Ms Belinda De Palo v Grace Fashion T/A SES
[2012] FWA 4213
•17 MAY 2012
[2012] FWA 4213 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Belinda De Palo
v
Grace Fashion T/A SES
(U2012/4023)
COMMISSIONER CAMBRIDGE | SYDNEY, 17 MAY 2012 |
Unfair dismissal - jurisdictional objection - s.386 - employment not terminated on initiative of employer - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was made by Belinda De Palo, (the applicant) and the respondent employer has been identified as Grace Fashion trading as SES (the employer).
[2] The application was lodged at Sydney on 12 January 2012. The application indicated that the date of the applicant’s dismissal was 4 January 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 11 May 2012.
[3] At the Hearing the applicant represented herself and gave evidence as a witness. The employer was represented by its Human Resource Manager, Ms Judy Yun who was the only witness called to give evidence on behalf of the employer.
Factual Background
[4] The applicant initially worked for the employer as a part-time retail sales assistant commencing in that role in March 2011. The applicant worked at two of the employer’s retail stores in Parramatta. In December of 2011 the applicant was promoted to a position of assistant fashion buyer working full time at the employer’s head office.
[5] The applicant’s promotion was very short lived. The employer was dissatisfied with the applicant’s performance and poor attendance. On or about 19 December 2011 the employer told the applicant that she had been unsuccessful in the role of assistant fashion buyer and she would be offered part-time sales assistant work at retail stores located at Castle Hill, Blacktown or Parramatta.
[6] In due course the applicant was rostered to work at the Parramatta store for 2 shifts of 4 hours duration each on 3 and 4 January 2012. The applicant completed the first of these shifts on 3 January but at about half way through the shift on 4 January the applicant left the store without explanation.
[7] The applicant next made contact with the employer on or about 18 January when she telephoned the head office and requested that the receptionist e-mail her a termination notice form. The applicant completed the termination notice, returned it to the employer and was then paid all accrued entitlements in respect to the finalisation of her employment.
The Applicant’s Case
[8] The applicant submitted that she had been dismissed for poor work performance. Further she said that she had not been given an opportunity to respond to any reason related to her capacity or conduct concerning her poor performance. She also submitted that she did not have a support person present to assist at any discussions relating to her dismissal. The applicant further submitted that she had not been warned about unsatisfactory performance before the dismissal.
[9] The applicant made submissions which asserted that she had been dismissed after she had been absent from work for four days due to sickness. She also mentioned that she had been demoted to a position where her wage had been severely decreased.
[10] The applicant said that she had been forced to quit. The applicant did not seek reinstatement but she said that she wanted a “payout” as an outcome from making the unfair dismissal claim.
The Respondent’s Case
[11] Ms Yun, who appeared on behalf of the employer, made verbal submissions opposing the claim.
[12] Ms Yunsaid that the applicant was on a probation period and only temporarily working as a sales buying assistant. Ms Yun said that the applicant was previously working about 15 to 20 hours as a sales assistant and it was reasonable for the employer to offer about 15 hours.
[13] Ms Yun also said that the employer was happy to have the applicant back at work on a part-time basis.
Consideration
[14] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[15] In this case there was, by inference, a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly sub-section 386 (1) of the Act is in the following terms:
“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.”
[16] It seemed that the applicant took umbrage with the demotion that occurred when she was unsuccessful in the position of assistant fashion buyer. Although it would be understandable for any employee to be aggrieved about an employer’s decision to return them to a lower paid position after a very short promotion, such circumstances do not necessarily permit the employee to treat the demotion as a dismissal.
[17] In circumstances where the employer was returning the employee to a position of broadly similar status as existed before a very brief promotion, an employee would logically be expected to undertake the employment as there is no established entitlement to insist that engagement must be on the promoted terms only.
[18] The applicant could not insist on the promoted terms of employment and she was obliged to test the circumstances of the proposed return to broadly similar terms as previously applied. Although the applicant did not see that she had been rostered for further shifts after 4 January she was obliged to test the apparent failure by the employer to provide her with similar terms of engagement as had existed before the brief promotion.
[19] Unfortunately after the applicant walked out of the Parramatta store on 4 January she made no further communication with the employer which was even vaguely consistent with a desire to continue the employment relationship. Although at no time did the applicant state or write a resignation her words and actions caused the employment to come to an end. On the evidence presented, it was clear that the employment was not terminated on the initiative of the employer. The alterations to the terms of the employment involving a return to the sales assistant position after a short, failed promotion were entirely reasonable and comprehended by the employment. The words and actions of the applicant in walking out of the store without explanation or subsequent contact operated as the true and effective initiator of the termination of employment.
Conclusion
[20] The determination of this matter has involved a contest about whether or not the applicant was a person dismissed from employment. An analysis and application of the evidence involving the circumstances of the termination of employment has established that the words and actions of the applicant and not the employer caused the employment to come to an end.
[21] Consequently the applicant was not a person dismissed from employment and the jurisdictional objection as inferred by the employer must be upheld. The application is dismissed as it is without jurisdictional foundation.
COMMISSIONER
Appearances:
Ms B. De Palo on her own behalf.
Ms J. Yun on behalf of the employer.
Hearing details:
2012.
Sydney:
May, 11.
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