Lisa Beck v Sakeena's Cafe Weston T/A Sakeena's Cafe
[2018] FWC 2932
•24 MAY 2018
| [2018] FWC 2932 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Beck
v
Sakeena’s Cafe Weston T/A Sakeena’s Cafe
(U2018/75)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 24 MAY 2018 |
Application for relief from unfair dismissal – Applicant not dismissed – application dismissed.
[1] Ms Lisa Beck (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 3 January 2018 alleging that she had been unfairly dismissed by Sakeena’s Café Weston T/A Sakeena’s Café (the Respondent) on 18 December 2017.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent, while not raising any jurisdictional objections to Ms Beck’s application, stated that Ms Beck had not been dismissed.
[3] The application was heard on 9 April 2018. At the hearing Mr Gary Beck (the Applicant’s father) appeared for Ms Beck, while Ms Michelle Slater, the Respondent’s bookkeeper, appeared for the Respondent. Ms Beck, Mr Beck and Ms Natasha Moore, a former employee of the Respondent, all gave evidence for the Applicant. Ms Debbie Stavrakis, one of the owners of the Respondent, and Ms Veronica Dinn, an employee of the Respondent, both gave evidence for the Respondent. Mr Beck and Ms Dinn were not required for cross-examination.
[4] For the reasons set out below I have found that Ms Beck was not terminated at the initiative of the Respondent. Accordingly, Ms Beck cannot have been unfairly dismissed and her application will therefore be dismissed.
Background
[5] Ms Beck commenced employment with the Respondent in July 2016 as a casual barista, submitting that she worked varying hours each week until she was dismissed on 18 December 2017. With regard to her dismissal, Ms Beck contends that she presented for work at around 6:15am on Monday, 18 December 2017 and that around 8:00am she was advised by Ms Moore that she was to leave and call Ms Stavrakis. Ms Beck further contends that she used Ms Moore’s mobile phone to call Ms Stavrakis and that she was dismissed during that phone call. Ms Beck alleges that Ms Stavrakis had said to her that she did not want to employ people with children (Ms Beck has a young son). The Respondent on the other hand submitted that in December 2017 when Ms Beck contends she was dismissed that she had sent Ms Stavrakis a text message advising that she was resigning and looking for another job, adding that it accepted Ms Beck’s resignation.
The Applicant’s case
[6] Ms Beck submitted that she had been employed every week between 4 July 2016 and 18 December 2017 working an average of 20.5 hours per week over this period. Against that background, Ms Beck contended that while her employment was not on a regular and systematic basis, she did have an expectation of continuing employment. Ms Beck further submitted that over the period 26 June to 18 December 2017 she regularly worked from 6:30am to 2:00pm on Mondays.
[7] Ms Beck submitted that on 23 October 2017 she had been sent home by Ms Stavrakis part way through her shift, contending that Ms Stavrakis had said to her that she was too old and would not be given any more shifts. Ms Stavrakis subsequently contacted Ms Beck on 25 October 2017 and offered her a shift that afternoon, with Ms Stavrakis dismissing Ms Beck’s concern that she had been dismissed. Ms Beck submitted that she considered making an unfair dismissal application at the time.
[8] Beyond this Ms Beck submitted that:
• in the two weeks leading up to her dismissal Ms Stavrakis had asked her to work from 6:30-9:30am and 3:30-6:30pm seven days a week;
• on 16 December 2017 another employee, Klara, asked Ms Stavrakis if she could work the opening shift on Mondays;
• Ms Stavrakis replied that those shifts were Ms Beck’s;
• on 18 December 2017 at around 8:00am she was advised by Ms Moore that she had to leave and call Ms Stavrakis;
• she called Ms Stavrakis who said three times during their phone conversation that she did not want people who had kids, that the new girl did not have kids and that she must leave;
• she was devastated and left work humiliated;
• at some stage she was offered the afternoon shift for that day but said she was unavailable;
• Ms Stavrakis never contacted her again;
• during the two weeks prior to her dismissal she was repeatedly asked to leave when a new employee, Tashi, arrived;
• her employment before and after Tashi arrived supported the view that she was dismissed because she was being replaced;
• she was dismissed in an abusive and discriminatory way which left her humiliated in front of staff and customers, adding that she had been a victim of a pattern of abuse and that Ms Stavrakis demonstrated a lack of respect for a loyal employee;
• she commenced casual employment as a barista on 9 March 2018;
• she maintained that Tashi started with the Respondent in early December 2017;
• Tashi had been brought in on 18 December 2017 to replace her despite the fact that she had been working the Monday morning shift for around six months; and
• after 18 December 2017 she was never offered another shift by the Respondent.
[9] Ms Beck also posited in her submissions that she had been underpaid by the Respondent when she had been sent home early from her shifts and not paid for the minimum engagement period under the relevant modern award, the Fast Food Industry Award 2010 1.
[10] In her witness statement 2 Ms Beck referred to her alleged dismissal in late October 2017, the 16 December 2017 incident and her alleged dismissal on 18 December 2017 in almost identical terms to her submissions. Ms Beck also deposed that while she did not recall the circumstances in which she was offered the afternoon shift on 18 December 2017 she was so upset that she said she was unavailable. Similarly, Ms Beck’s oral evidence was consistent with her submissions and witness statement. However, Ms Beck also attested inter alia that:
• she had worked Monday mornings since June 2017 as Fredrea who normally worked mornings as a barista worked in the kitchen on Mondays;
• in the two weeks prior to her dismissal every time Tashi came to work she would be sent home, adding that in the light of Ms Stavrakis’ comments regarding kids she thought she was being replaced;
• she thought it strange when Tashi arrived at work on the morning of 18 December 2017;
• she was told by Ms Moore that Tashi was there to learn about cakes;
• after she was asked to leave by Ms Stavrakis she “cracked a s..t” and left;
• she subsequently tried to speak with Ms Stavrakis who refused to speak to her, adding that she took this as her being dismissed;
• she had no recollection of resigning by text message though she could be wrong, later stating that she did not deny doing so but that she did not have any recollection of having done so as she believed her phone was out of credit;
• she used Ms Moore’s phone to call Ms Stavrakis as she thought she had no credit on her mobile phone;
• she had no evidence of sending a text message to Ms Stavrakis in which she resigned as she had lost her phone when her house had burnt down;
• the Respondent employed other people who were older than her or who had children and still did so, adding that Ms Stavrakis just seemed to have a problem with her in this regard;
• she was never told why Tashi had been engaged;
• people were constantly coming and going from the Respondent’s employ;
• she recalled speaking to Ms Stavrakis later on 18 December 2017 when she told her about her trial at another café and during which she advised she would not be coming in that afternoon;
• she believed that she had been given the opportunity to complete her shift on 18 December 2017 but declined the offer;
• she had not contacted Ms Stavrakis after 18 December 2017 asking for further shifts;
• she considered Ms Stavrakis and her husband to be “fantastic” people;
• she could not recall whether Ms Stavrakis contacted her on 18 December 2017 regarding the afternoon shift or vice versa;
• text messages were the usual way of communicating with Ms Stavrakis regarding her availability/unavailability to work and that no one had a roster as hours of work were communicated by text message; and
• she loved it there (the Respondent’s business), loved working for Ms Stavrakis, had great respect for Ms Stavrakis’ family and that her job with the Respondent was the best job she had ever had.
[11] Mr Beck’s witness statement 3 dealt solely with a phone call Ms Beck received from Ms Stavrakis in late October 2017 asking her to come in for the late afternoon shift, adding that as a result Ms Beck decided not to pursue an unfair dismissal application at the time. As previously noted, Mr Beck was not required for cross-examination.
[12] Ms Moore in her witness statement 4 deposed that about 8:00am on 18 December 2017 she received a phone call from Ms Stavrakis who told her to tell Ms Beck to leave as Tashi was to complete the day shift, adding that she told Ms Beck who was very upset. Ms Moore further deposed Ms Beck then called Ms Stavrakis and after a short conversation left the café very distressed. Key aspects of Ms Moore’s oral evidence were that:
• Ms Stavrakis called her on the morning of 18 December 2018 after watching the surveillance camera and advised that Ms Beck was to leave as she was not supposed to be there that morning;
• she did not hear what Ms Stavrakis said to Ms Beck in their phone conversation;
• after the phone call Ms Beck started to cry and went into the kitchen;
• Ms Beck did not say that she was dismissed though she left the café distressed; and
• regarding Tashi, she understood that the Respondent was looking for a full-time barista to ensure product/coffee consistency.
The Respondent’s case
[13] The Respondent submitted that at no stage had Ms Beck been dismissed, adding that several of its employees past and present had children and that this had never been a problem. The Respondent further submitted that upon commencement of her employment that Ms Beck’s agreed hours were the afternoon shift, which was from 3:00-7:00pm though Ms Beck would be asked to cover morning shifts if staff were away on holidays or sick. The Respondent also submitted that Ms Beck was employed to work casual shifts as agreed with Ms Stavrakis. The Respondent also contended that in December 2017 Ms Beck sent Ms Stavrakis a text message advising that she was resigning and looking for another job, adding that it accepted Ms Beck’s resignation. The Respondent disputed that Tashi had been hired to replace Ms Beck, submitting that it was constantly hiring new employees due to other staff leaving, going on leave or changing their availability due to study commitments. The Respondent further contended that Tashi had been hired on a trial basis in mid-December 2017 to work the morning shift. At the hearing the Respondent submitted that the reason Ms Beck was not offered any more shifts after 18 December 2017 was because she had resigned.
[14] Key aspects of Ms Stavrakis’ oral evidence were that:
• she did not dismiss Ms Beck on 18 December 2017;
• she never had a problem with Ms Beck, adding that she had a good relationship with Ms Beck;
• she never said to Ms Beck that she would not be offered work because she had a child;
• she did not recall what was said in her phone conversation with Ms Beck on 18 December 2017;
• Tashi started work with the Respondent on 15 December 2017 and was working on a trial basis on 18 December 2018, adding that she asked Ms Beck to leave because she wanted to see whether Tashi was good or not;
• she could not find the text message which Ms Beck had sent to her resigning, adding that she did not have any text messages from Ms Beck after November 2017 as Ms Beck used various phones to contact her;
• she would employ Ms Beck again but not on the morning shift but on the less busy afternoon shift; and
• she recalled telling Ms Beck not to come to work on 18 December 2018 but could not remember when she did so.
[15] Ms Dinn deposed in her witness statement 5 that she worked afternoons with Ms Beck at the café and that on the majority of shifts Ms Beck would ask Ms Stavrakis if she could leave at 6:30pm instead of 7:00pm if all her jobs were completed by that time. Ms Dinn further deposed that she and another staff member were often left to complete outstanding jobs that had not been completed by Ms Beck as agreed with Ms Stavrakis. Ms Dinn was not required for cross-examination.
Was the Applicant dismissed?
[16] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case it was not disputed that the Ms Beck was protected from unfair dismissal pursuant to s.382 of the Act. More specifically, based on the material before the Commission, I am satisfied that Ms Beck was employed on a regular and systematic basis and that she had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis. As such, her period of employment as a casual counts towards and exceeds the relevant minimum employment period (i.e. 6 months). However, based on the Respondent’s submissions there is a dispute as to whether Ms Beck was dismissed or resigned. The relevant provisions of the Act in respect of this matter are ss.385 and 386 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
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.”
[17] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 6(Mohazab). The Full Court stated in its decision that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option’. His Honour described those circumstances as:
“… a termination of employment at the instance [of] the employer rather than of the employee.’
And at p 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”“ (Underlining added)
[18] It is clear from the outline of the parties’ respective cases that key aspects of what occurred in the lead up to and on 18 December 2017 are disputed. The Commission’s task in determining some of those disputed issues is made all the more difficult as a result of the absence of material to support elements of the parties’ respective submissions and evidence. For instance, a significant gap in the evidence before the Commission is the absence of the text message which the Respondent contends Ms Beck sent to Ms Stavrakis resigning from her employment. Further, neither party produced any record of whatever text messages may have been exchanged between Ms Beck and Ms Stavrakis in the period leading up to and immediately after 18 December 2017. With regard to the contention that Ms Beck resigned, it is significant in my view that Ms Beck’s evidence was not definitive in rebutting the Respondent’s contention to that effect. Specifically, Ms Beck attested inter alia that she had no recollection of resigning by text message though she could be wrong, later stating that she did not deny doing so but that she did not have any recollection of having done so as she believed her phone was out of credit. Ms Beck also attested that when she spoke to Ms Stavrakis later on 18 December 2017 that she recalled telling her that she had a trial at another café. Ms Beck’s evidence in this regard was in contrast to her very clear and detailed evidence regarding those occasions when she presented late for work or unsuccessfully asked Ms Stavrakis if someone else could work her shift.
[19] On the other hand, Ms Stavrakis’ recollection of some events was also less than comprehensive. For instance, she was unable to recall the alleged conversation on 16 December 2017 in which another employee had asked her if she could work the Monday morning shift and she did not recall when she told Ms Beck not to come to work on 18 December 2018. However on the latter aspect Ms Moore’s evidence was that Ms Stavrakis had said to her when she called her on the morning of 18 December 2017 that Ms Beck was to leave as she was not supposed to be there. This supports Ms Stavrakis’ evidence that she had told Ms Beck not to come to work on 18 December 2018. Against that background, Ms Stavrakis’ asking Ms Moore to tell Ms Beck to go home because she was not supposed to be there does not in my view, drawing on the language in Mohazab, amount to a critical action constituting the termination of Ms Beck’s employment. Also relevant in that regard is Ms Beck’s evidence that she took Ms Stavrakis’ refusal to speak to her on 18 December 2018 as her being dismissed. Why Ms Beck would draw that conclusion in circumstances where she contends that she was dismissed during her phone conversation with Ms Stavrakis on the morning of 18 December 2017 was not explained.
[20] Beyond this, I find it incongruous that if Ms Stavrakis had dismissed Ms Beck on 18 December 2017 she would have asked Ms Beck later that day if she would to work the afternoon shift. This simply does not make sense, nor does it point to Ms Beck having been dismissed during their phone conversation earlier that day. Further, Ms Beck’s contention that she was dismissed because she had a child is undermined by her evidence that the Respondent employs a number of other people with children. Finally, while it is not disputed that Ms Beck was distressed after her phone conversation with Ms Stavrakis on the morning of 18 December 2017, it is unusual that she did not tell anyone before she left the café that morning that she had been dismissed though this observation is not relied upon in coming to the conclusion outlined below.
[21] For reasons of completeness, I would point out that I have attached little if any weight to Mr Beck’s and Ms Dinn’s evidence as it does not relate directly to the events of 18 December 2017.
[22] In summary, the material before the Commission does not support a finding that Ms Beck’s employment was terminated at the Respondent’s initiative as per s.386(a) of the Act. As such, Ms Beck was not dismissed.
[23] As to whether Ms Beck resigned from her employment, while there is some circumstantial evidence which points to that being the case, in circumstances where Ms Beck did not contend that she had been forced to do so because of conduct, or a course of conduct, engaged in by the Respondent as per s.386(b) of the Act I do not need to determine that issue.
[24] As I have determined that Ms Beck was not dismissed by the Respondent, s.385(a) of the Act is not satisfied and Ms Beck therefore cannot have been unfairly dismissed.
Conclusion
[25] For the reasons outlined above, I do not consider that Ms Beck was terminated at the initiative of the Respondent. Accordingly, Ms Beck cannot have been unfairly dismissed and her application will therefore be dismissed. An order to that effect will be issued in conjunction with this decision.
Appearances:
Mr G. Beck for the Applicant
Ms M. Slater for the Respondent
Hearing details:
2017
Canberra
April 9.
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