Marena Fathalla v Gallawah Pty Ltd

[2023] FWC 2542

[2023] FWC 2542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Marena Fathalla
v

Gallawah Pty Ltd

(C2023/707)

Malayna Lemana
v
Gallawah Pty Ltd

(C2023/708)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 OCTOBER 2023

Applications to deal with contraventions involving dismissal – applications joined – jurisdictional objection – whether the applicants were dismissed.

1. On 10 February 2023, Ms Marena Fathalla and Ms Malayna Lemana lodged applications with the Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). The applications were made against the same respondent, Gallawah Pty Ltd. The applicants allege contraventions of Part 3-1 of the Act arising from similar alleged actions of the respondent.

1. The respondent objects to the applications on the basis that it did not dismiss either of the applicants. With the consent of the parties, the jurisdictional objections have been determined jointly.

1. For the reasons that follow, I find that:

(a)   Ms Marena Fathalla has been dismissed for the purposes of s 365(a) of the Act; and

(b)   Ms Malayna Lemana has not been dismissed for the purposes of s 365(a) of the Act.

Background and factual findings

1. It is useful to first detail the common background and factual findings relevant to both applications before considering the circumstances of each matter separately.

1. I make the initial observation that the applicants consider their evidentiary case to be limited because they had been locked out of their work emails.[1] No application was made for orders to produce documents or for orders for a person to attend the Commission to give evidence.

The respondent

1. The respondent is a registered provider with the National Disability Insurance Agency. It predominantly provides services to persons approved for support on the National Disability Insurance Scheme (NDIS),[2] and specialises in persons who are in the justice system, including those detained in prison and persons referred by the Department of Families, Fairness and Housing (Vic).[3]

1. The respondent’s head office is located in Shepperton, Victoria. Many of its employees, however, work from home or from the homes of clients.[4]

1. Ms Fathalla commenced employment with the respondent on or about 6 March 2022 as a support coordinator.[5] Ms Lemana commenced employment with the respondent on 14 February 2022 in a senior role as a manager or team leader.[6] As part of her role, Ms Lemana organised supervision of, and training for, certain employees.[7]

1. For the duration of their employment, both the applicants were casuals working pursuant to a wholly unwritten contract.[8] Ms Powney’s position is that given the variable NDIS funding availability for clients, the hours performed by employees each week were variable.[9] With respect to the applicants hours of work, Ms Powney says that as casual employees, each applicant would be employed “for only hours allocated or agreed.”[10]

The Brevity application

1. The respondent uses an application called Brevity to receive and allocate work.[11] The Brevity application functions by displaying clients who have NDIS funding availability. An employee may volunteer to perform a shift within a particular time. An employee may also identify periods of time in which they will be unavailable to provide their services.[12]

1. The respondent’s founder, sole director and executive manager, Ms Tina Powney,[13] administers the Brevity application. She receives emails when an employee has requested to be unavailable.[14]

1. Further, Brevity is used to electronically store an employee’s key documents,[15] such as a signed copy of the respondent’s privacy and confidentiality agreement and code of conduct,[16] a personal, tax, superannuation and bank details form,[17] a tax file number declaration,[18] NDIS certifications,[19] superannuation fund details[20] and an employee intake form.[21]

1. No evidence was led that there was any other manner in which shifts were allocated. Accordingly, I find that the Brevity application was the only method used by the respondent to allocate work to the applicants.

1. It is not in dispute that the applicants were not ever locked out of the Brevity application.[22]

Alleged underpayment of wages

1. In general, there is evidence that in the latter half of 2022 and early 2023 the applicants, a support worker with the respondent in the Melbourne team named Mr Clay Paulsen, and two other employees, Ms Leah Newton and Ms Nicole Grogan (said to be in charge of certain financial matters such as actioning pay[23] and preparing documentation for new employees)[24] raised pay related issues with Ms Powney.[25] The material before the Commission is insufficient to make any findings on the alleged underpayment issue. It is nonetheless useful to identify some uncontested background matters concerning this dispute for context.

1. On 15 December or 16 December 2022, the applicants met with Ms Powney to discuss their underpayment concerns. What occurred during this meeting is in dispute. It suffices to observe that Ms Powney did not accept the applicants’ contentions that the respondent had underpaid its employees.[26]

1. On 20 December 2022, a series of text messages passed purportedly between Ms Powney and Ms Grogan. Ms Grogan was not called to give evidence. The text messages form part of Ms Lemana’s evidence.[27] It is necessary only to identify that an exchange occurred on 20 December 2022 wherein Ms Grogan sought clarity regarding pay “[u]pon yesterday conversation?”[28] Ms Powney responded, addressing the recipient as “Nicole” and relevantly stated “[w]e need to change the pays but it’s a big process…”

1. On 5 January 2023, Ms Fathalla and Ms Powney exchanged emails concerning the alleged underpayments.[29] Ms Fathalla said that she had sought clarity from the Fair Work Ombudsman “last week” and raised specific allegations. Ms Powney responded stating that she will address this with her lawyers “but as per last email you can see via the Melbourne team email……under the ndis we are under another pay rate. It’s unbelievable I receive this email after offering employment to help people out because of government mandates. Going forward I won’t be doing this going forward.” Ms Fathalla replied “[p]lease don’t take this personal,” expressed her gratitude for her opportunity and noted some benefits provided to the respondent by the service of its “unvaccinated staff.”

1. Also on 5 January 2023, Mr Paulsen and Ms Powney exchanged emails concerning underpayments.[30]

1. On 24 January and 25 January 2023, Ms Powney and Ms Fathalla exchanged a series of emails concerning whether Ms Fathalla was paid for administrative work on top of support work.[31]

1. On 25 January 2023, Ms Fathalla sent a text message to Ms Powney following up on her concerns regarding the alleged underpayments. Ms Powney responded by stating that she was waiting on a response from her lawyers, and alleged that Ms Fathalla had called the respondent’s staff over a period of eight weeks to spread lies about Ms Powney.[32]

The Dandenong North property

1. It is not in dispute that in early October 2022 an application was made to lease a property in Dandenong North, Victoria.[33] The application was made by Ms Fathalla. In the application Ms Fathalla states “I work for Gallawah and wanting a property for work purposes to use as an office. I will be working with 2 other adults, and we need at least 2 bedrooms to use. We only work Monday to Friday 9-5pm.”[34]

1. The lease agreement was entered into on 19 October 2022 and signed by “Malayna Robinson from Gallawah.”[35] The name “Malayna Robinson” is accepted to be a reference to Ms Lemana by her maiden name.[36] The first rental payment was made on 26 November 2022.[37] A bond receipt was issued by the relevant authority on 30 January 2023 and issued to “Gallawah Pty Ltd” via the property’s residential address in Dandenong North.[38]

1. Significantly, Ms Powney’s position is that she did not know the property was leased to the respondent until 18 January 2023. However, the applicants consider all matters related to the property were known to, and authorised by, Ms Powney. I consider the relevant evidence with respect to the property in turn before returning to this issue.

Leasing the Dandenong North property

1. Ms Lemana recalls that, in early June 2022, while working out of a business centre called the Waterman,[39] she approached Ms Powney with a plan to obtain a rental property for the “Melbourne team” to use as an office which would double as a respite for disadvantaged youths who were clients of the respondent. Ms Lemana recalls Ms Powney verbally directing her to “go ahead” with the plan.[40] 

1. Ms Fathalla’s evidence is that in mid-2022, the applicants and Mr Paulsen worked from the Waterman while they applied for properties. Ms Fathalla says she was responsible for finding properties on behalf of the respondent and submitting the applications.[41]

1. Ms Lemana confirms that a successful application was made to rent the Dandenong North property in October 2022.[42] Ms Lemana recalls being instructed by Ms Powney to sign the lease agreement because Ms Powney was too busy.[43] Ms Lemana states that “we gained access to the property and commenced work stripping, painting and renovating the property for use.”[44] Ms Lemana states she spent seven weeks of her own time renovating the property. However, each time she made a purchase she sent an email to the email address “[email protected]” to be processed.[45]

1. Ms Fathalla recalls successfully securing the lease in October 2022. She notes that the property manager and the landlord were aware that the house would be used as an office and respite. Ms Fathalla’s evidence is that Ms Lemana signed the lease because Ms Powney was unavailable. Ms Fathalla said that Ms Lemana had permission from Ms Powney to do so. Ms Fathalla recalls that Ms Lemana had no authority to sign on behalf of the respondent as she was not a Director, and that Ms Powney said, “just sign it.”[46] Ms Fathalla further recalls Ms Powney congratulating the Melbourne team by email after securing the lease.[47]

1. Ms Powney’s position is that on or around 18 January 2023 she learned that the respondent had rented the property without her knowledge. Accordingly, Ms Powney rejects the contention that she advised Ms Lemana to sign the lease for the property.

Setting up the NBN at the Dandenong North property

1. Ms Lemana contends that Ms Powney assisted her with setting up an NBN connection at the property between 11 November and 15 November 2022.[48] Ms Lemana relies upon two screenshots of text messages between her and Ms Powney in support of this matter.[49]

1. The first screenshot contains an undated text message from Ms Powney to Ms Lemana stating, “Hey Can you give me a call today.” This message is immediately followed by an image of a text message sent by Optus which relevantly states, “Hi Tina, you have a technician appointment on Friday 18 November 2022, 1:00 PM – 5:00 PM…This is for your recent NBN order.” The address details for the NBN installation are not specified. Ms Lemana responded to this message saying, “Thank you” with a prayer emoji. While these text messages are undated, they precede a subsequent message from Ms Powney to Ms Lemana which contains a timestamp at 7:40am on 11 November 2022 (although the chain of messages sent at that time have not been produced).[50] It is therefore apparent that Ms Powney sent Ms Lemana these messages some time prior to 7:40am on 11 November 2022.

1. The second screenshot contains four text messages sent on 15 November and 16 November 2022.[51] The first text message was sent from Ms Powney to Ms Lemana on 15 November 2022 and relevantly states “I am wondering did you end up getting the phone on at the house??” The second text message is from Ms Lemana to Ms Powney on 16 November 2022 and relevantly states, “Tina can you forward the code that’s come through from the good guys or the bank please.” The third text and fourth texts were also sent on 16 November 2022 and are not relevant.

1. When Ms Powney was asked during cross-examination whether these messages evidence her understanding that there was a property in Melbourne being set up with an NBN connection, Ms Powney said “not true.”[52] It is noted that there was no suggestion by Ms Powney that these messages referred to a house or property other than the Dandenong North property, to which the NBN or telephone was being connected.

1. I find that prior to 7:40am on 11 November 2022, Ms Powney sent to Ms Lemana a text message containing the appointment details provided to Ms Powney by Optus which specified the date and time that a NBN service provider would install the NBN at a property with which Ms Lemana had a connection. I further find that Ms Powney made an enquiry by way of text message to Ms Lemana regarding getting the telephone connected at “the house.” 

Renovating the Dandenong North property

1. Ms Lemana says that she spent seven weeks of her personal time renovating the property. When items were purchased for the property, Ms Lemana said that an email would be sent to the respondent confirming the purchase,[53] although these emails are not in evidence.

1. Ms Fathalla considers that Ms Powney gave her “blessing” to purchase furniture for the property, and that Ms Lemana kept a record of costs for these purchases. Ms Fathalla recounts Ms Powney’s instruction to “make the office look as good as possible.” Ms Fathalla notes that she was not involved directly in renovations and held an understanding that the respondent would cover the costs.[54]

1. Ms Fathalla recalls that, in late November 2022, Ms Powney requested a client of the respondent who had been released from prison stay at the property while renovations were ongoing.[55]

Invitation to attend a Christmas lunch at the Dandenong North property

1. On 13 December 2022, Ms Lemana sent an image by way of a text message to 16 people, though the specific recipients of the message are not identified with the exception of a person whose details are saved as “Adam Gallawah.”[56] The image embedded within the text message is an invitation to a “Gallawah Christmas Lunch” to be held at the property on 20 December 2022. I am satisfied that the address details in the invitation to the Christmas lunch match the address details for the Dandenong North property as provided on the Bond receipt referred to at [23] of this decision.

1. During cross-examination, Ms Powney denied having knowledge of the Christmas lunch and said she was not invited to it.[57] Ms Lemana’s witness statement does not address this text message, nor did either applicant refer to the Christmas lunch at the hearing. The annexure identifying the screenshot is referred to in Ms Fathalla’s witness statement as a “social media” post but is not otherwise discussed.[58]

1. I accept Ms Powney’s evidence that the text message containing the invitation to the Christmas lunch at the property was not provided to her, noting that the applicants have not contended otherwise.

First request to “purchase” the Dandenong North property

1. Following issues regarding the alleged underpayments detailed from [15] of this decision, Ms Lemana contends that on 28 December 2022 she made an offer to “purchase” the property from the respondent. In circumstances where the property was not owned by the respondent, but rather subject to a lease agreement, I proceed on the understanding that Ms Lemana sought to assume the lease from the respondent and purchase the property contained within it. Ms Lemana’s position is that this offer was made in order to “salvage the work” she had put into the property.[59] It is not clear how Ms Lemana’s offer was communicated to Ms Powney and the matter was not the subject of oral evidence.

Email on 28 December 2022

1. On 28 December 2022, Ms Lemana states that Ms Powney emailed her requesting a “full list of items and information” in relation to the property.[60] Two different copies of the email are before the Commission.[61] The email is addressed to “Malaya” (being a misspelt reference to Ms Lemana by her given name) and precedes with the statement, “I hope you had a great Christmas…” In both cases, the identity of the sender, the receiver and the specific time that the alleged email has been sent have not been produced.

1. The first copy of the email is a photo of the text of the email as it appears on a mobile phone, with metadata superimposed over the top of the photo. The metadata cuts off some of the email’s text. The metadata identifies that the photo was taken of a mobile phone displaying the email at 6:13pm on 28 December 2022, although this does not confirm the date and time of the email itself.

1. The second copy of the email is the same photo but without the metadata superimposed on the image. In the absence of the metadata, the conclusionary words of the email are visible, which provide, “Warm regards, Tina Powney.”

1. It is Ms Lemana’s position that in the email, a request is made by Ms Powney for a catch up with Ms Lemana “regarding Melbourne and wages.” The email advises that a wage scale had been sent through “today.” Further, information is sought concerning the address of “the house,” real estate details and the cost per month, the electricity provider, the gas provider, the internet/phone provider, a list of all the contents in “the house” and their value, and the locks used on the doors and windows. The email states that this information is for “contents and public liability insurance” which the author of the email was “unaware” had not been done.

1. During examination-in-chief, Ms Powney (a) denied that she had ever seen the email prior to these proceedings, (b) stated that the email had not been sent by her, and (c) confirmed that she had conducted a search of her emails to confirm this position. Ms Powney noted that she typically did not send ellipses in her emails (being a reference to the opening line of the email referred to at [42]) and so it was not her who sent the email.[62] When asked during cross-examination about the email, Ms Powney responded “[a]nybody could have written that.”[63]

1. Ms Lemana gave the following evidence that she had taken the photo of the email on 28 December 2022:[64]

“…so my colleague Clayton Paulson was – he was instrumental in helping me to build the Melbourne house and he was locked out of his email so Tina here is asking that she would like the contents of the house with photos and a list so I took a screen shot and the time at the top of the message – so page 146 is the entire message.  Page 145 has the time of the screen shot.  So I took the screen shot – it matches 6.13 pm with the top of the phone, 6.13 pm.  So I had to send a copy of this email to Clayton so that he could gather the list of the house – the list of the contents of the house.  But he was locked out of his email so he couldn't see – we had a shared email account, sorry, I should say.”

1. When Ms Lemana was asked why she did not simply forward the email to Mr Paulsen, she said it was just easier for her to take a photo and send it to him as she was talking to him on the phone.[65] During cross-examination Ms Lemana denied having fabricated the email.[66]

1. I observe that at least one of the other emails sent by Ms Powney uses ellipses,[67] but I do not consider this minor grammatical choice to ground any inference. I accept that the metadata pertaining to the image reflects a date of 28 December 2022 being the date that Ms Lemana contends she received the email from Ms Powney. Further, the time identified in the metadata reflects the time on the mobile phone displaying the email, being 6:13pm. There is no evidence before the Commission as to whether Mr Paulsen was allegedly “locked out” of his emails as of 28 December 2022 such as to provide support for Ms Lemana’s reason for taking the photo of the email. Nor has Ms Lemana adequately explained the basis for sending Mr Paulsen a copy of the email if he had been “locked out” of the respondent’s work systems. Nevertheless, I am satisfied that the content of the email concerns two issues which were in existence in December 2022; the leased property and the dispute concerning the alleged underpayment of wages.[68]  

1. On balance, I accept Ms Lemana’s evidence that Ms Powney sent the email to her on 28 December 2022 at or about 6:13pm. I reject the contention that the email was fabricated by Ms Lemana for the following reasons. First, the metadata confirms that the photo was taken of the mobile phone displaying the email on 28 December 2022 at 6:13pm. Second, the email refers to matters that are consistent with findings I have made as to relevant facts arising in this matter. Third, the email contains an email signature in a font consistent with that used by Ms Powney to sign off her emails. Fourth, there was no reason for Ms Lemana, as at 28 December 2022, to have known that from 18 January 2023 onwards, Ms Powney would deny all knowledge of the leased property. Therefore, there is no identifiable reason for Ms Lemana to take a photo of the email on 28 December 2022 simply to demonstrate Ms Powney’s knowledge. The contention that the email was fabricated on 28 December 2022 to disprove a position not yet advanced by Ms Powney is simply not credible. While I regard the provision of the email by Ms Lemana to Mr Paulsen if he was “locked out” of his emails at that time to be curious, there is insufficient evidence before me to make findings as to the circumstances of Mr Paulsen’s email access and I decline to do so. However, I observe that Mr Paulsen was a person to whom Ms Powney sent her email of 20 January 2023 advising of the closure of the Melbourne office (see [59] of this decision). Accordingly, I do not consider this aspect of the evidence to undermine the findings I have made as to Ms Lemana’s evidence about receiving this email from Ms Powney, or the basis for Ms Lemana to have taken a photo of the email on 28 December 2022. 

The applicants discovering intentions to shut down Dandenong North property

1. On 5 January 2023 Ms Fathalla says she was advised that Mr Trevor Barker, a support coordinator for the respondent, had told a participant that he and Ms Powney were closing “Melbourne Gallawah/ seeking to.” Later on 5 January 2023, Ms Fathalla emailed Ms Lemana in her capacity as a team leader stating her concerns and frustration about this information.[69] This email is not in evidence.

1. Ms Lemana’s evidence is that on 5 January 2023 a participant disclosed to her that he had learnt the “Melbourne Office” would be shut down.[70]

Shutting down the Dandenong North property

1. Ms Powney said that on or around 18 January 2023 she learned that the respondent had rented the Dandenong North property without her knowledge. Ms Powney said that she became aware of the property following a conversation with her accountant. Ms Powney recalls being shown by the accountant payments from the respondent’s cheque account and said that the accountant advised her the transaction was “shonky.” Ms Powney noted that the respondent was considering setting up a house for supported living in the Goulburn valley.[71] Ms Powney recalls contacting the payee for a $3,000 transaction, being the real estate agent for the property, in late January 2023 by telephone.[72]

1. Ms Lemana said that on 17 January 2023, the real estate agent for the property called her to advise that she had received a phone call from Ms Powney wherein Ms Powney told the real estate agent that Ms Lemana had destroyed the property. Ms Powney had also told the real estate agent she had no knowledge the property existed. The keys were demanded back from Ms Lemana.[73]

1. Ms Fathalla and Ms Powney exchanged text messages on 19 January 2023. Relevantly, at the hearing, Ms Fathalla was cross-examined in relation to one of the text messages she sent to Ms Powney on 19 January 2023. The relevant text message exchange is as follows:[74]

Ms Powney:

“All the contact with participants and staff should not be done by staff, apparently Melbourne staff have been calling participants”

“Nah I have nothing”

“All I have is a house I didn’t sign for in my name”

Ms Fathalla:

“Calling participants for what? I’m confused?? I think the house is under malaynas name but I can confirm this tomorrow…?”

1. It was put to Ms Fathalla during cross-examination that her response did not say words to the effect of “hang on a minute, you know about the house don’t you?” Ms Fathalla’s response is that she did not say anything to this effect in her text message because she “just knew” that Ms Powney knew about the house.[75]

1. I reject the notion that Ms Fathalla’s alleged failure to refer to Ms Powney’s knowledge of the property during this short text message exchange demonstrates that Ms Fathalla held the belief that Ms Powney did not know about the leased property. Ms Fathalla was responding to the specific issue about who signed the lease for the house. Further, Ms Fathalla’s response commences with the words “I think” which I consider demonstrates her confusion as to the basis for Ms Powney’s message.

20 January 2023 timeline

1. At 9:13am on 20 January 2023, Ms Lemana emailed the real estate agent for the Dandenong North property. That email is, relevantly, as follows:[76]

“Just wanted to give you a heads up. Marena spoke to the owner a couple weeks ago as we are having our organisation close down. We have moved on to another organisation with the same exact structure so the owner is satisfied that the house is being utilised the same, and he welcomed a house visit soon.

Our old employer is trying to gain access to the house to “lock us out” as she’s disgruntled.

Due to the house being in my name and the three of us residing and utilising the house (with all our equipment there) I was wondering what the protocol was, if she came to your agency to gain access?

Can you advise?

Call me if it’s easier to explain over the phone.”

1. Shortly afterwards, at 10:38am on 20 January 2023, Ms Powney sent an email to the applicants and Mr Paulsen, who she describes in her evidence as the “Melbourne team,”[77] which stated relevantly as follows:[78]

“Dear Malayna, Marena, Clay

I have decided to close the Melbourne office.

I have advised the realestate agent.

I am putting you all on notice that the assets of Gallawah remain Gallawah’s property.

Copying client details and sending them to your own Email address is a privacy issue and will be reported to NDIS and Privacy Commissioner. This is potentially putting you at risk of prosecution. I advise you to immediately delete any client information you hold in your personal emails or IT systems or in hard copy.

I have access to all your email accounts, and I have access to all of the emails that you have deleted.

I am taking the necessary steps to wind up our Melbourne operation and transition participants to new supports.

Please cease trying to transition Gallawah services and supports to your own businesses as this is deeply concerning.

I am in the process of obtaining legal advice to ensure Gallawah IP is respected and not used for your personal gain. I take your efforts to establish a new business whilst employed by Gallawah as lacking any integrity and will be thoroughly investigated at our end.

…”

1. Ms Lemana responded at 11:49am, relevantly as follows:[79]

“I’ve spoken to the agent.  I would love to have continued to set up a respite house to child protection children and wanted to venture into that area.  I’m happy to pay for the items in the house if that makes things easier for you however, making threats and sending emails saying that I’ve never had the authority to act on behalf of Gallawah is ridiculous!  The respite house was my intellectual property and all of my hard work.  I physically painted and repaired that house in my own time away from my family and not at the expense of Gallawah.  Please do not question my integrity with that! 

Just to make things clear, are we being terminated or can we continue to transition the participants over to new supports as mentioned in my previous email?  The entire time I’ve wanted the least amount of impact on the participants.  There are shifts booked and meetings that I’ve committed to for the remainder of my two weeks at Gallawah, how am I to complete my work if you’ve locked me out of emails? 

I knew you would become volatile as I’ve seen it with other colleagues, however I was really hoping that given my rational emails, you would act in the best interest of the participants.  

Please don’t accuse us of copying, sending emails and don’t threaten prosecution, or trying to transition to a new company.  You have Trevor working within your organisation making referrals to his wife who was terminated from the organisation! 

What any of the Gallawah support staff decide to do when they leave Gallawah is their own business and we should wish them well.  

Are we still working at Gallawah today or not?

My email was sent on Wednesday and apart from funeral events, I planned on finishing up two weeks from that date.  This is exactly what I was trying to avoid as the impact on participants is what the focus should be.  I can bring the vehicle with all the equipment back to Gallawah on that date.

Please confirm!”

1. Mr Paulsen responded at 12:01pm agreeing that it was a good idea to part ways with the respondent, referring to incompatible values, ethical issues and other matters. Mr Paulsen noted that he had a shift scheduled the following day and asked Ms Powney to “advise if I'm terminated immediately or if I should complete that shift.”[80]

1. Ms Fathalla responded at 3:20pm advising that she would contact her union, that Ms Powney had been unethical, that she would report the respondent to “the IBACC,” NDIA and NDIS Commissioner, report the respondent to the media about underpayments and bullying, inform elders about her issues with Ms Powney, never work for a vaccinated person again and stating that Ms Powney was worse than the government. Ms Fathalla also stated as follows: “I will give you 24 hours (from 3:30pm) to confirm that we have been unfairly dismissed or I will take it as we've lost our jobs and being punished for speaking with fair work!”[81]

1. Ms Powney responded at 3:29pm stating as follows:[82]

“Further to my email I sent earlier to Clay, Malayna and Marena yes is the answer to Clays question. All services to cease immediately.

Please advise of current roster of supports so we can establish new support arrangements with participants.

I am happy to discuss the purchase of office equipment, bond, rent, carpet and other items my account is putting together.

Please advise what equipment you want to purchase and what you are prepared to pay.

I would like Gallawah’s car, mobile phones, laptops and other office equipment returned asap. Monday I can come to Melbourne and pick it up.

This is not my assets this is Gallawah’s assets, I am just the director, I am really disappointed I am paying rent for a house and equipment that is not even in the company’s name.

…”

1. Mr Paulsen responded to Ms Powney’s email at 5:32pm stating “I fail to see how we can organise any participant details and shifts to handover as we're locked out of emails, brevity etc.” He stated that “[l]ocking us out without notice affects the participants the most and isn't going to be a good reflection of Gallawah.” He noted that “Ms Lemana signed the lease due to you not getting back to her emails after verbally giving your permission. Nothing about the Melbourne office was done without your blessing.” He further noted Ms Lemana would need to consider the offer to purchase the office items. He stated that “[w]e'll ensure that Gallawah items are packed and ready for you on Wednesday night as we had planned leave for various family reasons from Sun - Wed.” [83]

The events after 20 January 2023

1. On 21 January 2023, Ms Lemana made a further offer to purchase certain property from the respondent for $9,000, and provided Ms Powney with a list of items at the property that were purchased with the respondent’s funds.[84]

1. On 31 January 2023, Ms Powney emailed Ms Lemana advising her that she did not respond sooner because she was seeking legal advice, and set a timeline for the provision of a response. On 1 February 2023, Ms Lemana replied to Ms Powney advising that she would be “ending the lease this week” as she did not want the property in her name. Ms Lemana requested advice as to whether the items could be collected or sold so that she could organise the action and “maybe advise the next organisation.”[85] Ms Lemana says that Ms Powney ended the lease.[86]

1. Ms Lemana further recalls that during February 2023, Ms Powney arranged for the inventory to be collected from the property and returned to her house where it remains.[87]

1. On 1 February and 2 February 2023, Ms Powney and the real estate agent exchanged emails regarding the termination of the lease.[88] The email from Ms Powney notes that the respondent had dismissed “the financial person Nicole Grogan” upon becoming aware that the respondent’s usual payments processes “seem to have been bypassed,” and referred to “discrepancies in our accounting software and financial records and transactions.” Further, Ms Powney stated that Ms Lemana had acted without authorisation from the respondent in leasing the property. Ms Powney advised that the respondent would not pay any further lease payments and would be seeking the return of the bond.

1. Ms Powney recalls meeting with the real estate agent at the property on 2 February 2023, who advised Ms Powney that she did not know Ms Powney existed. Ms Powney inspected the property and noted that there were televisions on the wall. Ms Powney recalls Ms Lemana, Ms Fathalla and Mr Paulsen attended the property at this time. Ms Powney states that a “fairly heated discussion” ensued. Ms Powney recalls the trio saying, “the house was theirs” and that she said the respondent had paid for the house. Ms Powney further recalls Ms Lemana saying, “they have done nothing wrong” and that she replied “that is not right. You have rented this house – what you have done is unethical and criminal.” The trio then returned the keys to the real estate agent who handed them to Ms Powney and left.[89]

The evidence of Brittany Cottier

1. Ms Brittany Cottier, an employee of the respondent from October 2022, gave evidence that Ms Powney knew about the property.[90] During cross-examination, it was emphasised that Ms Cottier’s evidence went no further than to confirm that Ms Powney knew of the plans for a respite house, not that the plan was enacted. Ms Cottier agreed.[91] However, Ms Cottier affirmed in re-examination that Ms Powney was aware of the property because she had heard from Ms Powney during team meetings that the “Melbourne office was doing so great…setting it all up and going forward.”[92]

1. The respondent emphasised that NDIS approval of a respite house takes approximately 12 months to be approved. However, on the applicants’ evidence, the property had not yet become a respite house at the time the applicants’ employment ceased in January 2023. Accordingly, whether the property had been approved by the NDIS as a functioning “respite house” is of no moment in the determination of the applications. Ms Cottier’s evidence is therefore consistent with the evidence of the applicants, and I accept it.

Findings in relation to Ms Powney’s knowledge about the Dandenong North property

1. I refer to my finding above at [34] that text messages were sent by Ms Powney to Ms Lemana in November 2022 in relation to establishing an NBN connection at an unidentified property, and enquiring whether the phone had been installed at “the house.” This precedes my finding above at [50] that on 28 December 2022, Ms Powney sent an email to Ms Lemana inviting the provision of information concerning a “house” in order to arrange content and public liability insurance. The email seeks the address, real estate agent details and costs per month, and information about service providers, contents, locks and other matters pertaining to the house.

1. There is no suggestion by either party that the “house” referred to in the November 2022 text messages or the 28 December 2022 email could be any house other than the Dandenong North property. Nor is there any alternative explanation for these very specific communications from Ms Powney to Ms Lemana concerning the establishment of telephone and internet connectivity and the provision of information for insurance purposes. Being satisfied that Ms Powney was the author of each of these communications to Ms Lemana, I find that the property which is a subject of the communications is the Dandenong North property.

1. It follows that I do not accept Ms Powney’s contention that she was unaware of the property being leased prior to 18 January 2023. Ms Powney’s position is inconsistent with the evidence before the Commission. Rather, I find that Ms Powney facilitated the establishment by Ms Lemana of the NBN at the property as early as November 2022.

1. In light of this conclusion, I consider the accounts of Ms Lemana and Ms Fathalla, insofar as the evidence concerns Ms Powney’s knowledge in relation to the Dandenong North property, are to be preferred over the evidence of Ms Powney. On this basis, I find that Ms Powney was aware of the leasing of the property in early October 2022, knew the purpose for which the property was going to be used, and knew that the respondent would pay the rent, bond and costs associated with furnishing the property.

1. My findings are not inconsistent with Ms Powney’s text message to Ms Fathalla on 19 January 2023 set out at [55] above and Ms Powney’s email to the applicants and Mr Paulsen on 20 January 2023 (set out at [59]). These are the only two pieces of documentary evidence in which Ms Powney raised any issues concerning the Dandenong North property with the applicants in the period between 18 January 2023 when Ms Powney alleges she became aware of the property and 20 January 2023 when the parties mostly ceased communicating.[93] In both of these communications, Ms Powney does not allege that she was wholly unaware of the leasing of the property. Rather, Ms Powney’s stated concern was limited to the issue that the respondent (or Ms Powney) had not been a signatory to the lease agreement. The earliest occasion in which Ms Powney alleges that she was wholly unaware that the property had been leased was in correspondence sent by Ms Powney’s representative to the applicants on 8 February 2023.[94]

Ablemind

1. Ms Powney says that on or around 20 January 2023 she identified from a search of the respondent’s email system there had been referrals of its NDIS clients by both applicants to another entity and that there was “work commencing for that other entity.” Ms Powney identifies that entity as Ablemind (Vic) Pty Ltd (Ablemind).[95]

1. The emails identified by Ms Powney demonstrating these referrals by the applicants have not been produced to the Commission, despite such material presumably being within Ms Powney’s possession. In the absence of emails which substantiate these referrals, I consider Ms Powney’s assertion to be absent of any direct probative value.

1. Before the Commission is an ASIC extract of Ablemind. The company was registered in Victoria on 11 January 2023. The principal place of business is in Shepperton East, Victoria. The sole director, shareholder and the secretary of the company is Ms Nicole Grogan.[96] As earlier stated, Ms Grogan is referred to by Ms Powney as a previous employee of the respondent in charge of certain onboarding procedures for new employees. Ms Grogan is also referred to in Ms Fathalla’s evidence as an employee who raised underpayment concerns with the applicants against the respondent.[97] The evidence of Ms Lemana further identifies that Ms Grogan was in charge of actioning pay for the respondent.[98] No attempt was made by either party to compel Ms Grogan to appear before the Commission to give evidence.

1. Ms Powney refers to an email forwarded to her by the Department of Justice and Community Safety (DJCS) on 30 January 2023. The forwarded email is said to be from Ms Fathalla to DJCS in which a change to the NDIS service provider from the respondent to Ablemind is sought.[99] This email is not in evidence and was not otherwise addressed at the hearing. Accordingly, I do not accept that the email exists.

1. There is, however, an email before the Commission from DJCS to Ms Powney.[100] It is undated and is seemingly sent in reply to another email which has not been produced. The email states, relevantly, as follows:[101]

“We were unaware of that so thank you for advising us.

Just so you are aware, we frequently get emails from Ablemind asking if there are any ‘clients’ that we can refer onto them.

I cant disclose who (if any) their current clients are with MRC but will keep this in mind…”

(emphasis in original)

1. This email from DJCS demonstrates, and I accept, that DJCS receives frequent emails from Ablemind asking for clients to referred to it. I consider the word “clients” to be a reference to those in remand or imprisonment at the correctional facility and not clients of the respondent. This email, of itself, does not support a conclusion that Ablemind had solicited clients from the respondent, or that there was a connection between Ablemind and the applicants.

1. Ms Powney gave evidence that the respondent had received several “cease” notices from clients, who were transferring their NDIS services from the respondent to other providers. In each case, Ms Powney considers the notice to have been served abruptly, in the sense that an immediate end to services was notified.[102] At the hearing, Ms Powney clarified that at the time of making her statement on 24 May 2023, 25 clients had provided cease notices and since then a further nine had provided cease notices with two in the week prior to the hearing.[103] Ms Powney considers that this is unusual as many clients have complex needs, criminal history and medical assessments such that a period of handover is customary.[104] None of these cease notices are before the Commission, despite presumably being within Ms Powney’s possession, and so I do not consider Ms Powney’s assertions to have any direct probative value.

1. Ms Powney also relies upon an email she sent to the applicants on 1 February 2023 which raises the issue of Ablemind referrals,[105] and a letter of demand from the respondent’s lawyer to each applicant raising allegations concerning the Ablemind referrals on 8 February 2023.[106]

1. On 15 March 2023, Ms Lemana sent an email to her representative in this matter, Mr Paulsen, Ms Fathalla, Ms Grogan and Ms Newton concerning a timeline for progressing their concerns regarding the respondent’s alleged underpayments. The email originated from an email address identified as “ABLEMIND [email protected]” to Ms Lemana on 15 March 2023.[107] Against this context, I consider it necessary to consider the email sent on 20 January 2023 from Ms Lemana to the real estate agent for the Dandenong North property set out above at [58].

1. Relevantly, Ms Lemana stated to the real estate agent that, “[Ms Fathalla] spoke to the owner a couple of weeks ago as we are having our organisation close down. We have moved on to another organisation with the exact same structure so the owner is satisfied that the house is being utilised the same…” For the purposes of this issue, I am satisfied that by 20 January 2023, Ms Lemana had aligned herself with a new employer and that this employer is, on balance, Ablemind. I do not accept, however, that this email of itself provides support for a finding that Ms Lemana had referred clients from the respondent to Ablemind.

1. There is no evidence that Ms Fathalla had aligned herself with Ablemind. While Ms Lemana’s email records that Ms Fathalla had spoken directly to the “owner” – presumably the owner of the leased property – sometime prior to Ms Lemana’s email to the real estate agent on 20 January 2023, it is not clear what was communicated by Ms Fathalla to the owner of the property. Nor was it put to Ms Fathalla during the proceedings that this email was evidence of her involvement with Ablemind. Further, Ms Fathalla exchanged text messages with Ms Powney on 19 January 2023. One of those text messages expressed Ms Fathalla’s uncertainty as to her intention to remain employed with the respondent. This exchange is considered further at [110] below. For relevant purposes, it is sufficient to note that the exchange is inconsistent with a finding that Ms Lemana’s email on 20 January 2023 to the real estate agent supports a conclusion that Ms Fathalla had, by 20 January 2023, aligned herself with Ablemind.

1. I am satisfied that Ms Grogan is the controlling agent of Ablemind, and that there is a connection between Ms Grogan and the applicants by reason of their shared employment history with the respondent, including their mutual concerns about the alleged underpayments. There is direct evidence of a connection between Ms Lemana and Ablemind by way of the email dated 15 March 2023. There is no direct evidence of any connection between Ms Fathalla and Ablemind.

1. Notwithstanding any connection between the applicants and Ablemind, there is no evidence (beyond Ms Powney’s assertions) of Ms Fathalla and Ms Lemana soliciting, or attempting to, or conspiring to, solicit clients from the respondent to Ablemind. These matters were not put the applicants during cross-examination, nor was any connection to Ablemind explored, and the matter was not otherwise addressed at the hearing or in closing submissions.

1. In the circumstances, Ms Powney’s assertions do not establish to my satisfaction the serious fact that Ms Lemana and Ms Fathalla used their position as employees of the respondent to solicit clients from the respondent to Ablemind, and then commenced employment with, or took control of, Ablemind.[108] Accordingly, I do not accept that the applicants “self-referred” NDIS clients from the respondent to Ablemind before commencing work with Ablemind.

Contentions

1. The respondent contends that the applicants were not dismissed from their employment. It submits that if the applicants wished to work for the respondent, they could have sought that work after 20 January 2023 via the Brevity application, which they did not. The respondent submits that the applicants demonstrated no intention to perform further work for the respondent, evidenced by Ms Lemana’s email of 20 January 2023 in which she referred to her employment with the respondent in the past tense.

1. The respondent says that in the absence of a dismissal, the applications should be dismissed for want of jurisdiction.

1. Further, the respondent contends that three key allegations raised by the applicants in these proceedings were not put to Ms Powney during cross-examination by the applicants’ representative, being the following:

(a)   the contention that Ms Powney had restricted the applicants’ email access;

(b)   Ms Powney’s denial that she had sent the 28 December 2022 email discussed from [42] of this decision; and

(c)   Ms Powney’s position that she did not hold any knowledge that the respondent had leased the property before 18 January 2023.

1. The respondent relies upon the rule in Browne v Dunn[109] in support of its contention that the applicants’ failure to challenge the above propositions with Ms Powney means that Ms Powney’s unchallenged propositions are to be taken by the Commission as proven. In such circumstances, the respondent contends that the Commission should find that there has been no dismissal within the meaning of s 386(1) and the applications should be dismissed.

1. The applicants primarily contend that they were dismissed by way of the email from Ms Powney on 20 January 2023 after raising a series of issues concerning alleged underpayments. In this sense, the applicants contend that they were dismissed at the initiative of the respondent within the meaning of s 386(1)(a).[110] However, as best as I am able to discern, it is also submitted that the respondent’s failure to remedy the alleged underpayment concerns and the respondent’s conduct in “favoratism, unaddressed grievances, gossip, bullying, and coercion”[111] led to a conclusion that the applicants would have to “make alternative arrangements” such that any resignation from their employment was forced by the conduct of the respondent and is a dismissal within the meaning of s 386(1)(b).[112]

1. In response to the respondent’s contentions as to the application of the rule in Browne v Dunn, the applicants rely upon s 591 of the Act in support of their position that the Commission is not bound by the rules of evidence. The applicants submit that should the Commission choose to adopt the rule in Browne v Dunn, the rule ought be applied fairly.

Statutory framework

1. Section 365 of the Act contains two criteria conditioning a person’s entitlement to make an application: that a person has, in fact, been dismissed, and that the person alleges that dismissal was in contravention of Part 3-1 of the Act.[113]

1. The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act.[114] Section 386(1) provides as follows:

(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.

1. Section 386(1) of the Act operates subject to the exceptions set out in s 386(2), none of which are raised directly or indirectly by either of the parties or otherwise arise on the facts.

Consideration

1. It is useful to first make some initial observations as to the legal framework before considering each applicant’s particular circumstances separately.

1. The meaning of the phrase “terminated on the employer’s initiative” as used in s 386(1)(a) is given context by the case law relating to the meaning of “termination at the initiative of the employer.”[115] It refers to termination of the employment relationship and/or termination of the contract of employment.[116]

1. Contrary to the respondent’s submissions, I do not accept that the question of “initiative” for the purposes of s 386(1)(a) is, at its heart, a question of causation. Nor does this position find support in the judgment relied upon by the respondent, Sagona v R&C Piccoli Investments Pty Ltd.[117] Where the employment relationship is not voluntarily left by the employee, the relevant question is whether “the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”[118]

1. To resign is to give up an office or position. There is an element of voluntariness in the act of resignation which is antithetical to the act of the employer terminating the employee’s employment at its initiative pursuant to s 386(1)(a) of the Act.[119] However, a resignation may be legally ineffective where it is given 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.[120] In such circumstances, an employer’s acceptance of the ostensible resignation may be characterised as a termination of the employment at the initiative of the employer.[121]

1. For the purposes of s 386(1)(b), a person has been “dismissed” if “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.” The test to be applied 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[122] The requisite employer conduct is the essential element.[123]

1. The issue to be determined in this matter is whether the applicants have been “dismissed” within either limb of s 386(1). The applicants submit that they were each dismissed under either or both limbs.

1. It is not in dispute that the applicants were engaged by the respondent on a casual basis. “Casual” employment is defined by “no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.”[124] The definition may be satisfied by different patterns of employment pursuant to different contractual arrangements.[125] The applicants accepted ad hoc casual engagements with the respondent through the Brevity application. They each performed work pursuant to a wholly unwritten contract that operates within the framework established by the Act, other relevant legislation and the relevant modern award, being the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). Consequently, each separate engagement through the Brevity application stands alone pursuant to separate contracts of employment.[126]

1. It is accepted in the Commission that the common law principles applicable to the termination of the employment contract with respect to “notice” are equally applicable to the termination of the employment relationship.[127] At common law, termination of the contract is commonly affected by the giving of notice and the effluxion of the period of notice.[128] There is a requirement for such a notice to be “valid.” To be valid, notice must be in accordance with the terms of the contract[129] and must be sufficiently certain in that it must specify, or make it possible to ascertain, the time when the termination is to take effect.[130] Notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.[131]

1. It is also accepted in the Commission that the employment relationship is capable of persisting in the periods between a casual employee’s separate engagements,[132] and that termination of the employment relationship may be obscure where no further shifts are offered to the casual employee.[133] This is so regardless of the absence of reciprocal rights and obligations to give legal form to a relationship of employment in the periods of time between those engagements,[134] and in circumstances where at the end of any engagement there could be no plans for a further engagement and indeed may be no further engagement at all.

1. The SCHADS Award does not provide notice be given by or to a casual employee.[135] There is no evidence before the Commission of any express contractual term concerning notice to be given by or to Ms Lemana or Ms Fathalla. Nor do I consider that the occasion arises for consideration of any implied term to give reasonable notice.[136] This is so because the implication of a term to provide reasonable notice would, if any, be of a short length characteristic of casual employment, perhaps to the end of a particular engagement. It is open to an employee or an employer to provide more notice than is required, or to condition a notice of resignation.[137]

Consideration – Ms Fathalla

1. On 19 January 2023, Ms Fathalla and Ms Powney exchanged a series of text messages. A relevant extract of the text messages is as follows:[138]

   Ms Powney: I will come to Melbourne in the morning, any chance I can pick the house key up or are you going to be at the house?

   I should be there at 9

   Ms Fathalla:    Hey Tina I was about to email you, Clay has the key. He doesn’t work today or Friday but welcome to text/call him. I think he’s in Phillip Island just confirm that I’m not 100% sure.

   I’ll send you that email also with the update. I’m still working trying to get as much done before I log off.

   Ms Powney:    Ok do you think he will be back on Monday

   Ms Fathalla:    I’m not sure, you’ll have to call him to confirm.

   Ms Powney:    Ok

   What about all the stuff in the house?

   Ms Fathalla:    What about it??

   Ms Powney: If you are closing the house what happens to all the stuff that was purchased

   The house is in Gallawah’s name so how can anyone call the realestate

   I’m the director

   Ms Fathalla:    I can ask the owner if he wants to buy it off you? Or someone picks it up?? Let me know and I can make some calls tomorrow, malayna put together an inventory from my understanding??

   Ms Powney:All the contact with participants and staff should be done by not staff, apparently Melbourne staff have been calling participants.

   Nah I have nothing

   All I have is a house I didn’t sign for in my name

   I will pick everything up that Gallawah paid for

   Ms Fathalla:    Calling participants for what? I’m confused??

   I think the house is under malaynas name but I can confirm this tomorrow?..

   Yea no worries.

   Ms Powney:It’s under Gallawah

   Anyways I am coming to Melbourne in the morning and I am going to see the realestate in person and get them to open the house

   Ms Fathalla:    Ok.

   Ms Powney:Are you going to continue working at Gallawah?

   Ms Fathalla:    I’m not too sure at the moment. Things look a little messy

   Ms Powney:Nah it will be ok

   Kiarra will do down to

   Melbourne and work

   For a while until we get staff

   Ms Fathalla:    I hope so [emojis]

   Ms Powney:Yeah it will be fine

2. Ms Fathalla and Ms Powney then discussed an incident at work and wished each other goodnight.[139]

1. Taking into account the text messages extracted above, I consider that on the evening of 19 January 2023, Ms Fathalla remained employed with the respondent and had not engaged in any conduct which suggests she had left the employment relationship. In this context, I refer to my earlier findings in which I rejected the respondent’s contentions that (a) the applicants leased and furnished the Dandenong North property without the knowledge of Ms Powney, and (b) the applicants were engaged in a process of referring clients of the respondent to Ablemind.

1. The following day, 20 January 2023, Ms Powney emailed the applicants and Mr Paulsen at 10:38am with the subject line “Melbourne closure.” In this email, Ms Powney communicated her decision to close the Melbourne office, put the recipients on notice that the respondent’s property remained its own, requested the recipients delete any client information held in their personal emails, stated that she is “taking the necessary steps to wind up our Melbourne operation and transition participants to new supports” and alleged that the recipients had attempted to transition the respondent’s services to a new business.

1. It is not in contest that Ms Fathalla formed part of the group that Ms Powney refers to as the “Melbourne” team, and was a recipient of Ms Powney’s 20 January 2023 email. Ms Powney’s email raises serious allegations of misconduct against Ms Fathalla, which provides some context for Ms Powney’s decision to close down the Melbourne office. Ms Powney’s email communicates her decision to close the Melbourne office and transfer the respondent’s participants to new support workers. The email is to be understood in the context of the casual employment relationship between Ms Fathalla and the respondent, where there is no requirement for notice and employment is on an engagement-by-engagement basis. I am satisfied that a reasonable person with knowledge and background of the dealings between Ms Fathalla and the respondent would regard Ms Powney’s email as terminating the employment relationship between the respondent and Ms Fathalla with immediate effect.

1. Ms Fathalla responded to Ms Powney’s email stating, amongst other things, that she “will give [Ms Powney] 24 hours (from 3:30pm) to confirm that we have been unfairly dismissed or I will take it as we've lost our jobs and being punished for speaking with fair work!” Ms Powney subsequently sent a second email to the applicants and Mr Paulsen at 3:29pm. In the second email, Ms Powney advised the recipients to cease all services immediately, requested current rosters so new supports can be arranged, invited the purchase of office equipment, and requested the return of the respondent’s property in the possession of the recipients. I am satisfied that Ms Fathalla had been dismissed by the time she received this second email. However, I observe that Ms Powney’s second email is consistent with my objective reading of Ms Powney’s 10:38am email. I nonetheless consider that Ms Powney’s 3:29pm email on 20 January 2023 would have been effective in terminating Ms Fathalla’s employment had she not already been dismissed, having regard to Ms Powney’s instruction to cease all work immediately.

1. I am satisfied that Ms Fathalla was dismissed by the respondent within the meaning of s 386(1)(a) of the Act on 20 January 2023.

Consideration – Ms Lemana

1. I have found above that the email sent by Ms Powney at 10:38am on 20 January 2023 was the act which terminated the respondent’s employment relationship with Ms Fathalla. However, prior to Ms Powney sending this email, Ms Lemana sent an email to Ms Powney at 9:41am on 18 January 2023 with the subject line “Thank you.” The body of the email is relevantly reproduced below, excluding some initial concerns expressed by Ms Lemana which I do not consider to be relevant to this application and which concern the particular circumstances of Mr Paulsen and other employees:[140] 

“First of all I want to say thank you for the past year and for letting me into your world of First Nations culture and the challenges that the community faces.  I’ll remember this time forever.

…

Despite my prompts to address pay and all the various meetings we have had, and every time you promising to create some sort of scale (ANY SCALE AT ALL) the pay remains the same.  I used to tell everyone that once you had the information that I just knew you’d create a scale.  I now look so incredibly stupid because despite all the information you have, you are still so reluctant to do anything about it.

We have had brevity ready to go for months.
I’ve offered multiple times to assist to have your brevity ready to bill, thus cutting down admin costs and stress.  For some reason you continue to employ Dylan to rectify the situation,despite accusing him of theft!  

Tina, you contacted me about supervision, you asked what to do about it and you were the one who asked me to come and facilitate training.  I took time away from my family, my children and my work in Melbourne to assist in doing so.  I did that with professionalism and joy consistently telling everyone that working for Gallawah was my passion!  I’ve since heard that you’ve said that you could have done a better training and that support workers found it pointless.  I believe you absolutely could have done a better job than me, I think Trevor could have done a better job than me with all his experience, yet no one has ever valued support staff enough to have done so.  What has Trevor done for anyone other than himself?  He doesn’t even properly service his participants, and despite my telling you (at your request) his conduct has never been addressed.  I understand you’re friends, but it’s so deflating for those of us killing ourselves to do our jobs, Leah included!  Leah did the best she could with what she knew, Leah was never taught, she just jumped in with both feet and tried to help the best way she knows how!  It’s hard to hear her being spoken about negatively!  She’s a good person! 

We don’t operate with gossiping and coercion.  Our staff are ethical, we stand by the service we promise and deliver every time!  

I am heart broken after hearing of myself and my staff spoken about in this way.  We are being paid less than our peers because we choose to work for Gallawah.  I’ve been offered multiple jobs and have declined because I believed in you and the vision of Gallawah.

As said in our meeting, for me, I can not continue to work with colleagues like Trevor who have thrown me under the bus more times than I’ve promoted him!  He isn’t a team player and I don’t understand why you continue to protect him when he has done more damage for Gallawah than good!
Your support workers are some of the most caring people I’ve ever met, yet we refuse to address their skill, qualifications and experience.   This alone, has caused me more sleepless nights than any of Trevor’s nonsense!  Staff are killing themselves to make ends meet and it’s just not okay.  

Tina, I genuinely love everything you stand for.  I stand by what I said, you will always be someone i consider a mentor and someone I respect (from a handful of people).  Just know I will always speak highly of Gallawah and yourself (I won’t ever comment on Trevor out of respect for you).  

I saw myself working for Gallawah as long as it lasted!  It has become too difficult to stay here whilst Trevor gets a free pass, staff are falling off left and right and myself and my staff are being called “unethical”.  My values no longer align with the direction that Gallawah is now going in.  

This week I have my grandmas funeral events in different time zones because they’re in the Cook Islands, so I’ll be available at various times.   Let me know what you’d like to do.  Marena and Clay can make their own decisions.  I’ll organise all participants so their support continues, and they’re not impacted at all.   Marena and Clay will remain for now Im sure, I’ll inform them of my decision today, I’ll have a meeting and then tell the support workers.  Everyone can make their own decision but just know I will ensure that the participants aren’t impacted by my decision.

Tina we don’t seem to be on the same page as each other with some of the decisions you are making or the way you choose to deal with them or not deal with them. 
Ethical behaviour is paramount!

I just want to say, Thank you for all you do for the community.

…”

1. Ms Lemana describes this email as a message regarding her concerns about the direction of the respondent and the behaviour of Ms Powney “including intentions to ensure all clients have adequate support if handovers are required.”[141] Further, Ms Lemana submits that the email is a “heart-felt but professional” email outlining concerns and grievances including underpayments, favouritism, unaddressed grievances, gossip, bullying, and coercion.[142]

1. Ms Lemana accepts in her submissions that the email contains a “suggestion” of a resignation but says that all of the reasons were caused by the respondent’s actions or breaches, and Ms Lemana clearly stated that she would ensure a smooth “transition and handover” in the email.[143] These are taken to be submissions that (a) if the email constitutes a resignation, such resignation was forced pursuant to s 386(1)(b) of the Act, and (b) the notice of resignation was either conditional upon the completion of a handover period or it can be ascertained that the notice would not take effect until the effluxion of the handover period. I consider Ms Lemana’s contentions in the analysis that follows.

1. Ms Lemana’s 18 January 2023 email commences by setting out her position in relation to various concerns which do not bear directly upon the present application. The email then states that Ms Lemana “can not continue to work” with Mr Trevor Barker and that it is “too difficult to stay here.” Ms Lemana notes that her values no longer align with those of the respondent. Ms Lemana proceeds by stating that she will inform Ms Fathalla and Mr Paulsen of her “decision” “today” and the “support workers” in a “meeting.” Ms Lemana states that other employees can make their own decision. The email continues that Ms Lemana would “ensure that the participants aren’t impacted by my decision.”

1. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. Rather, it depends on what a reasonable person in the position of the parties would have understood was the position, based on what each party has said or done, in light of the surrounding circumstances.[144] I consider that Ms Lemana unambiguously notified Ms Powney in the 18 January 2023 email of her decision to terminate her employment relationship with the respondent. Such a finding is consistent with the “surrounding circumstances and events,”[145] notably:

(a)Ms Lemana’s 28 December 2022 offer to Ms Powney to “purchase” the Dandenong North property from the respondent to “salvage the work” she had put into it (discussed from [41] above);

(b)Ms Lemana’s evidence that on 5 January 2023, she became aware of Ms Powney’s intention to shut down the activities being undertaken at the property (discussed at [52] above); and

(c)Ms Lemana’s 9:13am email on 20 January 2023 to the real estate agent for the property in which Ms Lemana provided a “heads up” that “we are having our organisation close down” and “we have moved on to another organisation with the exact same structure so the owner is satisfied that the house is being utilised the same…” Ms Lemana’s email proceeds by stating that “our old employer” is trying to gain access to the house to ‘lock us out’ as she’s disgruntled.” This email is discussed from [58] above.

1. Each of these events occurred prior to Ms Lemana receiving Ms Powney’s 10:38am email on 20 January 2023. I am satisfied that these matters demonstrate that Ms Lemana no longer sought to be employed by the respondent, and had a preference to assume the lease of the property and purchase its contents from her “old employer” in order to utilise the house for “the same” purpose in her new employment. These surrounding circumstances and events support my conclusion that Ms Lemana’s 18 January 2023 email constitutes a resignation by Ms Lemana from her employment relationship with the respondent.

1. Ms Lemana submits that if the email constitutes a resignation, such resignation was forced pursuant to s 386(1)(b) of the Act by reason of the respondent’s conduct. The onus is on Ms Lemana to prove that she did not resign voluntarily.[146]

1. Taking what I understand to be Ms Lemana’s position at its highest, I proceed on the basis that Ms Lemana contends that her 18 January 2023 resignation email was compelled by the respondent’s conduct in “underpayments, favoratism [sic], unaddressed grievances, gossip, bullying, and coercion.”[147] The evidence before the Commission does not establish any of these allegations. Accordingly, there is no basis to find that the termination of employment was the probable result of Ms Powney’s conduct regarding any of these matters, such that Ms Lemana had no effective or real choice but to resign. I am therefore satisfied, on an objective assessment, that Ms Lemana’s resignation from her employment with the respondent was legally effective. The evidence does not support a finding that Ms Lemana was forced to resign because of conduct, or a course of conduct, engaged in by the respondent within the meaning of s 386(1)(b) of the Act, and I find accordingly.

1. Finally, I do not accept Ms Lemana’s contention that her resignation was conditional upon the completion of a handover period or alternatively, that it would not take effect until the effluxion of the handover period.

1. Ms Lemana submits that she sought to transition the participants to new support workers. There is evidence from Ms Powney that handovers are commonplace in this type of work, but this statement was made in relation to participants and not in relation to a particular support worker.[148] Ms Lemana’s 18 January 2023 resignation email stated that she would “organise all participants so their support continues, and they’re not impacted at all” and “[e]veryone can make their own decision but just know I will ensure that the participants aren’t impacted by my decision.”

1. Ms Lemana’s commitment to “organise all participants so their support continues” does not express an ascertainable timeframe for her resignation to take effect. Nor does it condition her resignation on the fulfilment of that, or any other, commitment. Rather, the commitment to “organise” is a statement of Ms Lemana’s desire to limit any disruption to the participants arising from her resignation. Ms Lemana’s intention, while admirable, did not have the effect of deferring the termination of the employment relationship.

1. I observe that Ms Lemana was not compelled by way of a contractual provision or the terms of the SCHADS Award to provide notice of termination of employment. I am satisfied that Ms Lemana’s resignation was not conditional upon the conclusion of a “handover period,” or that there was a condition that support for participants was to be organised before the resignation took effect.[149] Accordingly, I am satisfied, and I find that on 18 January 2023 Ms Lemana terminated her casual employment relationship with immediate effect.

1. In reaching this conclusion, I have taken into consideration Ms Lemana’s 11:49am email on 20 January 2023 which is set out at [60] above. This email was sent in response to Ms Powney’s 10:38am email on 20 January 2023, being the email that terminated Ms Fathalla’s employment.

1. In her 11:49am email, Ms Lemana enquires of Ms Powney, “Just to make things clear, are we being terminated or can we continue to transition the participants over to new supports as mentioned in my previous email?” Further, Ms Lemana’s email states, “There are shifts booked and meetings that I’ve committed to for the remainder of my two weeks at Gallawah, how am I to complete my work if you’ve locked me out of emails?” The email concludes, “Are we still working at Gallawah today or not?”

1. Neither party submitted during the proceedings that any work was undertaken by Ms Lemana for the respondent after her 18 January 2023 resignation email and there is no evidence that this occurred. Nor is there any evidence of Ms Lemana being allocated hours of work after 18 January 2023 via the Brevity application.

1. A notice of resignation is to be construed objectively. As I found at [127], there is no language in Ms Lemana’s 18 January 2023 resignation email which conditions her resignation. While Ms Lemana subsequently sent an email to Ms Powney in which she expressed a view that she remained employed pending an unparticularised handover period, this email was sent two days after the 18 January 2023 email which I have found effected her resignation.

1. Significantly, Ms Lemana had also communicated with the real estate agent prior to her 11:49am email to Ms Powney, stating that the respondent was her “old employer.” I consider this evidence to seriously undermine Ms Lemana’s contention that she remained an employee of the respondent on 20 January 2023.

1. It follows that Ms Lemana’s 11:49am email on 20 January 2023 to Ms Powney seeking clarification as to whether “we” are “being terminated” does not bear upon my conclusion that Ms Lemana’s 18 January 2023 resignation email had immediate effect. The employment relationship between Ms Lemana and the respondent had already ceased by 20 January 2023.

Other matters

1. I refer to the respondent’s submissions with respect to Browne v Dunn. As to the first allegation referred to at [93](a), the contention that Ms Powney had restricted the applicants’ email address was raised during cross-examination of Ms Powney. Ms Powney’s evidence was that “no one had restricted email access.”[150] The allegation referred to at [93](b) relates to Ms Powney’s evidence that she did not send the 28 December 2022 email.[151] Ms Powney was invited to address the 28 December 2022 email during cross-examination, to which Ms Powney stated, “anybody could have written that.”[152] The allegation referred to at [93](c) relates, in broad terms, to Ms Powney’s credit. Ms Powney had made clear her position that she did not hold any knowledge that the respondent had leased the Dandenong North property before 18 January 2023. During cross-examination, the applicants put various propositions to Ms Powney which challenged Ms Powney’s evidence in this respect, including in relation to Ms Powney’s role in facilitating the establishment of the NBN at the property,[153] Ms Powney’s reference to a Melbourne office in a media publication,[154] the invitation to a Christmas lunch held at the property,[155] and Ms Powney’s understanding as to the respite that was taking place in Melbourne.[156] As is apparent, I have made findings in this decision based on the evidence before me. I have not found it necessary to make adverse credibility findings in relation to any party in doing so.

1. Accordingly, I am satisfied that the propositions advanced at [93] of this decision were put by the applicants to Ms Powney in a manner sufficient to discharge the rule in the context of these proceedings in the Commission, where the rules of evidence and procedure do not apply.[157] The respondent’s Browne v Dunn submission is not made out.

1. Finally, I observe that the applicants each seek that the Commission “directs or orders costs pursuant to s 377” of the Act. This request is unaccompanied by an application in the required form and is unsupported by any evidence of costs incurred. Having regard to these observations, and noting my finding at [139] below, I decline to consider this request further.

Order and disposition

1. I have found that Ms Fathalla has been dismissed from her employment with the respondent within the meaning of s 386(1)(a) of the Act. Accordingly, at the time that Ms Fathalla lodged her general protections application with the Commission, Ms Fathalla was a person who “has been dismissed” for the purposes of s 365(a) of the Act. Ms Fathalla’s application (C2023/707) will be referred for conciliation in accordance with s 368 of the Act.

1. I have found that Ms Lemana has not been dismissed from her employment with the respondent within the meaning of s 386(1) of the Act. Consequently, at the time Ms Lemana lodged her general protections application with the Commission, Ms Lemana was not a person who “has been dismissed” for the purposes of s 365(a) of the Act. Ms Lemana’s application (C2023/708) is dismissed.

DEPUTY PRESIDENT

Appearances:

W. Parry on behalf of the applicants
T. Donaghey, of Counsel, on behalf of the respondent

Hearing details:

2023
Melbourne.
21 June.

[1] Witness statement of Marena Fathalla dated 7 June 2023 (Exhibit 2) at [3], Court Book (CB) 81 at [3]; Witness statement of Malayna Lemana dated 7 June 2023 (Exhibit 3) at [6], CB 140 at [6]

[2] Witness statement of Tina Powney dated 24 May 2023 (Exhibit 1) at [2], CB 1 at [2]

[3] CB 2 at [5]-[6]

[4] CB 1 at [3]

[5] CB 2 at [7] and TP-2; CB 81 at [2]; however, cf CB 201 at 1.1

[6] CB 24; CB 214 at 1.1; CB 187 at [4]; Transcript at 478

[7] CB 140 at [4], CB 164

[8] CB 133; CB 129 at [3]; CB 161 at [3]; CB 3 at [15]

[9] CB 4 at [18]

[10] CB 3 at [15]

[11] CB 3 at [15]

[12] CB 4 at [16]-[17]

[13] CB 1 at [1], CB 2 at [4]

[14] CB 4 at [20]

[15] CB 3 at [11]

[16] CB 10-14

[17] CB 15-16 and 27-28

[18] CB 17 and 29

[19] CB 18 and 26

[20] CB 19

[21] CB 21-22, CB 24-25

[22] CB 190-191 at [26]

[23] CB 141 at [19], CB 158 at [2(a)], CB 187 at [7]

[24] CB 2-3 at [8]

[25] CB 81 at [4], CB 129 at [2], CB 140 at [7], CB 161 at [2]

[26] CB 82 at [14], CB 141 at [16], CB 221 at [3]-[6], CB 230 at 5.1 [3(a)] and CB 242 at 5.1 [3(a)]

[27] CB 141 at [19] and CB 167-168

[28] CB 167

[29] CB 82 at [16] and CB 132-133

[30] CB 123-128

[31] CB 134-139

[32] CB 116-118

[33] CB 39 and CB 141 at [9]

[34] CB 39

[35] CB 54

[36] CB 140 at [1]

[37] CB 43

[38] CB 56-58

[39] Transcript at 533

[40] CB 140-141 at [8]

[41] CB 81 at [7]-[8]; Transcript at 385-387, 484-485

[42] CB 141 at [9]

[43] CB 141 at [10]

[44] Ibid

[45] CB 141 at [11]

[46] CB 81 at [9]

[47] CB 82 at [10]

[48] CB 141 at [12]

[49] CB 165-166

[50] CB 165

[51] CB 166

[52] Transcript at 155

[53] CB 141 at [11]

[54] CB 82 at [11]-[12]

[55] CB 82 at [13]

[56] CB 96

[57] Transcript 164-165

[58] CB 83 at [25]

[59] CB 141-142 at [21]

[60] CB 142 at [22]

[61] CB 145-146

[62] Transcript at 141-146

[63] Transcript at 160

[64] Transcript at 627

[65] Transcript at 632

[66] Transcript at 609-618

[67] CB 132

[68] See CB 242 at A(3)(a)

[69] CB 82 at [17]-[18]

[70] CB 142 at [24]

[71] CB 4-5 at [21]-[24]

[72] CB 5 at [25]

[73] CB 142 at [25]

[74] CB 113

[75] Transcript at 413-414

[76] CB 64

[77] CB 5 at [26]

[78] CB 106-107

[79] CB 155

[80] CB 105-106

[81] CB 104-105

[82] CB 103

[83] CB 102-103

[84] CB 142 at [29], CB 148, CB 153-154

[85] CB 147

[86] CB 143 at [34]

[87] CB 143 at [33]

[88] CB 5-6 at [28]-[29] and [31] and CB 60-61

[89] CB 6-7 at [34]-[39]

[90] CB 169 at [1]-[5]

[91] Transcript at 686-693

[92] Transcript at 709

[93] CB 37, CB 103

[94] CB109-110

[95] CB 7 at [40]

[96] CB 68-71

[97] CB 81 at [4]

[98] CB 141 at [19]

[99] CB 7 at [41]

[100] CB 7 at [42]

[101] CB 66

[102] CB 8 at [44]

[103] Transcript at 137-140

[104] CB 8 at [45]

[105] CB 134

[106] CB 109, CB 158

[107] CB 151

[108] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at 449-50

[109] Browne v Dunn (1893) 6 R 67 at 70-71

[110] Transcript at [47]

[111] CB 194 at [43]

[112] Transcript at 60

[113] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]

[114] See, Fair Work Act 2009 (Cth) s 12 “Dismissed”

[115] Explanatory Memorandum for the Fair Work Bill 2008 (Cth) at [1528] providing the example of Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200

[116] NSW Trains v James[2022] FWCFB 55 at [45]

[117] [2014] FCCA 875

[118] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205, endorsed in Mahony v White [2016] FCAFC 160 at [23]

[119] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205

[120] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941 at [47](1)

[121] Ibid

[122] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941; (2017) 271 IR 245 at [47(2)]; cf City of Sydney RSL & Community Club Limited v Balgowan, Roxana [2018] FWCFB 5

[123] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941 at [47](2)

[124] Fair Work Act 2009 (Cth) s 15A(1)(a); see also, WorkPac Pty Ltd v Rossato [2021] HCA 23

[125] Four yearly review of modern awards [2017] FWCFB 3541 at [85]

[126] City of Sydney RSL & Community Club Limited v Balgowan[2018] FWCFB 5 at [24]-[25]; compare the type of casual employee in J Mills & Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NWSIRComm 135; (2009) 187 IR 56 [2021] FWC 2498 and Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473

[127] Ayub v NSW Trains [2016] FWCFB 5500 at [24]; in the case of a casual employee, see Barrett v Nunawading Swimming Club Inc[2021] FWC 1301 at [24]

[128] Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 457

[129] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454, 469; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427; Visscher v Giudice [2009] HCA 34 at [53]

[130] G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354 cited in Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64

[131] Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 at [82] and the cases cited therein; Ayub v NSW Trains [2016] FWCFB 5500 at [11]-[24]; see also, Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]

[132] Knott v MGH Employment & Training Pty Ltd[2021] FWC 2498 at [33]; Trewin v S Choudhuri & A Shee (t/as Ella Bache Sale) [2023] FWC 1928 at [67]

[133] See Khayam v Navitas English Pty Ltd[2017] FWCFB 5162; 273 IR 44 at [127]

[134] Cf, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [43]-[44], [183]

[135] Social, Community, Home Care and Disability Services Industry Award 2010, clause 11.1(a)

[136] Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 at [218]-[238]

[137] Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 at [92]

[138] CB 111-114

[139] CB 114-116

[140] CB 149-150

[141] CB 142 at [26]

[142] CB 194 at [43]-[44]

[143] Ibid

[144] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]

[145] Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]

[146] Australian Hearing v Peary [2009] AIRCFB 680; (2009) 185 IR 359 at [30]

[147] CB 194 at [43]

[148] CB 8 at [45]

[149] Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 at [92]

[150] Transcript at 219 and 265

[151] Transcript at 142-147

[152] Transcript at 160

[153] Transcript at 155

[154] Transcript at 158

[155] Transcript at 164-165

[156] Transcript at 192-193

[157] Fair Work Act 2009 (Cth), s 591

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