Ms Alexia Mitchell v CJ WA Pty Ltd T/A Kaldi Cafe

[2014] FWC 4289

[2014] FWC 4289

FAIR WORK COMMISSION

DECISION

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

Ms Alexia Mitchell
v
CJ WA Pty Ltd T/A Kaldi Cafe
(U2014/1048)

COMMISSIONER CLOGHAN PERTH, 30 JUNE 2014

Unfair dismissal.

[1] On 31 March 2014, Ms Alexia Mitchell (Ms Mitchell or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, C J WA Pty Ltd T/A Kaldi Cafe(Employer) on 13 March 2014.

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that:

● the Applicant was not dismissed but abandoned her employment on 13 March 2014; and in the alternative,

● Ms Mitchell does not meet the minimum period of employment applicable to a small business employer.

[4] I advised the parties on 29 May 2014 that I intended to deal with the Employer’s jurisdictional objections by way of written submissions and issued procedural directions on the same day.

RELEVANT LEGISLATIVE FRAMEWORK

[5] Pursuant to s.385 of the FW Act, a person has been unfairly dismissed if the Commission is satisfied that:

“the person has been dismissed”.

[6] Section 386(1) of the FW Act sets out the meaning of dismissed. A person has been dismissed if:

“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) ...”

APPLICANT’S SUBMISSION

[7] In her application, Ms Mitchell states she was dismissed by the Employer on 13 March 2014. Attached to her application is the following statement:

“I was also threatened that if I did not resign today and give up the money owed to me that they [the Employer] would take legal action to recover the money they had already owed to me. I have proof of this threat in the form of text messages from my employer.”

[8] The Applicant has provided, in her application and submission, a reproduction of the text messages. The relevant parts of the text messages are as follows:

● Employer: Hi, I need to have a meeting with you regarding your timesheets and the amount of hours you are behind. Are you able to come into the office today or tomorrow.

● Applicant: ...I will be available for a meeting when I am back at work after my break...

● Employer: ...If you don’t wish to come in for a meeting I will inform the directors who will need to take steps to recover this money. Conversely as we are required to give 2 weeks notice per the contract, that is 100 hours, we can mutually agree to terminate your employment as of today and you won’t be liable for the remaining hours owed.

● ...

[9] At the conclusion of the reproduction of the text messages, the Applicant states:

“At this point I decided not even to dignify this with a response as I refused to be...”

[10] In addition to this application, the Applicant has also made an application to the Western Australian Industrial Relations Commission (WAIRC). While Ms Mitchell does not mention this in her application to this Commission, the Employer has provided an extract from the WAIRC application in which the Applicant states:

“Never officially dismissed just threatened.”

EMPLOYER’S SUBMISSION

[11] The Employer submits that there is nothing in the Applicant’s submission which demonstrates that she was dismissed.

[12] The Applicant did not return to work after her purported two weeks annual leave.

[13] The Employer, at the time of the dismissal, operated one stand alone business. The business is not a subsidiary of any other company nor does it have subsidiary companies.

CONSIDERATION

[14] The Commission’s task is to determine in the first instance whether Ms Mitchell was dismissed from her employment. If Ms Mitchell was not dismissed, she is not protected from the unfair dismissal provisions of the FW Act. Should the Commission find that Ms Mitchell was not dismissed by the Employer, the Employer’s jurisdictional objection relating to the Applicant not meeting the minimum period of employment is not relevant.

[15] In this application, it is necessary to look at the words and actions of both parties.

[16] On the second day of Ms Mitchell’s annual leave (13 March 2014), she was contacted by Ms Poland. The text message from Ms Poland begins with an enquiry as to whether the Applicant can attend a meeting with the Employer either that day or the following day to discuss “the amount of hours you are behind”. Ms Mitchell states that she is unavailable on that day or the following day but would be available for a meeting when she returns to work after her annual leave.

[17] Due to the dispute regarding the hours in the text message, Ms Poland proposes a “mutual agreement” to end the employment relationship. Ms Mitchell neither agrees nor disagrees with the Employer’s proposed arrangement and does not respond.

[18] Following the text message exchange, the Applicant’s actions are not to return to work after the end of her annual leave, and consequently, does not attend the meeting as requested by the Employer.

[19] I am unable to find in clear and unambiguous words or actions that the Employer initiated the dismissal of Ms Mitchell.

[20] The words of the Employer in the text message are, at most, an invitation to the Applicant to end the employment relationship by mutual agreement. The Applicant chose not to respond to the invitation and also not to return to work.

[21] In not responding to the text message and not returning to work, the Employer was entitled to infer, by the Applicant’s conduct, that she had agreed to the proposed mutual arrangement to end the employment relationship. Alternatively, the Employer was entitled to treat the Applicant not returning to work after her annual leave and failing to communicate with the Employer her intentions as abandoning her employment and a repudiatory breach of her contract. In which case, the ending of the employment relationship was by way of the initiative of the employee.

CONCLUSION

[22] For the above reasons, I find that Ms Mitchell was not dismissed at the initiative of the Employer and consequently not protected from the unfair dismissal provisions of the FW Act. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 11 June 2014.

Respondent: 26 June 2014.

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