Miss Meklit Kibret v Stanbuli Pty Ltd

[2020] FWC 363

[2020] FWC 363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Meklit Kibret
v
Stanbuli Pty Ltd
(U2019/8580)

DEPUTY PRESIDENT CROSS SYDNEY, 23 JANUARY 2020

Application for an unfair dismissal remedy - jurisdictional objection upheld - Applicant not dismissed.

[1] An application was filed on 4 August 2019 by Ms Meklit Kibret (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant seeks an unfair dismissal remedy following her alleged dismissal on 18 July 2019.

[2] The Applicant commenced employment with the Respondent on 21 July 2017. She worked on average between approximately three and ten hours per week. In the six months prior to the cessation of her employment, the Applicant had earned $2,558.47 gross from her employment with the Respondent.

[3] In the Form F3 Employer Response document filed by the Respondent, the jurisdictional objection was taken that the Applicant was not dismissed. The Application was listed for conciliation, but did not settle at that conciliation. The matter was then allocated to my Chambers for hearing and determination (the Hearing). The parties agreed the jurisdictional objection would be determined by a Determinative Conference.

[4] The following materials were filed and relied upon by the parties:

(a) The Applicant filed and relied upon:

(i) A Statement in the form of a letter to the Fair Work Commission (the Commission), dated 15 September 2019;

(ii) An undated Statement of the Applicant;

(iii) A Submission, which attached a screenshot from a mobile phone from 2.39pm on 18 July, 2019; and

(iv) A further screenshot from a mobile phone from 3.56pm on 18 July 2019.

(b) The Respondent filed and relied upon:

(i) An undated Statement of Phillip Drakopolous;

(ii) An undated Statement of Ibrahim Kasif;

(iii) An undated Statement of Rachael Doyle annexing various payroll records; and

(iv) An Outline of Argument.

[5] The matter was then listed for hearing by Determinative Conference on 12 December 2019, in Sydney.

The Written Evidence

[6] The relevant evidence relating to the jurisdictional issue for determination was limited primarily to the events of the evening of 13 July 2019, and also referred to 18 and 23 July 2019.

(a) 13 July 2019

[7] The Applicant’s evidence from her undated Statement was as follows:

“On the night of Saturday 13 July 2019, I was working in the upstairs section of the restaurant. The restaurant was busier than we expected. In the briefing before service, we were told that table 54 wasn’t re-booked.

Customers sitting at Table 54 were still finishing up their meal when Phil, who was working in the downstairs section, but would float around as the manager, came upstairs.

Phil was upset that table 54 had not been given their bill yet as he wanted the table back for the next sitting which had not been communicated to me up to that point.

His tone became aggressive as he told me that he had told us in the briefing that we should treat this service like every other Saturday night and we should be turning tables over as such.

I told Phil there was no need to get angry, his response was to grab onto my arm and say threateningly ‘if you’re going to give me attitude, you can go home.’

I felt upset and intimidated and said calmly ‘if you’d like to send me home, ok’. All of this happened on the floor in front of restaurant guests and a colleague of mine who was near the till at the time.

Phil then sent me to the office and followed me where he raised his voice and said words I cannot recall exactly as I was in a too an upset state to pay attention to what he was saying. I said nothing in response. Phil then left storming out, switching the light off and slamming the door, all whilst I was still in the office.

I turned the light back on, got changed out of my uniform and left without a word.”

[8] Mr Drakopoulos’s evidence was as follows:

“1. During staff briefing prior to service on Saturday 13th July 2019, staff were advised that we had a busy night ahead and that we would require all tables in the upstairs sitting for both seating times of 6pm and 8.45pm. It was important to stay with our sequence of service and hit our timings for having orders into the kitchen for both mains and desserts. All tables had to be billed by 8.30pm This was standard operating procedure for the restaurant on a Friday and Saturday night and all staff have been trained in this.

2. Throughout service, I came upstairs on several occasions and re-iterated to the applicant that we required all the tables back for our second seating. I was beginning to get concerned because she was not progressing all of her tables in a timely manner.

3. At approximately 8.15pm I questioned Meklit as to why she had not called away desserts on a particular table. I gave her the direction to call away desserts and present the bill to the table.

4. Meklit was defiant and refused to follow my direction and spoke with attitude to me.

5. The applicant walked away from me while I was talking to her. I put my hand on her shoulder and asked her to speak with me in the office.

6. The applicant and I had a conversation in the office, which at times was heated on both sides. I tried to explain the importance of following procedure without attitude during service and she still refused to follow the procedure. I said to her that if she doesn’t want to follow the procedures of the restaurant she could leave. She said she would leave and that she didn’t want to work with me.

7. I left the office and through habit turned out the light, which I realised as I closed the door. I reopened the door, apologized for turning out the light, and turned it back on.”

(b) 18 July 2019

[9] The relevance of 18 July 2019 was that on that date, Mr Drakopoulos sent a text message to the Applicant which stated:

“Hi Meklit!

Look I’ve been wanting to talk to you about last Saturday but didn’t know when to call you.

Basically I’ve taken you off the roster. I do love having you here and it’s been great, although it is hard with availabilities. I would rather not have run ins like last week again. I don’t want any bad blood between us, and you are more than welcome at Stanbuli anytime. Also wouldn’t mind having a beer with you sometime outside of work. Hope you’re having a good week and have a good weekend!”

[10] The Applicant’s evidence from her undated Statement regarding that text message was as follows:

“When I checked my roster a couple of days later and even well into the following week after 13 July 2019, I was still rostered to work on the following Friday, 19 July 2019. I was expecting to go back to work on my next roster when I received an SMS from Phil in the afternoon of Thursday 18 July 2019.

The SMS from Phil told me that I was taken off the roster. It was basically a termination notice. A copy or screenshot of the SMS is attached to the document list attached to this statement.”

[11] Mr Drakopoulos’s evidence regarding his text message was as follows:

“On Thursday 18th July, I text Meklit, summarising the conversation we had in the office. Stating that I had taken her off the roster. I made mention that I did not want to continue to have run ins with her anymore and that she was welcome back at Stanbuli any time. I offered to have a drink with her outside of work.”

[12] Only Mr Kasif, the co-owner and chef of the Respondent addressed the events of 23 July 2019 in his written evidence. He stated:

“When Meklit and I met on 23rd July 2019 she explained why she walked out. She also told me she didn’t want to and wouldn’t work with Phil again and that after their latest miscommunication she no longer wanted to work for me whilst he was working there.”

Evidence in the Determinative Conference

[13] As occurs in determinative conferences, the written evidence was refined and supplemented by enquiries of the parties, particularly enquiries directed at what words were actually used by the parties.

[14] The Applicant asserted in the Hearing that Mr Drakopoulos only asked her once to present the bill to the particular table of patrons the subject of the dispute, being table 54. She stated 1:

“So he was quite agitated. He then held my arm and said to me, ‘If you want, if you’re going to give me attitude, you can go home.’ I said, ‘If you want to send me home, okay, I’ll go’, because it’s not the first time where he’s been like this.”

Subsequently, in response to Mr Drakopoulos’s evidence of having to approach her three times, Ms Kibret’s evidence was 2:

“Yes, so the reason I had been taken aback by Phil approaching me on the 13th was because that was the first time, he had come to me and said, ‘You need to drop the bill on this table.’ There was not three times, that was the first time and the first time was aggressive.”

[15] Mr Drakopoulos, however, stated that he made three requests, all of which were refused. His evidence in the Hearing was as follows 3:

“My recollection is in the moment I was giving a direction multiple times for the same table. There had been no improvement. The situation wasn’t really fixing itself. I asked her repeatedly to do - to offer a bill to a table, which had already run behind because she hadn’t called away another course for them. By this point we had people waiting downstairs. It was a stressful environment as any Saturday night in a restaurant and what I said to her was, ‘Look, I need you to do this. If you’re not going to follow this direction, you can go home’, to which she said, ‘Fine, I’ll go.’ She walked away. I had to react to the situation so I followed to actually follow up on that conversation in the office.

My words in the moment - I can’t remember exactly word for word. It was along the lines of, ‘Look, I’m just trying to give you direction to be able to do my job so you can do yours. If you don’t want to follow direction, you’re more than welcome to go home. It’s up to you.’”

In further clarification, his evidence was: 4

“The initial direction was after finding out that the table’s desserts hadn’t been called away, it was already close to the vacate time for the table. I said, “Yes.” We couldn’t cancel the desserts. I said, “Yes, send the desserts and place the bill on the table.” The next time I checked on the table there was no bill there. I asked her to drop the bill again. On the third time when checking as I was seating other tables - I was a little bit tied up with other duties - I asked her again, to which it hadn’t happened, I noticed it hadn’t happened.  I gave her the direction - not the direction, the option - to either follow direction or go home, to which she chose to go home.”

[16] Mr Drakopoulos also observed, quite pertinently I consider, that it was certainly not in the Respondent’s interests at all to send the Applicant home during a busy service. He stated 5:

“I would just like to add, it would be very uncharacteristic and not very smart to actually send someone home at the busiest point in the night. It’s not something that I was actually intending to do. I gave her the option. She took the option to leave. At that point I was under the assumption that she was leaving.”

[17] One further curious passage of evidence was the Applicant claiming that the text message of 2.39pm on 18 July 2019, was far more upsetting than the verbal altercation with Mr Drakopoulos on 13 July 2019 6.

Consideration

[18] It is necessary in determining the jurisdictional objection that I make findings of fact as to what occurred. That will necessarily involve me deciding whose version of the events of 13 July 2019, I prefer.

[19] Having observed the demeanour of both the Applicant and Mr Drakopoulos in the proceedings, I prefer the evidence of Mr Drakopoulos where there is conflict. I so find for the following reasons:

(a) The Applicant appeared to “tailor” her evidence towards satisfying various jurisdictional hurdles, rather than stating what actually occurred. An example was the assertion that the text message of from 2.39pm on 18 July 2019, was far more upsetting than the verbal altercation with Mr Drakopoulos on 13 July 2019 7. I do not accept that assertion and consider that it was advanced because the Applicant knows that if the cessation of employment occurred on 13 July 2019, that she will face the further jurisdictional hurdle of being out of time in her Application (s.394(2)). I note that a similar, unacceptable, assertion was contained in the Statement in the form of a letter to the Commission dated 15 September 2019, where the Applicant stated:

“During the 13 July 2019 encounter with my manager, neither I nor my manager said words which could be reasonably interpreted as my manager wishing to dismiss me or me expressing intention to resign.”

(b) The Applicant’s version of events, involving one refusal of a direction followed by the direction to go home leaving the Respondent short staffed during a very busy service period is so unlikely to be fanciful.

[20] I make the following findings of fact:

(a) 13 July 2019, was a busy night at the Respondent. The Respondent sought to have two “sittings” at each table;

(b) At approximately 8.15pm, Mr Drakopoulos questioned the Applicant as to why she had not called away desserts on table 54. He gave the Applicant the direction to call away desserts and present the bill to the table (the First Direction).

(c) Shortly after the First Direction Mr Drakopoulos checked table 54 and the bill had not been presented, He asked the Applicant to present the bill to the table again (the Second Direction).

(d) Approximately five minutes after the Second Direction Mr Drakopoulos asked the Applicant whether she had presented the bill to table 54. She said she had not. Mr Drakopoulos then said to the Applicant “Look, I’m just trying to give you direction to be able to do my job so you can do yours. If you don’t want to follow direction, you’re more than welcome to go home. It’s up to you.” (the Third Direction). The Applicant responded, “Fine, I’ll go.”

(e) The Applicant refused to follow the Third Direction and verbally challenged Mr Drakopoulos. The Applicant walked away from Mr Drakopoulos, so he put his hand on her shoulder and asked to speak with her in the office.

(f) The Applicant and Mr Drakopoulos had a conversation in the office, which at times was heated on both sides. Mr Drakopoulos tried to explain the importance of following procedure during service and the Applicant continued to refuse to follow the procedure. Mr Drakopoulos said to the Applicant “If you don’t want to follow the procedures of the restaurant you can go home”. The Applicant said, “I’m leaving”.

[21] In Bupa Aged Care Australia Pty Ltd v Tavassoli (“Bupa v Tavassoli”) 8, a Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably 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.”

[22] I do not consider that the Applicant has satisfied either limb of s.386(1) of the Act. While it would appear that the Applicant’s claim would seem to fall within the class of cases involving resignation in the heat of the moment, there are two reasons against a finding of such a dismissal. Firstly, the Applicant was not in a state of emotional stress or mental confusion. She quite deliberately refused to comply with the First Direction, the Second Direction and the Third Direction. Upon refusing to comply with the Third Direction and being told “If you don’t want to follow direction, you’re more than welcome to go home. It’s up to you” she responded, “Fine, I’ll go.”

[23] The second reason to reject any suggestion of resignation in the heat of the moment is that the Applicant has specifically put as part of her case that on 13 July 2019, “…neither I nor my manager said words which could be reasonably interpreted as my manager wishing to dismiss me or me expressing intention to resign.” While I have characterised that assertion above as unacceptable, it is nonetheless a basis upon which the Applicant advances her case.

[24] I also find that there was no conduct, or course of conduct, engaged in by the Respondent with the intention of bringing the employment of the Applicant to an end. Quite to the contrary, all Mr Drakopoulos was seeking was for the Applicant to follow his directions, being the First Direction, the Second Direction and the Third Direction, during a busy period of service on a Saturday night.

[25] The Applicant’s decision to walk away mid service, thereby leaving the Respondent short staffed, was certainly not sought by the Respondent. It had a serious effect on the Respondent’s operations that evening, also resulting in Mr Drakopoulos assuming table service duties. The Applicant was not dismissed pursuant to s.385(a) and s. 386(1), and so her Application should be dismissed.

[26] Had I found that the Applicant had been dismissed, I would have considered that there existed strong grounds for the Respondent to argue that there was a valid reason for such dismissal. As Deputy President Sams observed in Charles Borg v NSW Greyhound Breeders, Owners & Trainers’ Association  9:

“It has been a long held industrial principle that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. Obviously, the two key tests which arise from time to time is whether the instruction or direction is both lawful and reasonable. Often the test of ‘reasonableness’ is not so easily determined, as minds may differ as to what is reasonable, given a particular set of circumstances.”

And 10:

“Lest there be any doubt, I am well satisfied that Mr Wright’s directions to the applicant were both lawful and reasonable. The applicant’s failure to obey his directions constituted a repudiation of the employment contract which satisfied the test of the employer having a valid reason for his dismissal.”

[27] The First Direction, the Second Direction and the Third Direction were each lawful, reasonable, and quite frankly unremarkable instructions to the Applicant. Her refusal to obey any of them would, had I not have found that she had not been dismissed, have constituted strong grounds for the Respondent to argue that there was a repudiation of the employment contract which satisfied the test of the employer having a valid reason for her dismissal.

CONCLUSION

[28] The Applicant was not dismissed pursuant to s.385(a) of the Act. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared on her own behalf

Mr Drakopoulos appeared on the Respondent’s behalf

Hearing details:

Sydney

2019

December 12

Printed by authority of the Commonwealth Government Printer

<PR716130>

 1   PN 106 and PN 107.

 2   PN 233.

 3   PN 119 and PN 120.

 4   PN 225.

 5   PN 261.

 6   PN 151 to PN 154

 7   PN 151 to PN 154.

 8 (2017) 271 IR 245; [2017] FWCFB 3941, at [47].

 9   [2012] FWA 10013, at [50].

 10 At paragraph [53].