Marta Vivarelli v Flor & Vine Pty Ltd
[2021] FWC 2872
•19 MAY 2021
| [2021] FWC 2872 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marta Vivarelli
v
Flor & Vine Pty Ltd
(U2021/1844)
DEPUTY PRESIDENT EASTON | SYDNEY, 19 MAY 2021 |
Application for an unfair dismissal remedy – unfair dismissal application allegedly filed out of time – dismissal – employment in group companies – jurisdictional objection dismissed.
[1] Between 2017 and 2021 Ms Marta Vivarelli worked with or for a group of companies that operated three different restaurants: Tapavino, Balcon by Tapavino and Born by Tapavino.
[2] In January or February 2021, Ms Vivarelli’s employment with one company in the group ceased and on 5 March 2021, Ms Vivarelli made an Application for an Unfair Dismissal Remedy.
[3] In this decision I must determine the following questions:
(a) Which company employed Ms Vivarelli in January 2021?
(b) Did Ms Vivarelli complete the relevant minimum employment period with that company?
(c) Was Ms Vivarelli dismissed from her employment?
(d) If Ms Vivarelli was dismissed, when did the dismissal take effect?
(e) If the dismissal took effect before 12 February 2021, should Ms Vivarelli be allowed a further period for her application to be made?
(f) Did Ms Vivarelli resign her employment by not agreeing to take an alternate position?
[4] As can be seen from the above questions, little in this application is straight forward. There are four possible corporate employers, perhaps three alternative termination dates and, a dispute about whether Ms Vivarelli resigned her employment or was dismissed. If the true dismissal date, assuming there was a dismissal, was earlier than 12 February 2021, then Ms Vivarelli’s claim was filed late and she requires an extension of time. If one particular company in the range of possible employers only employed Ms Vivarelli from 22 June 2020 onwards, then there is also a contest about whether Ms Vivarelli completed the minimum employment period.
Which company employed Ms Vivarelli in January 2021?
[5] Frank Dilernia is or was a director and shareholder of at least four companies: Grupo Sucasas Pty Ltd (ACN 145 344 234), Flor & Vine Pty Ltd (ACN 168 394 803), Perros Pty Ltd (ACN 610 541 225) and Sucasas Management Pty Ltd (ACN 610 279 304). Sucasas Management Pty Ltd (ACN 610 279 304) is now in liquidation.
[6] Initially there was some confusion about the precise identity of the company that employed Ms Vivarelli in January 2021. In large part this confusion resulted from imprecision in the drafting of documents within the group of companies and imprecision in the compiling of materials for these proceedings.
[7] In her application Ms Vivarelli identified the respondent to be “Grupo Sucasas Pty Trading as Balcon by tapavino”. In the Form F3 response, the Respondent identified itself as “Flor & Vine Pty Ltd”.
[8] To add to the uncertainty the following documents were also in evidence:
(a) a document entitled “Employment Agreement – Permanent Employee” dated 17 February 2017 that identifies the employer to be Sucasas Management Pty Ltd trading as Born by Tapavino (ABN 82 145 344 234) at the top of the first page and then the same company with a different ABN at the bottom of the page (the ABN at the bottom of the page actually being Perros Pty Ltd’s ABN);
(b) a Department of Home Affairs - Notification of Approval of a Nomination document that refers to Grupo Sucasas Pty Ltd as Ms Vivarelli’s sponsor;
(c) payslips dated February 2021 issued to Ms Vivarelli by Flor & Vine Pty Ltd; and
(d) a “Termination of Sponsorship” letter to Ms Vivarelli from Grupo Sucasas Pty Ltd dated 3 March 2021.
[9] At the interlocutory hearing it became clear that:
(a) the Tapavino restaurant opened in 2012 and is operated by Grupo Sucasas Pty Ltd;
(b) staff who worked at the Tapavino restaurant were employed by Grupo Sucasas Pty Ltd;
(c) Grupo Sucasas Pty Ltd was the corporation used by the group to sponsor visa-holders;
(d) the Balcon by Tapavino restaurant opened in 2016 and is operated by Flor & Vine Pty Ltd;
(e) the Born by Tapavino restaurant also opened in 2016 and is operated by Perros Pty Ltd;
(f) from 2017 onwards a new company, Sucasas Management Pty Ltd, was used by the group to employ all of the 100 or so staff that worked at the three restaurants;
(g) in 2017 Ms Vivarelli was employed by Sucasas Management Pty Ltd on a casual basis. At the time she was not allowed to work more than 20 hours per week for Sucasas Management Pty Ltd because of limitations under her visa;
(h) in 2017 Ms Vivarelli applied for a new visa that would allow her to work on a full-time permanent basis. Grupo Sucasas Pty Ltd was the sponsor for the visa application. To support the visa application an employment contract was prepared and executed between Ms Vivarelli and “Sucasas Management Pty Ltd trading as Born by Tapavino”;
(i) this visa was granted in 2018 and Ms Vivarelli then became a permanent employee of Sucasas Management Pty Ltd. Ms Vivarelli’s visa was renewed in 2019;
(j) in May 2017 Ms Vivarelli was moved from the Tapavino restaurant to the Balcon by Tapavino restaurant. Ms Vivarelli continued to be employed by Sucasas Management Pty Ltd after she was moved to the Balcon at Tapavino restaurant;
(k) in March 2020 all three restaurants temporarily closed because of COVID;
(l) on 27 March 2020 Sucasas Management Pty Ltd went into liquidation;
(m) when the three restaurants resumed trading Mr Dilernia decided that the three companies that separately operated restaurants would each directly employ their own staff;
(n) on or about 22 June 2020 Ms Vivarelli commenced employment with Flor & Vine Pty Ltd and resumed working at the Balcon by Tapavino restaurant;
(o) Mr Dilernia gave Ms Vivarelli a proposed new “Employment Agreement – Permanent Employee” document nominating, at least in some parts of the document, the employer to be Flor & Vine Pty Ltd. The proposed new “Employment Agreement – Permanent Employee” document was otherwise in substantially the same terms as contracts previously executed by Ms Vivarelli; and
(p) in 2020 Ms Vivarelli’s leave accruals from her earlier employment with Sucasas Management Pty Ltd, including sick leave, were credited to her when she commenced employment with Flor & Vine Pty Ltd.
[10] In light of this history it is clear that Ms Vivarelli’s employer in January 2021 was Flor & Vine Pty Ltd.
[11] Pursuant to s.586 of the Fair Work Act 2009 (Cth) (the Act), I will allow an amendment to Ms Vivarelli’s Form F2 Application so that Flor & Vine Pty Ltd is the proper Respondent to Ms Vivarelli’s application.
Did Ms Vivarelli complete the relevant minimum employment period?
[12] The Respondent’s Form F3 Response nominates Flor & Vine Pty Ltd as the employer and states that at the time that Ms Vivarelli was dismissed there were 26 employees. Mr Dilernia did not provide any evidence to the contrary at the hearing and as such the minimum employment period for the purposes of s.383 of the Act was 6 months.
[13] By January 2021 Ms Vivarelli had been employed by Flor & Vine Pty Ltd for 7 months and therefore Ms Vivarelli was a person protected from unfair dismissal pursuant to s.382 of the Act.
Was Ms Vivarelli dismissed from her employment?
[14] On 27 January 2021 Mr Dilernia spoke to Ms Vivarelli about her employment and told her that she was “moving to Born”. Neither party gave direct or comprehensive evidence about this conversation.
[15] At the meeting Mr Dilernia gave Ms Vivarelli a letter. There is much disagreement about the effect of this letter. The letter is on Balcon by Tapavino letterhead and the title of the letter is “2nd Warning Letter”. The letter contains extracts from the earlier “Employment Agreement – Permanent Employee” documents. It is not necessary for present purposes to make any determination about whether the terms of any of the earlier written contracts were binding on Ms Vivarelli in January 2021, but it is relevant to note that the earlier signed contracts were between Sucasas Management Pty Ltd and Ms Vivarelli. Ms Vivarelli did not sign any written contract of employment with Flor & Vine Pty Ltd.
[16] The second warning letter contained the following text interspersed between quotes from earlier contracts:
“On Saturday January 23 you met with Fra Reilly and you were advised that your conduct was not satisfactory. In particular, you refused to follow direction given to you by the Manager on duty to help another staff member during the 1st seating, therefore refusing to perform duties that you were assign to.
…
After considering the situation and failure to follow the directions by Management, as well as this being your 2nd warning letter, Myself and other Senior Managers of the restaurant feel your time at Balcon is not viable and will moved to Born by Tapavino, as of the week of 1st February 2021.
…
Management of Born by Tapavino will be notified on 28th January 2021 that you will be working there from next week, as well as this being your 2nd warning letter. A 3rd will be instant dismissal.
You will be on paid leave as of tomorrow and the rest of this week. You will be rostered on from next week at Born. If you require another week of paid leave, you will need to notify me by Thursday 4pm 28th January 2021.
If you wish to respond to this formal warning letter, please do so by contacting me by phone or by replying in writing.
[17] Mr Dilernia submits that the words in this letter were sufficient to bring about the immediate termination of Ms Vivarelli’s employment. In particular Mr Dilernia relied on the words “your time at Balcon is not viable and will moved to Born by Tapavino as of the week of 1st February 2021”. This point is important because Ms Vivarelli’s claim is out of time if her employment was immediately terminated by this letter.
[18] I am not satisfied that the letter of 27 January 2021 of itself was effective in terminating Ms Vivarelli’s employment. The heading of the letter, “2nd Warning Letter”, created an immediate ambiguity. If the employment had ceased then there was no logical reason to issue a warning. The statement that Ms Vivarelli’s “time at Balcon is not viable” is a strong indication that the Respondent no longer wants Ms Vivarelli to continue work at that restaurant, however in light of the history described above, these words were not sufficiently clear to have the effect of immediately terminating Ms Vivarelli’s employment with Flor & Vine Pty Ltd. In particular I am mindful of the history of how the various group companies organised their workforce between 2017 and 2021 and the fact for most of the time Ms Vivarelli worked she was employed by Sucasas Management Pty Ltd. Sucasas Management Pty Ltd supplied labour to three different restaurants and, as referred to above, “moved” Ms Vivarelli from the Tapavino restaurant to the Balcon by Tapavino restaurant in 2017.
[19] The letter refers to Ms Vivarelli continuing to work at a different restaurant and, more significantly, refers to Ms Vivarelli being on “paid leave as of tomorrow and the rest of this week”. The references to continuing employment and to paid leave are inconsistent with the notion of the employment immediately ceasing.
[20] I accept for present purposes that Mr Dilernia’s intention was that Ms Vivarelli would continue working for different company within the group and that he offered her continuing work because he was concerned that Ms Vivarelli would otherwise lose her visa. I also accept that Mr Dilernia intended to allow Ms Vivarelli a few days of “unpaid leave” to consider whether she was prepared to work in another restaurant.
[21] By allowing these concessions, Mr Dilernia actually deferred the termination of Ms Vivarelli’s employment from Flor & Vine Pty Ltd until a date after 27 January 2021.
If Ms Vivarelli was dismissed, when did the dismissal take effect?
[22] Despite Mr Dilernia’s intention of allowing Ms Vivarelli only a few days to consider accepting work in a different restaurant, over the next three weeks he and Ms Vivarelli exchanged messages by email that had the effect of prolonging Ms Vivarelli’s employment. Flor & Vine Pty Ltd issued payslips to Ms Vivarelli on 10 February and 17 February 2021 that were consistent with Ms Vivarelli being on leave.
[23] Between 2 February and 26 February Ms Vivarelli and Mr Dilernia did not speak again but had the following email exchanges:
(i) On 2 February 2021:
Ms Vivarelli:
“I hope to find you well.
I’m feeling unwell, the doctor gave me some leave, attached is the certificate.”
Mr Dilernia:
“You’re on paid leave this week. You are not on the roster”
Ms Vivarelli:
“I don’t understand. I don’t know what does it mean. I know I haven’t asked for paid leave. Would you mind explaining?”
Mr Dilernia:
“It was in the warning better, but you also said in your text message sent on the 28th of January
“I’d rather be on unpaid leave until I decide what I want to do. I never asked for any of this measures and I want to keep my holidays for when I’ll be on holidays”
You cant be sick if you are off work, either paid or unpaid.”
(ii) On 3 February 2021:
Ms Vivarelli:
“I’m unwell and I went to doctor who gave me sick leave and I forwarded the certificate to you, as I always do. I don’t know if I’m entitled to it or not. I know I can’t go to work because you forced me to stay home taking my annual leave, so having no other choice I decided I prefer to be on an unpaid leave, in the meanwhile I felt sick and went to the doctor.
If you don’t need the certificate it’s fine, but I can feel sick anytime.”
(iii) On 5 February 2021:
Ms Vivarelli:
“I’ve been paid for leave from Thursday to Friday. It was your decision to take me off the roster and I started in written right away I was not going to authorise you to put me on a paid leave as a consequence of your decisions and disciplinary actions. I would highly appreciate if you could fix the mistake.”
(iv) On 6 February 2021:
Mr Dilernia:
“I can’t fix the mistake unless you transfer the money back.
Secondly, I need to know when you will be returning to work at Born, as I’m expecting you back this week in some capacity. If you can’t commit to a date, then I will need to find a replacement for your position.”
Ms Vivarelli:
”I can transfer money back; I only need the company details and I’ll do it right away.
Doctor gave me a sick note up to Tuesday the 9th, so this week I won’t be able to work, I’ll be seeing the doctor again on Wednesday.
Despite the appointment and before deciding on my future I think we should have a chat to clarify some points, such as which one is my position and many other details.
Any time after 2 pm on Wednesday will do for me so you will be able to roster on Thursday.
Please let me know what the company bank are details and if Wednesday works for you.”
Mr Dilernia:
“I will get the details of what exactly needs to be returned from Dean. You will be paid for your shift worked + the public holiday of 7.6 hours
Your Job role is that of Sommelier and looking after the administration of the wine list. There are a lot of wines that should be added to the list that Felipe isn't aware of and would work well in Born.
You may be required to work a Sunday lunch shift 12pm to 5pm, but will be given the Saturday off, followed by the next two days off.
Your roster may be 5 days, but most likely 4 days, as we don't need two somms on at the same time.
That is the basics at this stage, If you want to meet on Wednesday afternoon, anytime from 3pm.”
Ms Vivarelli:
“It will be convenient for us both to have a chat on Wednesday, 3pm works for me, can I meet you outside of the restaurants? I'll be in Bondi but I can drive the most suitable place for you.”
(v) On 10 February 2021:
Ms Vivarelli:
“My apologies again for cancelling our meeting last minute.
I've been quite unwell lately and went back to see my Doctor, regardless of your claim I was not on the roster or taken off the roster, I cannot be sick, he has confirmed I'm entitled to sick leave during paid or unpaid leave, more in this case as itwas not in my intent to take any leave at this time of the year
Please find attached Doctor note”
Mr Dilernia:
“Thank you for the information.
I will be notifying Edupi to refund your visa money, and see where you are, when you are fit to return to work.”
(vi) On 17 February 2021:
Ms Vivarelli:
“Please find attached my response to the second warning letter you handed to me on Wednesday January 27th.
As you are obviously aware, I've been signed off work over the past two weeks for medical reasons by my doctor, I have an appointment with my doctor tomorrow where he will assess my suitability to return to work or not.
I will keep you informed”
Mr Dilernia:
“Actually you have been dismissed from work and were given 7 days to respond was to whether you will agree to moveto Born.
You havent agreed to move to Born.”
(vii) On 18 February 2021:
Ms Vivarelli:
“I have not refused to be moved to Born.
I've been deemed unfit to work from a medical professional, therefore it is unreasonable for me to make work related decisions during this period, as previously stated I will learn more about my eligibility to return to work today. I will inform you immediately.
In this circumstance I reckon its vital for us to use a third party as a mediator to clarify all the unpleasant situations we are experiencing. I've asked multiple time to resolve our disputes and my voice has never been heard, I'd like to have this sorted before returning to work.”
Mr Dilernia:
“You have been terminated from Balcon, your place of employment. If you were not sponsored and on a visa it would have been an instant dismal. [sic]
You have been given respite of up to 7 days to get back to me as to whether you would move to Born. Not once have you responded, therefore you cannot be unfit for work because you don't have work.
You were given a meeting, and after calling a manager and fellow co-worker "you are a nothing", in front of witnesses, This has also been noted.
I have 30 days to notify immigration of your change of employment statues from 27th January 2021. I will be doing so.”
(viii) On 26 February 2021:
Mr Dilernia:
“Are you available to meet on Tuesday next week at 3pm?
I don't agree with your premise that I haven't tried to resolve this, as you cancelled the last meeting 90 minutes before and haven't since asked for a reschedule.
As I haven't received any correspondence from you about being sick since 17th February 2021, therefore I presume you might be ok to meet about the position at Born that needs to be filled by yourself or another person.
I look forward to your reply.”
Ms Vivarelli:
“Please find in bold body of your last email
Marta,
You have been terminated from Balcon, your place of employment. If you were not sponsored and on a visa It would have been an instant dismal.
You have been given respite of up to 7 days to get back to me as to whether you would move to Born. Not once have you responded; therefore you cannot be unfit for work because you don't have work.
You were given a meeting, and after calling a manager and fellow co-worker "you are a nothing", In front of witnesses, This has also been noted.
I have 30 days to notify immigration of your change of employment statues from 27th January 202i. I will be doing so.
Frank
therefore, your today's email finds me truly baffled, as in your previous email, i 8th February you communicated you terminated me 27th January and you were going to inform Immigration of the change on my employment status.
What kind of communication you expect from me when you clearly stated in written, I'm no longer employed by you? I'm not going to forward you a third sick note after you refused the first two...l no longer work for you, why should I inform you about my health?
I organised the meeting, it was me trying to find a meeting point, as many times before, and I cancelled it because I felt unwell, and I had the need to see my doctor.
In reference to your claim about trying to sort it out I was refering to conciliation over the ongoing disputes since 2020, I was not referring to the meeting I cancelled.
I received a phone call from Justin and he will proceed with the refund, which is only be part of my original payment today.”
Mr Dilernia:
“Noted In your response that you have declined the meeting and relocation to Born. The position needs to be filled by someone else. You will be paid out your holidays owing and issued with a termination letter of your employment.
Good luck with your future endeavours.”
Ms Vivarelli:
“Note that you have terminated me over a week ago!!!
I haven't declined the meeting, and I never at any point refused relocation to Born. You terminated me before we could talk and now from nowhere you expect me to go on a meeting?
I have been fired by you via email on 18th February and since then I consider myself unemployed and not in need to communicate with you. You clearly terminated me on the 18th of February, stating my dismissal was effective from the 27th of January, day In which you served me an unexpected written warning, you forced me to take paid leave and so on.
As you terminated me and I no longer am In your employment, you cannot require me to turn up to meetings, and then claim I am refusing them and you cannot expect I'll keep communication with you.
I'm glad I have a written proof that you terminated me on the 18th, there is no much to say. Good luck to you too”
[24] As referred to above, if Ms Vivarelli was dismissed on or before 12 February 2021 then her application lodged on 5 March 2021 was late. The emails after 12 February 2021 are therefore less important in considering the time limit in s.394 of the Act.
[25] I am not satisfied that any of the email communications prior to 12 February 2021 were effective in terminating Ms Vivarelli’s employment. In substance the communications continued the deferral of Ms Vivarelli’s dismissal, largely because of Ms Vivarelli’s claimed physical incapacity to meet with Mr Dilernia.
[26] It seems from the email exchanges that eventually Mr Dilernia grew so tired of waiting that he told Ms Vivarelli by email on 17 February 2021:
“Actually you have been dismissed from work and were given 7 days to respond was to whether you will agree to move to Born”.
[27] By this email Mr Dilernia explicitly stated that Ms Vivarelli was dismissed. To be clear, he was not able to retrospectively dismiss Ms Vivarelli on this day, and his statement that she had been dismissed some time before was not legally correct. I find, however, that by using these unambiguous words, Mr Dilernia brought about the termination of Ms Vivarelli’s employment on that day.
[28] Unsurprisingly, the emails between Mr Dilernia and Ms Vivarelli became more hostile after Mr Dilernia’s email on 17 February 2021.
[29] I am called upon to determine the date Ms Vivarelli’s dismissal “took effect” for the purposes of the time limit in s.392(2) of the Act so as to determine whether Ms Vivarelli’s application was made within time. For the reasons stated above I find that the dismissal of Ms Vivarelli’s employment by Flor and Vine Pty Ltd took effect on 17 February 2021 and that Ms Vivarelli does not require any extension of time.
If the dismissal took effect before 12 February 2021, Ms Vivarelli be allowed a further period for her application to be made?
[30] For completeness, if the dismissal was effective prior to 12 February 2021, I would be inclined to find that there were exceptional circumstances such as to warrant an order allowing a further period for the application to be made. Shortly stated, Ms Vivarelli’s reason for delay in commencing her proceedings was satsifactory insofar as she continued dialogue with her employer in relation to seeking clarification about her dismissal, that she first became aware of the dismissal on 17 February 2021, and that her employment history within the group of companies, coupled with the ambiguity of the communications from Mr Dilernia, meant that there were exceptional circumstance that warrant an extension of time.
Did Ms Vivarelli resign her employment by not agreeing to take an alternate position?
[31] One residual argument that can be shortly resolved arises from the Respondent’s contention that Ms Vivarelli’s refusal to take up employment with a different company at an alternative restaurant (Born by Tapavino) amounted to a “resignation” by Ms Vivarelli.
[32] The Respondent’s argument does not recognise that “moving” Ms Vivarelli [again] meant that her employment had to cease with Flor & Vine Pty Ltd in order to commence with a different company. The facility to “move” employees was available to the group under earlier arrangements when Sucasas Management Pty Ltd supplied all of the labour to all of the restaurants in the group, however when the three restaurants resumed trading after the initial COVID shut-down that facility was lost. Ms Vivarelli’s acceptance or non-acceptance of an alternate position in a different company did not change the fact that her employment with Flor & Vine Pty Ltd was terminated on the employer’s initiative.
[33] I therefore reject the proposition that Ms Vivarelli resigned her employment.
Conclusion
[34] Having regard to the above matters I make the following orders:
1) Pursuant to s.586 of the Fair Work Act 2009 (Cth) I allow Ms Vivarelli to amend her application for unfair dismissal remedy so that Flor & Vine Pty Ltd is taken to be the Respondent.
2) The Respondent’s jurisdictional objections are dismissed.
DEPUTY PRESIDENT
Appearances:
P Baker of Inner City Legal Centre for the Applicant.
F Dilernia, Respondent
Hearing details:
2021.
Sydney
18 May.
Printed by authority of the Commonwealth Government Printer
<PR729987>
0
0
0