Miss Trevlyn Brock v Rave Australia Pty Limited T/A Mish Mash
[2012] FWA 6473
•31 JULY 2012
[2012] FWA 6473 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Trevlyn Brock
v
Rave Australia Pty Limited T/A Mish Mash
(U2012/6010)
COMMISSIONER BULL | SYDNEY, 31 JULY 2012 |
Application for unfair dismissal - alleged constructive dismissal - application dismissed.
[1] This matter is an application made by Miss Trevlyn Brock (the Applicant) alleging that her previous employer, Rave T/A Mish Mash forced her to resign from her employment in circumstances which were unfair. The employer opposes the application and advises that the employer’s correct name is Rave Australia Pty Limited T/A Mish Mash (the Respondent). Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer of the Applicant is correctly identified.
[2] The application was filed in Fair Work Australia (FWA) on 9 March 2012. No employer response was filed.
[3] Despite two separate listings, no telephone conciliation was undertaken due to the unavailability of both parties.
[4] Directions were issued by FWA concerning a requirement for both parties to file an outline of submissions and any witness statements. The Applicant was granted an extension of time to comply. The Respondent failed to comply with the Directions.
[5] The matter was listed for arbitration and was heard on 5 and 30 July 2012. Miss Brock represented herself and gave evidence. The Respondent was represented by Mr Atasever, the Respondent’s Operations Manager, who also gave evidence. Neither party called witnesses to support their arguments.
[6] Miss Brock alleged that she was forced to resign from her employment on 1 March 2012 due to the conduct of the Respondent and in particular Mr Atasever. While the submission was not couched in the terms of a constructive dismissal, this was in essence the nub of the Applicant’s complaint.
[7] Section 382 of the Act provides that a person is protected from unfair dismissal if at the time of the dismissal the person (being an employee) has completed a minimum employment period. Section 383 of the Act states that unless the employer is a small business employee the minimum employment period is 6 months.
[8] The evidence was that Miss Brock commenced as a casual sales assistant on 8 August 2011 at the Penrith Mish Mash clothing store and resigned as a casual on 1 March 2012. Both parties agree that this was the case. I am satisfied that the Applicant was engaged on a regular and systematic basis as per the Court of Appeal decision in Yaraka Holdings Pty Ltd v Giljevic (2006) 1.
Applicant’s Submissions
[9] Miss Brock alleges that on a number of occasions during her employment she was threatened with dismissal. These incidents resulted from various circumstances including a:
- request from Mr Atasever to contribute $150 to the store phone bill;
- request from the area manager to work on her day off; and
- requirement to make up a short fall in the cash register.
[10] Miss Brock stated that she was bullied by being yelled at and threatened, not allowed to take breaks and not paid overtime at Christmas, to the extent that she “couldn’t handle it any more”. Miss Brock gave evidence that as a result of her work environment she attended a general practitioner who prescribed anti-depressants.
[11] Miss Brock also advised that she had approached her area manager around Christmas 2011 advising that another employer had offered her a wage rise and if the Respondent could not match it she would have to resign. Mr Atasever increased her hourly rate and the Applicant remained in her position.
[12] The Applicant did not dispute having sent a text message to her employer advising that she had obtained another job.
Respondent’s Submissions
[13] Mr Atasever gave evidence that the Applicant resigned of her own volition by way of a text message to the area manager because she had secured other employment. He denied the conduct alleged by the Applicant to have been engaged in by the Respondent.
[14] The Applicant sent a text message to the area manager which stated:
“Hi Julie I’m sorry to tell you but this will be my last shift at Mish Mash tonight as I have been offered to start my new job tomorrow. Thanks for everything, Trevlyn.”
[15] Following receipt of this text message the Applicant was not rostered to work any further shifts for the Respondent.
[16] Mr Atasever stated that as a sales assistant the Applicant’s position was sales orientated and required to generate sales as is the norm in the fashion industry. When the Applicant was given a pay increase she was required to improve her sales performance. She was warned about her sales performance and the stores excessive phone usage. Mr Atasever’s evidence was that the Applicant was “changing rosters for herself, calling other staff members in on their days off because she could leave earlier and do things ... which was starting to cause friction with other staff.”
Conclusion
Meaning of Dismissed
[17] Section 394 of the Act provides that a person who has been dismissed may apply to FWA for an order granting a remedy. Section 386 provides the statutory meaning of dismissed:
386 (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.
(My underline)
Resignation due to Conduct of the Employer
[18] In this case the Applicant must first demonstrate that her resignation resulted from the conduct of her employer. Whether a termination of employment was due to the employer requires an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation by the Applicant was the probable result or that the Applicant had no effective or real choice but to resign.
[19] There is no shortage of case law dealing with the situation advanced by the Applicant that she had no choice but to resign from her employment; that is, her employer engaged in conduct that resulted in her being forced to submit her resignation.
[20] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (1996) 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. 2
[21] The Full Bench in P. O’Meara and Stanley Works Pty Ltd (2006) a decade later stated at [23]:
In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 3
(My underline)
[22] In this case the Applicant, a casual employee, presented the Respondent with a text message that stated that she was working her last shift and that she had obtained alternative employment. The Respondent accepted this communication and took the necessary actions based on the Applicant no longer wishing to work for the Respondent.
[23] In a number of aspects the evidence of the Applicant and the Respondent were in direct contradiction. This is particularly the case with respect to the Applicant’s allegations concerning the regular threats of dismissal from her employer. The Applicant bears the onus to prove her case on the balance of probabilities. There were no witnesses to corroborate either version of the facts and I am unable to accept one version over the other.
[24] No doubt the Applicant was not happy in her work environment and thus sought employment elsewhere. The Respondent through Mr Atasever freely admitted there were occasions where the Applicant was asked to improve her sales performance and was given the option to move to another store.
[25] Accepting that the Respondent’s conduct towards the Applicant was not that of a model employer, I am still unable to conclude on the evidence before the Tribunal that the Respondent’s intention was either to bring the employment relationship to an end or to have the probable result of bringing the employment relationship to an end. While I am sure the conduct of the Respondent motivated the Applicant to accept employment elsewhere, it falls short of the required test to be met as elicited from the above authorities.
[26] In view of this conclusion the application must be dismissed for lack of jurisdiction as no dismissal, either at the initiative of the Respondent or through a resignation forced on the Applicant because of conduct or a course of conduct engaged in by the Respondent, has been demonstrated to have occurred.
[27] An Order (PR527326) dismissing the application is issued in conjunction with this decision.
COMMISSIONER
Appearances:
T Brock on her own behalf.
A Atasever on behalf of Rave Australia Pty Limited T/A Mish Mash
Hearing details:
2012.
Sydney.
5 July.
30 July.
1 ACTCA 6, per Crispin P, Gray and Madgwick JJ.
2 AIRC Print N6999.
3 AIRC PR973462.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR527325>
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