Mrs Hebah Charrouf v Mascari Group Pty Limited
[2023] FWC 2131
•24 AUGUST 2023
| [2023] FWC 2131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Hebah Charrouf
v
Mascari Group Pty Limited
(C2023/3690)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 24 AUGUST 2023 |
Application to deal with contraventions involving dismissal – Whether employ dismissed within the meaning of s.365(a)
Ms. Hebah Charrouf (the Applicant) has applied under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute relating to her alleged dismissal by Mascari Group Pty Ltd trading as Little Superstars Learning Centre (the Respondent). The Applicant claims that the alleged dismissal was in contravention of Part 3-1, General Protections, of the FW Act. The Respondent has submitted that the Applicant was not dismissed.[1]
Section 365 of the FW 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 association 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.
In order for the Commission to be able to deal with the dispute under s.368 of the FW Act it must determine that the Applicant has been dismissed within the meaning of s.365.[2] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal, the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[3]
For the reasons which follow I have concluded that the Applicant was dismissed within the meaning of s.365.
Background and Evidence
The Applicant was employed as a childcare educator at the Respondent’s child-care centre in Croydon Park in Sydney. She commenced her employment there on or about 28 March 2023. She generally worked Monday to Thursday. The Applicant alleges that her employment was terminated by the Respondent on 16 June 2023. The Respondent maintains that the Applicant was not dismissed on that day. The Respondent says that prior to 16 June 2023 the Applicant had indicated that she was only willing and able to work shifts between the hours of 8.30am to 2pm whereas the Respondent’s business requirements meant that they could only accommodate shifts that went from 8.30am to 4pm. They say that the Applicant’s inability or unwillingness to work the Respondent’s required shifts meant that they were unable to roster the Applicant for work after 16 June 2023.
The events pre-dating 16 June 2023 can be briefly summarised. Many of the facts were not in issue and most of the key interactions were the subject of email or text message exchanges which were tendered as evidence in the proceeding.
On 25 May 2023, some two months after the Applicant had commenced employment with the Respondent, the Applicant sent an email to the Respondent asking if she would be able to work 8.30am until 2pm shifts from Tuesday to Friday commencing the week beginning 5 June 2023. The Applicant said the request to reduce hours to provide an earlier finishing time was necessary because of her own childcare responsibilities. Ms. Fanous, a director of the Respondent, replied by text message as follows:
Hey Hebah, I got your email. Just got out of theatre…should be fine to leave at 2pm if I can sort with other staff. Will you be able to stay back if we have staff sick or on annual leave?[4]
The Applicant replied:
Thank you. If you desperately need a staff to stay I will, but I do prefer to try and get Jad, the earlier the better.
Ms Fanous replied:
Yeh all good. It would only be in emergency situations.
Following that exchange the Applicant was rostered to work on shifts finishing at 2pm. The Applicant worked the following 2 weeks finishing at 2pm. On the morning of Friday 9 June, the Applicant received a call from her son’s school to say that her son was ill. She spoke to Ms. Fanous who organised another staff member to cover for the Applicant and she left to collect her son.
On Monday 12 June the Applicant fell ill. She sent a message to Ms. Fanous advising her on the same day. Ms. Fanous replied:
Hi Hebah, What’s wrong? It seems to be a weekly occurrence which is a little disappointing.
The Applicant did not respond directly but provided the Respondent with a medical certificate saying she was not fit for work for the remainder of the week.[5]
On Wednesday 14 June Ms. Fanous sent a further text message:
Hi, Could you please confirm if you can work the following shifts next week?
Tues 8.30-2
Wed 9-3
Thurs 9-2
Fri 8.30-ratio (probably 4pm)
The Applicant responded shortly thereafter:
Hi Christine,
Not sure if you recall, back on the 26th may we agreed that I decrease my hours and work 8.30-2 which was in the best interests of my children. Since then I have removed Jad from after school care leaving me no other option for pick up. Therefore, like previously mentioned, I can only work until 2pm.
The Respondent replied shortly thereafter:
Please call me
The Applicant responded:
Sorry Christine, I am unable to talk. Please message me and I will get back to you as soon as I can.
Ms. Fanous replied:
I’m not corresponding over text. Please call me.
On Thursday 15 June the following email exchanges occurred:
Ms Fanous to Ms. Charouff:
Hi Hebah,
In light of our texting conversation yesterday and my unreturned phone calls and requests to have a telephone discussion regarding your hours going ahead , please give me a call today by 3pm on…… to discuss.
You mentioned your request on 26 May 2023. As you are aware I underwent a complicated and risky open heart surgery on that date.
Thank you.
Ms Charouff to Ms. Fanous:
HI Christine,
I am unable to talk over the phone due to being extremely unwell. Could you please put in writing whatever you need to discuss with me via email or text so that I can get back to you as soon as possible.
Thank you.Ms Fanous to Ms. Charouff:
I need to get next week’s roster out today. If you are extremely unwell I won’t roster you on next week until you are well enough to talk. Please call me when you are feeling better and can chat.
Ms Charouff to Ms. Fanous:
Hi Christine,
I will re-attach my medical certificate for your reference again, as it states I only require 13-16 June 2023 off.
I’m not sure what is so important that you need to call me when I am on sick leave, though I already told you I can only work T-F 8:30-2pm.
If you want to chat with me, this will either need to be done through email if urgent, or during work hours when I am back at work.I will be available to go back to work on Tuesday, 20th June 2023, if you want me back?
We can also discuss why you deactivated my educator log in, parent log in and my daughters account on Kinderm8 without any notice.
Please let me know what you decide.
Ms Fanous to Ms. Charouff:
Hi Hebah,
Unfortunately 8:30am-2pm doesn’t work with our business needs as we do not have staff to cover you in the afternoon. As previously requested, I would like to have a telephone conversation to discuss our options going forward. I am trying to work with you to accommodate your requests however cannot help you if you are unwilling to work with me. Please let me know what you would like to do?
Ms Charouff to Ms. Fanous:
Hi Christine,
I have in black and white confirmation from yourself agreeing for me to work 8:30-2pm.
I did mention that I could help out on the off occasion but since then unfortunately my circumstances have changed in which Jad no longer attends after school care.
Like I mentioned previously, I do not have any other alternatives for school pick up.
You are now saying this doesn’t work with staff.. unfortunately this is not my problem as I do not handle hiring of staff.
I am more than happy to take these matters further, if you continue to deny me of my rights to have flexible work arrangements considering I have 2 kids under the age of 12.
Once again, I will not be contacting you via telephone. I will be returning to work on Tuesday 20th June at 8:30am unless you advise me otherwise.
Ms Fanous to Ms. Charouff:
Hebah,
You have to understand that we are a small business and we have lost a number of enrolments in the last number of weeks. Accommodating your flexible work arrangements requested on 26th May 2023 ie. Further reducing your hours from 8:30am-4pm to 8:30am-2pm isn’t feasible to our small business, as it means I need a staff member to commence at 2pm to relieve you which I have tried to accommodate my best over the past few weeks, however is unsustainable, impractical and unfeasible going forward. It also means our efficiency, level of customer service, and productivity are impacted due to the lack of educator continuity and routine maintenance after 2pm. There is an national educator shortage as you are aware and employing someone to only cover 2pm-4pm is unrealistic.
I have tried to contact you on numerous occasions to advise this, however you are not answering my calls and are refusing to negotiate or communicate verbally with me to come to an mutual agreement. I cannot help you if you do not want engage in a friendly, respectable, mutually agreeable negotiation.
You did contact me on the 26th of May 2023 to request your hours change request. As previously mentioned, I was in ICU and was undergoing major heart surgery on that day. I replied to you that day (after just leaving the theatre) and stated I would try to accommodate this request but needed a little flexibility if staffing was an issue to accommodate this request. You agreed to be flexible however when I contacted you with next week’s hours (with one 3pm and one ratio finish), you refused to co-operate.
I am happy to roster you on between 9:30-4:00pm ongoing however I cannot roster you on between the hours of 9:30am-2:00pm anymore.
I am asking you to work with me to help you as I have always bent over backwards for yourself. When I employed you on 28th March 2023, our original agreed work hours were 8:30am-4:30pm, which I reduced to 8:30am-4:00pm as per your flexible arrangement request a couple of weeks later, to help with picking up your child in time from afterschool care.
At this time I am refusing your request to your reduction of your hours based on business reasons stated above. Please advise your intentions going forward by 10am tomorrow morning so I can release next week’s roster.
Ms Charouff to Ms. Fanous:
Hi Christine,
I do absolutely understand the business side to this situation, although if this was an issue you should not have agreed to it in the first place and I would never have removed my son from care.
I’m sorry but you need to understand that my child does not attend after school care anymore therefore if I work till 3 or 4 like you are requesting my 5 year old child will be left with no one to pick him up for more than an hour. Not to mention my 1 year old will be screaming in the care due to traffic on the highway.
If I had another option or other family to pick up i would work with you to come to an agreement but I don’t.
I know for a fact that majority of your staff are desperate for extra hours so I’m a little confused as to why you cannot accommodate this when my leaving at 2 has worked for the past 2 weeks. Besides, you have previously rostered an educator for a 3 hour shift when ratios didn’t even require it.
I am not trying to be difficult but at this point this is all I can do.
I will wait for you to release the roster tomorrow to see if you would like me to be at work or not.
Have a lovely night and a great weekend!
Ms Fanous to Ms. Charouff:
Hi Hebah,
Please don’t tell me how to run my business, that’s not your place at all! Yes everyone wants more hours but no one wants to work 2pm-4pm.
As previously stated, can you work 8:30am-4pm Tuesday to Friday?Ms. Charouff to Ms. Fanous:
Hi Christine,
It’s a little disappointing that you’ve completely ignored my previous email and my current situation.
Let me reiterate for you once again.
No I cannot work til 4pm as I do not have anyone to pick up my child.
The latest I can work till is 2pm!
On Friday 16 June, at 8.44am Ms. Fanous replied by email:
No problem at all. Please send your shirts and key in the mail. All the best for the future.
At 9.33am on the same day the Applicant asked the Respondent to remove her daughter’s enrolment from the Respondent’s centre. On the same day the Respondent, through Ms. Fanous, removed the Applicant from the “Little Superstars CP” WhatsApp Group which is a group to which the Respondent and staff members of the Respondent belong to communicate with each other. The Applicant gave evidence that this group is used by the Respondent to allocate shift rosters to staff once those rosters have been determined. Ms. Fanous said that she did this after she had she had received the email from the Applicant about removing her daughter from the centre.
The Applicant also gave evidence that she had access to an app called ‘Kinderm8’ as both the parent of a child who was enrolled at the centre (parent access) and as an employer of the Respondent who worked at the centre (educator access). She said her parent access allowed her to receive details of her daughter’s activity at the centre and the educator access allowed her to have information relating to all the children at the centre. She said that her parent access and educator access were both cancelled at some time on Wednesday 14 June. Ms. Fanous denied that she had personally deactivated the Applicant’s access to this app but that other educators from the centre were authorised to make changes to access and that they might have done so as some were aware of ‘what was happening’ with the Applicant.
There was a final text message exchange between the Applicant and Ms. Fanous on 28 June when Ms. Fanous asked the Applicant again to return the centre’s work shirts and keys to the Respondent. The Respondent contended that these were required for other staff and that once the Applicant was able to work the required shift times, they would have provided her with shirts and keys again. The Applicant disputed this was the practice and referred to a staff member who was on maternity leave but had not been asked to return those items. The Respondent did not take issue with the proposition that that staff member had not been asked to return keys but said the shirts were damaged and of no further use.
Consideration
Section 386 of the FW Act sets out the circumstances in which a person is dismissed for the purposes of s.365(a).[6] Section 386 relevantly provides:
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.
In this case there was no suggestion that the Applicant resigned from her employment. The issue for determination is whether the Applicant’s employment has been terminated on the employer’s initiative.
The expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.[7] I am satisfied that the employment relationship between the Applicant and the Respondent has come to an end. I do not accept that the relationship continued beyond 16 June and that the Respondent would have rostered the Applicant back to work after that date. Both parties had made their position clear to the other. Neither was about to change. The employment relationship had reached an impasse. The impasse was broken by the Respondent’s text message on the morning of 16 June.
Termination ‘on the employer’s initiative’ is a termination that is brought about by an employer and which is not agreed to by the employee.[8] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[9] If an act of the employer results ‘directly or consequentially in the termination’[10] the termination of employment will likely be ‘on the employer’s initiative’. All of the circumstances are to be considered in this assessment. In Mohazab[11] the Court also referred to termination at the employer’s initiative as being action of the employer which, had it not been taken, the employee would have remained in the employment relationship.[12] In Khayam[13] the Full Bench of the Commission said where the employment relationship is not left voluntarily by the employee the focus of the inquiry is on whether the employer’s actions are the ‘principal contributing factor’[14] which lead to the termination.
In my view the Applicant’s employment was brought to an end by the Respondent’s text message of 8.44am on 16 June 2023. Any reasonable assessment of the content of that message would conclude that it was intended to bring the employment of the Applicant to an end. The words ‘all the best for the future’ suggest nothing if not a parting of the ways. I do not accept that the request to return company property was a temporary measure given the surrounding circumstances. Such a request, made at the same time as someone is being wished ‘all the best for the future’ is consistent with the idea that the employment relationship is being brought to an end. I note that other steps had already been taken by this time to bring the Applicant’s employment to an end. By at least 15 June and probably a day earlier, the Applicant had her educator access to the Respondent’s Kinderm8 app removed from that app. Very shortly after the text message was sent on 16 June the Applicant was removed from the Respondent’s WhatsApp group by the Respondent’s director. The Applicant was no longer able to send or receive work-related communications through that means. That also strongly reinforces the conclusion that there has been a termination on the employer’s initiative.
In all the circumstances I conclude that the Applicant’s employment was terminated on the Respondent’s initiative on 16 June 2023 and that the Applicant has been dismissed for the purposes of s.365(a) of the FW Act. Having determined this question in the Applicant’s favour, the matter can now proceed to a conference under s.368 of the FW Act on a date to be fixed. A notice of listing will be issued following the publication of these reasons.
DEPUTY PRESIDENT
Appearances:
Mrs Hebah Charrouf for the Applicant.
Mrs Christine Fanous for the Respondent.
Hearing details:
In-person at 2:00pm AEST on Thursday, 3 August 2023.
[1] s 366.
[2] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591; Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[3] Lipa (n 2) [4].
[4] Exhibit A1, Court Book page 30.
[5] Exhibit A3, Court Book page 57.
[6] See also s.12.
[7] NSW Trains v. James[2022] FWCFB 55 [45].
[8] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (‘Khayam’).
[9] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769.
[10] Khayam (n 8) [75].
[11] Mohazab v. Dick Smith Electronics Pty Ltd (No 2.) [1995] 62 IR 200, 205.
[12] Ibid.
[13] Khayam (n 8).
[14] Khayam (n 8) [75].
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