Ms Catherine Sirl v HK Group Pty Limited t/a Buzzbee Long Day Care Centre

[2017] FWC 543

[2017] FWC 543

The attached document replaces the document previously issued with the above code on 28 February 2017.

The document corrects some typographical errors.

Peter Willink

Associate to Deputy President Sams

Dated 2 March 2017

[2017] FWC 543

FAIR WORK COMMISSION

DECISION

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

Ms Catherine Sirl
v
HK Group Pty Limited t/a Buzzbee Long Day Care Centre
(U2016/10383)

DEPUTY PRESIDENT SAMS SYDNEY, 28 FEBRUARY 2017

Application for an unfair dismissal remedy – alleged dismissal of childcare employee – objection to the application on the basis that the applicant was not dismissed – family operated childcare centres – bitter marriage breakdown between applicant and owner’s son – – applicant told not to return to work until her marital problems were resolved – whether conversations and actions of employer constituted a dismissal – no letter of dismissal – applicant’s strong belief she had been dismissed – locked gates, handover of duties and failure to pay outstanding entitlements – allegations of theft and previous misconduct –three recorded conversations – correct classification of applicant – underpayment claims over many years – irregularities and inconsistencies in the respondent’s evidence –witness credibility – applicant’s evidence preferred – intention of the employer was to dismiss the applicant – jurisdictional objection dismissed – further proceedings.

[1] Until recently, the Kassems had been a loving and close knit family unit; so close in fact, that most of the adult members of the family either work for, or are involved with the management and operation of the family childcare business, owned and overseen by the family patriarch, Mr Hafez Kassem (hereafter referred to as ‘Mr Kassem’). The family’s under school age children also attend the Centres owned by Mr Kassem. Regrettably, this case has disclosed the ugly and tragic consequences of a family business in upheaval as a result of a very bitter marriage breakdown between the patriarch’s son, Mr Jehad Kassem (referred to as ‘Jehad’) and his ex-wife, Catherine Sirl, both of whom worked at the Buzzbee Childcare Centre (‘Buzzbee’ or the ‘Centre’), at Busby, New South Wales - one of three owned by Mr Kassem (the ‘respondent’).

[2] Ms Catherine Sirl is the applicant in these proceedings (referred to as the ‘applicant’ or ‘Ms Sirl’). Apart from being a very troubling and distressing case, there were a number of what are usually straightforward factual matters, which in this case were hotly contested. They will ultimately need to be resolved by the Commission. For example, in her application, the applicant claimed that she had been employed by the HK Group Pty Ltd since 2007. This date is disputed by the respondent. The applicant further stated that she had been employed as a Director under the Children’s Services Award 2010 [MA000120] (the ‘Children’s Services Award’ or the ‘Award’).However, she was paid as a Level 4.2 Children Services Employee under the Award. As a consequence, the applicant claims significant underpayment monies for the full period of her employment as Director of the Centre.

[3] The most significant dispute between the parties, and the issue which attracted the most debate, is that Ms Sirl claims she was dismissed by Mr Kassem on 31 July 2016, whereas the respondent asserts that Ms Sirl was not dismissed and, if there was a termination of employment, it was brought about entirely by Ms Sirl’s own actions and conduct. This of course (assuming Ms Sirl is correct), is the classic constructive dismissal scenario. Obviously, if the respondent is correct - that there was no dismissal at the initiative of the employer - then there is no jurisdiction under Part 3-2 the Fair Work Act 2009 (the ‘Act’) for the Fair Work Commission (the ‘Commission’) to consider whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387, or the remedy consequences (s 392) of such a finding.

[4] One matter which was not disputed is that the respondent is a ‘small business’ employer for the purposes of s 23 of the Act. This means that if the jurisdictional hurdle is overcome, the applicant’s dismissal would need to be considered within the context of the Act’s Small Business Fair Dismissal Code (s 388). However, we are a long way short of considerations of that kind, suffice to observe that notwithstanding the argument over commencement date, the applicant has the requisite 12 months minimum employment period, set out in ss 382(a) and 383 of the Act. For completeness, there are no other jurisdictional issues in this case and I find as follows:

● Ms Sirl’s application (assuming she was dismissed on 31 July 2016) was filed within the required 21 days set out at s 394(2) of the Act;

● Ms Sirl’s employment was covered by a Modern Award (s 382(b)); and

● the circumstances here disclosed do not give rise to any considerations of genuine redundancy.

[5] The application was filed on 18 August 2016 and was subject to an unsuccessful conciliation in accordance with the Commission’s usual protocols. The matter was allocated to me on 7 October 2016 and listed for jurisdictional hearing on 12 and 13 December 2016 with final submissions filed in January 2017. At the hearing, Mr M Hanna, Solicitor, appeared for the applicant with permission being granted, pursuant to s 596 of the Act and Ms Mona Kassem (daughter of Mr Kassem and the applicant’s former sister in law) appeared for the respondent. It would appear that the respondent had been earlier represented by Mitry Lawyers (who had prepared all of the witness statements), but for reasons which are not readily apparent, a Form F54 - Notice of representative ceasing to act was filed on 9 December 2016 – 3 days before the hearing.

THE EVIDENCE

[6] The following persons provided written and oral evidence in this matter:

Mr Hafez Kassem, Director

Ms Rosette Kassem, Mr Kassem’s daughter (‘Rosette’)

Ms Mona Kassem, Mr Kassem’s daughter (‘Mona’)

Ms Amani Chouman, Employee at Buzzbee

Ms Sarah Dablan, Employee at Buzzbee

Ms Catherine Sirl, the applicant

[7] To avoid confusion, I shall identify Mr Kassem sons and daughters by their first name.

Applicant’s evidence

[8] The applicant had been married to Jehad since April 2005. She was initially employed by her husband’s father, Mr Kassem, at his Palm Childcare Centre in Granville, NSW in or around February 2007. Palm Childcare is run through a company known as Windtones which is 100% owned by Mr Kassem, who is one of 2 directors together with his wife. A letter signed by Mona, dated 7 December 2007, disclosed that the applicant was employed full-time by Windtone on a then wage of $421 gross per week. Wages were paid in cash.

[9] The applicant said that while she was employed at Palm Childcare and later at another of the Kassem’s centres at Guildford, she carried out duties equivalent to a Level 3 Children Services Employee. In early 2009, she commenced working at Buzzbee as the Service’s Director and that she had fulfilled the regulatory roles of Nominated Supervisor and Educational Leader. She took over this role from Mona when she commenced full-time work with another employer. The applicant believed that parents and staff regarded her as the Director of Buzzbee.

[10] In September 2015, the applicant and her husband separated. Nevertheless, she continued to work at Buzzbee and while she had issues with members of the family, she maintained good relations with Mr Kassem.

[11] The applicant claimed her duties at Director Level 2 for a Centre licensed for between 40-59 children, included:

a) overseeing the Centre’s activities and being ultimately responsible for its operations;

b) running the Centre staff rostering;

c) duties as the Nominated Supervisor (and registered as such with the appropriate authorities);

d) being the Educational Leader;

e) being a Room Leader;

f) holding the role of ‘Floater’, which meant she oversaw all the various children’s rooms and oversaw rooms when others went on breaks; and

g) cooking on Mondays.

[12] In December 2015, the applicant and her husband reconciled, but the relationship soon deteriorated again. There were several heated arguments and her husband left the rented home she lived in (owned by the Kassems) with her five children. Her husband divorced her under Islamic conventions on 29 July 2016. Mr Kassem dismissed her two days later.

[13] The applicant set out the events of that day – Sunday, 31 July 2016. A parent had phoned her around midday to ask what was going on at Buzzbee as there were a number of cars in the car park. The applicant understood the cars belonged to members of the Kassem family; which was strange, as members of the family, other than her husband, did not usually attend the centre, particularly on weekends.

[14] At around 5pm, Mr Kassem phoned her. She understood that he was at the Centre and that he had been there for some time with other family members. She later found out they had been removing files, changing the locks to the building and padlocking the entry gate with a large chain. In the phone call, the applicant said that Mr Kassem had said words to the effect of:

‘Listen Catherine, I heard what happened between you and Jehad and I’m not happy, Jehad is very upset and I’m sure you are too but I think it’s best for your safety and the service that you don’t come back to work. I don’t want you to return to the Centre.’

[15] The applicant said she was shocked and dumbfounded by these comments and she proposed to meet to discuss the matter. However, Mr Kassem replied that she had ‘some stuff from the Centre and we need it back.’ He proposed she come to the Centre at 8.30pm. She said she could not do so because she was caring for her five children and the next day (Monday) would be better. Mr Kassem replied:

‘I don’t want you to come to the Centre in work hours – it would have to be in the evening.’

[16] The applicant then called her sister who advised her to meet Mr Kassem that night, rather than wait until the following evening. She rang Mr Kassem’s mobile, but his daughter, Rosette answered. She told Rosette she would come to the Centre at 7.30pm and Rosette said she would inform her father. Mr Kassem called her back within minutes and they agreed to meet at 8pm with Rosette. When the applicant arrived with her three youngest children, she was met by Mona in the car park. Mona asked what happened between her and her brother. The applicant replied that she was sure she knew (what had happened).

[17] When she met with Mr Kassem, her two sisters-in-law (Mona and Rosette) and one of her brothers in law, Fowzi, were present. She claimed she felt ‘very intimidated’ and a little frightened. She switched the record function on her phone and recorded the meeting for 57 minutes, until her battery went flat. As a result, the first five minutes and the last 20 minutes of the meeting were not recorded. The Kassems were unaware the conversation was being recorded.

[18] At the meeting, Rosette did most of the talking which amounted to a series of demands that she:

• hand over all staff contact details;



• advise where all staff files and sign in and out sheets were for the following week’s children and where enrolment forms were located;



• advise where the staff group certificates were and the time and wage books. She told them Jehad had the book as he was checking the tax calculations;



• provide details regarding professional development grant money and preschool grant money;



• provide login details for the security cameras and computer systems and told to remove any private photos or documents from the Buzzbee system;



• hand over all keys, log into the CRM system so the password could be reset and told to delete all personal files (this took 15 minutes).

[19] The applicant said they then discussed some of the families who use their service and the current status and cash amounts received. The applicant claimed that Rosette advised she would be in the next day to take over her job of running the Centre. While Rosette was critical of the Centre’s record keeping, the applicant said she could answer every question asked of her and find every requested document.

[20] The applicant inquired about her outstanding pay and entitlements and Mona told her she would calculate them - Mr Kassem had said:

‘don’t worry we’ll give you whatever you want. We are going to pay you whatever you are owed. We will pay, we will pay.’

The applicant also asked for a termination letter. This request upset Mr Kassem. The applicant also asked to be reimbursed for items she had purchased at Kmart for the Centre, with her own money. The applicant said that in the following week, she had received many phone calls, mostly from Rosette about operational issues.

[21] Since her dismissal, the applicant said she had been under significant financial stress. She had applied for 14 jobs and attended two interviews. However, because she is the sole carer of five children, between 4-16 years of age, this was very restrictive on roles within the industry. In addition, her ex-husband withdrew $107,000 from a joint bank account, without her knowledge or approval, and had refused to return the money. As a result, she has been left with a $3,800 a month mortgage and interest on the $107,000. The applicant also claimed she was owed $21,724.48 in unpaid statutory entitlements and underpayments over at least three years, due to the difference in pay rates between Director Level 6 ($1,207.90 per week) and Children’s Services Level 4.2 ($914.66 a week).

[22] The applicant did not include any details in her statement of two meetings she had with Rosette on 1 August and on 9 August 2016 (also with Mr Kassem). Both of these meetings were recorded and the applicant’s incomplete recording of the meeting on 31 July 2016 were tendered in the proceedings. The applicant was questioned about these meetings in cross-examination, which I will shortly come to.

[23] In cross-examination Ms Sirl agreed that when she first worked at Palm Childcare she worked part-time, $12.00 an hour and that she was ‘on the books’ and paid tax. She stated that during her employment, she only had two months off for the birth of her daughter in 2009 and two months off in 2012 for the birth of her son. She was not the Director of Buzzbee at the time, but she was performing management duties and had completed a Certificate III. The applicant agreed she was not given any letter of offer as a Director of any Centre. In 2013, she became the Nominated Supervisor doing payroll, staff appraisals, staff meetings, rostering, sign ons and sign outs. She would liaise with a consultant, Mr David Morphett in respect to pay and entitlements and had paid herself.

[24] The applicant agreed that she had worked with Mona at Buzzbee for a year or two before Mona left. She understood Mona may have been the Nominated Supervisor overseeing the Centre during this time. However, the applicant added that they were both overseeing the Centre. During her questioning, Mona accused the applicant of misconduct and having been issued with warnings in 2013 about poor management of the Centre.

[25] The applicant acknowledged that in the meeting on 31 July, Mr Kassem has said, more than once, that he would pay her leave. Mr Kassem had also told her she would be paid all her entitlements, but he needed all the time and wages records. On that day, she had said that the tax receipts and the wages books were with Jehad. She conceded however, that she retained one new wages book which was in her car and her ex-husband had the other wages books. The applicant claimed that her ex-husband would take all the money paid by parents. He would pick it up or she would give it to him at home. Nevertheless, all payments by parents were recorded by the staff member who received them.

[26] The applicant gave evidence of the meeting with Rosette on 1 August 2016. She had arrived at the Centre with a parent (Mr Errol Perrin, hereafter ‘Errol’ or ‘Mr Perrin’). She asked why she had been terminated and there was a ‘heated discussion.’ When she was asked if she had told Rosette ‘I won’t be coming back,’ she could did not recall saying this.

[27] The applicant gave evidence that, with Mr Kassem’s authority, she was in charge of purchasing resources and equipment for the Centre. She did this mostly by cash and occasionally with the Centre’s credit card. She conceded that no one asked her to do so. In March this year, she paid $700 for the purchase of bookshelves from IKEA. She kept the receipt for the purchase. On other occasions, she used her own money for such purchases. The applicant was asked to explain $7,000 in unreceipted monies. The applicant denied purchasing computers for the Centre having earlier claimed she had done so. This was because she had received an invoice from the computer shop with her name on it, although Jehad had made the actual purchase.

[28] Further at this meeting, she handed Rosette two notices from parents taking their children out of the Centre. She explained that one couple were going overseas and had given her notice some time earlier and another was in her handwriting because the mother could not write English very well. The applicant said that she had not pressured two other employees, or anyone else to resign, soon after she had been dismissed. She denied contacting parents – rather parents had contacted her.

[29] The applicant denied taking days off from the Centre (such as every Friday). Whatever days she had off were RDOs. She explained that an earlier Department of Children Services (‘DOCS’) complaint about the Centre not being open at 7am, related to another Centre down the road with the same name. She had told DOCS this at the time and nothing came of it. As to the Centre’s child/staff ratios, the applicant said that while the Centre was licensed for 49 children, it never had that number. It averaged 20-30, depending on the day and time of year.

[30] The applicant was asked why she had not referred to the details of the meeting on 9 August in her witness statement. She attended this meeting to get her property back and request a termination letter. She had attended the Centre on 1 August with a parent and conceded she had not told Mr Kassem she would be doing so. Her other purpose was to advise Rosette that she had ‘stepped down’ from her duties as a Nominated Supervisor, because she had been dismissed the day before. She denied it was the employer’s sole duty to inform the Department of her change in status.

[31] The applicant was asked why, if she had felt intimidated on 31 July, she had not contacted the relevant authorities, including the police? She did not think it was necessary, but it was very confronting that all the family were there when she had not been told of their presence. The applicant was questioned about an incident before 2013 when Mona had come to the Centre to check the security cameras. She had an issue with her doing so, because she was not authorised. She said she was persistently questioned about her role as a Manager and later as a Director of the Centre.

[32] In re-examination, the applicant said she had paid herself the lower rate of pay on direction from Mona. However, she became a Director in 2014, but was in fact performing that role from 2013.

[33] The applicant reaffirmed that around 18 July 2016, her ex-husband withdrew a large amount of money from their joint account, had returned to their house and taken her jewellery and computer and broke things in the house. She said she had not expected Mr Kassem to call her on 31 July, when he told her:

● he had heard what happened;
● it would not be safe for her to return to the Centre;
● could she return some things she had at home (the tax books); and
● he wanted to meet her.

She initially declined to meet, but after talking to her sister, she wanted to get to the bottom of what was happening. Mr Kassem did not want her to meet him during work hours. She had understood that Mr Kassem had not wanted her to return to the Centre. She believed this meant she was ‘definitely terminated.’ The applicant said she had heard during the day that there were cars at the Centre and a new, huge lock had been placed on the gate. When she arrived at the Centre, she had understood only Mr Kassem and Rosette would be meeting her. Rosette had asked her about purchases for the Centre, which had always been receipted, even if she had used her own money. She had understood that she would have to return the time and wages book, although it was a brand new book, with only one entry. She had it because she was working out the tax.

[34] In further questioning, the applicant insisted she had never approached any parents after 31 July 2016 to ‘bad mouth’ the Centre. Rather, she had received numerous phone calls from parents asking why she was no longer there.

[35] The applicant said that when the Kassems took over the Centre, after obtaining it for a very low price, it was because it had a bad reputation, with low student numbers. It was running, and still runs at a loss. She agreed this was due to ‘massive competition’ from other providers in the area.

[36] The applicant said the nature of the allegations, the demands and questions of her at the meeting on 31 July indicated to her she was not just going on leave, but was being dismissed. She was very upset and felt intimidated. She had asked why she was terminated, but was never given an answer. She had asked for her entitlements, but was told that they would be paid when she returned the wages book.

[37] The applicant was asked about a poster on the wall of the Centre, current at December 2015, which described the Centre’s structure. It was clearly visible to parents, staff and the Kassems. It showed her as the Director or Nominated Supervisor and Educational Leader. However, she was never acknowledged or paid as the Director and was required to take ‘orders’ from the family. This upset her greatly.

[38] The applicant said the only person she had felt comfortable with (Mr Kassem) had dismissed her and she was shocked. She had never stolen any money from the Centre and had not taken any periods of extended leave. While she had collected cash, it was always written down and later handed to her husband, who had told her that was how it was done. She had never been given any warnings, or told she had conducted herself inappropriately. The applicant reiterated that she had carried out all the duties of a Director, Level 6 under the Award and additional duties such as cooking on a Monday, looking after staff superannuation and taxation.

[39] In questions from me to Mona, it was said that the applicant had worked at Palm Childcare in 2007 on an irregular, on call, casual basis, until Buzzbee opened in late 2009, when she worked part-time and then full-time in 2012. The applicant gave evidence that she had worked continually since 2007 for companies owned by Mr Kassem and had not taken any extended period of leave. However, she had taken six to eight weeks for the births of her two children.

[40] At the conclusion of the applicant’s evidence, Mr Hanna tendered what was claimed to be contemporaneous notes made by the applicant of the events of 31 July 2016, which he had only been made aware of two days earlier. Mr Hanna also tendered the applicant’s Optus phone records for that day, which showed five calls to Mr Kassem’s mobile; three were not answered, one was to say she would come to the Centre that night and the fifth to say she had arrived. Mr Hanna tendered the three taped conversations of 31 July, 1 August and 9 August 2016.

For the respondent

Ms Rosette Kassem

[41] Rosette holds a Bachelor of Education in Early Childhood and has worked in the industry for over 15 years. She had read the statements of her father and sister and believed them to be true and accurate. In a curious expression in her statement, Rosette said she ‘witnessed almost everything that happened throughout the process of this grievance procedure between Mr Kassem and the applicant.’ Rosette described her as the Nominated Supervisor at Buzzbee.

[42] As to the events of 31 July 2016, Rosette understood that her father and the applicant had reached an agreement that she would take leave temporarily, with pay, until the problems with Jehad (her brother) eased and she would then return to work. Rosette acknowledged that at the meeting that day, she had asked the applicant where certain information was located, such as files and records, fee collections, staff information, wage books, cash, email and passwords. The applicant had said she did not have the wages book, but retained a few cash payments from parents. She refused to disclose the email password.

[43] Rosette described the meeting with the applicant on 1 August 2016 as a ‘heated discussion.’ The applicant was very rude. She had raised very personal family issues in front of a parent (Errol). After some discussion about parents withdrawing their children from the Centre, the applicant claimed she was accused of stealing and raising the problems with her husband. Rosette said the conversation then turned to her return to work. It went along the following lines:

Rosette: I’m sure these issues can be resolved though if that is the case. Why don’t you just wait a little, give it some time for things to calm down and you will come back to work soon.

Catherine: Rosie, I tell you, I’m not coming back 100%.

Rosette: Well that’s you choosing not to come back.

Catherine: Yes, I’m definitely not coming back. You made it out that I have stolen money.

Rosette: That’s not true, stop saying that. My father trusts you and thinks highly of you. There isn’t any need for what you are saying or doing. He’s doing this in your favour and he is concerned about the problems that can occur at the Centre.

[44] The applicant then asked for her Provider Number, as she had cancelled her Nominated Supervisor status and had advised the Department accordingly. Rosette said the applicant then said Errol’s child won’t be coming back. Errol had said ‘Catherine, are you sure you want to leave?’ The applicant replied ‘yes, definitely.’

[45] In respect to the marital breakdown, Rosette believed the respondent had no choice but to act professionally and propose a ‘cooling off’ period of paid leave before the applicant returned to work. However, the applicant left her employment on her own accord, when she refused to accept paid leave.

[46] Rosette briefly described a further meeting she had with the applicant on 9 August. The applicant brought in some receipts and a wages book and handed her a list of items which she had to pay for during her employment. She claimed these items belonged to her. She agreed to provide other documents in her possession.

[47] In her statement, Rosette said that after the applicant left the Centre, she had heard of ‘many things’ from staff about them being threatened and intimidated by the applicant. The applicant had degraded the service, by contacting parents and making false allegations against the Centre. Rosette believed she was doing this due to the issues she had with her ex-husband.

[48] In cross-examination, Rosette had understood that as the applicant and her husband were in a ‘heated situation’, it was in the best interests of the Centre for a ‘cooling off’ period. The applicant could not return to work until the ‘issues between her and Jehad settled.’ Rosette insisted that no one had accused the applicant of stealing. In fact, she believed her father was doing the applicant a favour by taking her out of the Centre. It was fair and equal for both parties.

[49] During Rosette’s cross-examination excerpts from the audio tapes of the meetings on 31 July and 1 August were replayed. Rosette agreed the applicant had asked for a final termination letter, because she had felt she had been ‘fired.’ However, she said no letter was provided, because she had not been terminated. Rosette agreed she was heard to say ‘yes, I’ll do it’ (provide the letter), but she had felt intimidated and was scared by the presence of the parent the applicant had brought to the meeting (Errol).

[50] In re-examination, Rosette said that when the applicant first arrived at the meeting on 1 August 2016, she had said ‘I’m here. I wanted to bring some things and clarify some stuff and to take the things which she believed belonged to her.’ Her voice was loud and angry, particularly when talking about Jehad. Rosette generally described the applicant as very manipulative. She puts ‘words in your mouth’ by claiming to have been dismissed. The day before she had behaved very differently. She was calm and they had been cooperating about the handover. She had agreed to take some time off and allow her (Rosette) to take over the running of the Centre. Rosette said she was unaware their conversation was being taped during the 31 July and 1 August meetings.

Ms Mona Kassem

[51] Mona holds a Bachelor’s degree in Education and has worked in her father’s childcare business for many years, helping to establish all three Centres. She ended her employment with her father at the end of January 2013 when she became Head of Campus of an independent school, catering for students from Kindergarten to Year Nine. Although no longer employed by her father, she continued to assist him and check on issues at the Centres in terms of accreditation and staffing.

[52] It was Mona’s evidence that the applicant had longstanding issues with her overseeing her work. On one occasion, the applicant had stormed out of work when she had wanted to check the security cameras, saying that she did not trust her and there was no need to check the cameras. Her father later told her to minimise checking on the applicant, because she had convinced him that she was being checked on unfairly.

[53] Mona said that the applicant had been trained to run the Centre when all systems were already in place. She claimed that the applicant had received a few warnings from DOCS, which management had resolved.

[54] Mona said she had attended the 31 July and 9 August meetings. She agreed with what her father and sister had set out in their statements about what occurred at these meetings. She added that when she had asked the applicant what had happened to the outstanding cash, she had said that Jehad had taken most of it, and she had used some to buy items for the Centre, for which she had receipts.

[55] In cross-examination, Mona described her role at Buzzbee as ‘Management Control.’ She was not paid because ‘we’re family.’ In the years since she left, she had visited the Centre at least five or six times. Her father had asked her to make sure everything was running well. At family gatherings, the applicant had frequently told her what was going on at the Centre. Other management were also involved - the financial manager (Ed) deals with finances, tax returns and superannuation, her father oversees all the payments and Rosette acts as a mentor and consultant. Being family, the applicant had taken it upon herself to be involved in management and she took on roles without authority. She was not a Director and never appointed as one. Mona said that her father had full responsibility for all the Centre’s activities and functions which he delegates to her and her sister. Mona added that Rosette performed all of the duties of Director, although not necessarily by being physically at the Centre.

Mr Hafez Kassem

[56] It was Mr Kassem’s evidence that the applicant first commenced working at Palm Childcare in 2007 and only worked for a month before taking a break. In mid-December 2010, she commenced work on a casual basis at Rawson Long Day Care Centre. She had extended absences to look after her children – her fourth child was born in July 2009 and fifth child in January 2012. The applicant returned to work as a General Child Care worker around July 2012, until being appointed Nominated Supervisor in 2013. In 2015, her relationship with his son broke down and she moved out of home with the children, but continued to work at the Centre.

[57] Mr Kassem recounted his version of the events of 31 July 2016. He had phoned the applicant and the following exchange was said to have taken place:

Mr Kassem: Is it true that you were with another man?

Ms Sirl: Yes

Mr Kassem: You think it is safe to be here with your husband at work now?

Ms Sirl: No

Mr Kassem: I would suggest a good idea would be to take leave and I will pay you like you are working until you solve the problem with your husband. Now it’s heated up and not a good idea to be at work together.

Ms Sirl: Yes that’s true.

Mr Kassem: You agree it is not safe for the school because you may fight with him at work because it is heated up now. I don’t want to affect the school, as you know the numbers of students are very low.

Ms Sirl: Yes, that’s true, I understand.

Mr Kassem: You know Catherine you are not just an employee, you are family.

Ms Sirl: Yes we are, I have no problem taking leave.

Mr Kassem said that about half an hour later, the applicant arrived at the Centre without telling him. She asked about the locked gate and agreed to meet in half an hour with Mona and Rosette. Mr Kassem said that when they met, the following conversation occurred:

Mr Kassem: It is agreed that you will take leave and be paid?

Ms Sirl: Yes. What are my entitlements?

Mr Kassem: Don’t worry we will work it out, I just need you to take some time off.

Ms Sirl: Can I get a termination letter?

Mr Kassem: What do you need a termination letter for? That is not necessary, you are not being fired. I just want you to cool off and take some time to sort out your issue with Jehad.

Ms Sirl: Okay, when can I get my annual leave pay?

Mr Kassem: As soon as I can get the wages book to calculate your entitlements as you claim you do not have the wages book.

Ms Sirl: It is with Jehad.

Mr Kassem: I will check with him.

Ms Sirl: Okay.

Mr Kassem confirmed his daughter’s evidence concerning her requests during the meeting for documents and information, including the $1000 cash the applicant had retained in her possession.

[58] Mr Kassem responded to the applicant’s evidence as follows:

(a) He had never employed anyone as a Director. The applicant was appointed a Nominated Supervisor on 17 May 2013 as advised to the Department of Education and Communities.

(b) When its licence was granted on 3 April 2009, Ms Omaya Annad was the Authorised Supervisor of Buzzbee.

(c) He agreed he had a good relationship with the applicant, but did not want to get involved in her and his son’s personal issues. After the first breakdown in the marriage in 2015, the applicant continued to work at the Centre.

(d) He denied the applicant was recognised by parents as Director of the Centre. The supportive letters the applicant had were from parents and staff who no longer use the Centre or no longer work for the business.

(e) He had changed the locks at the Centre after his son told him that he believed the applicant would steal furniture and money.

(f) He denied ‘ordering’ the applicant to delete her personal files. He reminded her that she should not have personal files on the computer.

(g) He insisted that he had no intention to dismiss the applicant and had emphasised that he would give her paid leave.

(h) The applicant had brought a parent to the Centre on 1 August 2016, without an appointment.

[59] At the meeting on 9 August, Mr Kassem had the following conversation with the applicant:

Mr Kassem: I have asked you to take some leave so you can resolve your personal issues.

Ms Sirl: Am I going to be paid?

Mr Kassem: Of course, I told you I would pay you, you will take paid leave.

Ms Sirl: It is too much for me to handle all this now, I don’t want to take leave, I just don’t want to come back.

Mr Kassem: You don’t have to do that.

Ms Sirl: No I do, I don’t want to come back here.

Mr Kassem: You should take paid leave okay?

Ms Sirl: Okay, but I don’t know if I want to come back, I’m not appreciated and things will only get worse now. No one has been here, I’ve been pretty much running it from 2011. No one has entered the centre for over eight years.

Mr Kassem: Catherine, we have only been open since 2009, what are you talking about?

Ms Sirl: Oh maybe I’ve been here since 2010.

Mr Kassem: I think you started in 2012 and you haven’t been running the business that only occurred in about 2013. Anyways we’ve agreed that you will take paid leave. Rosie wants to ask you some questions.

Mr Kassem was present when Mona had asked the applicant about the receipts. The meeting concluded with him accepting she was leaving the business, but he would need to have all wages books and receipts to calculate her entitlements.

[60] Under a heading Misconduct, Mr Kassem claimed that:

● the applicant had not purchased most of the resources for the Centre and had never given him any cash;

● the applicant would pay him for items on her credit card to earn points and would use the fee payments to reimburse herself;

● the applicant had not bought three computers - Jehad had bought them. When asked for receipts, she couldn’t provide them, she then said ‘OK either way, I don’t care, if I’m mistaken it’s fine’;

● he was disturbed that a Nominated Supervisor did not know where cash purchases were;

● the applicant had withheld the wages book and tax receipts, despite insisting they were held by her ex-husband;

● the applicant was withholding $1000 cash in parent’s fees and had removed money from the business without authorisation;

● the applicant had encouraged staff to leave the Centre and had advised parents to remove their children because the Centre was to close;

● the applicant had threatened a work colleague; and

● the applicant had performance and conduct issues in 2013.

[61] Mr Kassem believed that the applicant was only owed four weeks annual leave. He maintained that she had not worked continuously, for between 5-10 years, with any of his related entities.

[62] In his oral evidence, Mr Kassem said he had heard about his son’s marital problems from other members of the family, although initially they had tried to hide it from him. He said nothing at the time and hoped the reconciliation in 2016 would have succeeded. He understood that the allegation against the applicant was that she had an affair. He also was aware she had an AVO against his son which was issued on 6 November 2015. However he did not inquire as to why the AVO had been issued because he did not want to be involved.

[63] Mr Kassem said that the family was not happy about the applicant returning to her husband, because she had had an affair. However, he had not threatened to disinherit his son if he remarried (under Islamic Law) the applicant. (Mona then helpfully explained to the Commission the processes of remarriage and divorce under Islamic Law, which I need not repeat here. I also note that the applicant had been a Catholic and had converted to Islam).

[64] Mr Kassem’s cross-examination continued. He said he did not hear about his son withdrawing $107,000 from the joint account until later. He had not heard anything about his son stealing jewellery and money from the applicant. Mr Kassem said that on 31 July, his son had told him that the applicant ‘had been found again with other (sic) person.’

[65] Mr Kassem claimed that the applicant’s version of events on 31 July, was ‘complete lies’ and his version of what had happened was correct. She had agreed she had been with another man. Mr Kassem now denied referring to her safety at the Centre during the first phone conversation. He said the solicitor had got that point wrong when it was included in his statement.

[66] Mr Kassem reaffirmed that he had changed the locks on the Centre’s gate on 31 July, after his son warned him the applicant intended to steal furniture and money. Mr Kassem also believed she might ‘hide document(s).’ Mr Kassem said he was unaware the applicant had decided to attend the Centre that night, despite her having rang Rosette to say she would be coming. He had believed his son when he told him 10 minutes before she arrived that she may attempt to steal furniture and money. He explained the speed with which the locks were changed by claiming that the Centre already had a new chain and padlock on the premises. He rejected the applicant’s evidence that a parent had called her earlier in the day to say a new padlock and chain had been put on the gate earlier.

[67] Mr Kassem agreed that he, his two daughters and son were already at the Centre when the applicant arrived. However, they had not been there during the day. He had arrived around 6-6.30pm that night with his son and put the new locks on straight away. He reiterated that Rosette had not told him the applicant had called his mobile and changed her mind about not coming that night.

[68] Mr Kassem was asked why, if he had a conversation with the applicant that night in a one hour meeting, he could only be heard on the tape for 30 seconds or so? Most of the meeting involved Mona and Rosette questioning the applicant. He was asked why he had not mentioned in his statement that his daughters were doing most of the talking and his son was present. Mr Kassem explained that he had reached an agreement with the applicant (that she would go on paid leave) in the car park and not later inside the Centre. This was not mentioned in his statement and he did not know why this conversation had been omitted.

[69] Mr Kassem conceded he had not read his statement before signing it and then said he had read it. He claimed he signed it on 2December 2016, but he had already agreed he was at his farm in Young that day. He then said it did not matter where he was – ‘it was in his statement.’ In a further exchange with me, Mr Kassem said he could have signed his statement after 2 December.

[70] Mr Kassem claimed that his intention with the situation was to look after the children (of the marriage) until things with his son and his wife settled down. In the meantime, the applicant would be paid. Nevertheless, he agreed his ultimate loyalty was to his son. Mr Kassem said his son had not done what the applicant had done. It was his son who was ‘in the right.’ The applicant was to stay away from the Centre for the time being. She had not been paid since 31 July because she had retained the wages book. However, the book was returned on 9 August, but there was still the issue of $800 in cash, which the applicant had in her possession. Mr Kassem agreed the applicant had asked about her entitlements on 31 July, 1 August and 9 August and had still not been paid anything. He conceded he had a duty to pay her.

[71] Mr Kassem acknowledged that he did not know the Award that applied to staff at the Centre, as his daughter handled all staff issues. He did not know about the appointment of the new Director, Ms Sarah Dablan. Nor was he aware Ms Dablan had referred to herself as the Director on a social media page. Mr Kassem accepted that he had not performed most of the duties of a Director under the Award. At this point, Mona interjected to query whether it was necessary to have a Director under the Award. She was asked why the applicant and others had styled themselves as the Director for years, without any challenge from the owners?

[72] Mr Kassem did not know why the applicant requested a termination letter, when she had not been terminated. Mr Kassem was questioned about this comment to the applicant on 9 August:

‘You cannot work here because of your husband.  If we fix the situation with your husband, the job is available.’

He explained that he meant (the job) was not available for the ‘time being.’

[73] In re-examination, Mr Kassem reiterated that when the applicant and his son’s relationship first broke down in 2015, he had not terminated her employment and had not even inquired as to what she had done (the alleged affair). She continued working for a further three to four months after the marriage breakdown.

[74] Mr Kassem confirmed that although his son was at the Centre on 31 July, he had not participated in the meeting with the applicant, and was not even in the room.

[75] Mr Kassem said Jehad was in charge of staff tax returns, superannuation, writing cheques and was also the maintenance person. Mr Kassem claimed that he treated the applicant better than his own daughters; he trusted her, had full confidence in her and never had a problem with her. Mr Kassem insisted he did not terminate the applicant. Nor did he give her any idea or impression which would have made her believe he was intending to terminate her employment.

Ms Sarah Dablan

[76] Ms Dablan was working part-time at the Centre at the start of 2015. She had had often observed the applicant use money from parents’ fees to purchase items from Bunnings for the Centre. When later asked how she knew the applicant had gone to Bunnings, Ms Dablan said because she had told her where she was going. Ms Dablan believed that the applicant had a strong relationship with a colleague, Ashlee Strike, who was a previous full-time employee. She often observed them talking for hours in the office or going to lunch.

[77] Ms Dablan gave evidence that the applicant had contacted her sister and told her to take her children out of the Centre, as she was leaving. Ms Dablan believed the applicant had also told other parents to do the same. Since the applicant had left, Ms Dablan claimed the feedback from parents was how much their children’s reading and writing had improved.

[78] Ms Dablan said she was sad that other staff had left the Centre after being influenced to do so by the applicant. In fact, Ashlee had told her she was sad to leave, but as the applicant was her friend, she felt she had to do so. Serene (also a previous employee) had told her she had regretted leaving, and she should not have listened to the applicant.

[79] In cross-examination, Ms Dablan said that on 5 August 2016, when she had posted on Snapchat that she was the new Director of Buzzbee, she had only been joking and ‘showing off.’ The owner of the Centre was the Director. However, she refused to comment when asked if Mr Kassem had attended the Centre when she was there? She was directed to answer. She replied that Mr Kassem had attended the Centre, but could not recall how many times. When he did so, he did some paperwork and looked around. Ms Dablan could not recall if Mona had attended the Centre, prior to 31 July 2016.

[80] Ms Dablan denied ever receiving a written or verbal warning about her own conduct or performance.

[81] In re-examination, Ms Dablan said that the applicant had contacted her twice by phone after 31 July and had abused her. The applicant had said ‘if you take anything from the Centre, I’m going to call the police and come to you.’ The applicant had called Ms Dablan’s sister and had screamed at her too. Her sister had been shocked. Ms Dablan said that she was frightened of the applicant. When she had pressured her to leave the Centre, she said that if she did not leave, she was ‘a dog.’

[82] Ms Dablan claimed that the applicant would often chat to Ashlee in the office and leave all the kids with her in one room. Ms Dablan gave evidence that the applicant would often not start work until 9-9.30am, although the Centre opened at 7am. She would take most Fridays off, without explanation.

Ms Amani Chouman

[83] Ms Chouman started work with the applicant as a casual at the end of 2015. She now works part-time. Although it was her first job, she noticed there was no routine or educational program in place and she had received no induction. The applicant would leave her on her own with the children when she and Ashlee went out for long lunches or were chatting about unrelated work matters in the office. The applicant and Ashlee appeared very close. They would go shopping and have lunch together. Ms Chouman conceded that she only saw the applicant a couple of times, when she was working as a casual. Later, in re-examination, Ms Chouman said that the applicant would call her once or twice a week to offer her casual hours.

[84] In cross-examination, Ms Chouman said she believed the applicant was the Supervisor of the Centre. She was unaware of the management structure posted on the wall of the Centre. Ms Chouman said she had only met Mr Kassem once. She did not know Mona and she saw Rosette twice a week at the Centre after 31 July 2016, but not before that date.

[85] Ms Chouman agreed the applicant was effectively running the management of the Centre. Ms Chouman gave evidence of a father who called the Centre, two months after the applicant had left, complaining that the applicant had told him that ‘some educator had been hitting his son.’ When Ms Chouman was asked if she was aware the father was currently facing sexual abuse charges, she said she was not aware of this allegation.

[86] In re-examination, in respect to the father’s complaint, Ms Chouman said that at the time, she informed her supervisor, Rosette and filled in a complaint form.

[87] Ms Chouman added that after 31 July 2016 ‘we always receive good feedback from the parents about the improvement of the Centre - The children were learning more and were better behaved.’

SUBMISSIONS

For the applicant

[88] Mr Hanna submitted that the applicant was dismissed by Mr Kassem in a telephone conversation on 31 July 2016. Alternatively, the course of conduct engaged in by the employer was such that a constructive dismissal had occurred; see: Mohazab v Dick Smith Electronics Pty Ltd (No 2) 62 IR 200(‘Mohazab’) and Kylie Bruce v Fingal Glen Pty Ltd [2013] FWC 3941 (‘Fingal Glen’). Mr Hanna said the uncontested evidence is the applicant was dismissed on 31 July 2016, without notice - literally locked out of the Centre and forced by Mr Kassem to stay away from the Centre and stay with her children, until the issues with her ex-husband were resolved. This was the same person who had:

● physically assaulted the applicant on numerous occasions;

● been the subject of two AVOs;

● misappropriated $107,000 from their joint account and stole money and property from her;

● accused the applicant of being a thief; and

● incited his father to lock her out of her place of employment.

[89] The applicant’s dismissal was unfair and unjustified in circumstances where she had always acted responsibly and competently in her position as Director of the Centre. She had received no warnings, prior to being dismissed, because of the severe breakdown of her marriage to the employer’s son.

[90] Mr Hanna claimed there were serious issues of credit which reflected adversely on the respondent’s witnesses. This evidence included:

● Mr Kassem admitted that his statement was written by Mona and his lawyer.

● Mr Kassem had not read his statement before signing it, and admitted not signing it on the date identified in the document.

● Rosette avoided questions by answering ‘no comment.’ She contradicted other of the respondent’s witnesses, concerning accusations against the applicant.

● Mona claimed to be managing the Centre at the same time as she was working another full-time job. She admitted she had only visited the Centre 5-6 times in three and a half years since January 2015. She claimed her father was the Director of the Centre when her father’s evidence was that he did not perform the vast majority of Director functions.

● While the applicant’s ex-husband did not ultimately give evidence in the case, he was present on the first day and was ejected from the court by the Deputy President because he was attempting to intimidate the applicant during her evidence by threatening gestures and making foul sounds. He avoided cross-examination by claiming illness requiring temporary hospitalisation, but left hospital twice – once to drive his daughter to a function which he had attended the night before he was due to be cross-examined and the second time when the scheduled hearing was cancelled. Apparently, he could not see a doctor for his ‘illness’ until March 2017, despite his condition being said to be an emergency. Mr Hanna also referred to his violent past (see paragraph 87 above).

● While Rosette said Jehad was a very important witness, she later withdrew his statement.

[91] Mr Hanna addressed two disputed issues in relation to the applicant’s employment. Firstly, the applicant had been continuously employed by Mr Kassem from 2007 as evidenced by a letter from the employer to Centrelink signed by Mona. Since that time, the applicant had two brief periods of maternity leave – 27 June 2009 to 3 August 2009 and 23 June 2012 to 12 March 2012. As the respondent had failed to produce the time and wages records under a Notice to Produce, the applicant’s evidence as to her period of employment, should be accepted.

[92] Secondly, as to the applicant’s correct classification, Mr Hanna submitted that the evidence clearly established she had worked as a Director at Level 6.4, under the Children’s Services Award since January 2013, when Mona left the Centre to work full-time elsewhere. Other evidence supporting this contention included:

(a) the applicant’s unchallenged evidence that she had undertaken all the tasks and functions of Director;

(b) a management structure poster had been posted in 2013 on a wall at the Centre, setting out the applicant’s role as Director;

(c) Mona admitted the applicant ‘ran’ the Centre;

(d) Mona claimed her father was a Director, but Mr Kassem himself acknowledged he did not perform the vast majority of a Director’s duties and functions;

(e) Mona asserted she acted as external management of the Centre, but conceded she had only visited the Centre five to six times in three and a half years from January 2013; and

(f) the respondent’s witness, Ms Dablan could not recall either Mona or Rosette visiting the Centre before 31 July 2016.

[93] Mr Hanna submitted that the respondent had not proven any of the allegations of misconduct levelled at the applicant. On the contrary, at no time, was the applicant issued with any warnings about her conduct. The one instance in 2013, about her performance, was no more than an administrative oversight. Moreover, the applicant was well regarded by both parents and staff. The applicant had an entirely reasonable explanation for holding $700 in cash collected from parents that week and not handed over to her ex-husband. On 31 July 2016, she had acknowledged holding the money in its original envelope. It was later returned to the respondent in full.

[94] Mr Hanna said that the applicant received no warning or notice of her dismissal. It was totally unexpected and had nothing to do with her performance or conduct. It was because of the marital problems with Mr Kassem’s son. The respondent had acknowledged that Jehad was ‘very aggressive, very angry.’ There were other factors relevant to her dismissal, including:

(a) Jehad’s violent past;

(b) the family’s ‘unhappiness’ when the couple briefly reconciled in Jan 2016; and

(c) the theft by Jehad of $107,000 from their joint account had left the applicant to pay the mortgage and interest on the full amount.

[95] Mr Hanna submitted that Mr Kassem’s words ‘for your own safety it is better if you are not allowed to return to work’ and then ‘I don’t want you to return to the Centre’ left the applicant in no doubt she had been dismissed. The gate’s locks were changed because Mr Kassem had been told the applicant intended to steal furniture, money or documents. Mr Kassem was also upset at the applicant’s alleged affair, but had not been concerned about the violent assaults on the applicant, preferring they sort out their problems themselves. In addition, Mr Kassem wanted the applicant to stay with the children and have them accessible to the Kassem family. Mr Kassem accepted his first loyalty was to his son and stood by him as the wronged party in the marriage.

[96] Mr Hanna identified other indicia of the applicant’s dismissal, including:

(a) she was given no date for her to return to work;

(b) in all meetings with the respondent, she had asked for her entitlements and a termination letter and insisted she had been dismissed and had been ‘ambushed’;

(c) any return to work was dependent on restoring good relations with her ex-husband. This was highly unlikely, given the circumstances and the conduct of her ex-husband; and

(d) the respondent saw no issue with removing the applicant from her position as long as the children remained accessible to the family.

[97] Mr Hanna put that the 31 July meeting was not a meeting at all because Mona and Rosette issued demand after demand to ensure the applicant turned over full control of the Centre to them. She was interrogated about records, staffing issues, finances and passwords.

[98] At both meetings on 31 July and 9 August 2016 Mr Kassem had agreed to pay the applicant her entitlements, contrary to his earlier proposal to pay her leave and other monies. She had been paid nothing since 31 July 2016. Excuses for not doing so, do not stand up. While claiming she had not been accused of theft, this was the inference about the $700 cash the applicant had retained. As to the suggestion that the applicant having phoned the Department of Education to notify she was no longer the Nominated Supervisor, was an indication of her resignation, Mr Hanna put that:

(a) she was required to do so by law having been dismissed; and

(b) she was so angered by what had happened, she did not want to wait for the employer to do so.

[99] Mr Hanna also set out what he described as a ‘long course of denigrating conduct’ by the respondent. It had continued to pay her low and incorrect rates as the Director of the Centre; ordered her to do extra tasks, such as accounting and book keeping in her own time, without pay; dismissed her for unrelated work issues and protected a violent and misappropriating son.

[100] Mr Hanna submitted that the applicant should be found by the Commission to have been unfairly dismissed and awarded compensation of 26 weeks pay at the Director Level 6.4 under the Award at a rate of $1,207.90 multiplied by 26, being $31,405.40, plus superannuation. Costs were also sought based on the respondent’s ‘vexatious’ conduct.

For the respondent

[101] In a detailed 48 page closing submission, the respondent largely quoted excerpts from the transcript to demonstrate its view that the respondent’s witness’ evidence should be preferred over that of the applicant. Without setting out the specific transcript references, this evidence was said to support the following propositions, questions and submissions:

• The applicant acknowledged a good relationship with Mr Kassem and the fact she continued working at the Centre after the first marriage breakup in 2015, contradicts her claim of being constructively dismissed by him. He had full trust and respect for her.



• The applicant had admitted to having an affair and agreed to a temporary paid leave arrangement, as a strategy not to cause problems at the Centre. This was necessary because Mr Kassem ‘guarded his business.’ If she had not agreed, a Plan B would have been considered.



• Mr Kassem did not believe he or his daughter were rude, intimidating or had ‘ambushed’ the applicant. If they had, she should have reported the conduct to the authorities and not attend meetings without a support person.



• Mr Kassem’s evidence of what he told the applicant was the reason for her not to return to the service was contradicted by her when she said ‘she had no idea why he would have said that.’



• The applicant contradicted herself when she said that Mona and Eddy had kept her pay at Level 4 and then claimed she had paid herself and increased her wages after consultation with the external HR/IR consultant. Why is the applicant bringing up pay issues when she never raised them earlier?



• The applicant claimed she performed the duties of the Director, but the records show that in the 2 weeks immediately preceding 29 July 2016, she was barely at work for the time she claimed 80 hours. Her phone records prove this.



• The management structure document, identifying the applicant as the Director, was typed out by the applicant herself, but other staff (Ms Dablan) knew her only as the Supervisor.



• The applicant was not dismissed, because this was contrary to the evidence of Mr Kassem and Rosette. Further, Mr Perrin had asked her if she was sure she wanted to leave, and she responded ‘yes, 100%’ and later, on 9 August, when she said ‘I don’t want to come back to work.’



• The respondent had wanted to continue paying her, but her resignation took it out of their hands on 1 August 2016. She also took her own name down as being the Nominated Supervisor.



• The applicant’s tone, demeanour and behaviour underwent a ‘360 degree’(sic) change overnight on 31 July to 1 August 2016. Mr Perrin knew it was a set up for an unfair dismissal, but he felt obliged to support her.

• The following actions of the applicant were in ‘retaliation’ for the issues she had with Jehad;



• she degraded (sic) the Service;



• she degraded (sic) her husband;



• she convinced parents to remove their children from the Service;



• she persuaded two staff members to unwillingly resign; and



• she had intimidated and threatened staff.



• If the applicant believed Jehad had stolen money from their joint account, why did she not report it to the police?



• It was not the respondent’s fault, the applicant’s marriage had broken down. It was not a constructive dismissal.



• The respondent tried to support both parties by allowing a ‘cooling off period’, while they were stood down and paid (I note there was no evidence that Jehad had also been stood down. The first time this was mentioned was in closing submissions).



• At all times, Mr Kassem had assured the applicant she would be paid on leave, but he would need to have the wages book back, before paying her.



• The applicant was not so much interested in her pay, as getting a termination letter, so she could ‘open a fabricated unfair dismissal claim.’ She was trying to ‘frame’ and embarrass Rosette into giving her one.



• Rosette was not the employer, so she could not agree to provide her pay or a letter. The applicant was very rude to her and demeaning of Jehad; whereas Rosette was ‘calm, collective (sic) and supportive.’



• Rather than provide the wages book - as she had agreed to do - the applicant filed an unfair dismissal claim. The wages book was not returned until 13 December 2016, so she could not be paid.



• In the meeting of 1 August 2016, the applicant was loud, swearing, rude and demeaning – far from her claim of being intimidated, ambushed and humiliated.



• She attended the Centre, with a parent (Mr Perrin) as a support person, without any notice or appointment and secretly recorded the conversation. She presented Rosette with a set of demands and raised personal issues in front of the parent. She later deleted parts of the recorded conversation she did not want anyone else to hear. Rosette was embarrassed, confused and intimidated by the applicant, who has a ‘manipulating character.’



• While Mr Kassem admitted putting a lock on the front gate, it was a normal security practice, as Mr Kassem had been informed by Jehad that the applicant ‘may have plans.’ Jehad knows his wife better than anyone. Safeguarding the Centre and taking precautions does not mean you do not trust the person. In any event, the applicant withheld records, receipts and money from parents until 13 December 2016.



• The applicant claimed to have had two meetings with the respondent after 31 July, when there were three – she failed to mention the earlier meeting with Mr Kassem in the car park on 31 July. The applicant had documented the 31 July meeting in her diary and had falsely said in her diary ‘Rosie was being rude’ when the recording discloses she was being supportive.



• Ms Dablan claimed the applicant commenced work mostly after 9am, whereas the applicant insisted she always opened the Centre at 7am. Phone records show the applicant making calls from different locations throughout the day. The applicant had recorded false hours of work and had not recorded holidays taken as RDOs in the wages book.



• The applicant’s diary notes are inconsistent with the relevant tape recordings, which were made without the respondent’s or Rosette’s knowledge.



• The applicant further contradicted her evidence when she claimed to have given fee money to Jehad weekly or fortnightly, but then said she kept the money for two to three months so as to purchase items and resources for the Centre.



• The applicant did not know her correct start date. At one point it was 2010 and she then claimed it was 2007 at Palm Childcare. There were large gaps and breaks in her employment which made her ineligible for long service leave. The employer’s records show her commencing at Buzzbee on 24 September 2012, not 2009 as claimed by her.



• The applicant was never given authorisation to be the Director of the Centre, as she claimed.



• The applicant caused damage to the service by demanding Rosette disenroll seven children in a letter in her own handwriting on 1 August 2016 and contacting Ms Dablan’s sister to pressure her to take her children out of the Centre.



• The applicant influenced two staff members to resign who just happened to do so in the same period she had resigned. While she denied contacting any staff member after 31 July 2016, her phone records disclose contact with four staff after this date.



• The applicant had not taken over Mona’s role as Nominated Supervisor in January 2013, as Mona remained responsible for all three services.



• Despite the applicant denied being ever warned for misconduct, Mr Kassem’s statement disclosed the contrary to be true.

[102] The respondent’s submission also dealt with the applicant’s claim of financial difficulties after her resignation and certain other matters relating to her relationship with Jehad. As noted by the respondent itself, these matters are not relevant for the purposes of this decision.

[103] Under the heading ‘in Response to applicant’s closing submissions’, the respondent largely replicated arguments set out above and I do not repeat them again. Any new or expanded responses to the applicant’s submissions are set out below:

(a) No one accused the applicant of theft. The respondent had merely taken precautions to protect the Centre.

(b) The applicant had never been offered a Director position, nor did she conduct the duties of a Director. At best, the applicant was an Assistant Director Level 5.3.

(c) Due to Mr Kassem’s limited English, the lawyer and Mona assisted in writing his statement which was dictated over the phone and later signed by him.

(d) There was no attempt by Jehad to avoid giving evidence. He subsequently became ill, was hospitalised twice and had medical certificates, if required.

(e) There was nothing ‘illegal or impossible to have an external manager (Mona) conduct ‘spot’ visits of the Centre. All full-time staff knew what Mona’s role was after 2013.

(f) The applicant never applied for maternity leave, nor was she entitled to it in 2009 and 2012. There were large gaps in the applicant’s employment.

(g) The applicant’s lawyer submitted details of Jehad’s long history of violent behaviour. Why is this the employer’s fault?

(h) The respondent claimed Mr Hanna put confusing and indirect questions to Mr Kassem which resulted in him giving misunderstood answers.

(i) The respondent insisted the applicant had agreed to a ‘cooling off’ period during which she would continue to be paid.

(j) Why would the applicant need to review the tape recordings to establish whether Mr Kassem had or had not terminated her employment, if she was so sure she had been?

(k) All of the respondent’s witnesses were calm, supportive and respectful, as distinct to the applicant’s aggressive, rude, manipulative and threatening behaviour. It was why she was able to pressure the parents to take their children out of the Centre and encourage other staff to resign.

(l) The respondent had not ‘demanded’ information and records on 31 July. It had merely asked questions to ensure a smooth and temporary handover of the Centre’s operations. It was not a constructive dismissal. It was the applicant who demanded:

(i) her entitlements;

(ii) a termination letter;

(iii) payment for items she had purchased; and

(iv) her Supervisor Number.

(m) There was no evidence of the applicant performing bookkeeping or accounting duties at home, or even being asked to do so. The respondent had an accountant and Jehad prepares tax records.

(n) The applicant was not paid at Level 4.2, but had paid herself at Level 5.3. If the applicant believed she was to be paid as the Director, she would have paid herself the higher salary. There was no evidence of her ever asking for a pay increase.

[104] Attached to the respondent’s submissions and described as ‘Summary’, was an Outline of Submissions originally prepared and filed by the respondent’s since relieved lawyer, Mr Jason Polese. It encapsulates the essence of the respondent’s arguments. It is therefore useful to set it out in full as follows:

‘Unfair dismissal application filed on 18^th August 2016 (Application). The Applicant seeks compensation for: unfair dismissal in the amount of 26 weeks’ pay, 4 weeks’ notice and annual leave and long service leave entitlements.

The Applicant contends that she was dismissed, unfairly, without notice and without reasonable cause.

The Applicant contends that she was dismissed because her husband was “upset”.

The respondent rejects these claims and contends that the Applicant was in fact not dismissed and left on her own accord, and further, due to facts now known to the Respondent, would have been entitled to lawfully terminate the Applicant, due to misconduct.

The Applicant contends that she was employed with a related entity to the Respondent known as Windtone Pty Ltd, in another child care centre known as Rawson Rd Long Day Care Centre.

The Respondent contends that the Applicant was employed by HK Group at Buzzbee Long Day Care Centre from about May 2013 as an authorized/nominated child care Supervisor and there was no transfer of employment, as there was no continuation of employment.

On or about 31 July 2016, the applicant alleges that she was unfairly dismissed, due to a relationship breakdown with her husband, Jehad, the son of the Respondent’s Director, Mr Hafez Kassem.

The Respondent contends that the Applicant was asked to take paid leave, until her personal issues were resolved but instead resigned from her position.

Entitlements

It is appropriate to deal with this issue raised by the Applicant, before the unfair dismissal matter is addressed.

It is respectfully submitted that notwithstanding the Applicant's right at law to claim entitlements, it is not within the Jurisdiction of the Commission in an unfair dismissal application, to consider and/ or make orders in relation to the Applicant's annual leave or long service leave.

Any evidence before the Commission in this respect should be not be admitted.

Any orders sought in this respect should be dismissed.

THE ALLEGED DISMISSAL

Primarily, the Respondent raises the Jurisdictional question of whether the Applicant was in fact dismissed.

The Respondent contends that the Applicant was not dismissed and in fact had resigned from her position with the Respondent.

(The) Respondent relies on all statements and the above submission including the Applicants (sic) credibility issues.

Section 386 of the Fair Work Act defines the term dismissed as follows:

(1) A person has been dismissed if:

(a) the persons (sic) employment with his or her employer has been terminated on the employers (sic) 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.

The Respondent submits that the Applicant was asked to take paid annual leave, in order to give her time to resolve personal issues at home with her husband. It was not the initiative of the Respondent nor any conduct to force a resignation.

The Respondent contends and maintains that there was no intention to dismiss the Applicant Hafez's statement at [14-17 and 35- 381 and when considering the evidence of the conduct of the employer and employee, the Respondent attempted to keep the Applicant through paid leave. In this respect, the Respondent submits that no dismissal was communicated to the Applicant and thus no dismissal took effect; Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24].

The Respondent's actions, had no intention or likelihood to cause termination; see: Rheitherger (sic) Huxley Marketing Ply Ltd, ABB Engineering Construction Pty Ltd v Doumit and O'Meara v Stanley Works Pty Ltd (‘O'Meara’).

Respectfully, the Respondent has provided evidence of several conversations on 31 July 2016, 1 August 2016 and 9 August 2016, where the Applicant has either alleged that she resigned or stated that she did not want to take paid leave and that she did not want to return to the work place.

Further, it was the Applicant herself, who called the NSW Department of Education to notify them that she was no longer the nominated supervisor of the Respondent.

Respectfully, it is submitted that the only evidence, that could possibly persuade the Commission, provided by the Applicant in this regard, is an alleged statement at Ms Catherine Sirl's affidavit (Applicant's Affidavit) at paragraph [22]. Which is denied by the Respondent, and in which the Respondent has provided evidence of contrary conversations by Hafez Kassem, Mona Kassem and Rosette Kassem. Including statements from current employee Sarah Dablan.

MISCONDUCT

Further or in the alternative. The Respondent respectfully submits that if there is a finding that the Applicant was in fact dismissed, the dismissal was lawful and reasonable in the circumstances.

It is established that facts justifying dismissal, which existed at the time of the dismissal, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373,377-378.

It is submitted that facts which existed at the time of the dismissal, but came to light after the dismissal may:

a) justify the dismissal when it would otherwise be harsh, unjust or unreasonable, or

b) render the dismissal harsh, unjust or unreasonable. Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & 0 Ports (AIRCFB, Ross VP, Hamilton DP, Eames C, 8 October 2002) PR923358 [79].

The Respondent contends that the allegations outlined under the heading "Misconduct" found in Hafez's statement justifies the dismissal. Inter alia, there are allegations of; theft, misuse of Business money, insubordination, fraudulent time entries of work hours and misuse of Business money to pay herself amounts which she was not entitled to.

In this regard, it is submitted that if it is found that there was a dismissal, it was not hard, unjust or unreasonable; it was, lawful and reasonable in the circumstances.

THE APPLICANT'S FINANCIAL HARDSHIP

It is respectfully submitted that the alleged hardship of the Applicant is exaggerated and she would not be entitled to the full award of 26 weeks' pay. The Respondent relies on the statement of Jehad Kassem in this respect and Paragraph 59 closing submission.

ORDERS AND DISPOSITION

The Deputy President would conclude that the matters in the Respondent's evidence are preferred.

The Deputy President would conclude that the Applicant was in fact not dismissed and therefore not entitled to an unfair dismissal remedy.

Further or in the Alternative, if the Deputy President is inclined to find that there was a dismissal in accordance with section 386 of the Fair Work Act, then the Deputy President would conclude that the misconduct of the Applicant, would deem the dismissal lawful and justified.

The Application should be dismissed with costs.

In the alternative, if the Deputy President is inclined to find in favour of the Applicant, the Applicant should not be awarded more than 4 weeks' pay.’ (footnotes omitted)

CONSIDERATION

The taped conversations

[105] Before considering the substantive issue in this case, I am bound to record a matter, about which I have grave concerns. It emerged in the tape recorded conversations tendered in evidence, which I listened to, in their entirety, after the decision had been reserved.

[106] The meeting on 31 July 2016 between the applicant, Mr Kassem and Rosette was recorded on a mobile phone and the tape together with the tape recordings of the conversations on 1 and 9 August were also tendered in evidence. While not transcribed, the tapes were accepted, without objection (save for the respondent’s complaint that the 31 July conversation was only part recorded). Accordingly, the tapes form part of the formal record of proceedings.

[107] Having carefully listened to all the tapes, I am profoundly troubled by an exchange between the applicant, Rosette and Mona when the applicant was questioned about the fees paid by parents for their children’s childcare at the Centre. To avoid doubt, I have had transcribed the relevant passage, redacting the names of the children mentioned. It is as follows:

Ms Sirl: I’ve got to take my sister off. I’ll do that now. My sister. My sister’s kids will be taken out.

Mona: Oh Jan’s kids are here?

Ms Sirl: Yeah, well she doesn’t really come. So she’s. Like her kids are claiming five days so. I already spoke to her obviously, she’s going to take them to another Centre. and Errol will definitely leave. Like he’s going to take X now. So.

Mona: But because, legally.

Rosette: Leave them!

Mona: Legally she needs to confirm with the parent’s.

Rosette: I’ll talk to them.

Mona: I know you’re saying but let her confirm with the parents.

Rosette: Don’t delete any families, I’ll deal with it.

Ms Sirl: Just my sister has to come off.

Mona: Whoever is going to take over needs to call all their parents to introduce who the new person is and confirm before you delete anything.

Ms Sirl: Yeah, yeah, yep.

Mona: Do you know what I mean? Like she can call Jan and say ‘we confirm’ and it doesn’t matter. Like whoever wants to come off comes off.

Sirl: Yeah, yeah. Fair enough.

Mona: So she can call them tomorrow, one by one and tell them the situation.

Ms Sirl: Ok what we’ll do now, we’ll just take the kids that under my name that we’re claiming that doesn’t really come. Do you know what I mean?

Rosette: Who are they? Write their names down so we can keep them and enrol them. Write their names down.

Ms Sirl: No you don’t have to get rid of them out of the Centre. What I’m saying is the days that they’re scheduled in…

Mona: Don’t, like, don’t delete any.

Ms Sirl: They don’t really come.

Rosette: Ok let me talk to them, who are they?

Ms Sirl: So you don’t want to delete these now?

Rosette: Don’t do nothing, don’t do nothing. Who are they? X, who else? Give me their names.

Ms Sirl: Alright. He doesn’t come at all, he’s not really enrolled in the Centre.

Rosette: X.

Sirl: They can’t speak English at all.

Rosette: Just give me their names and that’s it.

Sirl: X, X, X, X.

Mona: Write their names properly!

Ms Sirl: X and X, X, X.

Rosette: They’re the ones that don’t come to the service?

Sirl: They come only one or two days but we’re claiming five days.

Mona: Ok we need to make sure that they know that they have to pay or they don’t come.

Rosette: I’ll talk to the parents.

Sirl: No, no, no. It’s not like that. What happens is they don’t really come anyway but they only pay a certain amount in cash to me for the days that they really attend. But we’re really claiming on five days because they sign in and out.

Mona: Oh but we can’t do that.

(Everyone speaking over the top of each other)

Rosette: That’s alright, just give me the names and I’ll fix everything up. I’ll fix everything up yeah.

Ms Sirl: X.

Mona: Don’t worry. You won’t have anything to worry about because she’ll say ‘sorry we’re the new, you know..’

Ms Sirl: X, X, X and X.

Rosette: Who’s X?

Ms Sirl: They’re brothers. X, X, X.

Rosette: X:

Ms Sirl: X, X and X. X.

Rosette: Who’s the other one?

Ms Sirl: X. X. X,

Ms Sirl: X and X. They’re just on there. They’re what’s-her-name’s kids. She’s taken them off now. Um. Ashlee’s Kids. Youse are just claiming for them. They don’t come.

Rosette: Who’s Ashlee? Oh yeah.

Ms Sirl: Yeah yeah yeah.

Rosette: X and X.

Mona: So they don’t come here?

Ms Sirl: Nah. They don’t attend here at all.

Mona: Where do they go?

Ms Sirl: To another Centre.

Mona: How could you be claiming here?

Ms Sirl: Oh no they don’t go to another Centre, well they were but they were only going there two days so we were claiming three days here.

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (References omitted)

See also: Josephine Searle v Moly Mines Limited [2008] AIRC 210 and Ryan v ISS Integrated Facility Services Pty Ltd [2014] FWCFB 8451.

[116] The Full Bench of the Federal Court of Australia recently traced the history of the concept of ‘termination of employment at the initiative of the employer’ beginning with the ILO Convention in 1982 and highlighting the well-known case of Mohazab as continuing to be ‘good authority’ on the subject. In Mahony v White [2016] FCAFC 160, the Court said at paragraphs 19-23:

1. The concept of the termination of employment having been at the “initiative” of the employer has its genesis in the Convention Concerning Termination of Employment at the Initiative of the Employer adopted by the International Labour Organisation (“the Convention”) on 22 June 1982. Legislative effect was given to that Convention when the Industrial Relations Act 1988 (Cth) (“the IR Act”) was amended by the Industrial Relations Reform Act 1993 (Cth). The Convention then became Sched 10 to the IR Act. Articles 3 and 4 of the Convention provided as follows:

Article 3

For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer.

Article 4

The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

2. It will be noted that Art 4 was expressed in the passive voice. Absent the terms of Art 3, Art 4 would have applied to termination by either party in the employment relationship. But, as the title of the Convention made clear, that was not the intent. The Convention applied only to a termination at the employer’s initiative, that is to say, to a termination which, in Anglo-Australian systems of law, would be described as a dismissal.

3. In the provisions of the IR Act which implemented the Convention, the passive voice was not used. In every case, a direct legislative prohibition, enforceable by court proceedings, was established by use of the formula, “an employer must not terminate an employee’s employment” (see ss 170DB, 170DC, 170DE, 170DF and 170DG). Nonetheless, it was provided by s 170CB that an expression in the relevant Division of Pt VIA of the IR Act had the same meaning as in the Convention.

4. It was in this state of the law that the Full Court of the Industrial Relations Court of Australia decided Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. There the question was whether the termination of the employment of the employee concerned had been at the initiative of the employer. The employee had signed a letter of resignation, but that had been done in circumstances where he had been given a choice by his employer either to resign or to have the police called in to investigate what, according to the employer, was the theft of an item of stock. The Full Court held that the employee’s resignation had been at the initiative of the employer and had, therefore, been a termination within the meaning of the Convention and the legislation. The effect of this judgment was that, notwithstanding the use of the active voice in the legislation, a termination that had not been done by the employer might nonetheless have been, and in that case it had been, done at the initiative of the employer and thus covered by the statutory prohibitions.

5. The Full Court said (62 IR at 205):

These definitions reflect the ordinary meaning of the word “initiative”. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

And (62 IR at 205-206):

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

1. Although their Honours were concerned, as they had to be, with meanings conveyed by the terms of the Convention, the formula “at the initiative of the employer” has been retained in the FW Act (albeit not in that precise grammatical arrangement). This judgment remains good authority as to the connotation of that formula. (my emphasis)

[117] In a recent decision, Commissioner Williams helpfully summarised the principles of constructive dismissal. In Sherman v Sunrise Health Service Aboriginal Corporation [2016] FWC 8903, the Commissioner said at paragraphs 26-28:

[26] That a person’s forced resignation may be a dismissal is well established, and is explicitly identified in s.386(2) of the Act.
[27] The principles of forced resignation, or constructive dismissal, have been extensively analysed in many cases, including by the Full Bench of the Fair Work Commission (the Commission). Those principles require all of the circumstances of a termination to be examined, and not only the actions of the employer. The employers conduct must be weighed objectively and arising from that it “may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal”. While there it is the case that an employer is generally able to treat a clear and unambiguous resignation as a resignation, there is also a recognition that where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise for further consideration. In such special circumstances an employer may be required to allow a reasonable period of time to pass and an employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.
[28] Terminations on the initiative of the employer have included those in which an act of an employer either directly or consequentially has led to the departure of an employee; namely, had the employer not taken the action it did, the employee would have remained in the employment relationship. (Footnotes omitted)

[118] The Commissioner then set out a number of excerpts from the leading authorities, including Mohazab, and concluded as follows:

● the employer’s conduct must be weighed objectively;
● forced resignation may result from some action on the part of the employer intended to bring the employment to an end or an action which would, on any reasonable view, probably have that effect;
● an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign;
● while an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left by the employee”

[119] In Nurcombe v Balaclava Pastoral Co Pty Ltd ATF O'Connor-Fifoot Family Trust [2016] FWC 7454 Commissioner Cambridge was faced with a not dissimilar set of circumstances to the present case, in which there were no words said or written, expressly dismissing the applicant in that case (in fact, quite to the contrary). However, the Commissioner found that the course of conduct engaged in by the employer (including demanding the keys to the workplace) evinced an intention that it no longer considered itself bound to the employment contract and therefore the applicant was constructively dismissed ‘at the initiative of the employer.’

[120] The Commissioner then said at paragraphs 63-64:

[63] Consequently, despite whatever words may have been said by Ms Fifoot on 21 February, the second, unwarranted and unreasonable stand down of the applicant when properly construed in the context of the circumstances leading up to that event, represented the employer’s repudiation of the fundamental elements of trust and confidence that are necessary for the maintenance of the contract of employment. The applicant was entitled to treat the (second) stand down as conduct of the employer which repudiated any continuation of the employment relationship. These circumstances are akin to what is often described as constructive dismissal, although there is no formalised resignation provided by the employee.
[64] The position that the applicant found himself in on 21 February could be described as a constructive dismissal, where the stated position of the employer disingenuously attempted to continue the employment despite its actions to the contrary. In a practical sense, the applicant could have verbalised his position as one whereby he was entitled to reject the second unwarranted stand down, and treat the actions of the employer as dismissal, notwithstanding any confirmed, spoken suggestion to the contrary. These were circumstances whereby the dismissal was constructed by the actions of the employer, although there may have been no words which conveyed dismissal to the employee, and instead communication was made which was contrary to the intentions of the action taken.

[121] The Commissioner continued:

[65] This aspect of the concept of constructive dismissal which does not necessarily manifest as a so-called forced resignation of an employee, is explained by the learned authors of the often quoted source book, Macken’s Law of Employment and the following passage from that text is instructive:

“Alternatively, the employee may, in certain circumstances, treat herself or himself as discharged from further performance of the contract, and leave the employment without giving the requisite notice. This course will be justified where the conduct of the employer amounts to a repudiation of the contract, that is, the employer’s breach or proposed breach is sufficiently serious to allow the employee to regard herself or himself as discharged from further performance of the contract. The term “constructive dismissal” is often used to describe this situation.”

[66] There is a considerable amount of Case Law authority on the question of constructive dismissal. One case which is often referred to is that of Mohazab v Dick Smith Electronics (No.2) (Mohazab) which succinctly summarised the concept of constructive dismissal as follows:

“However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 

[67] In Mohazab, the Full Bench of the Court also referred to another authority in the case of Allison v Bega Valley Council  (Allison). The following extracts from the Decision in the Allison case is particularly helpful for application in the present circumstances:

“Although the term “constructive dismissal” is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”
and
“In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee...”

[68] In the present case, a careful analysis of the circumstances has established that it was the actions of the employer which operated to bring the employment to an end. Consequently, the applicant was dismissed in satisfaction of the terms of subsection 386 (1) (a) of the Act. That is, the termination of the applicant’s employment occurred on the employer’s initiative.’

While an appeal of the Commissioner’s decision was partially upheld (on remedy only); see: Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe [2017] FWCFB 429, the Commissioner’s finding of a ‘constructive dismissal’ was not disturbed by the Full Bench).

[122] I turn now to the facts of this case.

[123] It is undoubtedly correct that Mr Kassem did not, at any point, expressly use direct language such as ‘you are dismissed’; ‘you are fired’; ‘leave now and don’t come back’; ‘your employment is terminated’ or even ‘you are finished with us.’ Nor did the applicant ever receive a letter terminating her employment. Nevertheless, exclusive reliance on these factors is not, in my opinion, decisive as to whether the applicant was dismissed. The gist of the respondent’s case focused entirely on the fact Mr Kassem did not use direct language to dismiss the applicant and that while she had requested a termination letter, it was not provided because she had not been dismissed, but had resigned of her own accord. The mere absence of a termination letter is not conclusive as to whether an employee has been dismissed. The respondent’s reliance on this fact, does not take its jurisdictional objection very far.

[124] In my opinion, the words used by Mr Kassem, in the context of the the views he held at the time and the actions taken by him and others of his direct family, were entirely inconsistent with the notion of an employee voluntarily leaving their employment; rather, the conduct evinced a clear intention that the respondent no longer wished the applicant to remain in employment at the Centre. Let me explain by firstly examining the background to Mr Kassem’s comments and the actual words used.

[125] Mr Kassem believed that the applicant was involved in an affair with another man because his son had told him so. He claimed the applicant had, in fact, confirmed her extra marital affair to him. Of course, the applicant has strenuously denied ever having an affair; let alone admitting to doing so. However, whether she had, or had not been so involved, is not material to the issue to be determined here. What is relevant is what Mr Kassem and the family believed about the affair. Mr Kassem also understood the alleged affair was the basis of an earlier breakdown of the marital relationship in 2015. Members of Mr Kassem’s family were very unhappy with the applicant and the situation. They believed what their son and brother had told them and that he was the person who had been grievously wronged. Moreover, Mr Kassem’s evidence was that his first loyalty was to his son. Mr Kassem had been told by his son that the applicant intended to steal property from the Centre. It was hardly a rosy character portrait Mr Kassem had in mind.

[126] Mr Kassem’s answer to the untenable workplace situation of having his son and his estranged wife working together, was to immediately propose that for her own safety, she not come to the Centre until the situation ‘calmed down.’ She would be paid for some indeterminate period. Given that the respondent has never paid Ms Sirl anything since 31 July 2016, this proposal would seem to have a ‘hollow ring’ about it and his explanations are inconsistent with the evidence.

[127] Firstly, I do not accept the argument that the respondent was simply waiting for the return of a single page entry in the new wages book before calculating her entitlements. Putting aside the fact that she returned the book and receipts on 9 August 2016 and was still not paid anything, the calculation of her outstanding entitlements had nothing to do with a proposition that she would continue to be paid her ordinary salary. It was never paid. Indeed, reliance on the documents to calculate entitlements points to an inference that the applicant had been dismissed, rather than her employment being ongoing.

[128] Secondly, if Mr Kassem had believed the applicant was intending to steal property and money from the Centre, (and he must have because he changed the locks to ‘safeguard’ the business), it makes no sense at all that he would want to continue to employ a person, who he believed to be a thief. Moreover, the fact Mr Kassem arranged to have a new lock and chain immediately put on the Centre’s gate, is entirely consistent with an intention to prevent an employee from returning to work on a permanent basis. That his actions were purely based on the say so of his son, without him having spoken to the applicant to get her side of the story, is an appalling indictment and a breach of her right to natural justice. I would add that the claim that Mr Kassem simply found a new lock and chain at the Centre around 6pm on a Sunday is frankly, implausible. In my view, it is more likely the new lock had been obtained some time earlier in the day, probably in the morning or a few days before, consistent with the applicant’s evidence that a parent had told her about the locked gate at midday that day. The clear intention was to bar the applicant from entering the premises at any time in the future.

[129] In a confusing and meandering cross-examination, (as evidenced by the transcript), it is apparent Mr Kassem has difficulty expressing himself in English, although he appeared to understand most of Mr Hanna’s questions. This observation is meant as no criticism. However, the clear and plain language used and detailed concepts he expressed in his written statement, appear to me to tell quite a different story. I have little confidence that Mr Kassem was the author of his statement. At best, the language and phrasing that is said to be his, could not have been his own words. My concern as to the veracity of Mr Kassem’s statement was compounded by the curious exchange between Mr Kassem and Mr Hanna as to when he said he had read his statement and when he had signed it. It was established that Mr Kassem was actually at his farm in Young, NSW on the day it was said he had signed his statement, Friday 2 December 2016. He had not returned until the next day; see: PN2210-PN2226. I also note that his statement was sent to my Chambers by the respondent’s then solicitor at 3.48pm on 2 December. In addition, Mr Kassem’s oral evidence was often inconsistent with his statement. Critical conversations were not mentioned in his statement, such as when Mr Kassem claimed in oral evidence that he had reached an agreement with the applicant about taking paid leave, at her car, in the car park, prior to meeting her inside the Centre. Ms Sirl flatly rejected this claim.

[130] Given I have serious concerns about Mr Kassem’s evidence generally, it must cast some doubt on whether Mr Kassem was really ‘pulling the strings’ (the decision maker) as to what was intended by other members of his family, in respect to the applicant’s ongoing employment. He seems to have accepted, without question, his son’s allegations, without ever having a discussion with the applicant; notwithstanding, they were said to have previously enjoyed a good relationship. Had the situation between husband and wife become so toxic and bitter, that Mr Kassem acted entirely on the say so of his family? Were words then suggested to him in order to set up a false scenario of the applicant having ongoing employment, when the reality was to ensure she was never to return to the Centre?

[131] In any event, even at his highest, Mr Kassem’s proposed ‘interim’ solution was no solution at all. The applicant’s employment was ended until the marital relationship ‘was fixed.’ By this point, ‘fixing’ the marriage was most unlikely, given the applicant’s uncontested evidence that her ex-husband had physically assaulted her on numerous occasions, resulting in two Apprehended Violence Orders, divorced her twice, stolen $107,000 from their joint account and accused her of being an unfaithful wife and a thief. Mr Kassem’s evidence was that he had said ‘you cannot work here because of your husband. If we fix the situation with your husband, the job is available.’ There was not even a hint of when the applicant might be returning to work; no indication that she or her husband might be able to work in one of the other two Centres owned by Mr Kassem and thereby not have any direct contact with each other. Mr Kassem claimed he had been treating both parties fairly and equally. How was it fair or equal to exclude the applicant from the workplace, without pay, but apparently take no action against Jehad. I note there was no evidence Jehad had been stood down on pay between 31 July and 9 August 2016, or at all. This was a claim first raised in final submissions.

[132] In my view, it was reasonable and understandable that the applicant believed that her employment had been terminated. I accept her evidence that she had never agreed to Mr Kassem’s proposal in the car park before the meeting inside the Centre on 31 July; but even if she had, she was entitled to change her view, particularly after the conduct of Mona and Rosette during the meeting which followed subsequently. I will come to this conduct shortly.

[133] In short, I am satisfied that the words acknowledged to have been said by Mr Kassem were no more than a ‘smoke screen’ to disguise the respondent’s real intention of ensuring the applicant’s termination of employment - one way or another.

Other indicia of a dismissal

[134] In my assessment, there are a number of other signposts which fortify a finding that the applicant was dismissed on 31 July 2016. These include the following:

1. The applicant was under the impression she was to meet with Mr Kassem and Rosette on 31 July 2016. However, she felt ‘ambushed’ when she found Mona was also there and her brother-in-law Fowzi was on the premises (although not at the meeting).

2. It would appear that the family had been at the Centre for some hours on that Sunday, without even knowing the applicant would agree to meeting with Mr Kassem later that day. It begs the question what were they all doing there on a Sunday? While it is not entirely clear from the evidence, it is reasonably open to conclude that the family was organising the ongoing running of the Centre and coming to grips with the duties and functions performed by the applicant, so Rosette could take over, as the applicant would not be returning to work (including by changing the lock on the gate).

3. In the presence of Mr Kassem, the applicant was subjected to a barrage of questions and demands as to the whereabouts of documents, files, email passwords, staff details and rostering, tax records etc; in short, every aspect of her management of the Centre. This was not the behaviour of an employer who is simply ensuring a temporary and convivial handover of information to the person who would be running the Centre, while the applicant was on leave. It has all the hallmarks of a hostile and unpleasant interrogation to seek information from a person who would no longer be employed, particularly given the applicant was inquiring as to her entitlements and a termination letter and receiving spurious reasons as to why they would not be provided.

4. Notwithstanding the respondent asserts the applicant was on paid leave, the applicant attended the Centre the next day and insisted on a termination letter and her entitlements. Again, Rosette obfuscated. She did not deny the applicant had been dismissed. Indeed, she agreed to prepare a termination letter. Mr Kassem’s evidence was critical of the applicant for turning up at the Centre with a parent, without an appointment. While it may have been unwise to have a parent as a support person (she was perfectly entitled to, given the circumstances) the question remains – why would an ongoing employee need an appointment to turn up at their workplace, unless they were no longer employed?

[135] In a curious juxtaposition to its primary ‘no dismissal’ argument, the respondent has claimed that in any event, the applicant was guilty of serious misconduct. Mr Kassem’s statement even had a heading of ‘Misconduct.’ In my view, this recreation of events and the reliance on the evidence of hostile family members and existing employees (whose loyalties were obvious) was a hopelessly botched, ex post facto, mudslinging exercise, with no serious evidence to support the allegations. It was designed to impugn the applicant and buttress an otherwise weak jurisdictional objection to the application. This is putting aside the credit issues with the evidence of Mr Kassem and Rosette’s repeated avoidance of answering questions with ‘no comment.’

[136] While it is not strictly necessary for the purposes of this phase of the proceedings to make findings as to the allegations of misconduct against the applicant, these matters were extensively canvassed in the evidence provided by the respondent. That being the case, it is appropriate I deal with these allegations, at least provisionally, at this juncture.

[137] Mr Kassem had alleged Ms Sirl had withheld $1000 of cash from parent fees. The respondent was keen to stress that no one ever accused the applicant of theft. Yet, Mr Kassem had accepted his son’s say so on 31 July 2016, that the applicant intended to steal money and property from the Centre. Mr Kassem also had an independent belief that the applicant would attempt to conceal documents. While the words ‘theft’ or ‘stealing’ were not used, I think the inference is pellucidly clear. The amount retained by the applicant in an envelope was actually $700. It was the amount the parents had paid that week, which she said Jehad had failed to collect. The applicant openly acknowledged on 31 July that she had the $700 which belonged to the Centre. It was later handed over to the respondent. Collecting cash from parents was a common practice for staff at the Centre, including the current Director, Ms Dablan. In hindsight, while it may have been wiser to have handed the cash over immediately, the matter was raised and acknowledged at the earliest opportunity (31 July 2016). I accept the applicant’s explanation for the delay in returning the cash. The fact Ms Sirl made no secret of retaining the money and that it belonged to the respondent, is not indicative of an employee intending to steal from their employer.

[138] It was further alleged that the applicant had purchased items for the Centre, without authority. Apart from the fact that it was common practice for the applicant to do so, and she had never been challenged about it, she kept receipts for all the purchases. The applicant made no secret of what she was doing, as Ms Dablan acknowledged that she knew she was going to Bunnings because Ms Sirl had told her so. There was no evidence that Ms Sirl had ever misappropriated cash or credit card usage for her own benefit.

[139] It was also alleged that the applicant had withheld time and wages records and receipts from the respondent. The applicant explained that she had one page of a new wages book (for the new financial year 2016-17) and receipts for all of her purchases from the Centre. These were handed over. I accept the applicant’s explanation for not doing so earlier, although in hindsight, it would have been wiser to have done so.

[140] It was further claimed that shortly after 31 July 2016, the applicant had encouraged staff to leave the Centre and had advised parents to remove their children from the Centre. In this respect, the respondent relied on the evidence of Ms Dablan. Ms Dablan of course, is the person who on 5 August 2016, described herself as the new Director of Buzzbee in a Snapchat post. I find her explanation of doing so as a ‘joke’ or just ‘showing off’ as unpersuasive. During her evidence, Ms Dablan was directed to answer questions, when she refused to do so. Her answers in cross-examination were generally evasive and self-serving. She was not a witness of credit.

[141] Further, Ms Dablan gave evidence that the applicant had contacted her sister and other parents to encourage them to take their children out of the Centre. This evidence was hearsay. There was no direct evidence from any parent that the applicant had done so. Ms Dablan also gave hearsay evidence concerning an allegation that the applicant had encouraged Ashlee to resign and she now regretted it. She also claimed the applicant told her she was a ‘dog’ for not resigning. Given my doubts as to the reliability of Ms Dablan‘s evidence, I give no weight to this evidence.

[142] In addition, in her statement, Rosette said that after the applicant had left the Centre, she had heard of ‘many things’ about staff being threatened by her and that she had also contacted parents to ‘degrade’ (sic) the Centre. Again, there was no direct evidence to corroborate these claims.

[143] As to the allegations of poor performance issues in 2013, the respondent relied on a document setting out an administrative oversight by the applicant at the time. Even accepting this was a performance issue raised with the applicant, it was three years ago; far too stale to be of any probative value; let alone serve as a ground for dismissing her. There was no evidence of any other performance issues before, or after this time. Relying on very stale performance issues, which must have been satisfactorily addressed at the time, as evidence of the applicant’s misconduct was, in my view wrong, vindictive and little more than an afterthought.

[144] More telling than this, is that there was not a scintilla of evidence of any warnings, counsellings or disciplinary action or indeed, any communication to the applicant in which she was directed to change any of the management and accounting practices she had adopted, or exercised on Mr Kassem’s behalf throughout her employment.

[145] For all the above reasons, and in accordance with the ratio in O’Meara and other decided cases, I am satisfied that the actions of the respondent had the intention of bringing the employment to an end, or at the very least, had the probable result of bringing the employment relationship to an end. Accordingly, the respondent’s jurisdictional objection is dismissed.

Further proceedings

[146] Both parties adduced additional evidence and put submissions as to whether the applicant’s dismissal was unfair and what remedy was appropriate. Applications for costs were also raised. While the evidence and material presently before the Commission is sufficient for the Commission to have provisional views as to:

(a) the correct Award classification of the applicant;

(b) whether the Small Business Fair Dismissal Code was complied with;

(c) whether her dismissal on 31 July 2016 was ‘harsh, unreasonable or unjust’; and if so:

(d) what remedy should be awarded,

I intend to invite the parties to file any further evidence and/or submissions, particularly addressing the statutory provisions under ss 387, 388 and 392 of the Act. An application for costs is premature at this point, and will be considered (if filed) when the substantive issues are finally determined.

Directions

[147] I direct that:

(1) The applicant file and serve any further evidence/submissions by COB Tuesday 14 March 2017.

(2) The respondent file and serve any further evidence/submissions in reply by COB Tuesday 28 March 2017.

[148] Depending on the nature of the material filed, the Commission will consider whether a further hearing is required or will do so at the request of either party. Notwithstanding the matter is further programmed, the parties are encouraged to explore whether settlement of the applicant’s claims is possible in light of my reasons for decision set out above.

DEPUTY PRESIDENT

Appearances:

Mr M Hanna, Solicitor for the applicant.

Ms M Kassem, for the respondent.

Hearing details:

2017.

December.

12 and 13.

Sydney.

Final written submissions:

For the applicant, 6 January 2017.

For the respondent, 27 January 2017.

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