment in two days. The Applicant submits that she chose not to work these days due to the hostility to which she had been subjected and as such left the workplace.
The Applicant’s evidence is that the situation began on 25 October 2023 when she was approached by Mr West, who gave her some instructions on how to perform her job. The Applicant states that she acknowledged the instruction but was confused as Ms West had given her different instructions. The Applicant’s evidence is that she raised this discrepancy with Mr West, and he undertook to speak with Ms West.
The Applicant states that some short time later Ms West approached her in what she describes as a furious and aggressive manner. The Applicant’s evidence is that Ms West challenged her about a number of behaviours at work and warned her not to try to “white ant” her. The Applicant states that the interaction ended with Ms West saying: “if you don’t like what I am saying take your shit and leave.” The Applicant states that she was very upset and approached Mr West for permission to leave work, which was granted, with Mr West saying take the rest of the day off, enjoy your day off tomorrow and then come back Friday[1]. The Applicant’s further evidence is that when she returned to work for her next shift, being 27 October 2023, Ms West was waiting for her in the driveway, and raised her arms and said: “what the hell are you doing here?” The Applicant states that she said she was coming to work, and Ms West then said: “no you’re not you no longer work here.” The Applicant states that she then approached Mr West to find out if she had been terminated and Mr West said that he would speak to Ms West. The Applicant’s evidence on what happened next is as follows:
“Susette (sic) then came outside and totally abused me for reporting to her husband.
She then said I could work today and tomorrow (as staff had called in sick). I elected to leave after being dismissed.”
The Applicant also provided a recording of the interaction between herself and Ms West on 27 October 2023. It was my initial assessment that the recording may have been made covertly and potentially in such a way as to contravene the Western Australian Surveillance Devices Act 1998. I raised this with the parties at the beginning of the hearing, but the Respondent did not object to the recording being tendered. It has been established by the FWC (for example see Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2019] FWCFB 4258 at [46]) that material that has been improperly or illegally procured may be admitted into evidence in the FWC subject to certain conditions. In this case the recording, which may or may not have been improperly procured, contained evidence that was very much central to the issue in dispute and, given the Respondent had no objections, I determined that it should be admitted.
That recording contains two relevant interactions between the Applicant and Ms West. In the first, which is found at time stamp 1:00, Ms West states as follows:
“So, this is how it’s going to be. You can work today and tomorrow and we’ll see how it goes but no more going back to Terry and no more trying to make trouble.”
In the second, which is found at time stamp 3:10, the conversation is as follows:
Ms West: “So, what are you going to do?”
Applicant: “Well, I’m not going to do you any favours so I’ll just go.”
Under cross-examination the Applicant was asked why, given that she was arguing that Ms West’s comments to her as she entered the workplace on 27 of October conveyed termination of her employment, she did not raise this in the subsequent discussion with Ms West that had been recorded. The Applicant stated that she thought there was no need as the termination was clear. She was then asked to comment on the clear offer of at least two days of further employment and why she had not accepted this offer. The Applicant replied that she had been dismissed and had seen how the Respondent had treated other employees, and further, that she thought the Respondent was motivated purely by a shortage of staff.
The Respondent submitted that the Applicant had resigned of her own accord and had not been dismissed. It submitted, citing the decision of a Full Bench of the FWC in Abandonment of Employment[2] that where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evidences an unwillingness or inability to substantially perform his or her obligations under the contract, this will amount to abandonment of employment, and will be deemed a renunciation of the employment contract.
The Respondent further submitted, citing the decision of the High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd[3] that when assessing whether an employee’s conduct constitutes an abandonment of their employment, 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. It was the submission of the Respondent that the actions of the Applicant in leaving the workplace without permission, following a heated discussion with Ms West where the Applicant declined to work her remaining shifts for that week, and in circumstances where the Applicant had made the comment “have a nice life and good luck” to Mr West on her way out, had led the Respondent to reasonably conclude that the Applicant would not be returning to work. In such circumstances, the Respondent submitted that there had been no termination at the initiative of the employer.
In her witness evidence, Ms West stated that she had spoken to the Applicant on 25 October 2023 about what she perceived as confusion over the Applicant’s duties. Ms West stated that during this conversation she commented to the Applicant that she felt she was not adequately performing her employment duties. Ms West’s evidence is that the Applicant responded by saying in effect “what part of that was not part of my job?” Ms West states that she replied and told the Applicant that she was trying to do too much at once but before she had finished speaking with the Applicant, the Applicant had turned her back to her and walked off back into the shed.
With respect to the events of 27 October 2023, Ms West’s evidence is that at around 8.50am that morning, she was in the driveway speaking with a customer when the Applicant arrived dressed for work. Ms West states that the Applicant walked past her through the shed without putting her personal items down and walked to the other side of the shed to speak to Mr West. Ms West states that some short time later Mr West had approached her and said that the Applicant was waiting to speak to her on the other side of the shed.
Ms West further stated that she walked around to meet with the Applicant and a discussion ensued. Ms West notes that the Applicant did not have her permission to record that conversation. It is Ms West’s evidence that she and the Applicant went over the relevant points of the discussion held on 25 October 2023 and that she told the Applicant she could work that day and the following day and Ms West would “see how it goes”, meaning that the Applicant’s employment would be ongoing if the parties worked out their differences. Ms West states that the Applicant responded by saying in effect that she wouldn’t be doing Ms West any favours, that she had been recording everything to put it on Facebook and told Ms West to watch her back before turning and leaving. It was Ms West’s further evidence that she did not at any time dismiss the Applicant.
Under cross examination Ms West conceded that the Applicant was a good employee but confirmed that she felt that the Applicant had been going behind her back to Mr West and further confirmed that she had, on 25 October 2023, accused the Applicant of “white-anting” her. However, she continued to refute that she had made the comment “if you don’t like it you can take your shit and leave” to the Applicant on that day. Under further cross-examination Ms West confirmed that she had made the comment “what are you doing here” to the Applicant when the Applicant walked past her to enter the workplace on 27 October 2023 but refuted that she had said “you don’t work here anymore”. Under cross examination and re-examination Ms West continued to maintain that she had not dismissed the Applicant.
The relevant evidence of Mr West is that on 25 October 2023, the Applicant had approached him during her shift regarding an instruction given to her by Ms West. Following this a discussion was held between himself and Ms West regarding the Applicant’s duties. Mr West’s evidence is that he then left the matter to be sorted out between Ms West and the Applicant. Some short time later, Mr West states that he observed the Applicant and Ms West having a conversation that, in his words “became heated”. Mr West states that following this conversation the Applicant spoke with him and advised that she did not want to finish her shift. At this point Mr West states that he allowed the Applicant to leave work and the Applicant told him to call her when he wanted her to return.
Mr West’s further evidence is that on 27 October 2023 the Applicant approached him at approximately 8.50am and asked him what was happening. Mr West states that he advised the Applicant that this was a matter for her to clear up with Ms West, and then advised Ms West that the Applicant wanted to speak with her. Mr West’s evidence is that the next interaction he had with the Applicant was some minutes later when she approached him and said words to the effect that she was leaving and he should have a good life and the Applicant wished him good luck. Mr West states that he took these comments to mean that the Applicant would not be returning to work.
Under cross-examination Mr West conceded that, as per the Applicant’s claim, he had actually approached her on 25 October 2023 regarding her duties and it had not been the Applicant who approached him. He was also questioned on his assertion that the Applicant had said to him that he should call her when she was required to return to work. Mr West seemed somewhat vague in his recollection but stated that the Applicant had asked him to call her but he could not recall why he was supposed to call her. It was put to Mr West that, as per the Applicant’s evidence, he had told the Applicant on 25 October 2023 to have Thursday off and that he would see her Friday. Mr West stated that he could not recall if he had said those words. When asked if he expected the Applicant to return on the Friday Mr West answered that he was not sure if she would return. I asked Mr West about the conversations he had with Ms West regarding the Applicant’s employment after the Applicant had left work on 25 October 2023 and his answers were somewhat vague and unhelpful.
In addition to the witness statements of Mr West and Ms West, the Respondent submitted two video recordings made by CCTV at the workplace. I note that these recordings do not contain audio. In the first recording, taken at 8.50am on 27 October 2023, the Applicant can be seen entering the workplace via a driveway while Ms West is seen speaking to a customer in a red vehicle. Towards the end of the recording, Ms West can be seen turning away from the customer and making a gesture with her hands.
The second recording appears to be footage of the meeting between Ms West and the Applicant that was also recorded, albeit essentially with audio only, by the Applicant. There was little probative value in this video albeit that it broadly confirmed the time frame of the discussion between Ms West and the Applicant.
Consideration
In the first instance I should note that I found the Applicant to be a very credible witness who was straightforward and honest. Ms West was a fairly forthright witness but her credibility was not assisted by the fact that her witness statement contained some notable omissions – which were extracted by Mr Petherick for the Applicant in cross-examination – that suggested that her statement had been crafted to avoid anything that could be regarded as portraying her in a negative light. Mr West’s statement suffered from a similar shortcoming, and he had to concede one point was incorrect and another was not consistent with his recall. I further found that Mr West was very reticent to become involved in the dispute between Ms West and the Applicant and seemed to have taken a “not my problem” approach to that dispute. Notwithstanding these observations, I find that the most relevant evidence in this matter is to be found in the audio recording submitted by the Applicant, and the video recordings submitted by the Respondent, for the reasons set out below.
In this matter, I find that, on balance of probability, events proceeded as follows: Ms West was concerned about the Applicant undermining her, albeit that I make no finding as to whether this undermining was actually occurring. Proceeding on the basis of her belief, Ms West has had what I will, perhaps euphemistically, describe as a frank conversation with the Applicant on 25 October 2023. This conversation has caused a level of shock and anxiety for the Applicant, who has then approached Mr West for support. I find that while the parties do not agree what was said, I accept that Mr West both gave the Applicant permission to leave work early and that he told her he would see her on Friday.
I believe that such conversations as took place between Mr West and Ms West regarding the employment status of the Applicant resulted in Ms West forming a view that she did not want the Applicant to return to work. I accept that when the Applicant did return to work, Ms West’s reaction was to ask why she was at work and I also find it is the case, on balance of probability, that she said words to the effect of “you no longer work here’.
Before moving on to the conversation recorded by the Applicant, I should make comment on this statement that I attribute to Ms West. The Applicant says that this statement should be taken to be a termination of employment, making it clear that the Applicant no longer works at the Respondent’s business. I am not convinced that the case is so clear cut, particularly given the question that proceeds it. It could be said that the comment, if paraphrased, should be taken as “why are you here, I thought you had resigned?” It is not alleged and, in any case, clear that there had been no termination of the Applicant’s employment prior to this time. As such, if Ms West is making the comments “why are you here” and “you no longer work here” she is not doing so based on her having previously terminated the Applicant. To perhaps labour the point, her comments cannot logically be paraphrased as “what are you doing here you have been terminated?” As such, if it is the case that it is a termination, it is the first time the Respondent is raising termination with the Applicant and the two statements taken together are a somewhat unusual way to terminate the Applicant in the first instance. That is not to say that it may not simply have been clumsy language, however, I find that on balance of probability, those comments did not terminate the Applicant’s employment. In any case whether this was a termination or not may be largely irrelevant, due to the statements made by Ms West in the recorded conversation.
In that conversation, Ms West makes it clear that the Applicant can continue to work for the Respondent, via her comment that the Applicant could work the next two days and see how it goes. Giving that statement its most generous interpretation from the Respondent’s perspective, it offers ongoing employment subject to the Applicant addressing the concerns outlined to her by Ms West. In this scenario, the two days may be taken to be an – albeit brief – opportunity to demonstrate a willingness to remedy the issues raised by Ms West. If I give the statement the interpretation preferred by the Applicant, it was merely a cynical offer designed to help the Respondent out of a staffing shortage and there would be no employment offered after those two days.
I find that it does not matter which of those two interpretations is preferred. What is clear is that the Applicant could have elected to remain in the employ of the Respondent for those two days. If at the end of those two days her employment continued, she has no quarrel with the Respondent. If her employment had ended after those two days, then she could have lodged an unfair dismissal claim at that point. The Applicant may have had her suspicions about what the Respondent would do, but she could not know for sure what the future would hold. Rather than remain in employment and allow events to take their course, the Applicant has chosen to end her employment.
It is important that I now explain my finding that it may not be relevant whether the comments from Ms West to the Applicant when she was entering the workplace amounted to termination. If those comments do not amount to termination, then it is clear that the Applicant has resigned her employment. However, if those comments do amount to a termination, then I make this observation. Those comments, based on the video footage, were made at approximately 8.51am. The conversation recorded by the Applicant took place at approximately 8.55am and the offer to work the next two days is made at approximately 8.56am. As such, even if the Applicant was terminated at 8.51am, then I find that within five minutes that termination had been withdrawn and the Applicant’s employment reinstated. As I stated above, the Applicant could have remained in the employ of the Respondent but chose not to do so. In taking that decision, I find that she has resigned her employment and as such there was no termination of employment at the initiative of the employer.
I also note that it was open for the Applicant to claim that the resignation had been forced by the actions of the Respondent and indeed I questioned the Applicant at hearing as to whether she was making this plea. However, the Applicant made it clear that she was pleading that her employment had been terminated by the Respondent by virtue of the comment from Ms West and that she was not pursuing the notion of forced resignation.
Conclusion
As I have found that the ending of the Applicant’s employment was by virtue of her resignation and not at the initiative of the Respondent, I find that the FWC does not have jurisdiction to deal with the Applicant’s unfair dismissal claim and her application is dismissed.
DEPUTY PRESIDENT
Appearances:
T Petherick of Petherick Cottrell for the Applicant.
C Rautenbach of HHG Legal for the Respondent.
Hearing details:
2024.
Perth:
February 22.
[1] Witness Statement of Liane Trainor page 6 paragraphs 2 – 3.
[2] Abandonment of Employment [2018] FWCFB 139 at [21].
[3] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 at [44].
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