Mrs Kumudha Krishnan v WMC Health Pty Ltd T/A Waverley Medical Centre
[2018] FWC 2647
•24 MAY 2018
| [2018] FWC 2647 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Kumudha Krishnan
v
WMC Health Pty Ltd T/A Waverley Medical Centre
(U2018/2215)
| Deputy President Gostencnik | MELBOURNE, 24 MAY 2018 |
Application for an unfair dismissal remedy.
Introduction
Mrs Kumudha Krishnan (Applicant) has applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. That application was lodged on 4 March 2018. The Applicant commenced employment with WMC Health Pty Ltd (Respondent) as a permanent part-time employee on or about 4 October 2011[1] and was employed as a medical receptionist.[2] The date on which the “dismissal” took effect is in dispute.
The Applicant says that she was dismissed from her employment with the Respondent by text message on 21 February 2018, when she was asked to send her clinic uniform back to the Respondent by post.[3] The Respondent submits that the Applicant’s employment ended on 5 December 2017 when its Practice Manager, Mr Max Beard advised the Applicant that her position at the medical centre would no longer be available on her return from overseas.[4] It is not in dispute that the last shift worked by the Applicant was on 5 December 2017.
The Respondent raised two jurisdictional objections in its employer response. First, that the unfair dismissal remedy application was lodged out of time. Secondly, that the business is a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code. During the proceeding before me, the Respondent raised an additional objection, that being that the Applicant was not dismissed.
It is difficult to reconcile the Respondent’s additional objection that the Applicant was not dismissed given that it says that the dismissal was consistent with the Small Business Fair Dismissal Code and that it dismissed the Applicant on 5 December 2017. In any event, the issues which I need to determine are two-fold; first, whether there was a dismissal at the employer’s initiative and if so, the date the dismissal took effect.
Background
It is not in dispute that the Applicant requested to take annual leave for the period between 6 December 2017 and 30 January 2018. The Applicant’s evidence is that she applied in or around February 2017 for five (5) weeks of paid annual leave and (3) weeks of unpaid leave. The date on which the Applicant submitted her request to the Respondent and the proportion of paid and unpaid leave is in dispute. Mr Beard’s evidence is that the request for leave was brought to his attention in September/October 2017 and submits that the Applicant did not have five (5) weeks of accumulated paid leave. For the purposes of the question that I must determine, I need not make a finding on the contested evidence as nothing material turns on the disputed evidence.
The Applicant’s evidence is that her leave was approved[5] and that on her last day of work before her annual leave commenced, that is 5 December 2017, the Applicant was asked to return her set of office keys so that the other “girls” in the office could use them.[6] Mr Beard’s evidence is that the Respondent did not approve the Applicant’s request for leave and that there had been a number of discussions with the Applicant on three separate occasions in relation to the amount of leave requested and the position in which it would place the medical centre and other employees. His evidence is that on 5 December 2017 he advised the Applicant that upon her return, her position with the Respondent would not be available. His evidence is that the Applicant cleared her personal belongings from her locker and “threw”[7] her office keys at him. Mr Beard’s evidence is that the Applicant’s employment ended on this day and that the Applicant was not “dismissed” but that she left on her own accord. I do not accept the Respondent’s evidence for reasons which will be made apparent below.
The Applicant maintains that her annual leave was approved contrary to Mr Beard’s evidence and says that at no point during the employment relationship was the Applicant told that her position would not be available on her return from annual leave.[8]
The Applicant’s evidence is that she called Mr Beard on Monday, 29 January 2018 to pick up the office keys as she was under the impression that she would commence work as per normal at 7.30am on Wednesday, 31 January 2018.[9] Her evidence is that Mr Beard did not answer her call and so she called the medical practice and was told by one of the girls that Mr Beard was busy and that he would return her call. The Applicant says that she tried to call Mr Beard on Tuesday, 30 January 2018 but that again Mr Beard did not answer her call. The Applicant says that on the same day she went to the medical practice at approximately 9.45am and had a meeting with Mr Beard in his office.[10] The Applicant’s evidence of what occurred that morning is recorded in the extract from the transcript below:
“What happened?‑‑‑Well, I asked him if I'm starting tomorrow and I need the keys. I was told, no, I'm still on holidays; he is just trying out this new roster with the other girls doing all multiple shifts. So he said, "You're still on holidays. I will call you and I will let you know." So he said, "You're not on this roster yet. I'm trying this new roster thing with the other girls", so he said he will get back to me. He will try and put me in on the next roster which was due on 18 February.
But you weren't on leave, were you?‑‑‑No. I was supposed to start on the 31st.
So he told you that you would be returning - he would try and organise for you to return to work on 18 February. Is that right?‑‑‑Yes.”[11]
Further, the Applicant relies on a number of text messages and emails between herself and Mr Bread on dates which occurred after 5 December 2017. She maintains that the exchanges clearly establish that she was still employed by the Respondent up until 21 February 2018. The Applicant tendered a number of text messages between herself and Mr Beard between 31 January 2018 and 2 March 2018.[12] The text message exchange between the Applicant and Mr Beard on 31 January 2018 reproduced below are consistent with the Applicant’s version of events which she says occurred on Tuesday, 30 January 2018. The text messages of Wednesday, 31 January 2018 are reproduced below:
iMessage
Wed, 31 Jan, 10.42am from the Applicant to Mr Beard
“Happy morning Max, just checking if you had a chance to fix the roster, I have already been on unpaid holidays for a while it’s not good to sit at home and not be able to get back to work, waiting for you to call,
thanks”
iMessage
Wed, 31 Jan, 2.47pm from Mr Beard to the Applicant
“Thanks for the text. I will continue with the current roster until the 18th. As the experiment is working really well and all the girls are enjoying the opportunities Will call you after tomorrow to talk through alternatives. Max.”
iMessage
Wed, 31 Jan, from the Applicant to Mr Beard
“so that means that I won’t be working until the 18th??”
iMessage
Wed, 31 Jan from Mr Beard to the Applicant
“still on holidays”
iMessage
Wed, 31 Jan, from the Applicant to Mr Beard
“What do you mean by alternatives?”
iMessage
Wed, 31 Jan, Mr Beard to the Applicant
“The flexibility is an issue and the mood in the office is great in absence of both you and Jennika the nature of the role has changed the responsibility are being shared and Nicole gives us a stronger presence at the front with the dual languages. Couple I have contacted nearer you need similar flexibility. Max.”
I accept the Applicant’s version of events outlined in [8] above as the text messages between the Applicant and Mr Beard corroborate that which occurred on Tuesday, 30 January 2018.
Further, on Tuesday, 13 February 2018 the Applicant sent a text message to Mr Beard inquiring as to whether he had arranged the new roster. The text message exchange is as follows:
iMessage
Tue, 13 Feb, 12.20pm from the Applicant to Mr Beard
“Hi Max, just checking if had a chance to do the new roster
Thanks”
iMessage
Tue, 13 Feb, from Mr Beard to the Applicant
“Probably this afternoon”
iMessage
Tue, 13 Feb, from the Applicant to Mr Beard
“Thanks”
iMessage
Thurs,15 Feb, 8.01am from Mr Beard to the Applicant
“Good Moring I have discussed with all the girls about the current roster and it is apparent that the rotation of times is working very well and the mood cooperation and duties are being shared very well. No I have no openings on this roster. Will call you later today. Regards. Max”
iMessage
Thurs,15 Feb, 2.25pm from the Applicant to Mr Beard
“Hi Max, that’s fine if you don’t have any openings I’m happy to do any shift, as far as the duties I’m happy to share with the girls.
Thanks”
iMessage
Thurs,15 Feb, 6.38pm from the Applicant to Mr Beard
“Hi Max,
Been waiting for your call till now, haven’t heard anything from you, I would like to know if I’m starting on Monday and what time
Thanks”“Hi Max,
I’ll come and see tomorrow regarding shifts, will you be there at work tomorrow, please let me know
Thanks Kumudha”
iMessage
Thurs,15 Feb, from Mr Beard to the Applicant
“As I mentioned this morning there are no spots on this roster so there is nothing to talk about. And I have a full on day tomorrow with painters and upholstery. It would be very difficult for you as all girls have expressed concerns working with you.”
iMessage
Thurs,15 Feb, from the Applicant to Mr Beard
“What do you mean by the girls have expressed concerns working with me? Do I have job or not? Am I being sacked without any notice or warnings?”
iMessage
Thurs,15 Feb, from Mr Beard to the Applicant
“I will discuss the options with Eva tomorrow”
I accept the Applicant’s version of events. Mr Beard did not produce any written evidence establishing a refusal of the Applicant’s leave. He did not specify when it was that he told the Applicant that he did not approve the leave and the communication between the Applicant and Mr Beard after the leave commenced is inconsistent with leave not being approved and inconsistent with that assertion that the Applicant was not employed by the Respondent after the events which he alleges transpired on 5 December 2017. The statement in the text message from Mr Beard sent at 2.47pm on 31 January 2018 that the Applicant was “still on holidays” is also plainly inconsistent with an assertion that the leave on which he says the Applicant was “still” on, was not approved.
In addition, the Applicant makes good her point by relying on a number of payment slips, emails and text messages between herself and Mr Beard.
First, the Applicant points to two (2) payslips which have been reproduced below.[13] The payslips show that the Applicant was receiving annual leave payments for some period between 29 November 2017 and 9 January 2018. The payslips also point to the continuing employment relationship between the Applicant and the Respondent.
In addition to the text messages discussed above, the Applicant and Mr Beard exchanged a number of emails while the Applicant was on leave. The chain of emails between the Applicant and Mr Beard are reproduced below:
“On Wednesday, January 10, 2018, 7.06am, Max Beard wrote:
How would you be affected if we changed the roster system
So that all girls had a roster7.30 Opening
8.00am
10.00am
2.00pm close
And rostered on the weekend
The office has been running really well and the mood is greatly improved
Your thoughts
Max”“On Wednesday, January 10, 2018, 5.18pm, Kumudha Siva wrote:
Hi Max,
Happy Wednesday, hope everyone is doing good, thanks for the email, you know my situation Max, I don’t have any family to look after Aarya, I have organised all Aarya’s after school activities according to my roster, unfortunately I can’t get anyone to take care of Aarya after school, opening the clinic suited me well that was one of the reason that I didn’t mind travelling that far, so unfortunately I won’t be able to do different shifts including the weekends
Thanks Kumudha”
“On Monday, January 15, 2018, 6.31am, Max Beard wrote:
Okay
Give me a call when you get back
I will leave you off rosters for the interim period
Regards
Max”
“On Monday, January 15, 2018, 4.32pm, Kumudha Siva wrote:
Hi Max,
Hope everyone is doing good, Thanks Max, will talk to you as soon as I get back, regarding the uniform Pooja hasn’t sent me the pic f the sample shirt yet, that was just me guessing the colour, can you please remind Pooja to send me the pic in WhatsApp
Thanks
Kumudha”
The Applicant’s evidence is that as can be seen from the emails extracted above, she was also assisting the Respondent with getting uniform shirts for the staff at the medical centre.[14] The initiating email on 10 January 2018 from Mr Beard invites the Applicant to share her views in relation to a potential new roster. It is difficult to reconcile Mr Beard’s evidence in seeking the Applicant’s view about how a roster change would affect her, with his intention that the Applicant’s employment ended on 5 December 2017. There is nothing in the emails which would suggest that the Applicant’s employment ended, to the contrary the emails show that the Applicant was still an employee of the Respondent. Mr Beard maintains that he was assisting the Applicant in obtaining a role at other medical practices and submits that the Applicant was not employed at the time the above emails were sent, which I too reject. It is simply implausible and not supported by any document, email or other communication. As indicated above, a copy of the email communications tendered in evidence are also inconsistent with Mr Beard’s evidence that he told the Applicant that upon her return from overseas, her position would not be available. The maintenance by Mr Beard of two inconsistent positions (that the dismissal of the Applicant was on 5 December 2017 and that the Applicant resigned on that day) in the face of the material summarised above is, frankly, extraordinary, and did little for his credit as a witness.
In addition, the Applicant relies on text messages between herself and Mr Beard on 21 February 2018, which she says ended the employment relationship. The text messages are reproduced below as follows:
iMessage
Wed, 21 Feb, 2.44pm from Mr Beard to the Applicant
“Nothing on this months roster for you. The opinion of the girls working with you has not changed and I am really enjoying the positive environment … (distinct from photo)”
iMessage
Wed, 21 Feb, 6.27pm from the Applicant to Mr Beard
“Will hand in uniforms when I receive all my certificates and relevant documents – CPR certificate, Certificate 3 in Business, experience certificate and also when the settlement is done. Kumudha”
iMessage
Wed, 21 Feb, from the Applicant to Mr Beard
“We are entitled to hold all until our property is posted back”
Lastly, the Applicant relies on text messages that she sent to Dr Wu on 21 February 2018. The first text message is one that she received from Mr Beard and forwarded to Dr Wu. The text message requests that the Applicant post her clinic uniform back to the Respondent.
“Spoke with the commission in response to your lodgement we will address our issues and follow the outcome. Please POST the clinic uniforms Max.
We are entitled to hold all until our property is posted back.
This the msg that Max has sent me”[15]
The second text message sent is as follows:
“He wants the uniforms first, he has messaged me to post it, but I will come and hand it in and also have few of my things in my locker which I need to collect and also say a proper good bye to everyone and also see you in person to thank you for giving me a great opportunity to work with all the lovely people at WMC.
Thanks Kumudha”[16]
The Applicant says that the second text message sent to Dr Wu contradicts Mr Beard’s version of events, as she had not cleared her locker on 5 December 2017 as she was still an employee of the Respondent. It plainly does so.
It is clear on the evidence before me that there was a dismissal at the employer’s initiative and that that dismissal took effect on 21 February 2018. Although not expressed as a dismissal, the implication of the instruction in the text message of 21 February 2018 is clear: no work for you, your employment has ended, we will withhold you final pay and other documents until you return company property. An alternate construction of the events following the Applicant’s return from leave is that the Respondent would no longer provide the Applicant with work and did not continue to pay the Applicant. This is a repudiatory breach of the employment contract, entitling the Applicant to accept the repudiation and to bring the contract and the employment under it to an end which she did by the text message of 21 February 2018. On either view, there was a dismissal within the meaning of s.386 of the Act. It follows that the Applicant was dismissed on 21 February 2018 and that the application for an unfair dismissal remedy was lodged within the time prescribed by the Act.
The jurisdictional objections raised by the Respondent in respect of the late lodgement of the application for an unfair dismissal remedy and the additional objection of no dismissal are therefore dismissed.
The application will be reallocated to the Unfair Dismissal Case Management Team in order that the application be dealt with noting that the question whether the dismissal was consistent with the Small Business Fair Dismissal Code should be determined in conjunction with the merits. I would observe for the benefit of the Respondent that my preliminary assessment of the Respondent’s prospects of success in maintaining that the dismissal was consistent with the Small Business Fair Dismissal Code, in the face of the material before me, is that the prospects are weak.
DEPUTY PRESIDENT
Appearances:
Mrs K Krishnan appearing on her own behalf.
Mr M Beard appearing on behalf of the Respondent.
Hearing details:
2018.
Melbourne.
11 May.
<PR607000>
[1] PN43. See also Applicant’s F2 – Application for an unfair dismissal remedy dated 4 March 2018 at q.1.1
[2] PN49.
[3] Exhibit 2.
[4] PN148.
[5] PN72 – PN75.
[6] PN81.
[7] PN172.
[8] PN78.
[9] PN84 – PN85.
[10] PN89 – PN93.
[11] PN94 – PN96.
[12] Exhibit 2.
[13] Exhibit 1 – Payment No. 4602 and Payment No. 4636
[14] PN110.
[15] Exhibit 5.
[16] Ibid.
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