Miss Marie Caltabiano v CA Bound & HL Bound & BA Reynolds T/A E'Nuf Burger Bar

[2016] FWC 9201

[2016] FWC 9201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Marie Caltabiano
v
CA Bound & HL Bound & BA Reynolds T/A E’Nuf Burger Bar (U2016/11908)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 DECEMBER 2016

Application for relief from unfair dismissal – dismissal not at the initiative of the employer.

[1] On 28 September 2016, Ms Caltabiano lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act). In that application she contended that her employment with Enuf Burger Bar T/A Enuf Burger Bar Glenelg had been unfairly terminated on 25 September 2016.

[2] The employer’s response to the application (the Form F3) advised that the correct name of the respondent is CA Bound & HL Bound & BA Reynolds T/A E’Nuf Burger Bar. I have utilised the discretion in s.586 of the FW Act to amend the application accordingly and have referred to the respondent as E’Nuf.

[3] The Form F3 asserted that Ms Caltabiano was not dismissed and attached what appeared to be an internet posting from Ms Caltabiano dated 25 September 2016. This advised that she had resigned and that the next week would be her last week.

[4] The application was the subject of a directions conference on 25 October 2016. It was listed for determination of any initial or jurisdictional objections to the application on 22 November 2016. The directions specified my requirements with respect to representation and required the provision of witness statements and any document relied upon to be filed by E’Nuf by 14 November 2016, and by Ms Caltabiano, by 18 November 2016.

[5] I was subsequently advised that Ms Caltabiano was to be represented by her union, the Shop, Distributive and Allied Employees Association (the SDA). E’Nuf objected to that representation. Consistent with my directions of 25 October 2016, I issued a decision 1 on 15 November 2016 in which I upheld Ms Caltabiano’s right to be represented by her union.

[6] E’Nuf did not comply with the requirement to provide its materials by 14 November 2016. The SDA lodged an application for directions on procedure and the matter was listed for further directions on 18 November 2016. E’Nuf did not participate in that conference. I cancelled the listing for 22 November 2016. Revised directions were issued, advising that the matter would be the subject of a determinative conference on 8 December 2016 which would provide the opportunity for submissions and evidence on any initial issues as well as the merits of the application. The parties were required to provide an outline of their respective submissions, a witness statement for any witness to be called and a copy of any document upon which they relied, by 1 December 2016. My directions stated:

“[8] The parties are advised that my conclusions about this matter will be reached on the basis of the information which is provided to me. A failure to provide information consistent with these directions, or to participate in the determinative conference on 8 December 2016, may consequently result in an adverse finding. Any enquiries with respect to these directions should be addressed to my office on tel: [phone] or email: [email protected]”

[7] E’Nuf did not comply with these directions. Material, consistent with the directions was received from Ms Caltabiano. On 5 December 2016, the SDA lodged a further application for directions on procedure in which it sought to restrict E’Nuf from presenting evidence at the determinative conference on 8 December 2016. On that same day, I advised that this application would be considered at the determinative conference on 8 December 2016.

[8] In the determinative conference on 8 December 2016, Mr Cagney of the SDA represented Ms Caltabiano. Mr Dawson appeared for E’Nuf and advised that he sought to give evidence to confirm that E’Nuf had not terminated Ms Caltabiano’s employment. Mr Dawson advised that he had not complied with my directions because of a personal crisis in his life.

[9] Notwithstanding the application for directions on procedure, I permitted Mr Dawson to give evidence on the basis that, at the conclusion of that evidence the matter was adjourned for a time to allow Ms Caltabiano and her representative the opportunity to review that evidence. Additionally, both parties were given time to provide any further written submissions. I have received submissions on behalf of Ms Caltabiano, and have taken these into account.

[10] The background to the matter is relatively straightforward. Ms Caltabiano worked for E’Nuf as a regular casual employee from December 2014. She was generally rostered for 15 to 18 hours work per week and her roster generally included weekend days. There was some variability of weekday working arrangements. Ms Caltabiano was injured at work on 6 September 2016. It is not clear that she lost any work time as a consequence of that injury but it did require medical treatment. Ms Caltabiano ultimately made a workers compensation claim but was, for some time, concerned that E’Nuf had not met its undertakings to cover her medical costs. Additionally, from late August 2016, Ms Caltabiano had concerns over receipt of her pay and the provision of pay advices. That matter was ultimately not resolved until 27 September 2016, after Ms Caltabiano posted a criticism of the E’Nuf pay arrangements on a dedicated internal E’Nuf staff Facebook page.

[11] Ms Caltabiano’s primary position is that she was dismissed by Mr Dawson, presumably on 27 September 2016. She asserts that she advised Mr Dawson on 25 September 2016 that she was thinking of resigning at the end of the week. Alternatively, Ms Caltabiano asserts that her removal from her remaining rostered shifts on 27 September 2016 constituted termination of her employment. She asserts this termination was unfair and seeks compensation based on lost income.

[12] The E’Nuf position is straightforward, in that it asserts that Ms Caltabiano was not dismissed at the initiative of the employer.

[13] Mr Dawson’s evidence was that he was the manager of E’Nuf, and that, on 24 September 2016, he telephoned Ms Caltabiano to ask her to commence work early. In the course of that discussion he asserts that Ms Caltabiano said that she wished to resign. Mr Dawson’s evidence was that he clarified that she agreed to finish her shift roster, which concluded on Sunday 1 October 2016, subject to his normal arrangement that he would generally allocate shifts to new employees rather than resigning employees. Mr Dawson’s evidence was that Ms Caltabiano did not give a reason for her explanation and that she worked on 24 and 25 September 2016. Mr Dawson advised that he had limited involvement in the management of a workers compensation claim made by Ms Caltabiano and limited involvement in relation to concerns she had about her pay arrangements. He understood those issues had been resolved. On 27 September 2016, Mr Dawson was made aware of a Facebook post made by Ms Caltabiano and telephoned her to ask her to remove that information post because he considered it to be inaccurate in terms of its reference to allegations of harassment and discrimination. In the course of that telephone discussion, Mr Dawson advised Ms Caltabiano that she was not required to work for the remainder of her rostered shifts.

[14] Ms Caltabiano’s evidence went to her employment history with E’Nuf. She detailed the circumstances under which she had burned her leg on 6 September 2016 and the actions taken to remedy that burn and ultimately claim workers compensation. In this respect her evidence went to concerns about the safety practices at E’Nuf and the extent to which she was properly recompensed for medical bills. Ms Caltabiano’s evidence went to her concerns about not being paid properly from 31 August 2016 and not being provided with pay slips from that time. She took those matters up with Mr Dawson but, until she posted a broad criticism of the E’Nuf management practices on a dedicated Facebook page on 27 September 2016, these matters were not properly addressed.

[15] Ms Caltabiano’s evidence was that, in a telephone discussion with Mr Dawson on 25 September 2016 she advised him that she was unhappy about the management of her workers compensation claim, her pay from 31 August 2016 and the lack of payslips and wanted to meet with him about those issues. When Mr Dawson did not agree to meet with her, she advised that she was thinking of resigning and confirmed that this would probably be in the following week. In a second telephone discussion with Mr Dawson, Ms Caltabiano agreed that she would work that night. She subsequently advised a fellow worker, Mr O’Connor, that:

“I have resigned from enuf next week is my last week. I was planning to tell u before ben, but ben just rang me”

[16] Ms Caltabiano’s evidence was that she worked on 24 and 25 September 2016 but that, following a post she put on the dedicated E’Nuf staff Facebook page on 27 September 2016, Mr Dawson telephoned her and advised her that she was “undeserving of my shifts and to not return to the store”. 2

[17] Ms Caltabiano advised that she had intended to remain an employee of E’Nuf until the beginning of 2018.

Findings

[18] It is appropriate that I note that, in the course of the determinative conference on 8 December 2016, Mr Dawson confirmed that E’Nuf was not disputing the extent to which Ms Caltabiano was a person protected from unfair dismissal. Further, that issues of redundancy and the Small Business Fair Dismissal Code did not arise in this matter.

[19] The only initial or jurisdictional issue to be determined goes to whether the termination of Ms Caltabiano’s employment met the definition of dismissed in s.386 of the FW Act. This section states:

“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.

(2)  However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i) to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[20] Fundamental to this matter is the issue of whether Ms Caltabiano’s employment was terminated on the employer’s initiative or whether her resignation was an action which she was forced to take because of the conduct or course of conduct engaged in by E’Nuf.

[21] Consideration of the extent to which the termination of Ms Caltabiano’s employment was at the initiative of E’Nuf is assisted by a recent decision of the Full Court of the Federal Court of Australia, Mahony v White [2016] FCAFC 160. In that matter the Court stated:

“19. The concept of the termination of employment having been at the “initiative” of the employer has its genesis in the Convention Concerning Termination of Employment at the Initiative of the Employer adopted by the International Labour Organisation (“the Convention”) on 22 June 1982. Legislative effect was given to that Convention when the Industrial Relations Act 1988 (Cth) (“the IR Act”) was amended by the Industrial Relations Reform Act 1993 (Cth). The Convention then became Sched 10 to the IR Act. Articles 3 and 4 of the Convention provided as follows:

Article 3
For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer.

Article 4
The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

It will be noted that Art 4 was expressed in the passive voice. Absent the terms of Art 3, Art 4 would have applied to termination by either party in the employment relationship. But, as the title of the Convention made clear, that was not the intent. The Convention applied only to a termination at the employer’s initiative, that is to say, to a termination which, in Anglo-Australian systems of law, would be described as a dismissal.

20. In the provisions of the IR Act which implemented the Convention, the passive voice was not used. In every case, a direct legislative prohibition, enforceable by court proceedings, was established by use of the formula, “an employer must not terminate an employee’s employment” (see ss 170DB, 170DC, 170DE, 170DF and 170DG). Nonetheless, it was provided by s 170CB that an expression in the relevant Division of Pt VIA of the IR Act had the same meaning as in the Convention.

21. It was in this state of the law that the Full Court of the Industrial Relations Court of Australia decided Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. There the question was whether the termination of the employment of the employee concerned had been at the initiative of the employer. The employee had signed a letter of resignation, but that had been done in circumstances where he had been given a choice by his employer either to resign or to have the police called in to investigate what, according to the employer, was the theft of an item of stock. The Full Court held that the employee’s resignation had been at the initiative of the employer and had, therefore, been a termination within the meaning of the Convention and the legislation. The effect of this judgment was that, notwithstanding the use of the active voice in the legislation, a termination that had not been done by the employer might nonetheless have been, and in that case it had been, done at the initiative of the employer and thus covered by the statutory prohibitions.

22. The Full Court said (62 IR at 205):

These definitions reflect the ordinary meaning of the word “initiative”. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

And (62 IR at 205-206):

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

23. Although their Honours were concerned, as they had to be, with meanings conveyed by the terms of the Convention, the formula “at the initiative of the employer” has been retained in the FW Act (albeit not in that precise grammatical arrangement). This judgment remains good authority as to the connotation of that formula.”

[22] In applying this approach, I have initially considered the extent to which Ms Caltabiano resigned on either 24 or 25 September 2016. Notwithstanding vagueness about dates in Mr Dawson’s evidence, I have concluded that she resigned her employment of her own volition on 24 or, more likely, 25 September 2016 and that this did not reflect an action which was at the initiative of the employer. In reaching this conclusion, I am not satisfied that the concerns that Ms Caltabiano had about recognition of her WorkCover claim, her pay arrangements for a pay period from 31 August 2016, her receipt of payslips or a one-off refusal by Mr Dawson to agree to meet with her on 25 September 2016, can be regarded as a course of conduct which results directly or consequentially in the termination of her employment.

[23] Further, the message which Ms Caltabiano sent to her fellow worker, Mr O’Connor on 25 September 2016, confirms that she had resigned and that she had planned to do so. That message was sent shortly after 10:00AM on 25 September 2016, such that I consider that it is most likely that she advised Mr Dawson of that resignation on 25 September 2016. No other credible explanation for the text of 25 September 2016 is before me. Additionally, there is little difference between the evidence about the extent to which Ms Caltabiano was prepared to work her rostered shifts for the next week. I think those discussions are consistent with a resignation circumstance. Whilst Mr Dawson thought this occurred on 24 September 2016, I think the discussion was most likely on the following day. In any event, I consider that it matters little about whether that resignation was advised to Mr Dawson on 24 or 25 September 2016. I have concluded that there can be no reasonable doubt that Ms Caltabiano resigned and her evidence that she simply referred to an intention to resign cannot be reconciled with the message of 25 September 2016. Ms Caltabiano’s own evidence establishes that she had become disillusioned with E’Nuf. To the extent that Ms Caltabiano concluded that E’Nuf was poorly managed, that was her prerogative, but the evidence indicates that it was her choice to decide to resign. An employee’s disillusionment with an employer ought not to be equated with actions that directly or consequentially leave that employee with no option other than to resign.

[24] Consequently, I am not satisfied that Ms Caltabiano was dismissed on either 24 or 25 September 2016. Notwithstanding this conclusion, consideration of whether there was a subsequent dismissal at the initiative of the employer requires some further analysis. It is well established that, if an employee is dismissed during a period of notice, that dismissal is at the initiative of the employer. 3 Consequently, I have considered the extent to which Mr Dawson’s advice to Ms Caltabiano on 27 September 2016, when he asked her to take down a Facebook post which he saw as accusing him, or E’Nuf of harassment and discrimination, and advised her that she was not required to work any further shifts, represented an employment termination. The evidence indicates that Ms Caltabiano had been rostered for between four and six additional shifts after 26 September 2016.4

[25] Notwithstanding that she worked on a roster, Ms Caltabiano was engaged as a casual employee. Mr Dawson’s evidence 5 was that rostering plans changed in the course of a week depending on, amongst other things, the weather. Mr Dawson advised that it was normal for between three and four shifts to be cancelled each week. As a casual employee, Ms Caltabiano was engaged on an hourly hire basis. I have concluded that both she and E’Nuf had the capacity to either agree, or revoke their agreement, to offer work on that casual basis. That pattern of cancellation of shifts to suit particular circumstances must be seen in the context that Mr Dawson’s evidence was that, after Ms Caltabiano resigned, he discussed with her the normal arrangement whereby shifts would be allocated to other, continuing casual employees, but established that she was prepared to work her rostered shifts. Consequently, whilst Ms Caltabiano was told not to come in for the remainder of her shifts after 27 September 2016, I am unable to conclude that this represents an employment termination at the initiative of the employer because of the uncertainty attaching to those shift job offers.

[26] It follows that the termination of Ms Caltabiano’s employment was not at the initiative of the employer. Consequently, I am not satisfied that the termination of her employment can be described as a dismissal for the purposes of s.386 of the FW Act. The application must be dismissed on this basis. An Order (PR588918) to this effect will be issued.

Appearances:

B Cagney of the Shop, Distributive and Allied Employees Association for the Applicant.

B Dawson for the Respondent.

Hearing details:

2016.

Adelaide:

8 December.

 1   Caltabiano v Enuf Burger Bar T/A Enuf Burgar Bar Glenelg[2016] FWC 8196

 2   Exhibit A2 pn159

 3   See for example, Brunner v Amalgamated Marketing Pty Ltd T/A Radio Stations 4AK 4WK[2015] FWC 7837

 4   Transcript 8 December 2016 10.24am and 9.59am

 5   Transcript 8 December 2016 11.29am

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588917>