[2018] FWC 1085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Miss Addy Foale
v
Davsan Pty Ltd T/A Seaton Hotel
(U2017/12189)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 FEBRUARY 2018

Application for an unfair dismissal remedy – regularly employed casual employee – whether resigned or was dismissed – principles applicable to heat of the moment resignation – cooling-off period – whether forced resignation - construction of section 386 Fair Work Act 2009 – relevance of post-resignation conduct by employee and employer – status of casual employee – application dismissed

[1] On 16 November 2017 Ms Addy Foale applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her (alleged) dismissal by Davsan Pty Ltd trading as the Seaton Hotel (‘Seaton Hotel’ or ‘the employer’). She claims to have been unfairly dismissed on 10 November 2017, with the dismissal taking effect that day.

[2] Ms Foale’s application to the Commission was lodged within the statutorily required 21 days after her (alleged) dismissal took effect.

[3] The employer operates the Seaton Hotel located in suburban Adelaide. The hotel provides beverage, food and gaming facilities to members of the public.

[4] Ms Foale was a Food and Beverage Attendant employed on a casual basis under the Hospitality Industry (General) Award 2010. She commenced in January 2017. She reported to the Venue Manger.

[5] To be a person “protected from unfair dismissal” under the FW Act Ms Foale is required to have served (with this employer) at least a minimum employment period of six months continuous service prior to the (alleged) dismissal. 1 It is agreed that she had done so. I am satisfied on the evidence that the whole of Ms Foale’s period of service as a casual employee counts towards this period because, although there is a dispute about the quantum of hours she was usually working in the weeks prior to the alleged dismissal (a matter I deal with in the body of this decision), her employment was regular and systematic except for absences due to injury or sickness, and she had a reasonable expectation of continuing employment on that basis.2

[6] Having served the minimum employment period and being employed under a modern award, I find that Ms Foale was a person protected from unfair dismissal and eligible to make a claim of this nature.

[7] It was also agreed that the employer is not a small business within the meaning of the FW Act, 3 and that the alleged dismissal was not a case of genuine redundancy.4 On the evidence, I am satisfied that this is so.

[8] Ms Foale seeks a finding that she was unfairly dismissed within the meaning of the FW Act and an order for compensation. She considers reinstatement inappropriate.

[9] The Seaton Hotel opposes the application. It raises a jurisdictional challenge, claiming that Ms Foale was not dismissed. It contends that she resigned from her employment on 10 November 2017 and confirmed that decision by conduct over subsequent days. In the alternative, it says that any dismissal (if found) was not unfair. It agrees that reinstatement would be inappropriate. It opposes an order for compensation on the ground that Ms Foale failed to mitigate her loss or accept offers of alternative work that were proposed by the employer.

[10] Conciliation of the matter on 6 December 2017 was unsuccessful. On 22 December 2017 I issued pre-hearing directions requiring the lodgement of written materials by the parties. 5 These were complied with. I conducted a hearing by determinative conference on 13 February 2018, some thirteen weeks after the alleged dismissal. Evidence and submissions on the jurisdictional challenge, on merits and remedy were presented.

[11] At the hearing of the matter Ms Foale was self-represented but assisted by a former employee (and witness) Ms Tylor. The Seaton Hotel was represented by Ms Legoe of the Australian Hotels Association (AHA) supported by Mr Webb of the AHA as an observer. Ms Foale objected to the employer being represented by an experienced officer of the AHA. I dismissed the objection on the ground that Ms Legoe, as an officer of an industrial association, was not required to obtain the Commission’s permission under section 596 of the FW Act to represent the employer. However, during the proceedings I had regard to the potential for unfairness between a self-represented applicant and an experienced representative of a respondent. I took steps during proceedings, consistent with my duty as an independent and impartial decision maker, to satisfy myself that Ms Foale’s case was being adequately presented and that the employer’s case was being tested.

[12] At the conclusion of proceedings, I reserved my decision.

[13] Three issues arise for decision: first, was Ms Foale dismissed; secondly, if she was dismissed, was the dismissal “harsh, unjust or unreasonable” within the meaning of section 387 of the FW Act; and thirdly, if so, what is the appropriate remedy?

The Dismissal Requirement

[14] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).

[15] Section 386(1) of the FW Act provides that:

(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.

[16] The provisions of section 386(2) and (3) do not apply in this matter.

[17] Having raised the jurisdictional issue, the Seaton Hotel bears the legal onus of establishing that Ms Foale was not dismissed. However, in circumstances where an employee resigns but claims their resignation was, at law, a dismissal, an evidentiary burden exists on the employee to establish that the resignation was a termination at the initiative of the employer or forced by the employer’s conduct. 6

[18] The definition of dismissal in section 386(1) has two elements: dismissal at the initiative of the employer, and forced resignation. Consistent with a recent decision of a Full Bench of this Commission, 7 during the hearing I drew to the attention of both Ms Foale and the Seaton Hotel the provisions of section 386(1) and these two elements. Ms Foale confirmed that she was pursuing her application under both the ‘termination at the initiative of the employer’ provision in sub-section 386(1)(a) and the ‘forced resignation’ provision in sub-section 386(1)(b).

[19] This matter also concerns whether the dismissal requirement in section 386(1)(a) or (b) has been met in circumstances where Ms Foale was employed on a casual basis under the provisions of the Hospitality Industry (General) Award 2010.

The Legal Principles

[20] The legal principles governing the application of section 386(1) in the context of cases where the employee is said to have resigned rather than been dismissed are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli 8 as follows:

“(1) There may be a dismissal within the first limb of the definition in section 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 section 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.”

[21] Although decided under a previous Act, 9 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd10 remains generally relevant to the consideration of section 386(1):

“In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.”

In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

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.” 11

[22] Although determined by the English Court of Appeal, the following approach taken in CF Capital PLC v Willoughby 12 is also generally consistent with that of Australian courts and tribunals:

“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”

[23] I apply these principles and, in the context of the current statutory scheme, particularly the full bench observations in Bupa Aged Care Australia Pty Ltd v Tavassoli, in determining this matter.

The Witnesses

[24] I heard evidence from four witnesses, all of whom produced written statements in advance of the hearing:

● Abby Foale (the applicant);

● Kristen Tylor (a former Food and Beverage Attendant, called by Ms Foale);

● Kevin Ashenden (Venue Manager, called by the employer); and

● Matthew Grech (Operations Manager, called by the employer).

[25] Tendered in pre-hearing materials, but not attending proceedings on 13 February, were statements from two other persons Megan Jones (a former Food and Beverage Attendant whose statement was submitted by Ms Foale) and Alana St Vincent (an Administration Officer whose statement was submitted by the employer). At the conclusion of oral evidence on 13 February both Ms Foale and the employer indicated that they did not propose to call Ms Jones and Ms St Vincent respectively to give oral evidence. I admitted their statements into proceedings by consent. I indicated to the parties that both statements would have reduced, if any, probative value as each were unsworn and neither person had been made available for cross-examination or questioning by the Commission. I note that certain of the events referred to in these unsworn statements remain in dispute.

[26] In addition to hearing from witnesses, I also received and brought into evidence relevant documentary material.

[27] I observed each of the witnesses in person and at close quarters around a conference table in the determinative conference setting. I had the opportunity to hear their cross examination and to ask a considerable number of questions at my own initiative. I not just heard what was being said but also observed how each handled questions that challenged their version of events. These are matters on which I have relied in making findings of fact.

[28] Somewhat unusually, on only a few occasions did any of the witnesses claim that they did not recall events, even under cross examination. Each claimed good recall; yet their recall differs.

[29] Although I make specific findings about disputed events in the body of this decision, it is appropriate to make some general observations about the witnesses appearing before me.

[30] Ms Foale gave her evidence confidently and assertively. Her oral evidence was more expansive than her witness statement. 13 In giving oral evidence, both in chief, in cross examination and in questioning from myself, Ms Foale regularly referred to and read from handwritten notes that she had prepared for the proceedings. She was also prompted on occasions by Ms Tylor or had her memory refreshed by Ms Tylor. These factors reduced the authenticity and instinctiveness of some of her responses. On occasions, it gave the impression that she did not wish to deviate from a pre-determined script. Further, although remaining confident in demeanour, Ms Foale’s evidence about some (but not all) important events altered or became vague during the course of proceedings. Some of these changes in position were subtle, others more significant. In total, these factors lead me to approach aspects of her evidence with some caution. I do not however dismiss her evidence in any overall sense, nor was her version inherently unbelievable.

[31] Mr Ashenden also gave his evidence confidently. He did not alter his version of events on key matters in cross examination and in questions from me, He made reasonable concessions on certain matters relating to the variation of work rosters in the hours and days that followed Ms Foale leaving the workplace. He was not unduly defensive despite his management being placed under critical review by Ms Foale. He had good recall of specific conversations and locations of people and objects. Nor was his version of events inherently unbelievable.

[32] Mr Grech was an impressive witness. His evidence was clearly and calmly presented. He had precise recall. His oral evidence reflected his written statement except that his written statement did not deal with a conversation he had with Ms Tylor on 10 November. He was a witness of credit whose evidence I consider reliable.

[33] Ms Tylor was also a reliable witness. Although not involved in the key conversations of 10 November that determine this matter, she was present in the workplace and interacted with Ms Foale and, later in the day, Mr Grech. In her evidence, she was keen to express opinions and make submissions on behalf of Ms Foale as well as give evidence of what she saw occurring around her. Opinions and hearsay evidence aside, I generally found her direct evidence of events reliable albeit of limited scope.

[34] In determining this matter, I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 14

[35] As noted, some of the oral evidence and evidence in witness statements tendered strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.

[36] I note that this is not an inquiry into the general staffing relationships between persons employed at that time by the Seaton Hotel or the employment status of persons other than Ms Foale. I only take into account evidence about personal relationships or conduct where it is relevant to the facts that need to be determined on Ms Foale’s application and the employer response to it.

Events Leading to 10 November

[37] Although he had seven years prior experience in hospitality (including three as a Venue Manager) Mr Ashenden had only worked at the Seaton Hotel for three weeks. He was brought into the role by Mr Grech to improve the hotel’s performance. Mr Grech believed the hotel’s operating costs (including cost of goods and labour) exceeded industry averages. Mr Grech anticipated change would be unpopular particularly tightening the availability of rostered hours. He directed Mr Ashenden to roster staff based on performance.

[38] Mr Ashenden, as Venue Manager, was in charge of the hotel on 10 November 2017. He was responsible for rostering and staffing matters. He was the person to whom Ms Foale reported and was required to take instruction from. Until 10 November, he had only spoken to Ms Foale on one occasion on one prior shift during his first week.

[39] In her ten months of work at the hotel, Ms Foale had worked under two former Venue Managers. Mr Ashenden was the third. The first had passed away in tragic circumstances. 15 A degree of upset and sensitivity amongst longer term staff (such as Ms Foale) still existed when Mr Ashenden took his position.

[40] For her part, Ms Foale was dealing with difficult personal and family circumstances. Casual work at the hotel was her only current source of income and she was financially vulnerable. Maximising the number of hours she was rostered to work was important to her. She made her difficulties known to Mr Grech over the course of the year and he was sympathetic to her need for work and understanding when she may be having a ‘bad day’. He regarded her as a good worker. She had received one written warning in early 2017 from the then Venue Manager for punctuality but otherwise had a good work record.

[41] As a casual employee, the hours worked by Ms Foale varied. In the one conversation she had with Mr Ashenden prior to 10 November she told him that she had overcome a foot injury and was available to work up to 50 hours a week. I note that the evidence suggests that on occasions Ms Foale had worked up to 30 hours in a week, but never anything approaching 50 hours.

[42] Ms Foale claims that she was working an average of 25 to 30 hours per week until Mr Ashenden arrived. She claims that Mr Ashenden, in his first three weeks, reduced her hours.

[43] This claim is not supported by the evidence. 16 Leaving aside three weeks in October 2017 when Ms Foale was unavailable to be rostered due to her foot injury (aside from one six hour shift), her average number of hours worked in the preceding two months had been 24.2 hours per week. In the first two weeks of November Ms Foale had been rostered by Mr Ashenden to work (and had worked) 23.75 hours and 20.75 hours respectively. This was a marginal reduction on the average hours worked by her over the preceding three months, but given the general fluctuation of hours from week to week not substantially so.

[44] Rosters for the week commencing Monday 13 November were notified to staff on 8 or 9 November. I accept Mr Ashenden’s evidence, supported by exhibit R8, that Ms Foale was rostered for three days which included responsibility for closing the hotel on two of those days (13/11 6pm to close, 15/11 5.30pm to ‘as required’ and 16/11 6pm to close). Although the exact hours to be worked would depend on the time of closure, I accept Mr Ashenden’s evidence that a staff member working those three shifts would reasonably expect to be working about 20 hours in the week. This was less than Ms Foale’s recent average but again not substantially so. However, it was well below the 50 hours per week she had told Mr Ashenden she would be available to work.

Events of 10 November

[45] On Friday 10 November Ms Foale started work at 1130am. She was rostered until 730pm. At 1215pm, soon after Mr Ashenden commenced, she decided to confront him in his office about what she considered to be inadequate rostered hours (‘the first Foale / Ashenden conversation’).

[46] The evidence about this conversation differs. I prefer Mr Ashenden’s version based on my observations of the witnesses and for the following additional reasons:

● Ms Foale’s evidence about its detail shifted. For example, initially she said that she did not know how the conversation ended. Then she said that at its conclusion she turned and walked out of the office and that the office door closed itself. Later, she said that she physically closed the office door but denied slamming it.

● Ms Foale claimed that Ms St Vincent, who was in the same office as Mr Ashenden was not able to give evidence of the conversation because she had her back turned to Ms Foale. Yet Ms Foale’s evidence was that Ms St Vincent was only two metres away from her. Even with her back turned, the conversation was clearly audible to all who were in the office. Ms Foale’s evidence that it would not have been heard by Ms St Vincent is wrong.

● Ms Foale claimed that the conversation lasted at least five minutes. Mr Ashenden said it was probably less than two minutes. Based even on the version of the conversation given by Ms Foale, the conversation would have had to be spaced with long pauses and periods of silence if it was to occupy five minutes. Given the intensity of feeling with which Ms Foale approached the discussion and then left the office I am in no doubt that there were no periods of silence or pregnant pauses. It was a quick, continuous and largely one sided conversation.

[47] I make the following findings on the balance of probabilities concerning the first Foale / Ashenden conversation:

Ms Foale knocked on the office door. It was opened by Mr Ashenden. Mr Ashenden and Ms St Vincent were in the office. Customers were seated metres away on the other side of the open door. Mr Ashenden was seated at his desk. Ms Foale stood on the other side of Mr Ashenden’s desk about one metre from him and two metres from Ms St Vincent. The conversation occurred with Ms Foale keeping the door partly ajar. In the other hand she held a roster. She waved the roster, and pointed at it and at Mr Ashenden. The conversation was audible to all in the room and to nearby customers.

Ms Foale (firmly and directly to Mr Ashenden): “I want to know what is going on with my hours, are they going to improve?”

Mr Ashenden: “Rosters are performance based. At this time your attitude and work performance are not up to standard…”

Ms Foale (interrupting): “I need more hours to live. This is not enough. I helped you out doing a close shift, this means you should be helping me out. I thought it goes both ways?”

Mr Ashenden: “If you need more money maybe you should look for a second job for more income. Your attitude leading up to close was not up to scratch….”

Ms Foale (interrupting): “I am leaving this place, this is ridiculous”

Mr Ashenden: “Do you want me to take you off next week’s roster?”

Ms Foale: “Yes” (walking out and slamming the door closed)

[48] Both Ms Foale and Mr Ashenden agreed that the conversation, albeit short, was heated and confrontational. I find that Ms Foale raised her voice and was the assertive and interrupting party. I find that Mr Ashenden spoke directly but without raising his voice.

[49] In her evidence, Ms Foale claimed that she opened the discussion by complaining about the lack of numbers of staff to support dinner service that evening, not her rostered hours. I prefer Mr Ashenden’s evidence that this was not said or if said during the conversation was only an aside. In any event, I am satisfied that the substance of the confrontation concerned Ms Foale’s rostered hours and that was her purpose in speaking to her manager that day.

[50] Ms Foale denied that she slammed the door. I reject that evidence. I find that she walked out as she was saying “Yes” and slammed the door closed.

[51] Ms Foale denied that she said “I am leaving this place, this is ridiculous” or that she said “Yes” when asked if she wanted to be removed from the following week’s roster. I reject that evidence. I find that, in the heat of the moment, she said words to this effect.

[52] Ms Foale left the office intending to leave the workplace and not complete her shift. She collected her handbag from behind the bar. As she walked out she was stopped by Ms Tylor who noticed her upset. Ms Tylor told her that she was in no state to leave and that she should sit in the outdoor area adjacent to the bar, have a cigarette and calm down. She took Ms Tylor’s advice. After about ten minutes she calmed down, returned to the hotel floor and, after noticing that customers were waiting to be served, she continued food service.

[53] I accept Mr Ashenden’s evidence that he was taken aback by the unexpected and confronting conversation with Ms Foale. Upon Ms Foale leaving his office Mr Ashenden had the following short conversation with Ms St Vincent:

Mr Ashenden: “what just happened? I think she just quit?”

Ms St Vincent: “I think so”

[54] Mr Ashenden immediately telephoned Mr Grech. He advised Mr Grech of the altercation and that he thought Ms Foale had just “quit”. He was told to keep an eye on her, that if she was still in the outdoor smoking area in five minutes, to approach her and ascertain if she had quit. If she confirmed she had, she should be asked to leave. After concluding the call, Mr Ashenden observed, via CCTV, that Ms Foale had resumed service. He again rang Mr Grech. Mr Grech advised him to allow the situation to continue so long as there was no disruption, and that he (Mr Grech) would arrive shortly to try to resolve the issue.

[55] Mr Grech arrived about 30 minutes later. It was about 1pm. He spoke briefly to Mr Ashenden who advised that Ms Foale had continued with lunch service and, from CCTV vision, appeared relaxed around customers. Mr Grech took a seat in the hotel’s public area and waited until a break in service, when he then approached Ms Foale. They agreed to a private chat at the front of the hotel (‘the 1pm discussion with Mr Grech’).

[56] Mr Grech asked Ms Foale what had occurred. She told him that Mr Ashenden had lost his cool and was taking her off the roster. She said she needed more hours and could not live on the hours rostered. Mr Grech asked if she could have handled the discussion any differently. She said “maybe but I’m under a huge amount of pressure and no one understands that, and Kevin was not listening to me”. 17 Mr Grech told her that he had a different version from Mr Ashenden, and outlined that version including that she had been aggressive, had said she was leaving her job and had slammed the door. He asked her to tell him if she had quit. Ms Foale said that Mr Ashenden had sworn at her. She said she did not “come here to quit” but that she did not want to work under Mr Ashenden because she would not get the hours she needed. Mr Grech asked what her “ideal outcome would be”. She said she wasn’t sure, it would depend on Mr Ashenden. Mr Grech advised that he had instructed Mr Ashenden to set performance based rosters and that he had confidence in Mr Ashenden to do so. Ms Foale said that she was a good worker.

[57] The 1pm discussion with Mr Grech’ ended with Mr Grech saying that as the situation appeared up in the air he would speak again to Mr Ashenden. He recommended to Ms Foale that she approach Mr Ashenden, apologise for having blown up in his office, explain that she was feeling stressed, seek his forgiveness and move forward. In his evidence, Mr Grech put it this way: 18

“I was trying to coach the Applicant to assist her in finding a way to stay at the hotel and move forward. I said to her that I had faith that Kevin doesn’t hold any grudges. I told the Applicant that I could not tell her what to say but that I said to her that being confrontational with your line manager is not going to do you any favours if you’re trying to get more hours. I said to her that I would go and have a quick chat to Mr Ashenden and that I would then get both of them to have a discussion and then follow up from there.”

[58] Ms Foale agreed to this course.

[59] Mr Grech spoke briefly to Ms Tylor asking her what was happening. Ms Tylor gave little away but based on what Ms Foale had told her, criticised Mr Ashenden’s handling of the situation.

[60] Mr Grech then spoke to Mr Ashenden:

“I said to him that...she had a different account of what happened. I told him that I had encouraged her to approach him in a different way and told her that I think he is a fair and reasonable person and if she approaches it in a bit more of a humble way and is apologetic for her earlier outburst then I couldn’t see any reason why she couldn’t continue working at the hotel. I said to Mr Ashenden that if she chooses to leave then he can let her know that we would pay her to the end of her rostered shift.” 19

[61] Mr Ashenden then approached Ms Foale who was still in the front carpark of the hotel (‘the second Foale / Ashenden conversation’). There were no witnesses to this conversation. The evidence about this conversation differs. Where it differs I prefer Mr Ashenden’s version. 20 It was a short conversation, less than a minute. I make the following findings on the balance of probabilities:

Mr Ashenden: “I have never ever been spoken to like that by a staff member before”

Ms Foale shrugs her shoulders and rolls her eyes

Mr Ashenden: “I am new here, I am trying to bring a better culture and I don’t feel you are being part of the team”

Ms Foale: “Well I am guessing that is it then; we are going to part ways”

Mr Ashenden: “Yes I think that is best”

Ms Foale: “Thank you, do I have to go see Matt?”

Mr Ashenden: “No you don’t”

Ms Foale: “Will I be paid for the rest of the shift?”

Mr Ashenden: “Yes. Matt may be in touch”

They then returned into the hotel once the closed doors were unlocked.

[62] Three aspects of Mr Ashenden’s evidence about this conversation are relevant:

● Ms Foale claimed that Mr Ashenden’s opening words were “I have never ever been fucking spoken to like that by a staff member before”. In other words, Ms Foale’s evidence is that Mr Ashenden opened the conversation by using foul language to her. Ms Foale was resolute in her evidence that this is what was said. Mr Ashenden was equally resolute that he did not use such language. On the balance of probabilities I find that Mr Ashenden did not swear when speaking to Ms Foale. He was fully aware that his superior, Mr Grech, had arranged the conversation to smooth things over, clarify the situation and avoid more heat, and that he would need to report on the outcome to Mr Grech. It is unlikely he would have acted in such an undisciplined way given that his conduct had been brought into issue by Ms Foale. I also take into account that Ms Foale had asserted to Mr Grech moments earlier that Mr Ashenden had sworn at her during the first Foale /Ashenden conversation. There is no evidence that Mr Ashenden had done so. I find that it was convenient for Ms Foale to portray Mr Ashenden as having sworn at her in each of these conversations, but that the claim is wrong.

● Ms Foale does not deny that she said words to the effect “Well I am guessing that is it then; we are going to part ways” but says that this was put as a question not a statement. Mr Ashenden’s evidence, which I accept, was that “I took this as a statement rather than a question”. I find, on the balance of probabilities, that it was not put as a question. The words used were “we are going to part ways”, not “are we going to part ways?” Although responded to with an answer, it was a statement that invited an answer.

● Mr Ashenden claimed that he “was surprised she did not apologise to me given what I had said to her immediately prior to this statement and from what Mr Grech had told me prior to me meeting her” 21. Although neither person raised their voice during this conversation and his opening line was not said aggressively, it was unsubtle and did not secure the apology sought. Rather, Ms Foale took it as her line manager giving no ground. At that point, and because she didn’t want to work with Mr Ashenden in circumstances where he did not hold a positive view of her, she decided to give effect to her earlier statement that she was leaving.

[63] Mr Ashenden then spoke to Mr Grech:

Mr Grech: How did it go?

Mr Ashenden: “She is gone”

Mr Grech: “Did she quit?”

Mr Ashenden: “Addy said that we should part ways and I agreed. I said I’d pay her until the end of the shift.”

[64] Mr Grech then sought out Ms Foale. She was in the hotel dining area. The following conversation occurred:

Mr Grech: “How did the conversation with Kevin go?”

Ms Foale: “We have agreed to part ways”

Mr Grech: “Really I’m surprised”

Ms Foale: “It feels like a break up but I think it is in the best interests of both of us”

Mr Grech offered Ms Foale a drink

Ms Foale: “No its fine. I just need some time to compose myself and then I am going to go.”

[65] Mr Grech spoke again to Mr Ashenden. He asked again how the conversation had gone with Ms Foale. Mr Ashenden said that despite Mr Grech’s attempts, Ms Foale did not apologise but had told him (Mr Ashenden) that she (Ms Foale) couldn’t work with him and had decided to leave.

[66] Mr Grech also approached Ms Tylor and told her that “Kevin and Addy had agreed to part ways” and that Ms Foale wanted to see her before Ms Foale left the workplace. Ms Tylor expressed surprise.

[67] Mr Grech then left the hotel.

[68] Ms Tylor spoke to Ms Foale in the outdoor smoking area. She put it to Ms Foale that Mr Grech believed that they had agreed to part ways. Ms Foale denied this. She said she had been sworn at by Mr Ashenden. She said it felt like a relationship break-up. Ms Tylor advised Ms Foale to send Mr Grech a text regarding her position as it was very different to his.

[69] Ms Foale took her bag and left the workplace at about 2pm, not to return. The remainder of her shift (until 730pm) was covered by Mr Ashenden with support from Ms St Vincent. She was paid until the end of her shift that day.

Post Dismissal / Resignation Conduct

[70] Both parties to this matter rely on conduct after Ms Foale left the workplace on 10 November to support their case.

[71] Three matters emerge from the evidence concerning the conduct of the employer and of Ms Foale in the period following the events of 10 November: text messages between Ms Foale and Mr Grech; attempted phone calls by Mr Grech; and hotel rosters in the days following.

[72] Ms Foale relies on the text messages to support her claim that she did not resign, that she told the employer that she believed she had been unfairly dismissed and that she wanted her dismissal confirmed in writing. She relies on the roster to say that it was the employer who took her off the roster and that this was evidence of dismissal.

[73] The employer relies on the text messages to support its claim that Ms Foale was seeking to reconstruct events after her resignation once she obtained legal advice, that she unreasonably refused an offer for a further attempt to reconcile and resume work at the hotel and that she unreasonably refused an offer to work at another hotel. It says that taking her off the roster was consistent with her having resigned and that its offer of future shifts was an offer of fresh employment.

Text Messages

[74] Ms Foale and Mr Grech exchanged six text messages in the four days that followed. These were produced in evidence and their content was not disputed.

[75] The first was written by Ms Foale, as suggested by Ms Tylor. It was sent by Ms Foale to Mr Grech at 4.49pm on 10 November, about three hours after having left the workplace. It read:

Fri, 10 Nov, 4:49 pm

“Hey Matt, It’s Addy.

I just wanted to say thanks for coming in on your own time to sort out the mess today. I also want to say sorry for the conversation with Kevin as it didn’t go to plan.

I didn’t want to leave the hotel.

Nor did I quit. I just asked him where that now left me, and if I am going to get enough shifts to live over the next following weeks.

He pretty much told me that I had done my dash and that was it and to part our ways?

So I am struggling to understand the process of this and whether I will get it in writing to say that he has dismissed or terminated my position and for what reason?

Sorry for all this, it is honestly the last thing I want or need, and I’m sure you don’t either. Call me if you need to. Thanks.”

[76] The remaining text messages are as follows:

Tue, 14 Nov, 9:11 am

“Hi Addy, I tried to contact you yesterday to see if you want to make a time to meet with Kevin and I today to reconcile from Friday’s events, but haven’t heard back from you yet. Can you please confirm if you still want to come back, as we have held some shifts for you. If you have changed your mind, that’s ok I just need to know. Cheers, Matt”

Tue, 14 Nov, 4:03 pm

“Hey Matt sorry I’ve been busy deciding what I need to do for what is going to be best for myself.

I did some thinking over the weekend whilst waiting for your phone call.

And I did contact my union for some advice yesterday before I heard from you at 5:30.

I have come to the understanding that it was a case of unfair dismissal. And I am worried if I come back to the hotel I will be targeted and given minimal shifts, and have to feel like I am being micro managed.

I need to be able to live and support myself and all I asked Kevin if he was able to give me more shifts. He did make it seem as though that wasn’t possible, that is fine, but I can not be treated in that way.

I need to do what’s best for myself, and I am awaiting a call back from a rep from the union.

Thanks, Addy”

“Hi Addy, thanks for your message. I’m a bit confused, because some of the staff are saying that you told them you quit, yet we are trying to get you back in as discussed Monday. My offer to mediate with yourself and Kevin stands, as I think you have a place at the Hotel, however that’s up to you. Please confirm if you would like me to fill your shifts. Cheers, Matt”

“Hey Matt, I guess there are a few staff that are in the dark about what had actually happened.

But I never came to an agreement that I wanted to leave the hotel.

I need hours, and at the end of the day that is all it came down to.

I feel as though I am strong enough worker and had given everything I could to your work place, as part of a team and when asked to, as a leader.

I don’t feel as though coming back to work for Kevin is the best thing for myself.

I deal with an incredible amount of stress on a daily basis and having this happen, and having to feel worried or like I am walking on egg shells when working, is not going to be an ideal situation. Also the great amount of stress of now finding another job right before Christmas before I end up homeless.”

Tue, 14 Nov, 7:18 pm

“I respect your decision, it’s yours to make. I’ve got a position at the other Hotel if you want a job Addy. Matt”

Phone Calls

[77] Mr Grech’s evidence is that he tried to telephone Ms Foale on four occasions after she had left the hotel but on each occasion the call was not answered or returned: on the Friday afternoon 10 November; on Saturday 11 November; on Monday 13 November and on Tuesday 14 November. He said that his purpose was to get clarity from her on whether she had changed her mind and to discuss her texts.

[78] Ms Foale denied that she had missed calls on 10 or 11 November from Mr Grech. She agreed that she had missed calls on 13 and 14 November which she chose not to take. By that time she had been receiving legal advice and decided that communication should be in writing (by text) not orally.

[79] Although not much bears on this disparity, I accept Mr Grech’s evidence. He had no reason to be other than truthful in this evidence. Although Ms Foale produced her voicemail records (A5) showing no voicemail message was left on 10 or 11 November, the records are not evidence that those calls were not made.

Rosters

[80] Mr Ashenden could not precisely recall when he removed Ms Foale from the roster. His evidence was that while he regarded Ms Foale to have resigned on 10 November, he was (in light of her text to Mr Grech at 4.49pm on 10 November) waiting to see if she would turn up on the following day (Saturday). She didn’t. While he did not recall circulating an amended roster until Sunday 12 November, I accept Ms Tylor’s evidence that an amended roster was circulated on Saturday 11 November. Working hours for Ms Foale had been removed from that roster.

[81] On Monday 13 November Mr Ashenden instructed payroll that Ms Foale had not worked past 10 November and should not be paid beyond that day.

Consideration

Was Ms Foale dismissed on the employer’s initiative?

[82] This case concerns events of 10 November 2017 at the Seaton Hotel, and to a lesser degree conduct of the parties in the days following. It is accepted on both sides that neither the alleged dismissal nor the claimed resignation were reduced to writing. Thus, the oral evidence of each witness, together with relevant documentation, has been significant to the determination of this matter. In particular, each side relied heavily on the oral evidence of disputed versions of two conversations on 10 November between Ms Foale and Mr Ashenden.

[83] I have made aforementioned findings of what occurred on the balance of probabilities, and they inform my conclusions.

[84] Ms Foale says she was dismissed verbally and points to the employer’s conduct at the time and subsequently. The employer says that Ms Foale resigned verbally and points to her conduct at the time and subsequently.

[85] Whether there was a dismissal is to be determined by my findings of fact, and the application of those facts to the law.

[86] A dismissal at the employer’s initiative is commonly (but not exclusively) evidenced by a decision to dismiss and communication of that decision. There was no decision to dismiss by either Mr Grech nor Mr Ashenden, nor communication of a dismissal or an intention to dismiss.

[87] Although Mr Ashenden had not developed a particularly positive view of Ms Foale in his three weeks at the hotel, it was early days and he was willing to give her rostered hours (including two further closes), albeit not at the quantum she sought. The concerns he had started to form were mainly third-hand and not from his direct experience. Nor were they wholly accurate. For example, his view that Ms Foale had not handled the hotel close well on 5 November was not consistent with what another staff member (Ms Milanta) had communicated to Ms Foale. 22 This was particularly so given Ms Foale’s evidence, which I accept, that she was concerned about doing that close because she had not previously done so.

[88] The brevity of both the first and second Foale / Ashenden conversations and the imprecise language used created a certain ambiguity to Ms Foale’s departure that was at odds with the clarity Mr Grech had sought. However, none of the words used to Ms Foale on 10 November by Mr Grech or Mr Ashenden could be reasonably interpreted as a dismissal. Mr Grech did not particularly want Ms Foale’s employment to cease even at her own instigation. His interventions were endeavours to avoid that occurring, whilst not undermining the authority of the manager he had put in charge of the hotel.

[89] Mr Ashenden’s statement “Do you want me to take you off next week’s roster?” in the first Foale / Ashenden conversation was a question posed in response to Ms Foale’s statement about leaving. It was not a dismissal. His statement in the second Foale / Ashenden conversation “Yes I think that’s best” was also in response to Ms Foale statement about “parting ways”. It too was not a dismissal at the employer’s initiative.

[90] In her evidence, Ms Foale claimed that in their first conversation Mr Ashenden did not say “you should look for a second job” but rather said words to the effect “find another job”, and that this constituted a dismissal. I prefer Mr Ashenden’s version and accept it on the balance of probabilities. In any event, I am satisfied that he was responding to her claim of insufficient income from rostered hours. Even if he used the words “another job” rather than “second job”, in the context of what he said as a whole, neither formulation was intended or could reasonably be interpreted as a dismissal.

[91] It was Ms Foale who used words on the day that evidenced ceasing her employment (“I am leaving this place, this is ridiculous” and “Well I am guessing that is it then. We are going to part ways”).

[92] I have also had regard to the conduct of the parties that day. Ms Foale was not prevented from working on her shift or told to cease working. Even after the first Foale / Ashenden conversation the employer allowed her to resume service. It was Ms Foale who removed her belongings, who left the workplace, who did not complete her shift and required management to cover for her.

[93] That is not, however, the end of the matter.

[94] Whilst I accept that Ms Foale’s declaration “I am leaving this place, this is ridiculous” and storming out of Mr Ashenden’s office whist saying “yes” to whether she wanted to be taken off the roster was a verbal resignation, it was said in the heat of the moment.

[95] There are circumstances where an employee resigning in the heat of moment can be said to have been dismissed if the employer acted unreasonably in relying on that circumstance without satisfying themselves that this is what the employee really intended. 23

[96] However, that is not what happened at the Seaton Hotel. Indeed, the very opposite. Mr Grech’s discussions with Mr Ashenden and with Ms Foale on that day were designed to allow the heat of the initial confrontation to abate and for Ms Foale to reflect on her position, not quit and mend relations with Mr Ashenden. Ms Foale had approximately an hour to do that (between the first and second Foale / Ashenden conversations), took opportunities to speak to Ms Tylor, and calmed herself down in private space. This constituted an adequate cooling off period during which Mr Grech told Ms Foale that she needed to clarify her position.

[97] I conclude that the words used by Ms Foale “well I am guessing that is it then; we are going to part ways” in the second Foale / Ashenden conversation were words of resignation. Although there was regret that she would be leaving her job (”well I am guessing that is it then…”) when she would have preferred to stay, she was the one who declared the “parting of the ways”. Mr Ashenden’s reply “Yes I think that’s best” was an expression of his concurrence to her declaration. I also consider it significant that, minutes later, Ms Foale said to Mr Grech “we have agreed to part ways”. 24 That is contemporaneous evidence, which I accept, of her intention and understanding.

[98] I take into account the evidence that the employer’s general approach to an employee resignation was to require it in writing. Neither Mr Ashenden nor Mr Grech required that in this instance. Had they done so, the clarity Mr Grech was seeking may have emerged. Allowing events to occur through discussion was well-intended given Mr Grech’s hope that the matter would not result in Ms Foale leaving, but the brevity and ambiguity of the dialogue contributed to Ms Foale reconstructing a view once she returned home that she had been dismissed.

[99] Ms Foale’s belief that she had been dismissed was understandable given that, once she reflected on her position, the outcome (no job at the hotel) was not the outcome she desired. She wanted to work at the hotel but on her terms. Those terms were that she would work the minimum number of weekly hours she needed and wanted and if unable to secure them from the Venue Manager, she didn’t want to work under the Venue Manager who did not rate her highly enough. However, an employee’s belief that they were dismissed does not mean there was a dismissal any more than an employer’s belief that an employee resigned makes it a resignation. The matter is to be determined objectively based on the evidence as a whole.

[100] While the employer can rightly be criticised for not seeking her resignation in writing and allowing her to leave the workplace without securing that level of clarity, Ms Foale’s erratic behaviour on the day (saying she was leaving, continuing customer service after storming out, failing to apologise when given that option, declaring a parting of ways after a cooling-off period and leaving the workplace with her shift uncovered) meant that this was not a resignation made in any orthodox manner. It contributed to the ambiguity in the day’s events. In any event, a verbal resignation (once made) is still a resignation.

[101] Although she told Mr Grech in the 4.49pm text message “I didn’t want to leave the hotel. Nor did I quit” only the first part of that statement is, on the balance of probabilities, supported by the evidence. Ms Foale didn’t want to leave, but she did quit because she didn’t like the new manager’s attitude to her as evidenced by his unwillingness to lift her rostered hours to a level she found acceptable. Her state of mind was evident when she said during the 1pm discussion with Mr Grech that she “did not want to work with Mr Ashenden”. This was a view repeated in her subsequent text messages to Mr Grech days later when declining his final attempt at reconciliation: 25

“I am worried if I come back to the hotel I will be targeted and given minimal shifts, and have to feel like I am being micro-managed”

“I don’t feel as though coming back to work for Kevin is the best thing for myself.”

[102] Although not put as such, it could be argued on Ms Foale’s behalf that she could not have resigned on 10 November because text messages sent on 14 November by Mr Grech advised her that “we have held some shifts for you”. I do not accept that contention. It fails to put into context what Mr Grech was saying as a whole. His relevant text was “can you please confirm if you still want to come back, as we have held some shifts for you. If you have changed your mind, that’s ok I just need to know.” Mr Grech was indicating that work would be made available if Ms Foale wanted it. It was an invitation to “come back”, not a statement that employment had not ceased. This is apparent from Mr Grech’s following text message “we are trying to get you back in as discussed Monday. My offer to mediate with yourself and Kevin stands, as I think you have a place at the Hotel, however that’s up to you.”

[103] I do not consider that the text messages sent by Mr Grech in the days following the dismissal to be inconsistent with a finding of resignation. Put simply, a resigned employee was being offered fresh employment.

[104] Ms Foale verbally resigned on 10 November in two conversations with the Venue Manager Mr Ashenden, an hour apart. He accepted that resignation on the second occasion it was made and she left the workplace shortly after by agreement. She was not dismissed at the employer’s initiative within the meaning of sub-section 386(1)(a) of the FW Act.

Was Ms Foale dismissed by forced resignation?

[105] An employee who has resigned can be said to have been dismissed under subsection 386(1)(b) of the FW Act if they were “forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[106] Ms Foale says that she was forced into the position she adopted because of unreasonable conduct by Mr Ashenden, in particular that she had her shifts reduced; that she was sworn at and that that she was “treated horribly”.

[107] My findings do not support these contentions.

[108] I have found that Mr Ashenden did not reduce Ms Foale’s weekly hours by any significant degree in his three weeks in charge at the Seaton Hotel.

[109] I have found that Mr Ashenden did not swear at Ms Foale in either their first or second conversations on 10 November.

[110] I have not found that Mr Ashenden treated Ms Foale on 10 November in an unprofessional or “horrible” manner, as she claimed. However, I do find that Mr Ashenden was somewhat naïve in thinking that his opening line to Ms Foale in their second conversation laid the ground for the apology he expected. As unsubtle as his opening line may have been, it was not a proposition without foundation because, as I have found, it was Ms Foale and not Mr Ashenden who was the hot-head in their first conversation. Mr Ashenden had been spoken to rudely by Ms Foale, it had occurred in the presence of another staff member and was within earshot of customers. He was rightly dissatisfied.

[111] I have also found that Mr Ashenden’s remark in their second conversation that he felt Ms Foale was not acting as “part of the team” to have not been fully informed. It was a view some staff had expressed to him but even taking account of informal chatter in a hospitality industry workplace, it was not a view (once expressed) that assisted the outcome Mr Grech was seeking. It riled Ms Foale who then resigned.

[112] However, neither individually nor in combination could the putting of these two propositions be said to be conduct that “forced” Ms Foale’s resignation within the meaning of section 386(1)(b) of the FW Act. They were observations by a manager made to a staff member about that staff member which the manager considered justified and for which there was some supporting evidence.

[113] The legislature has chosen to use the word “forced” as the basis for the causal connection between an employer’s conduct and a resignation, rather than looser or weaker formulations. The word is not defined in the FW Act. It is the past tense of the noun “force” and the verb “to force”. The noun and verb are defined in recognised English dictionaries to mean (in relevant contexts): 26

“force (noun): coercion or compulsion”

“to force (verb): to cause or produce by effort; to attain by strength of effort”.

[114] The word “forced” suggests the existence of conduct of such a character which compelled the outcome in the sense that the outcome was at least the probable consequence of the conduct such that free will was denied. In the words of the full bench in O’Meara v Stanley Works Pty Ltd adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli the test is whether the employer engaged in 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.

[115] I do not consider the conduct of Mr Ashenden (or Mr Grech) was such as to render Ms Foale with no effective or real choice but to resign. Resignation was not the probable consequence of Mr Ashenden commenting critically on Ms Foale’s conduct that day or on her general conduct in the workplace.

[116] Ms Foale resigned because she did not want to work under a new manager who did not think highly enough of her to give her the hours she believed she was entitled to and needed. She felt she could get work elsewhere and had been looking for work elsewhere. 27 In the words she used to Mr Grech in her text of 14 November:28

“I need hours, and at the end of the day that is all it came down to.”

[117] Ms Foale was not forced to resign within the meaning of sub-section 386(1)(b) of the FW Act.

As a casual, was Ms Foale dismissed?

[118] If, contrary to my conclusion, Ms Foale had been dismissed the issue which would arise is whether, in the context of her employment as a casual employee, she had an ongoing employment contract from which she could be dismissed?

[119] This issue was recently considered by a Full Bench of this Commission in City of Sydney RSL & Community Club Limited v Roxana Balgowan where it was observed: 29

“Although the notion of casual employment developed by reference to the characteristic that a casual employee was someone who had occasional or irregular work, this is plainly no longer the case. Casual employees now frequently work for a single employer on regular hours over extended periods. Casual employees may be used in the short term or for much longer or extended periods; they may be employed as a casual employee on a regular and systematic basis with an expectation of continuing employment on that basis; or they may be called upon to work as a casual employee infrequently or irregularly and have no expectation of being engaged otherwise. That this is so is plainly recognised in s.384(2) of the Act which describes the method by which a period of service as a casual employee is counted towards an employee’s period of employment for the purposes of ascertaining whether an employee has completed a period of continuous service with the employer at the time of his or her dismissal so as to meet the minimum period of employment identified in s.383 of the Act.

The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”

[120] The evidence before me is that Ms Foale was regularly employed as a casual and had a reasonable expectation of continuing employment. However, it was also established on the evidence before me that Ms Foale’s hours varied from day to day and week to week, that she had no contractual guarantees of working set hours or days, and was working based on the combination of her availability and business needs.

[121] In these circumstances, there is no basis on which it could be said that the Seaton Hotel repudiated Ms Foale’s contract by not offering her the shifts she sought.

[122] Nor do I consider that Ms Foale could sustain a claim for unfair dismissal beyond the shift she was working on Friday 10 November even if she were to have established that the employer’s words or conduct on that day expressly or by implication constituted a dismissal.

Conclusion

[123] Ms Foale was not dismissed within the meaning of section 386 of the FW Act. As she was not dismissed, the question of whether the alleged dismissal was harsh, unjust or unreasonable does not arise. Nor do issues of remedy.

[124] The application is dismissed. An Order to this effect accompanies the publication of this decision.

DEPUTY PRESIDENT

Appearances:

A. Foale, on her own behalf and K. Tylor, for the Applicant

S. Legoe and O. Webb, for the Respondent

Hearing details:

2018.

Adelaide.

13 February.

1 Sections 382 and 383 FW Act

2 Section 384 FW Act “period of employment”

3 Section 385(c) FW Act

4 Section 385(d) FW Act

5 Directions, Deputy President Anderson 22 December 2017

6 “It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.” Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [48

7 [2017] FWCFB 3941

8 Ibid at [47]

9 Workplace Relations Act 1996 (Clth)

10 (2006) 58 AILR 100

11 Ibid at [23]

12 Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145

13 A1

14 Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

15 It is not relevant to the determination of this matter to outline those circumstances in this decision. They are referenced in the oral evidence given by Mr Grech

16 Exhibit R6

17 Exhibit R1 Statement of Matthew Grech paragraph 10

18 Ibid paragraph 11

19 Ibid paragraph 12

20 Exhibit R2 Statement of Kevin Ashenden paragraphs 34 to 37

21 Ibid paragraph 35

22 Exhibit A4

23 The “special circumstance’ referred to in CF Capital PLC v Willoughby [2011] EWCA 1115

24 Exhibit A3; Exhibit R1 Statement of Matthew Grech paragraph 16

25 Exhibit A3; Exhibit R1 Statement of Matthew Grech Attachment A

26 Australian Concise Oxford Dictionary (2nd edition)

27 Both Ms Foale and Mr Grech gave evidence that Ms Foale was looking for work in the hospitals sector. Whilst she was, that option did not materialise: Transcript 13 February 2018 12:09:55pm Ms Foale: “…In November, the start of November, at the Royal Adelaide and that was only a day of training that I did… It was one day of training… I actually gave up on that because it wasn’t my line of work”; at 2:24:58pm Mr Grech: “I was aware from previous conversations with Addy, where I’d been more involved with the hotel, that she was looking to get out of hotels anyway and that’s why she had been doing her training at the new RAH to be an administrative clerk”

28 Exhibit A3; Exhibit R1 Statement of Matthew Grech Attachment A

29 [2018] FWCFB 5 16 January 2018 at [23] – [24]

Printed by authority of the Commonwealth Government Printer

Miss Addy Foale v Davsan Pty Ltd T/A Seaton Hotel