Miss Krystal Li v Minto Pty Ltd
[2023] FWC 1045
•4 MAY 2023
| [2023] FWC 1045 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Miss Krystal Li
v
Minto Pty Ltd
(C2023/773)
| COMMISSIONER PLATT | ADELAIDE, 4 MAY 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed - Applicant not dismissed - jurisdictional objection upheld - application dismissed.
On 14 February 2023, Miss Krystal Li (the Applicant) lodged a general protections application against Minto Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 24 January 2023, she was dismissed in contravention of the general protections provisions of the Act.
On 14 March 2023, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Miss Li had not been dismissed. The Respondent contended that Miss Li remains employed but was presently incapacitated due to a non-work-related injury and is unable to perform her role. The Respondent contended Miss Li will be offered work when she is fit to return.
On 16 March 2023, the parties participated in a conciliation conference conducted by one of the Commission’s staff conciliators. The matter did not resolve.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
Law
Section 365 of the Act 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 associated 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.”
Section 386 of the Act provides the meaning of dismissed:
“386 Meaning of dismissed
(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.”
On 3 April 2023, a directions conference was conducted by telephone. Directions were issued for the filing of material in respect of the jurisdictional objection, and a hearing was scheduled for 28 April 2023.
The Hearing
The Hearing was conducted, by videoconference, on 28 April 2023, commencing at 11:00am. Miss Li represented herself, and the Respondent was represented by Ms Jasmine Scali (Office Manager). Due to the parties being unrepresented and having little knowledge of the Commission’s practice or procedure, the hearing was conducted by way of a Determinative Conference.
A digital court book was compiled from the material that was filed by both parties and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission). I note that the Respondent’s submissions contained a significant amount of evidence but did not identify the author of the submissions. I note that some of Ms Scali’s statements contained a large amount of hearsay.
Statements were received from Miss Li, Ms Jasmine Scali (Office Manager), Arti Manandhar (Office Supervisor) and Mr Yu Ya Shou (Duty Manager). All witnesses gave evidence and were examined.
Evidence
An analysis of the evidence reveals the following:
· Minto Pty Ltd operates a retail Grocery Store selling fruit, vegetables and groceries.
· Miss Li was engaged in April 2021 as a packer. Her duties primarily consisted of standing and packing bulk groceries into smaller retail parcels in the rear of the store, putting them in a shopping trolley and then pushing the trolley up to 20 metres to the front of the store, and placing the goods on retail display. Miss Li worked about 10 hours per day with a break for lunch.
· On 9 November 2022, Miss Li was injured on the way to work. Her foot was run over by a vehicle as she crossed a pedestrian crossing. Miss Li’s injuries were significant and resulted in her not being able to walk and stand for a lengthy period.
· On 28 November 2022, Miss Li was provided with a Certificate from Dr Lam. The Certificate stated that Miss Li had restricted capacity in the period to 4 December 2022. The restrictions were to not stand for longer than 30 minutes per occasion and for no more than 3 hours in a day. I accept that these restrictions prevented Miss Li from performing the inherent requirements of her role.
· A further Certificate was issued by Dr Lam for the period of 4 January 2023 to 10 January 2023 which stated that Miss Li could not stand for more than 2 hours with no daily limit.
· On 6 January 2023, Miss Li advised that she could work 3 or 4 days per week. The Respondent requested a medical certificate which advised that Miss Li was fit to work.
· On 24 January 2023, Dr Lam certified that between 25 January 2023 and 31 January 2023 Miss Li could stand ‘as tolerated’.
· On 24 January 2023, Miss Li met with Ms Scali. Ms Scali observed that Miss Li’s foot was in plaster and that she walked with the aid of a walking stick and with considerable difficulty. Miss Li accepts that she was taking twice as long to move as she would have taken prior to the accident.
During the Hearing, Miss Li advised that she still does not have full capacity to work with a limit of about 5 hours work per day. Miss Li accepted that her injuries continue to prevent her from meeting the inherent requirements of her role.
Ms Scali is the most senior employee at the Grocery Store. Miss Li contends that Mr Shou advised her on 24 January 2023 that if she could not fix a date for her return within two weeks she would be regarded as having resigned. Mr Shou denies making this statement. Ms Scali advised that whilst Mr Shou was responsible for supervising work, he did not have the power to hire and/or fire. I am unable to determine, on the balance of probabilities, what was said between Miss Li and Mr Shou on 24 January 2023. I am not satisfied that Mr Shou dismissed Miss Li on this occasion.
Miss Li does not dispute that Ms Scali told her on 15 February 2023 (the day after the application was lodged) that she had not been dismissed.
Ms Scali reiterated at the Hearing that when Miss Li is able to work and is capable of performing the requirements of her role, she will be able to resume employment, even if the hours were reduced to 5 hours per day. I accept this evidence.
Conclusion
One of the fundamental principles of the employment relationship is the work/wages bargain. An employer pays an employee wages in exchange for work performed. The work/wages bargain assumes that the employee is ready, willing and able to perform the work requested of them. This assumption is challenged when an employee is unable to perform the required work because of some limitation. In this case, Miss Li’s physical capacity has and continues to inhibit her from performing the inherent requirements of her role, including standing and/or pushing a trolley.
Decision
I am unable to find that Miss Li has been dismissed. It appears to me that the reason for her not being offered work is due to the limitations on her physical capacity, a situation that Miss Li accepts still remains.
As I am unable to conclude that Miss Li was dismissed from her employment by the Respondent, as such, this s.365 application must be dismissed.
COMMISSIONER
Appearances:
K Li the Applicant.
J Scali for the Respondent.
Hearing details:
2023.
Adelaide (by videoconference).
28 April.
[1] [2020] FCAFC 152.
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