Michelle Scanes v C.K. Jelsma & J Jelsma T/A Helloworld Tuncurry

[2017] FWC 6828

[2017] FWC 6828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Scanes
v
C.K. Jelsma & J Jelsma T/A Helloworld Tuncurry
(U2017/11481)

COMMISSIONER SAUNDERS NEWCASTLE, 19 DECEMBER 2017

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant dismissed – no dismissal – application dismissed.

[1] On 27 October 2017, Ms Michelle Scanes lodged an unfair dismissal application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act). Ms Scanes claims she was unfairly dismissed by C.K. Jelsma & J Jelsma T/A Helloworld Tuncurry (Respondent) in an email from Ms Colleen Jelsma, owner of the Respondent, to her dated 9 October 2017, while she was on a period of parental leave.

[2] The Respondent denies that Ms Scanes has been dismissed. This decision relates to the threshold issue of the whether Ms Scanes has been dismissed.

[3] A hearing was held on 19 December 2017 in relation to the question of whether Ms Scanes has been dismissed. Ms Scanes gave evidence on her behalf. Ms Jelsma gave evidence on behalf of the Respondent.

Legislative Framework

[4] Section 385(a) of the Act requires that, in order for a person to have been unfairly dismissed, the Commission must first be satisfied that the person was dismissed.

[5] Section 386(1) of the Act defines when a person has been “dismissed” in the following terms:

“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.”

[6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1

[7] In Barkla v G4S Custodial Services Pty Ltd 2 a Full Bench of the Commission considered s.386 of the Act:

“[23] It is necessary in the first instance to consider the communications of the employer to the employee to determine whether any of these communications constitutes an express termination...

[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

…

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. [emphasis added]”

[8] The reasoning in O’Meara v Stanley Works Pty Ltd 3 was treated as fully applicable to s.386(1) of the Act by the Full Bench in Ryan v ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services.4

Was Ms Scanes dismissed?

[9] On 7 November 2012, Ms Scanes commenced employment with the Respondent in the role of Senior Travel Consultant. The Respondent operates a franchised travel agency business in Tuncurry, New South Wales.

[10] On 23 December 2016, Ms Scanes commenced a period of 12 months’ parental leave. Her son was born on 29 January 2017. Ms Scanes received parental leave pay from the Australian Government during her period of parental leave.

July 2017 email communications

[11] On 10 July 2017 at 9:08am, Ms Scanes sent an email to Ms Jelsma to touch base regarding her return to work from parental leave. The email provided as follows:

“Hi Colleen

How are you?

I'm just starting to enroll Jake in daycare and was just checking with you what days I will be working when I come back in January. Will it still be the same days I used to do Mon, Wed, Fri? If not I will need to change Josh's days too.

If you can let me know that would be great.”

[12] On 11 July 2017 at 9:45am, Ms Jelsma sent a reply email to Ms Scanes as follows:

“Hi Shell

Thank you for advising your intent to return to work. The hours must be the same days and hours as before.

We didn't seek staff to fill your position because as you know, we have been struggling financially for some time now and you were also aware after our discussions and reviews regarding your under performance, that your position is in doubt. Please be advised that your two previous warnings are still current.

Can you please advise both myself and the manager (Debra Verdich) what date you intend to return and also if you intend to bring yourself up to industry speed before hand so you are job ready.”

[13] On 14 July 2017 at 8:44am, Ms Scanes sent an email to Ms Jelsma as follows:

“Hi Colleen,

Thanks for the email, reading it really made my day.

I would like to clarify when I was given any formal warnings, or any for that matter, let alone two that are still current as I have absolutely no recollection of these.

The only one time you spoke to me about my performance you started the conversation with "let me assure you that your job is not in jeopardy". Then a short time after you sent me an email saying that you were happy with my improvement in sales.

So as you can imagine I am baffled by your recent email and would appreciate an explanation in writing.”

[14] On 14 July 2017 at 9:49am, Ms Jelsma sent a reply email to Ms Scanes as follows:

“Hi Shell

I will be away until the end of the month and will go through my old diary notes upon my return (if I still have them) however, we both know the facts.

To prompt your memory; Yes, I did try to console you during the first warning as you had some medical issues that you were dealing with at the time and became extremely emotional when we began our discussion and I believe my words were “No shell, that is not what we want” after you burst into tears, raised your voice and said that you would leave immediately and find another job. I proceeded to tell you that the purpose of our discussion was to bring this to your attention and help you plan ways to increase your sales (as your position was costing us money). I did send you an email of encouragement after you made a couple of Grand Pacific bookings from the function that we gave you to organise in the hope your sales would increase.

Your second warning was about two months later when together, we looked at your figures and compared them to your employment costs, you said then that you didn’t know what else to do to increase your sales and commented that the other staff in the office had the advantage over you of knowing many more people in town. Soon after this you advised of your pregnancy and intent to take maternity leave.

My reply to your email of 10 July was not to ‘make your day’ or otherwise but only to remind you of the situation as you were struggling with the position before you went on leave and this must be turned around if you are to remain under our employment. We are only a small business struggling to survive ourselves and cannot afford to employ staff that actually cost us money. I am well aware that you are entitled to return to work and so I will do what I can to ensure that you become a profitable employee – a good outcome for us both!

Before you went on leave, I offered to forward you relevant industry emails and asked you if you wanted to call in occasionally to collect new brochures in the hope that your skills would not decline further but you refused this suggestion, hence my question re bringing yourself up to industry speed.

Can you please advise both myself and Deb of the date that you intend to return to work.”

[15] On 14 July 2017 at 10:35am, Ms Scanes sent a reply email to Ms Jelsma as follows:

“Hi,

I believe in being upfront and honest with people. I feel you should definitely have advised me that I was being given a warning, let alone two as I had no idea. And I clearly remember you starting the conversation with "your job is not in jeopardy ". That was not the case if that was a warning.

I do not believe I was actually advised in our discussion as I definitely would have asked for it in writing.

Regardless, I guess there is nothing I can do now as you no doubt feel you have informed me, twice.

I did not refuse to keep in touch with you about anything work related at all. I remember you asking me about forwarding emails of importance and i agreed this was a good idea and I said it might be best to do a couple of months before my return so it's all fresh in my mind which is still the case and I was expecting to receive these later on in the year.

I will have to speak to some daycare places for Jake and see what date they reopen in January before I can give you an exact date of my return. I will let you know, but, as we discussed and agreed on it will be January 2018.

I hope that upon my return we can start off well and I will do my utmost to do my job the very best I can.”

October 2017 email communications

[16] On 9 October 2017 at 1:23pm, Ms Jelsma sent an email to Ms Scanes as follows:

“Hi Michelle

As I mentioned earlier, we didn't replace/fill your position while you've been on Maternity Leave as the office has been quiet for some time now.

There are now at least five new 'Mobile Travel Agents' working in Forster Tuncurry as well as ourselves, Flight Centre and iTravel. We also believe that current world events have caused the travel industry to slow down.

We have recently received our EOFY figures from our accountant and they are very disappointing.

With the above in mind, I encourage you to seek alternate employment as we are not in a financial position at this time to reinstate your position.

Please advise your intention by return email and of course I will be happy to provide a reference should you require one.”

[17] On 12 October 2017 5:23pm, Ms Scanes sent an email to Ms Jelsma as follows:

“Hi Colleen,

As I have previously stated, my intentions have always been to come back to work. However, as per your last email it seems there is no position for me to come back to.

Could you please confirm this for me.”

[18] On 19 October 2017 at 1:31pm, Ms Scanes sent a further email to Ms Jelsma as follows:

“Hi Colleen,

Thank you for your email dated 9 October 2017.

In reading this email, and discussing it with Fair Work, we have ascertained that you are legally making me redundant as my position "has not been replaced or filled".

As my employment started with you on 7 November 2012, we calculate that I am entitled to monetary compensation, that is attached to such redundancy in the order of 10 weeks salary.

Please deposit this sum into the account my paid parental leave has been paid into and advise when this will be done by return email asap.

I must say this is very disappointing for me as I feel I have been a good employee for the duration of my employment at Helloworld and this unexpected end will put my family into financial difficulty.

As offered in your email I would like you to write a good reference as a reflection of my time in employment to give to prospective employers.

Please reply to this email within 24 hours or I will need to take this matter further with Fair Work as you have not replied to my last email to you either.”

[19] On 19 October 2017 at 3:24pm, Ms Jelsma sent an email to Ms Scanes as follows:

“Hi Michelle

My original email dated 9 October was an attempt at consultation due to a significant change in our financial circumstance that may impact on your employment and only a suggestion to you that, in the event that things don't pick up by the time you are due to return to work (which you have failed to provide a date for) that you might seek alternate employment now so as not to be under financial hardship should we not be in position to reinstate your employment early next year.

Regarding redundancy payment, I have been advised by Fair Work that as we are a small business of less than 15 employees, redundancy is not payable.

At this stage I am expecting to be notified of your return to work date.”

[20] On 23 October 2017 at 8:27am, Ms Scanes sent an email to Ms Jelsma as follows:

“Hi Colleen,

As my last working day was 23 December 2016, my 12 months maternity leave finishes on 23 December 2017.

As you previously advised, my work days would remain the same being Monday, Thursday and Friday. So I am ready to start work again from Monday 25 December 2017.”

[21] On 27 October 2017, Ms Scanes filed her Application with the Commission. At the time of filing her Application Ms Scanes had not received a response from Ms Jelsma to her email dated 23 October 2017.

[22] On 30 November 2017, the Respondent sent a letter to Ms Scanes in the following terms:

“…I am unsure as to why you are concerned about returning to work and want to assure you that your employment has not been terminated.

Even though there has never been nor ever will be any ill treatment towards you, I am prepared to not be present in the Tuncurry office on the days that you work until such time that you advise me that you are comfortable for me to do so.

I categorically state that your employment has not been terminated and the email in question that you have interpreted as notice of termination was intended to advise you that we were having financial difficulties and to fore warn you in case you decided to seek alternate employment as our business future was unclear. I have since sent other emails assuring you that your employment has not been terminated after you responded to the original email.

You are not only welcome to return but we look forward to this and hope that you will accept the offer of my absence on your work days if this will help you return to work.

You previously gave your intent to return to work on the 23rd of December 2017, however the office will close for the festive season on the 22nd of December and reopen on the 2nd of January 2018.

Please consider the above and lets make this work for both of our benefit.”

Consideration

[23] The question of whether Ms Scanes was dismissed within the meaning of s.386 of the Act is not to be determined by reference to the subjective beliefs of Ms Scanes or Ms Jelsma on behalf of the Respondent. 5 The email communications between Ms Scanes and Ms Jelsma must be construed according to how they would be understood by a reasonable person in the position of the recipient who had knowledge of the relevant background of the dealings between the parties.

[24] I find that Ms Scanes was not dismissed by the Respondent on 9 October 2017, or at any other time, for the following reasons:

(a) In the email dated 9 October 2017, Ms Jelsma states “…we are not in a financial position at this time to reinstate your position.” [emphasis added] I am satisfied that a reasonable person in the position of Ms Scanes and with knowledge of the relevant background of communications between the parties would construe Ms Jelsma’s email as putting Ms Scanes on notice of the potential for her role to be made redundant in the event the Respondent’s financial position did not improve by the time she was due to return from parental leave in late December 2017 or January 2018. Whilst I understand that Ms Scanes may have felt concerned and upset upon receipt of Ms Jelsma’s email at the prospect of not having a job to return to following the completion of her parental leave, I do not accept that Ms Jelsma’s communication in her email dated 9 October 2017, viewed objectively, and within the context of all of the email communications between the parties since July 2017 amounted to a termination at the initiative of the Respondent. The 9 October 2017 email left open the prospect that Ms Scanes would be able to return to work on the completion of her parental leave if the Respondent’s financial position improved in that period of two and a half months or so. There was a seven day delay from the Respondent in responding to Ms Scanes’ email of 12 October 2017, but I accept Ms Jelsma’s evidence that the reason for the delay was her absence from the Tuncurry office. Ms Jelsma responded to Ms Scanes’ email of 12 October 2017, in which Ms Scanes asked Ms Jelsma to “confirm” that “there is no position for me to come back to”, by her email on 19 October 2017, in which Ms Jelsma asked to be “notified of your return to work date”;

(b) The email communications between Ms Scanes and Ms Jelsma, whether considered in isolation or collectively, do not constitute an express termination of Ms Scanes’ employment, nor do they constitute some action on the part of the Respondent which was either intended to bring the employment relationship to an end or had the probable result of bringing the employment relationship to an end; and

(c) It is evident from the email exchanges set out above that there were subsequent emails between Ms Scanes and Ms Jelsma after 9 October 2017 about the date of Ms Scanes’ return to work. These exchanges point to attempts made by the Respondent to facilitate Ms Scanes’ return to work following the end of her period of parental leave.

Conclusion

[25] For the reasons set out above, I am satisfied that Ms Scanes’ employment with the Respondent was not terminated on the Respondent’s initiative. There is no suggestion in this case that Ms Scanes was forced to resign from her employment with the Respondent. It follows that Ms Scanes was not dismissed within the meaning of s.386(1) of the Act.

[26] Because Ms Scanes was not dismissed by the Respondent within the meaning of s.386 of the Act I must therefore dismiss Ms Scanes’ application for unfair dismissal and I do so. 6

COMMISSIONER

Appearances:

Ms M Scanes, Applicant.

Ms C Jelsma, on behalf of the Respondent.

Hearing details:

2017.

Newcastle:

December 19.

 1   Ayub v NSW Trains[2016] FWCFB 5500 at [35], [41] & [48]-[49]

 2   [2011] FWAFB 3769

 3   PR973462; [2006] AIRC 496 at [23]

 4   [2014] FWCFB 8451 at [15]

 5   Searle v Moly Mines Ltd (2008) 174 IR 21 at [38]

 6 Section 385(a) of the Act

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