Melinda Buckley v GBO One Pty Ltd
[2024] FWC 1937
•24 JULY 2024
| [2024] FWC 1937 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Melinda Buckley
v
GBO One Pty Ltd
(C2024/3704)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 JULY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – Applicant not dismissed
The dispute and outcome
On 4 June 2024, Ms Melinda Buckley (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with GBO One Pty Ltd (the Respondent) on 2 November 2024, as a part-time Retail Sales Assistant. The Respondent trades as ‘Silly Solly’s’ a discount retail store.
The Applicant contends she received an email from Ms Azzopardi, the Store Manager of Silly Solly’s on 15 May 2024, notifying her that her employment was terminated as of that date. However, the Respondent presses that the Applicant’s employment was terminated by mistake by Ms Azzopardi on 15 May 2024, in circumstances where Ms Azzopardi did not have authority to dismiss the Applicant. The Respondent argues that on 16 May 2024, the Applicant alerted the Operations Manager of the Respondent to Ms Azzopardi’s email dated 15 May 2024 and that the Operations Manager responded the next day with an apology, noting it was a mistake and advising that the Applicant remained a valued member of staff.
It follows that the Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of s 386(1)(a) or/and (b) of the Act.
The matter proceeded to hearing and having considered the evidence of the parties and their submissions, I have found that the Respondent terminated the employment of the Applicant on 15 May 2024.
Background
The Applicant was employed by the Respondent pursuant to an employment contract. That contract set out a commencement date of 2 November 2023 and that the Respondent would notify the Applicant in advance of the numbers of hours to be worked each day, the days of the week to be worked, and the actual starting and finishing times each day. Clause 10 of the employment contract provided for the termination of the Applicant’s employment, setting out that if the Respondent terminated the Applicant’s employment for any reason other than for misconduct, the Respondent must provide the Applicant with the minimum period of notice in writing as set out in s 117 of the Act. The employment contract was signed by the Applicant and Ms Azzopardi.
It appears that the Applicant took holidays over the Christmas period in 2023. After her return Ms Azzopardi was said to have unilaterally reduced the Applicant’s part-time hours from 25 hours per week to 16 hours per week, absent discussion or consultation prior to the reduction. Ms Azzopardi was then said to have advertised a part-time position on the Respondent’s Facebook page on 20 February 2024, albeit the Applicant was not offered any additional hours.
In April 2024, Ms Azzopardi purportedly reduced the Applicant’s hours from 16 hours per week to 12 hours per week. This was again said to have been done without prior discussion or consultation with the Applicant, and without notice.
Whilst in March 2024, the Applicant observed that Ms Azzopardi spoke to her with a certain tone and was abrupt toward her, it was not until after a team meeting on 1 May 2024, that the Applicant made a complaint about Ms Azzopardi’s purported conduct. It was said that during the team meeting, Ms Azzopardi addressed the Applicant in an abrupt and condescending manner, pointing her finger towards her about wrong tickets, and then went on to reduce the Applicant’s hours from 12 hours per week to four hours per week.
Following the incident on 1 May 2024, the Applicant submitted a written complaint on 3 May 2024, to Ms Yuna Hirai, the Operations Manager. The written complaint apparently detailed allegations of Ms Azzopardi’s conduct toward the Applicant, as well as the reduction in the Applicant’s number of hours.
On 8 May 2024, Ms Hirai telephoned the Applicant to obtain more information.
On 10 May 2024, the Applicant received a text message from Ms Azzopardi informing her that she had to cut the Applicant’s hours, that she did not have any more hours for her and would let her know when she did have more hours. The Applicant forwarded that same text message to Ms Hirai on 13 May 2024,[3] to ascertain if the text message had come from head office. Ms Hirai replied:
“Yes it was from the boss told her to cut hours down to meet the budget as we are in quiet time of the year. This is nothing to do with complaint you made.[4]”
The Applicant said that on 14 May 2024, she received an email from Ms Hirai in response to her complaint made on 3 May 2024. According to the Applicant, Ms Hirai’s response was that she believed all problems were solved.
On the 15 May 2024, the Applicant received an email from Ms Azzopardi that stated:
“Good afternoon, Melinda due to hours and wages being cut we no longer have a position her [sic] for you at Silly Solly’s effective immediately. Sorry for any inconvenience and if you need a reference any time, please feel free to use me as one.[5]”
On 16 May 2024, the Applicant sent the email dated 15 May 2024 (from Ms Azzopardi) to Ms Hirai, asking Ms Hirai to confirm whether the email had come from head office, and requesting a copy of her employment contract.
On 16 May 2024, Ms Hirai responded to the Applicant via email, apologising for the confusion that the correspondence may have caused and confirming that the Applicant remained a valued employee of Silly Solly’s. Ms Hirai stated in the email:
The Company is committed to undertaking a thorough, internal investigation into this matter. Should you have any concerns or questions regarding this, do not hesitate to contact me to discuss.
The Company is committed to support your continuing employment and thank you for your cooperation throughout this time.[6]
On 22 May 2024, the Applicant emailed Ms Hirai thanking her for her response and asking how long the investigation would take and when she would be advised of the outcome.[7] That same day, Ms Hirai said that she believed she could email an outcome by the end of the week and that she was awaiting the HR Team to get back to her, the email continued:
Meantime I have discussed with Tracey and [six] like to welcome back on board at Townsville store as attached roster starting 29/may 2024. Could you please have a look at and let men [sic] know if you can perfume [sic] those shifts?[8]
On 27 May 2024, the Applicant sent a letter to Ms Hirai in the following terms:
I refer to your recent email received 22 May 2024, as well as the email I received from Ms Tracey Azzopardi, Store Manager, terminating my employment on the 15 May 2024. After careful consideration, I have concluded that returning to the workplace following the handling of the bullying compliant [sic] would not be conducive to my well-being. Regrettably, the manner in which the bullying complaint was addressed did not reflect the seriousness of the issue, and I fear it may have exacerbated the hostile environment and directly resulted in Tracey’s decision to terminate my employment.
As a result, I have experienced significant adverse effects on my mental health and I believe I have no other option than to decline your offer of re-employment at Silly Solly’s Townsville.
Considering these circumstances, I kindly request that you provide me with copies of all my payslips from the commencement of my employment and a copy of my contract. Ensuring that my records are complete and up to date is essential for my future endeavours.[9]
Consideration
The Applicant asserts that she was dismissed on 15 May 2024 by Ms Azzopardi’s email of that same date. Alternatively, the Applicant states that her correspondence to Ms Hirai of 27 May 2024 constituted her resignation, a resignation that fulfilled the requirements of s 386(1)(b) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given both the Federal Circuit Court’s[10] and Federal Court’s[11] acceptance that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
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.
There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[12] and in Lipa Pharmaceuticals Ltd v Jarouche[13] where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed 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. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here 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. Unlike the situation in (1), the requisite employer conduct is the essential element.”[14]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) considered the operation of s 386(1)(a):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[15]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[16] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[17]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[18] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
Whether the Applicant was dismissed requires an objective finding of fact.
The Applicant gave evidence that Ms Azzopardi was responsible for managing staff hours, hiring, and dismissals, as far as she was aware. The Applicant said that Ms Azzopardi interviewed her for the position, offering her full-time hours, and after the Applicant made it clear during the interview that she was only available from 8:30AM to 2:30PM Monday to Friday, extending until 3:00PM after Christmas, the Applicant was employed part-time, Monday to Friday from 9:00AM to 2:00PM (25hrs a week).[19]
It is an incontrovertible fact that the Applicant’s employment contract was signed by Ms Azzopardi. Further, Ms Azzopardi had, on more than one occasion, notified the Applicant of a reduction in her hours and, when the Applicant questioned Ms Hirai on one occasion as to whether the reduction of her hours had come from head office, Ms Hirai confirmed that to be the case.[20] The Respondent did not argue that Ms Azzopardi was absent authority to enter into an employment contract with the Applicant, to reduce her hours or to otherwise supervise the Applicant within the workplace.
In this case, it is evident that Ms Azzopardi was responsible for the day-to-day activities of the Silly Solly’s Townsville and she was entrusted with the apparent authority to act on behalf of the Respondent in respect of managing the employees at the Respondent’s Townsville store. Whilst the Respondent submits that the Ms Azzopardi did not have authority to dismiss without reference to others, this was a proposition advanced by submission, not evidence. Further at hearing when Ms Azzopardi was asked whether she thought she had authority to manage employee wages, rosters, hire staff and run the Townsville store, Ms Azzopardi noted that she thought she did, but that obviously that was not the case.
Whilst the Respondent asserts that Ms Azzopardi did not have authority to dismiss employees, this does not in turn mean that Ms Azzopardi did not have ostensible authority to dismiss if in fact, as I have found, she was the Applicant’s immediate report and had told the Applicant that her employment was terminated.[21]
It is accepted, in the Commission at least, that the decision of the Full Bench in Ayub v NSW Trains[22] is authority for the proposition that a dismissal takes effect when it is communicated to the employee.
Notification to an employee that they have been dismissed is often predicated upon the notion that it is the employer who has communicated that message to the employee. The notification may take the form of a verbal discussion between employee and employer and/or written correspondence (whether electronic or other). In this case Ms Azzopardi unequivocally notified the Applicant by email that as of 15 May 2024, ‘we no longer have a position her [sic] for you at Silly Solly’s effective immediately.’
I find that Ms Azzopardi had ostensible authority to act on behalf of the Respondent and accordingly the termination of the Applicant’s employment was at the Respondent’s initiative, with the Applicant’s dismissal having taken effect on 15 May 2024. Ms Azzopardi made it unequivocally clear that the Respondent had no position for the Applicant – ‘effective immediately.’ Objectively considered, the Respondent engaged in conduct with the intention of bringing the employment to an end. If, however, I am wrong on this point then the following should be said.
The Respondent’s action on receipt of the Applicant’s email to Ms Hirai dated 16 May 2024, warrants examination. That action may affect the validity of the decision to terminate, and whether such actions confirmed, clarified or countered the decision.
On 16 May 2024, the Applicant enquired with Ms Hirai whether Ms Azzopardi’s email dated 15 May 2024, had come from head office and on 17 May 2024, Ms Hiari responded to the Applicant via email, apologising for the confusion that the correspondence may have caused and confirming that the Applicant remained a valued employee. Ms Hirai noted in the email that the Respondent was committed to supporting the Applicant’s continuing employment and thanked her for her cooperation throughout this time.[23] Further, Ms Hirai advised the Applicant that the Respondent was committed to undertaking a thorough, internal investigation into the matter.[24] At hearing, the Applicant clarified she understood that the scope of the investigation included enquiry about the termination of her employment.
The Applicant replied to Ms Hiari on 22 May 2024, asking how long the investigation would take and when would she be advised of the outcome.[25] I have noted that Ms Hirai’s response was prompt, advising the Applicant that same day that she believed she could email an outcome to the Applicant by the end of the week and in the meantime, having had a discussion with Ms Azzopardi, the Applicant was welcome back on board at the Townsville store – an attached roster having been provided. The action of the Respondent in this regard was misguided.
It appears that the Respondent considered it appropriate to inform the Applicant that discussions had been held with Ms Azzopardi about the Applicant’s return to work. Ms Azzopardi had been the representative of the Respondent that had communicated to the Applicant that the Respondent had dismissed her. On any objective level, it is open to find that all trust and confidence the Applicant may have had in the Respondent was eroded not only by the action of Ms Azzopardi but thereafter by the action of Ms Hirai, who still appeared to defer to Ms Azzopardi, about the Applicant’s return to work. Essentially, the Respondent was proposing to place the Applicant back within an employment relationship, where the person who dismissed her, purportedly without the Respondent’s authority to do so, would continue to be her line manager. The Applicant was rostered to commence work in the week of 29 May 2024. By 27 May 2024, the Applicant had not received an outcome of the investigation notwithstanding that Ms Hirai had communicated she believed she could have an outcome to the Applicant by the end of the week. Further, Ms Hirai appeared to have taken no step to explain to the Applicant that there may be some delay in providing an investigative outcome. Whilst the Respondent submits that the Applicant had a choice to await the outcome of the investigation and return to work, I consider that conclusion is unavailable on the evidence. Given the aforementioned circumstances, it can only be concluded that the Applicant had no effective or real choice but to resign.
Conclusion
I am satisfied the Applicant’s employment was terminated on the initiative of the Respondent and if I am wrong on this point, I am nevertheless satisfied that the Applicant was left with no choice but to resign given the course of conduct engaged in by the Respondent – hence s 386(1)(b) of the Act, having been met. Consequently, there is jurisdiction for the Applicant to pursue a general protections application involving dismissal because the requirement in s 365(a) of the Act is satisfied.
As a result of my determination, the application made by the Applicant pursuant to s 365 will shortly be programmed for a conciliation conference.
DEPUTY PRESIDENT
Appearances:
Melinda Buckley, Applicant
Nicole Visedo for the Respondent
Hearing details:
2024
Perth (video via Microsoft Teams):
22 July.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 (Milford).
[2] Ibid 602 [51].
[3] Digital Hearing Book, 26 (DHB).
[4] Ibid 27.
[5] Ibid 18.
[6] Ibid 30.
[7] Ibid 31.
[8] Ibid 32.
[9] Ibid 33.
[10] Morris v Allied Express Transport [2016] FCCA 1589, [117].
[11] Milford (n 1), 603 [54].
[12] (2017) 271 IR 245 (Bupa).
[13] (2023) 324 IR 375.
[14] Bupa (n 12) 268–9 [47].
[15] (2018) 273 IR 126, 129–30 [10]–[11].
[16] (1995) 62 IR 200 (Mohazab).
[17] (2016) 262 IR 221, 228 [23].
[18] Mohazab (n 16) 205.
[19] Witness Statement of Melinda Buckley, [2].
[20] DHB (n 3) 27.
[21] Mr Bernarbe Expinoza Muga v BIC Services Pty Ltd[2022] FWC 1708, [74].
[22] (2016) 262 IR 60, [48].
[23] DHB (n 3) 30.
[24] Ibid.
[25] Ibid 31.
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