No judgment structure available for this case.

[2015] FWC 569

FAIR WORK COMMISSION

DECISION

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

Mrs Giovanna Caso
v
Unique Triangle T/A THS Trust
(U2014/9853)

COMMISSIONER CRIBB

MELBOURNE, 22 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - dismissal at the initiative of the employer

Introduction

[1] Mrs Giovanna (Joanne) Caso (the Applicant) has made an application, under s. 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy. The application is in relation to her dismissal by Unique Triangle T/A THS Trust (the Respondent, the company).

[2] The respondent raised a jurisdictional objection, on 27 June 2014, on the basis that there was no dismissal at the initiative of employer. This was because Mrs Caso had resigned.

[3] A hearing was held on 11 November 2014 and, for efficiency purposes, it was agreed that both the jurisdictional objection and the merits of the application would be dealt with at the same time. This would obviate the need for a further hearing in the event the Commission found in the Applicant’s favour regarding the jurisdictional objection.

[4] Mr Mario Caso represented his wife, Mrs Caso (the Applicant) whilst the company was represented by Mr Ramano Andreas (Operations Manager) and Mr Fadi Abou-Zeid (Director, AAG Airport Services). They all gave evidence together with Mr Milad Zakharia, Head Chef, for the respondent.

Legislative requirements

[5] As the hearing, and therefore the decision, dealt with both the jurisdictional objection and the merits of the application, there are two sets of applicable legislative requirements.

[6] The first one is section 385 of the Act, which requires that the dismissal be at the initiative of the employer:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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.......”

[7] Secondly, in relation to whether the dismissal was harsh, unjust or unreasonable, the Commission is to be satisfied that this is the case, on the following basis:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[8] I will deal with both sets of legislative requirements together. However, findings of fact will be made in relation to the jurisdictional objection in the first instance. If necessary, the question of whether the dismissal was harsh, unjust or unreasonable will then be determined.

(a) Did Caso resign or was she dismissed and section 387(a) - was there a valid reason?

Witness evidence on behalf of the Applicant

(a) Mrs Caso

[9] It was Mrs Caso’s evidence that:

Anything to do with Tony Palladino and Tina Palladino is not relevant to this case. 1

On 2 June 2014, Mr Abou-Zeid called her over because he wanted to speak to her. He said that he was not happy with certain things she had done. He went through the different points telling her what she had done wrong. 2

Mr Abou-Zeid spoke to her about three things. The first one was in relation to Singapore Airlines and her notifying them that they could not supply them with party pies the next day as the company needed a couple of days notice. 3 She explained that the company (Bidvest) that they got their pies from had put them on stop because the account was overdue for payment but she could not say that to Singapore Airlines. So, she had made an executive decision to make up an excuse and tell them that she needed a couple of days’ notice and so could not supply them with the pies the next day.4

She had sent a text to the bookkeeper asking if she could please pay the account. 5 The bookkeeper (Cindy) was unable to pay the account until 4pm. Therefore, by the time she rang Bidvest, they said that they could not deliver the next day as the order needed to have been put in before 2pm. That is why it took three days.6 The e-mail had been sent on a Sunday (25 May 2014) by Singapore Airlines. As she does not work on the weekends, her text is therefore dated Monday 26 May 2014, which was her first day back at work after the e-mail had been sent.7

The second issue raised by Mr Abou-Zeid was her having told Singapore Airlines that there had been quite a few staff changes. Singapore Airlines had then sent her an e-mail asking for the contact details of the new staff. She sent Singapore Airlines the new contact details for accounts and sales. 8

The third reason concerned a replacement vacuum cleaner. She has been asked by a staff member for a replacement vacuum cleaner. There were a few spare vacuum cleaners in the warehouse and so she told the driver to collect a spare vacuum cleaner from there for the staff member. As she did not receive another request for a vacuum cleaner, she had presumed that the staff member had received it. However, the staff member is saying that he never received it and that she had not followed up. 9

In relation to Executive Airlines, it was recalled that they had sent her an e-mail saying that they wanted one tart for one customer. She had just made an executive decision that they needed to order a minimum of six. She made a decision that no one in their right mind is going to bake one tart and then get the driver to deliver one tart. 10 She said that Mr Abou-Zeid would be the first to complain about sending the driver all the way there for one tart.11

She stated that she had not asked Mr Abou-Zeid when she made the executive decision to tell the client that they could not order only one tart. She said that Terry’s Tortes would not supply them with just one tart. They had to be ordered in lots of six. 12

During the meeting on 2 June 2014, Mr Abou-Zeid had also said that he was not happy and that he wanted her to take a break. She knew that he would not take her back if she had a break because he had done it to quite a few other people. 13 She had responded that ‘If I take a break, you won’t be taking me back. Well, I won’t be coming back/ I probably won’t be back.’ By saying this, she meant that he would not have her back.14

She said that Mr Abou-Zeid had responded “Yes, that’s what I want. I don’t want you back.” By saying this, the company was dismissing her. 15 She said that, when she said “I won’t be coming back”, she meant that he would not take her back because that had happened to other employees before. So, she felt that it was a one-way trip out the door.16

When she left the company, on 2 June 2014, her clear understanding was that Mr Abou-Zeid did not want her back. 17 On the basis of what she had heard that he had said to others previously, she had interpreted that to mean that he did not want her to come back from the break. He had then said that he did not want her back.18 She believed that Mr Abou-Zeid had waited until the end of the month, when she had processed the end of month invoices, before sacking her.19

It was also stated that there was no written warning and that she did not see it coming at all. 20

As the chef generally works until 12 noon/1pm, by the time most of the complaints come in, the chef has already gone for the day and so most of the decisions are left for her. Mr Andreas had only been with the company for a few months and a lot of the customers did not know who he was. She stated that clients felt comfortable with her because she had been there for so long and they would send most of their e-mails and all of their complaints through to her. A lot of times they would contact the chef because they were not happy with certain foods. 21

Every decision that she has made she has made for the company because the company is very close to her heart. She also said that she was very passionate about the company. 22

The following day after the meeting, she got a call from a colleague at work, to tell her that there was already a new receptionist at the front desk. Therefore, it seemed that everything was all planned. 23

In terms of the allegation that she had walked out before, she said that she had not walked out but that she went home sick and came back the next day. 24

With regard to the incident report in the respondent’s paperwork, she had never seen it before. She noted that it was not signed and not dated. She does not know where it has come from. Although the company is trying to say that they wrote it up before she was dismissed, she had never seen it before. 25

(b) Mr Caso

[10] It was Mr Caso’s evidence that:

Mr Abou-Zeid had told him many times that Mrs Caso was making the wrong decisions. 26

He had also told Mr Abou-Zeid many times that Mrs Caso was passionate about his company because she had been in that position for about 15 years. Customers were said to be comfortable with Mrs Caso which he was told when he was doing deliveries. It was the frontline staff who were contacting Mrs Caso, not the directors. They were also contacting her because they received prompt responses from her. 27

Mrs Caso had not left the business. Rather, she had gone home because she had been upset for some reason or felt sick. He would ring her, in front of Mr Abou-Zeid, to find out what was going on. She would say that she had just gone home with a headache and would be back in the morning. Never once did he hear Mrs Caso or Mr Abou-Zeid say that she had resigned. Mrs Caso had never resigned, she would be back the next day. 28

Submissions on behalf of the applicant

[11] Mr Caso submitted, on behalf of Mrs Caso, that the conversation that was had with Mr Abou-Zeid, on the afternoon of 2 June 2014, was her being terminated. This was on the basis that, when Mrs Caso said to Mr Abou-Zeid “If you ask me to take a break, then you won’t take me back”, Mr Abou-Zeid had responded “That’s exactly what I want.” 29 It was said by Mr Caso that, if that isn’t a sacking, he did not know what it is.30

[12] It was said that there is no reason for Mrs Caso to have lied and that, if Mrs Caso had left of her own accord, she would not be doing any of this. It was stated that Mrs Caso never handed in her resignation even in the two instances when she had left work upset. She always came back the next day. Mr Caso recalled that he would have a conversation with Mrs Caso during the day from the office to find out what had happened but that, at no time, did Mrs Caso resign from the company. 31

[13] Mrs Caso was said to have done her job to the best of her ability and in the way she had been doing it for 15 years. It was argued that she did her job with the best interests of the business at heart and as far as she was aware, she was doing what the company was expecting her to do. There is no way that she would have resigned because she really loved working for the company. 32

[14] It was said that Mrs Caso tried to stay out of office politics and just do her job. That is what she meant when she said “I’m sick of this. I’m sick of this.” It was the office politics that she was sick of, not her job.

[15] With respect to the offer of their positions back, Mr Caso indicated that the only reason they cannot go back to those positions is that they do not have trust any more. 33

[16] The reasons given by Mr Abou-Zeid, for Mrs Caso’s dismissal, were the pies, the vacuum cleaner and giving the contacts to Singapore Airlines. These were said not to be a valid reason for Mrs Caso’s dismissal. This is because Mrs Caso made the decision in the best interests of the business. Secondly, she gave the vacuum cleaner to the driver to deliver and thirdly, she sent off the contacts to the front desk because she knew how important it was to the airlines to know who to contact in the company. 34

Witness evidence on behalf of the respondent

(a) Mr Abou-Zeid

[17] Mr Abou-Zeid gave unsworn evidence that Mrs Caso told Singapore Airlines about the changes to the structure of the company and to the staff in an e-mail. 35

[18] Sworn evidence was given by Mr Abou-Zeid that:

On Monday 2 June 2014, all he did was call Mrs Caso to come across the road when she had finished work and ask her why she had made her own decisions. 36 He said that it was not a formal conversation and that they were sitting having coffee because they are family. If it wasn’t for them, he would not stay in the business. He bought the business because he knew that Mrs Caso would be helping him and that her brother would be helping him.37 He had called Mrs Caso to talk to her about what had happened. The company had lost business and he did not want to lose any more. He was told that Singapore Airlines had ordered stuff but the company did not deliver it and the same with Executive Airlines. That’s why he decided to talk to Mrs Caso.38

He asked Mrs Caso why she had said what she did to Singapore Airlines and Executive Airlines and whether she had asked him. She did not have an answer and she then stood up and left. 39

Mrs Caso did not handle being asked about what had happened with Singapore Airlines and Executive Airlines. She did not handle the conversation well. She decided to leave and said to him “Stuff you and stuff your company and I’m leaving”. On the way, she said “I go and will take my husband with me”. He replied “No, nothing to do with Mario. If you want to go, you can go.” She went. 40 In the afternoon, he received a message from Mr Caso to say that he would drop the key for him.41

His only problem with Mrs Caso was that she made decisions without asking him. She is a good worker, a very hard worker who comes in on time and does not take sick leave. He does not know why she makes her own decisions. Maybe it was because they started the business and they have a different view. He always talked to her and told her not to do that before she ran it past him. 42

He denied saying to Mrs Caso that he wanted her to have a break or that he did not want her to come back. He said how could he give Mrs Caso a break if he does not have an admin person to replace her, as Kathy had left. 43 He also said that he had also had another two employees resign for personal reasons - 3 in total.44

In the past, Mrs Caso has previously walked out from work and gone home. When she was contacted later, she had claimed that she was unwell. She had returned to work the following day or so. 45

He did not sack her. 46 He swore on the Bible and on his mother’s grave that he had never sacked Mrs Caso, that he would never sack her.47 Mr and Mrs Caso were more than welcome to come back to work as they are honest people, good people.48

Mrs Caso had ordered a pallet of chemicals and he did not know why she had ordered a pallet. 49

In relation to Singapore Airlines and the pies, he preferred that his staff ask him what to do. 50 He said that having put his house on the mortgage and buying the business, he expects to be asked. He had told Mrs Caso this every day. He said that he needed to know all about what was happening.51 He said that Mr Caso knows that Mrs Caso never listens to Mr Abou-Zeid. She makes her own decisions.52

In his witness statement, 53 Mr Abou-Zeid stated that he had purchased the company from Mrs Caso’s brother about three years ago.54 He also listed two incidents, involving Mrs Caso, which had resulted in a loss of sales revenue.55

He confirmed the summary of the situation by the Commission - that Mrs Caso has been part of the business for a very long time and that it was sold a couple of years ago to Mr Abou-Zeid. The complaint that Mr Abou-Zeid was seeking to discuss with Mrs Caso on 2 June 2014 was requiring her to do things in a different way because he, as the owner of the business, was wanting to run it in a different way internally to the way that it had been run previously. 56 Mrs Caso is highly respected by the company based on her continuity, corporate knowledge, experience and commitment. What Mr Abou-Zeid wanted Mrs Caso to do differently was to talk to him and to not make decisions on the basis of her prior experience and knowledge.57

(b) Mr Zakharia

[19] Mr Zakharia gave evidence as follows:

the issue concerning the prawn and coconut milk curry goes back two years and so is not relevant to this case. Following an investigation, it was found that Mrs Caso had initiated and ordered the removal of prawns and that she had done this without consulting or notifying himself or management. 58

In relation to the incident regarding the one tart, the order was not only for one tart but also for sandwiches and juice. The company had launched a new catalogue which has a picture of friands and the client chose from that. Because they were in the catalogue, he is responsible to provide them. However, Mrs Caso had told the client that the company could not supply one tart. 59

He thinks that his problem with Mrs Caso is personal - from the first day that he stepped into the company. She was always putting him down. As every kitchen is different, it is obvious that he will make a mistake. However, he tried to work hard and to fix his mistakes but he started to get the blame from Mrs Caso about pies and quiches. 60

Mrs Caso was said to have discussed him in e-mails or phone calls with clients saying that he was the new chef and that he had limited knowledge. Mrs Caso would also march into the kitchen and confront him regarding who had allowed him to play Lebanese music. She said that it is not allowed in case a customer comes into the kitchen. 61

In his written statement, he said that, since he began working with the company, he has found it extremely difficult to work harmoniously with Mrs Caso. 62

In relation to the sushi order, he explained that he had left at12.30pm with the order due at 1pm. He was telephoned to tell him that he had forgotten to do this order (which he had) and he said to buy the sushi and deliver it. He explained that he works seven days a week and that he is a very busy guy. 63 It was recalled that he ordered the sushi in the morning and it should have come around 10am. However, it did not come by the end of his shift and he left.64

He confirmed that he had crossed paths with Mr Caso after he had left the kitchen and told him to tell someone to buy the sushi. 65

He did not think Mrs Caso and Tina had stayed back to prepare the sushi because the order was for 1pm and Mrs Caso finishes at 3:30pm/4pm. 66

He thinks that Mrs Caso has a passion for the company but that, if you have a problem, next time, tell him. 67

(c) Mr Andreas

[20] Mr Andreas gave unsworn evidence that:

the majority of clients do know who he is because he had gone and met them in person. The only ones who would not know him properly would probably be the reception staff at Singapore Airlines. However, the actual clients with the private jets at Essendon Fields and Singapore Airlines and Malaysia Airlines, they do know who he is. 68 He has the same contact number that was previously Mrs Caso’s brother’s, which had been the number for the company for a long time, so they knew who to contact if there were any complaints.69

He was copied into the e-mail that Mrs Caso received about the one tart. It was recalled that he was coming out of the airport at the time and was in the process of letting the client know that he would get back to them to see if this could be done. However, Mrs Caso had already made the decision and overruled what he was going to tell the client. This resulted in a miscommunication between himself, Mrs Caso and the client. The issue was said to be, and it is not about whether it is one tart or six tarts, it is the service that we give to our clients. If the company does not provide the service, the clients will look elsewhere. He stated that, when he spoke to the client, she had said that it was all okay but she did sound upset at the same time. He thought that this was because, any time she had asked for sandwiches at the last minute, he had always attended to the request and made sure that it was met. 70

It was agreed that the clients were comfortable with Mrs Caso because she had been in the business for a long time. However, the company was trying to explain to Mrs Caso that that does not give her the right to make decisions without first seeking advice from the Operations Manager or the Director. 71 He recalled that Mrs Caso had told him that the chef was not a qualified chef in her eyes and that she wanted to get the tarts from an outside supplier rather than the chef making them himself.72

He challenged a text message from Mrs Caso to Cindy, on 26 May 2014, 73 on the basis that it did not relate to the pies. He said that the e-mail was received from Singapore Airlines regarding the pies on 25 May 2014 but that the text message is dated 26 May 2014.74

He walked in at the end of the meeting between Mr Abou-Zeid and Mrs Caso but he did not hear anything. Mrs Caso was really angry with Mr Abou-Zeid and, when he arrived, she had started abusing him because he had asked her a few questions. 75

[21] Sworn evidence was given as follows:

In relation to Singapore Airlines and the delayed pie deliveries, the client was clearly really frustrated and really angry as can be seen from their e-mail. 76 He said that, as a result of Mrs Caso making an executive decision, he was the one who had to comfort the client and that the client they’re talking about is Singapore Airlines which is a really crucial client. Because of the close relationship between this particular client and Mr Abou-Zeid, the client was understanding about what had happened.77

Mrs Caso should not have told Singapore Airlines that the pies were not available for three days. Also, he said that it had taken her 3 hours to send the text to the bookkeeper about paying the account. 78 What Mrs Caso should have done was go and talk to him about the situation and he would have found a solution. 79

He said that the airlines have zero tolerance and that, if the company does not step up to the plate and deliver to them on time, they are quite happy to give the company the flick and get someone else. 80

Mr and Mrs Caso were said to have been saying the whole time that management needed to be more hands-on and that was why Mr Abou-Zeid had employed him. It is therefore his role to take care of things like what happened with Singapore Airlines. 81

He was not aware that the account with the pie company was on hold. However, there were other ways to deal with the situation e.g. call the bank and transfer the money or source the pies from another supplier. 82

In terms of the delivery of one tart incident, he said that he had been copied into one of the e-mails from Executive Airlines. He recalled that he had replied to Executive Airlines saying that he would speak to the Head Chef and see if this request could be accommodated for tomorrow. As Mrs Caso had been copied in, she had clearly seen that he had stepped in and was speaking directly to the client. However, 5 minutes later, he saw another e-mail from the client saying that they would outsource it as it was just for one passenger. 83

Therefore, Mrs Caso had made the decision to go back to the client and say that the client had to order six tarts. This was said to be in the context of an order for sandwiches and wraps for a VIP customer. He said that Mrs Caso could have opened the door and asked the Head Chef if he could make this tart. The reason she did not do this was said to be because she does not consider Mr Zakharia to be a qualified chef. He stated that the company is a manufacturing company which makes everything in-house but, if they want to outsource things, they can do that. However, he asked who gives the authorisation to outsource? 84

If all of these types of issues keep building up and he has to tell the client every time that it was a miscommunication, it is going to look funny. 85

When he was being interviewed for the position in the company, Mrs Caso had been part of the second interview with Mr Abou-Zeid. He said that Mr Abou-Zeid treated Mrs Caso like family. However, he had had to sit down with Mr Abou-Zeid and ask him what his role was if Mrs Caso was making all these decisions. Mr Abou-Zeid was not aware that Mrs Caso was making decisions in relation to clients. Mr Abou-Zeid told him that he would talk to Mrs Caso about it. 86 It would have been a good idea if he had been at the meeting but he was busy at the time.87 When he had asked Mr Abou-Zeid if he wanted him to attend the meeting, he had said no, that it was Mrs Caso and he knew how to talk to her. Mr Abou-Zeid had said that he and Mrs Caso would sit down and have a chat.88

He was not present when Mr Abou-Zeid spoke with Mrs Caso but he was just parking his car when Mrs Caso left the meeting. He recalled that she was really angry and that she was swearing. He later received a text from Mrs Caso calling him a ‘snake in the grass’. He stated that he was the one who told Mr Abou-Zeid as Mr Abou-Zeid trusts him to do his job as Operations Manager. 89

The second secretary/admin person was already coming in as a second bookkeeper as the current bookkeeper came in only on Tuesday and Friday. The company thought that they needed a back-up bookkeeper. When Mrs Caso left the day before, they had no choice but to put her into Mrs Caso’s position. 90

In relation to an invoice from a recruitment agency, it was denied that it was for a receptionist. Rather, it was for a supervisor/lounge attendant as this ad, and the ad for his position, were the only ads placed on seek.com by the company. 91

It was his view that Mrs Caso should not have let Singapore Airlines know the company structure. 92

Submissions on behalf of the respondent

[22] On behalf of the company, Mr Andreas submitted that there was no dismissal. Mr Abou-Zeid had called Mrs Caso in, just to have a discussion about her making decisions. He stated that, the week before, when Mr Abou-Zeid was talking to Mrs Caso about another issue where another employee had blamed Mrs Caso for something, she had said to Mr Abou-Zeid that she was sick and tired of the place. When Mr Abou-Zeid was talking to Mrs Caso on 2 June 2014, she had said “Stuff you and this place.” It was argued that the two incidents matched up and so he did not believe that there had been an unfair dismissal. 93

[23] It was contended that, if Mr Abou-Zeid had wanted to dismiss Mrs Caso, he would have had his Operations Manager with him and also Mr Caso at the meeting. It would not have been a friendly chat during which he would have said to Mrs Caso “You’ve got to ease off.” 94 Mr Abou-Zeid stated that he had not wanted Mrs Caso to leave and that there was a job for both of them at the Victoria Hotel.95

[24] Hypothetically, if there had been a dismissal at the initiative of the employer, it was submitted that there were valid reasons for Mrs Caso’s dismissal. 96

(b) Was Mrs Caso notified of the reason? - s387(b)?

[25] It was common ground that Mrs Caso was notified of the reasons during the meeting on 2 June 2014. 97

(c) Whether Mrs Caso was given an opportunity to respond - s387 (c)

[26] Mr Caso submitted that Mrs Caso was not given an opportunity to respond during the meeting nor subsequently, as there was no further meeting. 98

[27] On the other hand, the respondent argued that Mrs Caso had an opportunity to respond during the meeting. 99

(d) Refusal to have a support person? - s387(d)

[28] As Mrs Caso did not expect to be having that kind of meeting, it was stated that she did not ask for any support. Otherwise, she would have asked for support and it would have been himself 100(Mr Caso).

[29] The respondent said that there was no request for a support person by Mrs Caso as it was not meant to be a sacking meeting. 101

(e) Warned about the unsatisfactory performance? - s387(e)

[30] It was common ground that there had been no formal verbal warnings and neither any written warnings. 102 However, the company argued that Mr Abou-Zeid had continually asked Mrs Caso not to make her own decisions but to ask himself or Mr Andreas.103

(f) Impact of the size of the business on procedures/absence of dedicated HR - s387(f) and (g)

[31] Mr Caso contended that the front reception desk was an important position and so Mrs Caso’s absence would definitely have had an impact. 104 It was also stated that, if there had been a proper HR set up, something could have been done.105

[32] For the respondent’s part, it was contended that the absence of a dedicated HR function did not have any impact. 106

(g) Any other matters? - s387(h)

[33] Mrs Caso’s length of service in the business was sought to be taken into account 107by the applicant.

Considerations and Conclusions

[34] As indicated earlier, the first issue to be decided is whether or not there was a dismissal at the initiative of the employer, as required by section 385 (a) of the Act.

[35] Determining whether Mrs Caso was dismissed by Mr Abou-Zeid, or whether Mrs Caso resigned during the meeting on 2 June 2014, has been very difficult to decide. On the one hand, Mrs Caso's evidence was that Mr Abou-Zeid told her to take a break. She had responded that, if she took a break, she would probably not be back (meaning that Mr Abou-Zeid would not have her back as he had done to other employees). Mr Abou-Zeid had replied that that was what he wanted, he did not want her back.

[36] On the other hand, it was Mr Abou-Zeid's evidence that Mrs Caso had become upset during the meeting and had told him "Stuff you and stuff your company. I'm leaving". Mrs Caso had also said that she would take her husband with her. Mr Abou-Zeid had responded by saying that it had nothing to do with Mr Caso and that, if she wanted to go, she could go.

[37] In situations where there is a conflict in the evidence between two parties, about what was said during a meeting, where they were the only participants, it is often helpful to refer to contemporaneous evidence from others. In this case, such evidence is available from Mr Caso and Mr Andreas.

[38] Mr Caso did not give any oral evidence about what Mrs Caso said to him when she got home after the meeting. In his witness statement 108, he said that, when Mrs Caso got home, he noticed that she was very distraught, angry and confused. When she had explained what had happened, he had called Mr Abou-Zeid and he had resigned.109

[39] Mr Andreas’ evidence was that he was just parking his car when Mrs Caso left the meeting. He said that Mrs Caso was really angry with Mr Abou-Zeid and that she was saying the "f" words.

[40] On the basis of the material before me, it is common ground between the parties that:

Mr Abou-Zeid spoke with Mrs Caso about three issues during the meeting on 2 June 2014.

Mrs Caso became angry and upset during the meeting.

Previously, on at least one occasion, Mrs Caso had left work upset, during working hours. Following a telephone call from Mr Caso, in front of Mr Abou-Zeid, Mrs Caso had advised that she had gone home sick. She had returned to work the next day.

Mrs Caso's brother had sold the business to Mr Abou-Zeid. Mrs Caso had worked continuously in business for 15+ years.

Mrs Caso is highly respected within the company based on her continuity, corporate knowledge, experience and commitment.

[41] It also appears from the evidence that:

Mrs Caso had continued to make "executive" decisions as she had done under the previous owner.

Mr Abou-Zeid and Mr Andreas were not happy about Mrs Caso doing this. It is more than likely that Mr Abou-Zeid had previously asked Mrs Caso to discuss matters with either of them or the Head Chef before taking any action.

From Mr Abou-Zeid's perspective, the purpose of the meeting, on 2 June 2014, was to talk to Mrs Caso about the three incidents where she had made decisions that he believed should have been discussed with management before she had taken any action.

It is most likely that the new employee, who commenced with the company the day after the meeting, had been arranged to provide additional bookkeeping expertise. However, with Mrs Caso's departure, it was necessary for the new employee to perform the receptionist/admin role (Mrs Caso’s previous position).

[42] Having very carefully considered all of the evidence before me, on fine balance, I find that it is most probable that Mr Abou-Zeid did not dismiss Mrs Caso during the meeting on 2 June 2014. Mr Caso's evidence did not indicate that Mrs Caso had told him that Mr Abou-Zeid had sacked her. Rather, his statement said that Mrs Caso was "very distraught, angry and confused." 110 Mr Andreas's evidence was that Mrs Caso was very angry at Mr Abou-Zeid and that she was saying the "f" words. This broadly correlates with Mr Abou-Zeid's evidence that Mrs Caso told him that he and his company could get stuffed. Further, Mr Abou-Zeid's evidence was also that Mrs Caso would take her husband with her. This is what did happen.

[43] It is suspected that what may have happened was that the meeting became very heated and intense on the part of both parties. Mr Abou-Zeid was most likely frustrated about Mrs Caso continuing, in his view, to overstep the mark by making her own decisions without consulting management. For Mrs Caso, what Mr Abou-Zeid was saying to her would likely have been very upsetting and difficult for her to hear as she was being told to change the way in which she had operated for more than 15 years, in a business she was passionate about.

[44] It is also suspected that, when Mrs Caso left the meeting, neither party was really sure about where things had ended up. However, whatever Mrs Caso had thought, it would have been impacted by the news the following morning from one of her colleagues that she had allegedly been replaced.

[45] Therefore, on fine balance, it is not possible to find that Mr Abou-Zeid dismissed Mrs Caso during the meeting on 2 June 2014. This is because, on fine balance, I find that it is most probable that Mrs Caso, in the heat of the moment, told Mr Abou-Zeid what he could do with his business. By doing that, Mrs Caso effectively resigned.

[46] As the ending of Mrs Caso’s employment with the company was not at the initiative of the employer, the Commission does not have jurisdiction to further deal with the application.

[47] The application is therefore dismissed. An order to this effect will be issued separately.

Appearances:

Mr M Caso, for Ms G Caso

Mr R Andreas, for Mr F Abou-Zeid, Unique Triangle T/A THS Trust

Hearing details:

2014

Melbourne

11 October

1 Transcript PN 41

2 Ibid PN 41 and 83 and Exhibit A1 at page 1

3 Ibid PN 76 and Exhibit A1 at page 1

4 Ibid PN 47 and 119 - 121

5 Exhibit A3

6 Transcript PN 47 and 118 - 121 and 277 and Exhibit A1 at page 1

7 Ibid PN 162 - 163 and 207

8 Ibid PN 121 - 123 and 265 - 268 and Exhibit A1 at page 2

9 Exhibit A1 at page 2

10 Transcript PN 49

11 Ibid PN 279

12 Ibid 280 and 284

13 Ibid PN 41,76 and 108

14 Ibid PN 41 and 70 - 76 and 110

15 Ibid PN 76, 78 and 110

16 Ibid PN 79 - 82 and 41

17 Ibid PN 86 - 89

18 Ibid PN 109 - 110

19 Exhibit A1 at page 2

20 Transcript PN 41 and 70

21 Ibid PN 49 and 246 and Exhibit A1 at page 2

22 Ibid PN 121

23 Ibid PN 70 and 112 - 113 and Exhibit A1 at page 2

24 Ibid PN 47

25 Ibid PN 49

26 Ibid PN 336

27 Ibid

28 Ibid PN 382

29 Ibid PN 760 and 764

30 Ibid PN 822

31 Ibid PN 760 - 764

32 Ibid PN 765 - 766

33 Ibid PN 767

34 Ibid PN 828 - 838

35 Ibid PN 258 - 259

36 Ibid PN 297, 299 and 301

37 Ibid PN 506 - 509

38 Ibid PN 445 and 446 - 447

39 Ibid PN 449

40 Ibid PN 445 and 450 and Exhibit R1 at pages 1 and 2

41 Ibid PN 445 and Exhibit R2 at page 2

42 Ibid PN 445 and 464

43 Ibid PN 513

44 Exhibit R2 at page 2

45 Exhibit R1 at page 1

46 Transcript PN 307 and Exhibit R2 at page 2

47 Ibid PN 459 and 462

48 Ibid PN 463 - 464

49 Ibid PN 461

50 Ibid PN 468 - 472 and 487- 488

51 Ibid PN 488 and 491 - 495

52 Ibid PN 496

53 Exhibit R1

54 Exhibit R1 at page 1

55 Ibid

56 Transcript PN 716 – 718

57 Ibid PN 719 -720 and 728 - 733

58 Ibid PN 520 and Exhibit R2 at page 1

59 Ibid 527

60 Ibid and Exhibit R2 at page 1

61 Exhibit R2 at page 1

62 Exhibit R1 at page 1

63 Transcript PN 527 and 565-567

64 Ibid 575

65 Ibid PN 544 - 548

66 Ibid PN 554 - 563

67 Ibid 564

68 Ibid 50

69 Ibid 51

70 Ibid 52

71 Ibid 53

72 Ibid 54

73 Exhibit A2

74 Transcript 127 - 212

75 Ibid PN 450 - 456

76 Exhibit R4 and transcript PN 611

77 Transcript PN 611

78 Ibid PN 697-699 and 704

79 Ibid 705

80 Ibid PN 611 and 689 and 701

81 Ibid PN 611

82 Ibid PN 613

83 Ibid PN 616

84 Ibid

85 Ibid PN 617

86 Ibid PN 638 and 652

87 Ibid PN 657 and 659

88 Ibid PN 658

89 Ibid PN 638

90 Ibid PN 645 - 647

91 Ibid PN 661 - 678

92 Ibid PN 692 - 693

93 Ibid PN 789

94 Ibid PN 790

95 Ibid PN 804

96 Ibid PN 932 - 946

97 Ibid PN 839 - 841 and 932 - 946

98 Ibid PN 843 - 851

99 Ibid PN 953 - 956

100 Ibid PN 852 - 856

101 Ibid PN 957 - 958

102 Ibid PN 856 - 865

103 Ibid PN 929 - 931 and 960

104 Ibid PN 866 - 873

105 Ibid PN 874 - 877

106 Ibid PN 961 - 968

107 Ibid PN 878 - 885

108 Exhibit A3

109 Ibid

110 Ibid

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Citations

Mrs Giovanna Caso v Unique Triangle T/A THS Trust [2015] FWC 569

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