Mrs Maria Hobson v Alan R And Hope E Bennett
[2024] FWC 792
•27 MARCH 2024
| [2024] FWC 792 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Maria Hobson
v
Alan R And Hope E Bennett
(C2023/6588)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 27 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – applicant dismissed
Mrs Maria Hobson has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she has been dismissed from her employment with Alan R and Hope E Bennett in contravention of Part 3-1 of the FW Act. Alan R and Hope E Bennett (Respondent) are a married couple who own and operate Riverview Funerals which is based in the New South Wales towns of Grafton, Yamba and Maclean.
The Respondent has objected to the application on the ground that Mrs Hobson was not dismissed from her employment.
Before dealing with the dispute under s.368, I must be satisfied that Mrs Hobson was dismissed.
In summary, I have found that Mrs Hobson was dismissed by the Respondent on 5 October 2023 within the meaning of s.365 of the FW Act.
Directions and submissions
The matter was listed for directions on 28 November 2023. Directions were made for the filing and serving of evidence and submissions.
On 12 December 2023, Mrs Hobson filed submissions and other material.
On 27 December 2023, the Respondent filed submissions and witness statements of Mr Lincoln Bennett and Mrs Hope Bennett.
The matter was listed for hearing on 4 January 2024. At the hearing, Mrs Hobson represented herself and the Respondent was represented by Mr Mark Glaser, Solicitor.
Factual background
Mrs Hobson claims that she commenced working for the Respondent on 26 October 2022.
Mrs Hobson says she was employed by Mr Lincoln Bennett who is the son of Mrs Bennett and that Mr Bennett was her manager. Mrs Hobson’s evidence was that when she needed time off, she always talked to Mr Bennett and that Mr Bennett had authority in relation to the Respondent’s bank account.
Mrs Bennett agreed that Mrs Hobson worked with Mr Bennett in the Grafton office and that Mrs Bennett mainly worked in the Maclean office. However, Mrs Bennett disagreed that Mr Bennett was Mrs Hobson’s manager and said that the Respondent does not employ a manager. Mrs Bennett said that she manages the business and works in the business full time.
Mrs Hobson explained that she met Mr Bennett early in October 2022 when she attended the Respondent’s Grafton office looking for work. Mrs Hobson’s evidence is that Mr Bennett said he was the manager of the Grafton office and was happy to employ Mrs Hobson as soon as possible, as he was very busy and was struggling to find time to write funeral services, as well as run the Grafton office.
Mrs Hobson first met Mrs Bennett on 29 October 2022 when Mr Bennett asked her to attend a funeral service that Mrs Bennett was officiating, as an assistant and to gain knowledge, as Mrs Hobson was a new celebrant.
Mrs Hobson officiated her first funeral service on 4 November 2022. Mrs Hobson was paid cash for work that she performed for the Respondent from that time until January 2023. In January 2023, Mrs Hobson was offered full time work by the Respondent. The Respondent claims that Mrs Hobson was initially engaged as an independent contractor (which Mrs Hobson denied) and became an employee in January 2023. Whether Mrs Hobson was an independent contractor or an employee for the period from October 2022 to January 2023 is relevant for the purpose of determining entitlements such as annual leave and superannuation. However, I do not need to determine this matter for the purpose of the current proceedings as there is no dispute between the parties that Mrs Hobson was employed by the Respondent when she ceased employment.
Mrs Hobson worked 35 hours per week and was paid through the Respondent’s payroll system for this work, as well as earning $300 cash for any service that she officiated.
Mrs Hobson says that she and Mr Bennett had a very good working relationship and friendship, and that Mr Bennett was extremely happy with her performance. In her role, Mrs Hobson handled all facets of the Grafton office including arranging and officiating funerals, answering any phone calls or face to face enquiries, completing all paperwork for registering deaths and cremations, and cleaning the funeral home, chapel, mortuary and amenities. Mr Bennett was very happy to be able to concentrate on one of his hobbies, working on restoring a classic car that he had purchased and kept at the back of the funeral home, leaving the running of the office mainly to Mrs Hobson and his wife Mrs Katie Bennett who came in for a few hours a day, as she had young children to attend to.
Mrs Hobson says she rarely saw Mrs Bennett, as Mrs Bennett was very busy and stationed at Maclean, looking after the running of the business in the Maclean office, where her residence and the mortuary were also situated.
Incident on 27 September 2023 – Mrs Hobson’s evidence
At approximately 3:15pm, on 27 September 2023, Mrs Bennett attended the Grafton Funeral Home. Earlier that day, Mrs Hobson sent Mrs Bennett an email offering to help with paperwork for clients that Mrs Bennett was dealing with given that Mrs Bennett’s secretary was on leave. According to Mrs Hobson, Mrs Bennett was very angry and a conversation to the following effect took place:
Mrs Bennett: How dare you send me an email telling me that you are willing to help me with my paperwork! This is your paperwork not mine! Don’t you run the Grafton office?
Mrs Hobson: I do work here in Grafton yes, and do all the paperwork for the clients that myself and Lincoln meet here yes, but I have been told that I am not to touch any of your paperwork when you have met with clients here, and as you and your secretary Justine at Maclean have strictly instructed me, I am not to touch any paperwork of yours.
Mrs Bennett: Who told you that?
Mrs Hobson: Your son Lincoln. My manager here. I have always been told to listen to him and do what he says and I am not to touch anything of yours or the Maclean offices as it will just cause a fight.
Mrs Bennett: Well you don’t answer to him, you answer to me, right? And by the way, if a client calls and asks for me to do a service for one of their family, in Grafton, I am to do the service, and that is the way it is. I will do the service not you. Just as if I take the phone over a weekend when Lincoln is away, and a new client calls, I will be doing the service not you. Right?
Mrs Hobson: OK no problem.
Mrs Bennett: You have done this before Maria.
Mrs Hobson: What have I done before?
Mrs Bennett: You have sent an email before like this and caused all sorts of trouble, and you think you have the right to tell me what to do. You never listen to what I say.
Mrs Hobson: I don’t understand what you mean.
Mrs Hobson said that Mrs Bennett kept on saying that Mrs Hobson does not listen and that she was vindictive and controlling. Mrs Hobson was confused, in shock and very surprised and hurt by what was being said about her.
Mrs Hobson said:
I am not that kind of person, I am not the person who you are saying I am. I am here to help everyone and always have been here to help, and this is all I was offering to do, to try and make things easier for you as I know you are very busy in Maclean and your secretary is away.
Mrs Hobson says that she then moved towards Mrs Bennett to give her a hug, which is what she would often do with people when they were upset or grieving and was honestly thinking that maybe Mrs Bennett was having a bad day or there had been an incident that had occurred that day that had made her upset. Mrs Bennett said:
Don’t touch me! Don’t hug me!
Mrs Hobson says that this was very hurtful to her and that she was shocked, upset and started to cry. Mrs Bennett put some paperwork on Mrs Hobson’s desk and walked out of the room.
After Mrs Bennett walked out of the office, Mr Lincoln Bennett then walked into the office. Mrs Hobson was crying and told Mr Bennett what had happened. Mr Bennett apologised and said that he was sorry for the way that Mrs Bennett had treated Mrs Hobson and that it was totally uncalled for and unwarranted. They then had a conversation, and at the conclusion of that conversation Mrs Hobson told Mr Bennett that she needed to go home as she was distraught from the incident. Mrs Hobson left the office and went home.
At 4:07pm that day, Mrs Hobson sent Mr Bennett the following text message:
Hi Lincoln I have just spoken to Marc [Mrs Hobson’s husband] and he agrees that I should take leave and have a good think about our future. I’m still so shocked and hurt about what has happened. I still don’t really understand how trying to do the right thing is turned into me doing the opposite. U know me. I am not that person. Anyway I will be back next Tuesday. Hope u feel better. Just totally devastated.
Mr Bennett sent the following reply by text message:
Thanks Maria. I’ll put you down for paid leave on Thursday and Friday. I’m sorry that happened and I’ll be in touch.
During the hearing, Mrs Hobson explained that at the time she sent the text message to Mr Bennett, she was intending to take paid leave to visit her father who lives some distance away and to return to work on Tuesday 3 October 2023.
On her way home, Mrs Hobson telephoned her doctor and made an appointment for the following day.
When Mrs Hobson got home she sent a message to Mr Bennet advising him that she had an appointment with her doctor the next day and that she wanted to call in and pick up her reading glasses that she had left at work and some money that was owed to her for a service she had officiated during the week. At 7:16pm that day, Mr Bennett sent the following text message:
Thanks Maria. That’s no problem. I have a bit of a fever at the moment so I will give you a call in the morning. Katie and I really want you to stay and really want to talk tomorrow about how we can make that happen if it is possible. You are great at your job so if I can do anything I will do my best.
On the morning of 28 September 2023, Mrs Hobson and Mr Bennett exchanged the following text messages:
Mr Bennett:Good morning Maria, just wondering if it would suit you to catch up at 2pm or after today.
Mrs Hobson: Hi Lincoln is it just you? I do not want to see Hope I’m sorry. I have not slept all night and I am extremely stressed.
Mrs Hobson then went to her doctor and lodged a workers compensation claim. At 11:43am, the following text exchange took place between Mrs Hobson and Mrs Katie Bennett:
Mrs Hobson: Just at drs now very upset. When I’m finished I would like to collect my 300 for yesterday. My folder and glasses please Katie. What time will you be there ta?
Mrs Katie Bennett: I will be here until 2. I will get your folder and glasses for you. I am so sorry for what happened. I hope you will feel better.
That afternoon, Mrs Hobson met Mr Bennett at the Grafton office. When Mrs Hobson entered the building, she started crying uncontrollably so Mr Bennett suggested they go for a walk. During the conversation, Mr Bennett apologised for Mrs Bennett’s behaviour and said how good Mrs Hobson was at her job. Mrs Hobson told Mr Bennett that she had been to the doctor who had given Mrs Hobson two weeks for stress leave and that the doctor wanted to review Mrs Hobson again on 9 October 2023. Mrs Hobson also informed Mr Bennett that she had lodged a workers compensation case due to the incident.
Incident on 27 September 2023 – Mrs Bennett’s evidence
Mrs Bennett’s version of the incident is that on 27 September 2023, she was in her office in Maclean finalising paperwork which she needed to return to the Grafton office for completion by Mrs Hobson. Mrs Bennett then received an email from Mrs Hobson asking if Mrs Bennett wanted Mrs Hobson to complete certain funeral tasks associated with the Grafton office. Mrs Bennett went to the Grafton office and the following conversation took place between Mrs Bennett and Mrs Hobson:
Mrs Bennett: Hello Maria how are you?
Mrs Hobson: Hello Hope, what are you doing here today?
Mrs Bennett: I have just brought down the paperwork for the 3 funerals. Can you please open your emails?
Mrs Hobson: Yep sure.
Mrs Bennett: [referring to the last email]. Maria I want to talk to you about the post funeral process because your email tells me you might not understand the procedure.
Mrs Hobson: [big sigh] Haaa!
Mrs Bennett: When I come to Grafton to arrange a funeral, the funeral remains a Grafton matter.
Mrs Hobson: [cuts in]. I know Justine is away and you are busy so I thought I would offer to help.
Mrs Bennett: Thanks ok Maria. This is not about Justine being away because these papers belong to the Grafton office…
Mrs Hobson: [cuts in]. My husband says I shouldn’t bother helping people.
Mrs Bennett: Maria, it’s ok I just want you please to listen to me so I can explain the process.
Mrs Hobson: [stands up, pulls glasses off her face and throws them across files on her desk, cuts in, in a loud voice] I am not putting up with this.
Mrs Bennett: Maria, it’s ok, this is not an argument, I want you please to listen so I can explain…
Mrs Hobson: [cuts in, in a loud voice] Lincoln told me not to send the email, he told me not to bother. I don’t know why I bother.
Mrs Bennett: Maria, if you would please stop speaking and listen I can explain the process to you. These files are Grafton files and the responsibility of Grafton staff to complete.
Mrs Hobson: [cuts in]. With Justine away you must be busy.
Mrs Hobson then rushed towards Mrs Bennett placing her hands tightly on her shoulders and leaned in towards Mrs Bennett. Mrs Bennett stepped back and the following exchange took place:
Mrs Bennett: Maria take your hands off me and do not hug me. Now please listen to me. These three files belong in the Grafton office. Please scan them in and proceed with the death registrations for each case. Please do the job that you have been asked to do.
Mrs Hobson: [loudly] I don’t know why I bother, my husband said, ‘Maria why do you bother?’
Mrs Bennett said that as she was walking out of the office, Mr Bennett had walked out of his office past Mrs Hobson. Mrs Bennett said that she overheard Mrs Hobson say to Mr Bennet:
Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.
Mrs Bennett went back to her desk at the front reception, then at approximately 3:21pm Mrs Hobson stormed past the front office towards the kitchen. Mrs Bennett heard Mrs Hobson leave the workplace before the end of the work day and without speaking to Mrs Bennett about leaving early.
At 4:37pm that day, Mrs Hobson’s husband Mr Marc Hobson attended the Grafton Funeral Home. The Respondent produced CCTV which shows Mr Hobson having a conversation with Mrs Bennett at the reception area during which Mr Hobson can be heard saying:
‘How dare you speak to my wife like that?’
‘You have no right to speak to her like that.’
‘You’re bullying her.’
‘You’re incredible you are. You’ve lost an incredible person.’
Mrs Bennett says she understood from what Mr Hobson said to her that Mrs Hobson was resigning without notice and that this was confirmed when Mrs Hobson failed to return to work and abandoned her job.
Mrs Hobson gave evidence at the hearing that she was not aware that her husband had attended her workplace on 27 September 2023 until after this occurred.
Letter of termination
On 5 October 2023, Mr Mark Glaser, Principal Lawyer at Blackstone Law, sent a letter to Mrs Hobson dated 4 October 2023 and which relevantly provided:
We act for Mr Alan Bennett and Mrs Hope Bennett trading as Riverview Funerals in relation to your recent resignation.
We are instructed at about 3:00pm on 25 September 2023:[1]
1.Mrs Bennett was providing you with administrative training and directions when you disputed her authority to give you directions, and spoke over her to prevent her from articulating the directives;
2.Without consent you placed your hands on her shoulders and then attempted to hug her. You were directed not to handle or hug your employer and you became abusive;
3.Minutes later you were overheard by your employer discussing the dispute with a co-worker at which point you stated, ‘I'm sorry, but I cannot work here, I cannot work for that bitch, I know what I am worth and I think I just have to go’;
4.You then left your workplace at 3-7 Prince Street, Grafton NSW without your employer’s consent and did not return; and
5.Your husband Mr Mark Hobson attended the workplace at about 3:30pm on 25 September 2023 and abused and denigrated Mrs Bennett and confirmed your resignation. Your husband may not attend or approach Mrs Bennett or her business and we will be writing to him in this regard shortly.
We confirm you have resigned without notice, placing our clients’ business in difficulty that will result in financial losses.
In the event you contend that you did not resign or abandon your employment with Riverview Funerals, as your conduct has irreparably harmed your working relationship with your employer Mrs Bennett, we hereby give you notice that your employment is terminated effective 25 September 2023. Noting your employment commenced in January 2023 and our client is a small business.
Legislation
The application has been brought under s.365 of the FW Act which 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.
The issue between the parties which the Commission has been asked to determine is whether Mrs Hobson was dismissed by the Respondent. The dictionary at clause 12 of the FW Act refers to section 386 for the definition of “dismissed”:
Section 386 of the FW Act 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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Consideration
I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached.
Mrs Hobson alleged that she was terminated by the Respondent because she exercised a workplace right by lodging a claim for workers compensation. However, this claim cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.
If there is a dispute as to whether an alleged dismissal has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[2] ‘must be resolved before the powers conferred by s 368 can be exercised at all’.[3]
In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[4] stated,
Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.[5]
As the Respondent has claimed that Mrs Hobson was not dismissed, I must find that a dismissal occurred before conducting a conciliation conference or otherwise dealing with this matter under s.368.
The expression ‘terminated on the employer’s initiative’ in s.386(1)(a) is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[6]
The Respondent contends that Mrs Hobson resigned or abandoned her employment when she left the workplace early without the Respondent’s consent on 27 September 2023. The evidence that the Respondent relies upon in support of the resignation is:
Mrs Bennett overhearing Mrs Hobson saying: ‘Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.’
Mrs Hobson leaving the workplace early without Mrs Bennett’s consent.
Mr Hobson attending the workplace after Mrs Hobson left and saying to Mrs Bennett ‘you’ve lost an incredible person’ amongst other things.
Mrs Hobson not returning to the workplace.
Mrs Hobson denies that she resigned or abandoned her employment. Mrs Hobson denies that she said to Mr Bennett, ‘Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.’ Mrs Hobson relies upon text messages she exchanged with Mr Bennett in which:
Mrs Hobson refers to taking leave.
Mr Bennett refers to putting [Mrs Hobson] down for paid leave on Thursday and Friday.
Mr Bennett refers to ‘really want[ing Mrs Hobson] to stay.
The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[7] Mrs Bennett’s subjective belief as to whether Mrs Hobson resigned is not determinative as to whether she in fact resigned. Neither are Mrs Hobson’s subjective intentions. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position, based on what each party to the conversation had said or done, in light of the surrounding circumstances.[8]
In this matter, the Respondent does not contend that Mrs Hobson used unambiguous words of resignation. There is no allegation by the Respondent that Mrs Hobson communicated directly to Mrs Hope Bennett or Mr Alan Bennett that she was leaving or resigning. Rather, the Respondent relies upon what Mrs Hobson said to Mr Lincoln Bennett and the surrounding circumstances, including Mrs Hobson leaving early and not returning to work and what Mr Hobson said to Mrs Bennett.
Did Mrs Hobson say to Mr Bennett ‘Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.’?
Both Mrs Hobson and Mrs Bennett give completely different versions of the discussion which they had at the Grafton office on the afternoon of 27 September 2023. There were no witnesses to that conversation. It is not necessary for me to determine what was actually said by each of them during that discussion for the purpose of determining whether Mrs Hobson resigned. However, I need to consider whether Mrs Hobson said to Mr Bennett, ‘Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.’ The person who could have corroborated Mrs Bennett’s claim that Mrs Hobson made this statement was Mr Bennett himself. Mr Bennett provided a witness statement and was present at the commencement of the hearing. However, the Respondent did not call Mr Bennett to give evidence and did not provide an explanation for this. In the circumstances, I am entitled to draw a Jones v Dunkel[9]inference that Mr Bennett’s evidence would not have helped the Respondent's case. Further, I find it unlikely that a person who, together with their spouse, works in a business owned by their parents would tolerate an employee referring to one of their parents as a ‘bitch’ regardless of the nature of their relationship with their parents. Quite apart from the fact that it would be expected that a person in Mr Bennett’s position would be concerned about his mother being referred to in that way, it would not be in Mr Bennett’s interests to be seen to be accepting an employee’s abusive behaviour towards his mother given his reliance on the Respondent’s business for his and his wife’s employment and income. There is no indication in the text messages which Mr Bennett sent to Mrs Hobson after the incident that he was unhappy with Mrs Hobson which he would be expected to be if Mrs Hobson had called his mother a ‘bitch’.
In addition, the evidence in the case showed that Mrs Bennett was prone to exaggeration. For example, the letter from Mr Glaser to Mrs Hobson dated 4 October 2023 claimed at paragraph 5, presumably in accordance with Mrs Bennett’s instructions, that Mr Hobson had attended the workplace at about 3:30pm on the day of the incident and ‘abused and denigrated Mrs Bennett’. The CCTV footage produced by the Respondent (which contains audio) shows Mr Hobson talking in a firm and direct way towards Mrs Bennett. It does not show Mr Hobson being abusive or denigrating Mrs Bennett. Further, paragraph 2 of Mr Glaser’s letter claims that Mrs Hobson ‘became abusive’ when directed not to hug or touch Mrs Bennett. However, Mrs Bennett did not allege in her evidence that Mrs Hobson was abusive. Mrs Bennett claimed that Mrs Hobson said loudly, ‘I don’t know why I bother, my husband said, ‘Maria why to you bother?’’. If Mrs Hobson had made this statement, it may be considered disrespectful towards Mrs Bennett, however it is not abusive.
Taking into account all of these matters, I do not accept that Mrs Hobson said to Mr Bennett: ‘Lincoln, I can’t work for that bitch. I’m going. That’s it. I’m done.’ I accept Mrs Hobson’s evidence that she was upset after the incident. In the text message which Mrs Hobson sent to Mr Bennett at 4:07pm after the incident, Mrs Hobson refers to ‘hav[ing] a good think about our future’. It may be that Mrs Hobson was thinking about whether she wished to continue working for the Respondent. However, I do not accept that Mrs Hobson said anything to Mr Bennett which indicated that she had made a definite decision to resign or had in fact resigned.
Did Mr Hobson confirm the resignation?
As noted above, the Respondent produced CCTV which shows Mr Hobson having a conversation with Mrs Bennett at the reception area of the Grafton office at 4:37pm. The only statement which Mr Hobson made which was consistent with the Respondent’s contention that Mrs Hobson resigned is ‘You’ve lost an incredible person.’ However, this is also consistent with Mrs Hobson’s advice to Mr Bennett by text message that she had had a discussion with Mr Hobson and he agreed she should take leave and have a good think about their future. Mrs Hobson gave evidence that she was not aware that Mr Hobson attended the Grafton office until after it occurred. This means that Mr Hobson was not speaking on Mrs Hobson’s behalf. Taking into account all of these matters, I do not accept that Mr Hobson was conveying or confirming to Mrs Bennett that Mrs Hobson had resigned when he said to Mrs Bennett ‘You’ve lost an incredible person.’
Did Mrs Hobson leave the workplace without permission and fail to return?
There was a dispute between Mrs Hobson and Mrs Bennett about whether Mr Bennett was Mrs Hobson’s manager. Regardless of this, I accept Mrs Hobson’s evidence that Mr Bennett was the employee she spoke to if she wished to take leave. The evidence shows that Mrs Hobson told Mr Bennett that she needed to go home on 27 September 2023 as she was distraught from the incident and that Mr Bennett sent a text message to Mrs Hobson advising he would put her down for two days leave. The evidence also shows that on 28 September 2023, Mrs Hobson told Mr Bennett that she had been to her doctor who had given Mrs Hobson two weeks for stress leave and that the doctor wanted to review Mrs Hobson again on 9 October 2023.
In my view, given the practice of Mrs Hobson in relation to the taking of leave, it was reasonable for Mrs Hobson to expect that Mr Bennett would have conveyed to Mrs Bennett the reason that Mrs Hobson left early and that she would be taking an initial period of two days leave followed by a two-week period of stress leave. During the period that Mrs Hobson was unfit for work, Mrs Hobson did not require the Respondent’s permission to take leave but to simply comply with the notice and evidence requirements in s. 107 of the FW Act. In all of the circumstances, I find that Mrs Hobson left the workplace and did not return because she was on leave. A further matter which weighs against the Respondent’s contention that Mrs Hobson resigned is that it did not pay Mrs Hobson’s statutory entitlements following the alleged resignation as required by the FW Act. Concerningly, it did not do so until more than one month after Mrs Hobson’s employment was terminated. If the Respondent genuinely believed that Mrs Hobson was no longer employed rather than being on leave, it should have taken steps to pay Mrs Hobson her statutory entitlements as soon as practicable after 27 September 2023.
During the period that Mrs Hobson was on leave, Mrs Hobson received Mr Glaser’s letter claiming that she resigned. The letter concluded, ‘in the event you contend that you did not resign or abandon your employment with Riverview Funerals, as your conduct has irreparably harmed your working relationship with your employer Mrs Bennett, we hereby give you notice that your employment is terminated effective 25 September 2023. Noting your employment commenced in January 2023 and our client is a small business.’
I have found that:
· Mrs Hobson said nothing to Mr Bennett which indicated that she had made a definite decision to resign or had in fact resigned.
· Mr Hobson did not confirm the alleged resignation.
· Mrs Hobson was absent from the workplace from 27 September 2023 until she received Mr Glaser’s letter on 5 October 2023 because she was on leave.
On the basis of these findings, I do not accept that Mrs Hobson resigned. In the circumstances, Mrs Hobson’s employment was terminated at the initiative of the Respondent by the letter sent by Mr Glaser on its behalf. It is well established that for the purposes of s.394(2)(a), a dismissal at the initiative of the employer does not take effect unless and until it is communicated to the employee who is being dismissed.[10]As Mrs Hobson received the letter on 5 October 2023, this is the effective date or termination, not 25 September 2023 as provided for in the letter. The application was filed on 25 October 2023 and as such is within the timeframe required by s.366(1)(a) of the FW Act.
Conclusion
Taking into account the parties’ submissions and the evidence before me, I find that the letter which Mr Glaser sent to Mrs Hobson on 5 October 2023 on behalf of the Respondent was the principal contributing factor which resulted directly or consequentially in the termination of Mrs Hobson’s employment. Therefore, Mrs Hobson’s employment was terminated on the initiative of the Respondent on 5 October 2023.
There is no evidence that establishes, and the parties have not submitted, that the exemptions in s.386(2)(a)-(c) apply. Accordingly, I find that Mrs Hobson has been dismissed within the meaning of s.365 of the FW Act.
The jurisdictional objection raised by the Respondent is dismissed and I order accordingly.
The matter will shortly be listed for Conference so that the Fair Work Commission can deal with the matter as required by s.368 of the FW Act.
DEPUTY PRESIDENT
Appearances:
Ms M. Hobson for the Applicant
Mr M. Glaser for the Respondent
Hearing details:
2024
January 4
MS Teams
[1] This date is incorrect as the incident took place on 27 September 2023.
[2] [2020] FCAFC 152.
[3] Ibid, [67].
[4] [2023] FWCFB 101.
[5] Ibid, [23].
[6] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200.
[7]Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2017] FWCFB 3941, [35].
[8] Koutalis v Pollett [2015] FCA 1165; 235 FCR 370
[9] (1959) 101 CLR 298.
[10] Ayub v NSW Trains [2016] FWCFB 5500 at [36]
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