Ms Cherry Omecillo v The Trustee for Dtykyre Trust

[2019] FWC 2411

[2019] FWC 2411

FAIR WORK COMMISSION

DECISION

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

Ms Cherry Omecillo
v
The Trustee for DTYKYRE Trust
(U2018/10651)

COMMISSIONER HUNT BRISBANE, 10 APRIL 2019

Application for an unfair dismissal remedy – jurisdictional objection – whether dismissal or resignation – dismissal on the respondent’s initiative – application within 21 day time limit – jurisdictional objection dismissed

[1] Ms Cherry Omecillo has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with The Trustee for DTYKYRE Trust (the respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] Ms Omecillo commenced employment with the respondent on 19 February 2018. The employment came to an end later in 2018. Ms Omecillo nominated the date of dismissal as 1 October 2018.

[3] The respondent raised a jurisdictional objection to Ms Omecillo’s application. The respondent did not file a Form F3 in the manner it was required to in order for a conciliation conference to take place before a staff conciliator. The matter was then listed for arbitration before me on 11 February 2019.

[4] Despite numerous attempts to contact the respondent, no correspondence was received from the respondent until a Form F3 was filed by email on 8 February 2019. The nominated representative on the form is Mr Mathew Decent.

[5] The Form F3 was answered in the following way:

1.2 What date did the Applicant begin working for the employer?

Not sure

1.3 What date did the employer notify the Applicant of their dismissal?

October 1 2018

1.4 What date did the dismissal take effect?

September 17 2018

[6] The respondent nominated that it had approximately 30 employees at the relevant time. It is not a small business as it has at least 15 employees.

[7] The respondent notified that it had two jurisdictional objections to the application:

•  The application is out of time (i.e. lodged more than 21 days after the dismissal took effect); and

•  The dismissal was a case of genuine redundancy

[8] When asked what were the reasons for the dismissal, the respondent stated:

“Threatening text message on the 17 Sep at 4.01pm. Not turning up for 2 weeks after that date and no notice of any sort.”

[9] When asked what is the employer’s response to the applicant’s contentions, the respondent stated:

“Will not stand threats from any employee (surely unhealthy for workplace environment).

No notice or warning because did not turn up for 2 weeks after. Message on the 17 Sep.”

Hearing

[10] The matter was listed for hearing before me at 10.00am on 11 February 2019. My Associate made contact with Mr Decent on the morning of the hearing, well past 10.00am. Mr Decent informed my Associate that he was 30 minutes away. The hearing then commenced at 11.32am, without any respondent representative. No further contact was made by the respondent to explain its non-attendance at the hearing.

[11] At the conclusion of the hearing I stated that I would provide the transcript to the respondent for any further submissions before reserving my decision.

[12] Ms Omecillo attended and appeared on her own behalf. She was supported by Mr Peter Saunderson.

[13] Ms Omecillo gave the following evidence:

(a) She commenced working for the respondent in February 2018 as a permanent part-time employee. Her job was to fold blankets used by airlines for the comfort of passengers. The blankets had already been laundered;

(b) She typically worked 30 hours per week, being six hours between 4.00pm and 10.00pm, five nights per week;

(c) She held concerns that she and her colleagues were not being paid on time. She still has not been paid for some weeks in June, July and August 2018;

(d) Mr Phil McNally, Director had some time off work. Mr Decent commenced managing the laundry;

(e) When Mr McNally was in the business in approximately August, Ms Omecillo and other employees addressed him on not being paid correctly or at all. Mr McNally told her that it was OK not to turn up to work if she was not getting paid. He said that the business was obtaining a loan from the bank, and not to worry, as she’ll be paid;

(f) Her last day of work was 15 August 2018. She stated that nobody turned up to work, or at least she knew that she, Sharon and May did not turn up. They constituted the night shift employees;

(g) Some monies were paid to employees in part-payment of the wages owed to them;

(h) She persisted with requesting payment of monies owed to her. She spoke with Jasmine from the office and she was told that the money was on its way;

(i) On one occasion she saw Jasmine in the car park and inquired about her pay. Jasmine assured her that it had been paid into her bank account, but it had not;

(j) On 10 September 2018 she attended the office and spoke with Mr Decent. He assured her the payment had been made into her bank account. Mr Decent then said it had been paid into the wrong bank account. She informed Mr Decent and Jasmine that at no time had she changed her bank account details;

(k) On 10 September 2018 she sent a text to Jasmine, informing her that the bank details held by the respondent are correct;

(l) On 17 September 2018 she sent a further text to Jasmine stating, “I haven’t got paid still, what’s the excuse now?”;

(m) One hour later she text Jasmine stating, “Jazz, if you don’t want to answer my calls and texts, can you please just give me the office phone number and Matt’s contact number.”

(n) Jasmine immediately text back, “There is no office number. I’m on the phone at the moment, here’s Matt’s number [number].”;

(o) On 17 September 2018 she sent a text to Mr Decent, “Hi Matt, this is Cherry Omecillo. I’m still waiting to get paid. Please don’t put me in a situation where my husband will get involved because it could turn out to be very messy for you.”

[14] I asked Ms Omecillo what she meant by that. She responded, “Means this what happen now paper works messy that I have to go to Fair Work and told them what happened and all this going to be messy because a lot of paperwork is getting involved and have to tell them I rang the Fair Work Ombudsman and processing all of this.”

[15] I informed Ms Omecillo that in the Form F3 completed by Mr Decent, he stated that it was a threatening text message. Ms Omecillo responded, “It’s not threatening; it’s stating the fact that it could turn out to be very messy around and I have to talk to Fair Works and dob them in and all of this like messy paperwork and stressful.”

[16] Mr Decent sent a text message immediately following Ms Omecillo’s text message stating, “Pays getting processed tomorrow So check your bank on Wednesday”. Ms Omecillo responded, “OK”.

[17] Ms Omecillo’s evidence is that the payment was not received in her account until 20 September 2018. In fact it was not all of the money that was owed to her, only part of it.

[18] It is Ms Omecillo’s evidence that she decided to go back to work so that she could chase the money owed to her, because otherwise she had difficulty ‘chasing them’. She stated, “…I was waiting for the rest of the money comes, because that’s what they do, bit by bit. They pay you bit by bit, so I was waiting till they give me the remaining of the money, but it didn’t happen, so I decided I should go back to work so that I can chase my remaining money, otherwise I can’t – it’s hard to get hold of them.”

[19] On 1 October 2018 at approximately 3:55pm, Ms Omecillo attended the office to make inquiries about monies owed to her, and on her evidence, return to work. She stood outside of the office and the following text messages were exchanged:

Ms Omecillo:	Hi Matt I’m coming back to work now.
Mr Decent:	No thanks Cherry. I am cutting back on costs and staff! I will let you know if something changes. Thanks Mat.
Ms Omecillo:	Hi Mat sorry to inform you but this is not a legal and binding way to terminate my employment. You will be hearing from my legal representative in the very near future. Regards Cherry.
Mr Decent:	No worries Thanks Cherry for your time! Inform your legal representative that you have not turned up for your shift for the last 6 weeks so I have had your position replaced by someone who can. If they have any issues with this I am more than happy discuss this with them. My number is [number].

[20] Ms Omecillo made her application for unfair dismissal on 15 October 2018.

[21] I asked Ms Omecillo questions relevant to why she attended for work on 1 October 2018 at or around 4.00pm. The following evidence was given:

Commissioner:	Why did you think that they would have a shift for you at 4.00pm that day?
Ms Omecillo:	Because that's our schedule.
Commissioner:	But if you hadn't been there for some time, did you think you could turn up at 4.00pm and expect to work?
Ms Omecillo:	Yes, because that's what we've been doing like for all the others.  Because the pay - if the pay is there, then we go back to work.  If not, then we don't.  So we go straight at 4 o'clock.  We already know that we have a job at 4 o'clock, because that's when we start working.
Commissioner:	Yes, but your pay was in 20 September?
Ms Omecillo:	Yes.
Commissioner:	So why wouldn't you have gone back to work about 21st or 22nd September?
Ms Omecillo:	Because I'm still waiting for the remaining money that they're going to - I'm still waiting for that, that another wage is coming.
Commissioner:	How could the employer know that?  That you're ready on 1 October to start work?
Ms Omecillo:	That I'm ready to.
Commissioner:	How would they know?
Ms Omecillo:	Because that's what they been doing and we been doing all along.  Like if we don't get paid then we don't turn up.  We just turn up when we receive the money and then we turn up to work.
Commissioner:	Have you ever sent a text like that before, where the money has arrived in your bank account and then you then say I'm coming back to work now?
Ms Omecillo:	No, because that's when Matt - when he manage it, that's when - because he's just started. Before it was Phil and we know already what we're doing, like what we - they know already that if we just turn up to work if we get the payment, some partial payment.  But because Matt, I didn't know him.
Commissioner:	You would decide, would you?
Ms Omecillo:	Yes.
Commissioner:	So with Phil, if you had some money in your bank account and you were happy with that, you would then turn up to work, would you?
Ms Omecillo:	Yes, we would turn up to work and ask for the others, but because some they put $300 - they put little bit, little bit and then we go back to work because they don't really communicate with us, so they just - we don't know anything what happening, so they - - -
Commissioner:	Were there ever more than the three of you at work at 4.00pm folding the blankets?
Ms Omecillo:	Were they - sorry?
Commissioner:	Were there any times when there was more than three of you?
Ms Omecillo:	When I went there, that's when I saw a lot of the Indians.  They hired a lot of Indians at night time, because normally it's just three in the blanket or four in the blanket and then the washer, like two washers, or sometimes one.  Then that time when I went there 1 October, there's Indians there already, they hired.
Commissioner:	Did you understand that you had been replaced?
Ms Omecillo:	I didn't know that until then.  Then he said he's trying to cut back costs and stuff, but he's hiring a lot of people.
Commissioner:	The times that you wouldn't go to work because you hadn't received pay, does somebody do the work if you're not there?
Ms Omecillo:	Family, them, they do it.  Phil, his wife, his grandson.  Because their time that we don't like - there's only one washer.  Because that's what they do.  When other workers left because they don't pay them, they hire a new one and then left again.  Then they keep hiring, they keep hiring and they don't know what's going on until they found out and then they quit.  Then hired again.
Commissioner:	Which airline are these blankets?
Ms Omecillo:	Heaps.  Qantas Airline, Singapore Airline, Emirates - big airlines.
……
……
Commissioner:	Yes, so if you weren't at work, because you hadn't been paid, to the best of you knowledge, somebody else was folding the blankets?
Ms Omecillo:	Yes, mostly the family.  They hired their grand kids, but we know that if - like if all of us don't turn out, just the family goes there.
Commissioner:	How many times do you think you turned up after receiving some money in your account by just turning up and then commencing work?
Ms Omecillo:	I didn't get that - how many times?
Commissioner:	For a few months there, you're concerned because you're not getting paid, but you've said that sometimes you would turn up because some money was in your account and you would start at four.  You'd have some discussion with Phil, would you?  Or, you would just - he would just expect you there at four?
Ms Omecillo:	He would just expect us.  We don't have discussion.
Commissioner:	Right, how many times do you think that happened?
Ms Omecillo:	This is the big one, because sometimes when they don't pay us, sometime we just cut the hours.  Like sometimes three days or four days we just go there because to show that, you know - I'm not the only doing that, but the rest too.

[22] It was Ms Omecillo’s evidence that she concluded, when she attended the workplace on 1 October 2018 that she was still employed. On every other occasion when she hadn’t attended for work due to not being paid, on her next attendance at work she performed work.

[23] Ms Omecillo rejected the contention that she had resigned her employment on 17 September 2018. After receiving Mr Decent’s text messages on 1 October 2018 she concluded that she had been dismissed.

[24] Witness statements of fellow or former colleagues were admitted into evidence. Three of the statements attest to Mr McNally informing employees that it was fair not to come to work if the employees were not being paid.

Secondary job

[25] During the hearing Ms Omecillo agreed that she commenced community care work at another organisation in or around September 2017. The care work involves driving people to appointments and cleaning their home. The work is casual and is performed during the day, and it did not interfere with the work that she performed for the respondent.

Submissions of respondent sought

[26] Following the hearing on 11 February 2019, and the non-attendance of the respondent, transcript was provided to the parties. The respondent was invited to make relevant submissions. On 27 February 2019 Mr McNally wrote:

“Hi, I have just arrived back ………Mat is no longer working for the company, since new company took over so he would not have seen this email……Mat took over as manager…..yes we have had problems with pays because Qantas was late in paying us its 30 day acc they would be up to 90 days we went to a company called cashflow to assist it went alright for a couple of months with Qantas not paying it pushed out our budget we then changed the company to get Qantas to start a new contract so as to get paid in time also when we signed old contract in Feb 16 Qantas lowered the price approx.. 20 [thousand] a month so we asked for price rise but it was too late we decided to sell. It did hurt us that we hadn’t paid staff on time most of our staff are Philippines and Chinese also Indians we were up front with staff, all were okay and turned up for work it was only the afternoon shift, cherry approached me when I came in for paperwork and she told me she had advised the girls not turn up for work if they don’t get paid. I did say to cherry that’s not up to her to make that decision and yes I did understand that if she didn’t come to work because of the pays but after talking to other staff cherry quite often didn’t turn up with no notice so we employed new staff. Also the only family worked was our grandson and [his] girlfriend and they had same problem with cherry not turning up that made us short for staff and morning shift was affected and made deliveries late first think I knew about cherry was when Mat handed my phone back and told me he was worried about the threat he received………we decided to sell, because new owner wanted to keep staff and the family working with us. Fair works have been checking on us checked that we haven’t been paid also with Qantas situation and I’m sure after reading email we were aware cherry had a second job but I will have to confirm with Jasmine on that sorry… [sic]”

[27] A second email was sent on the same day by Mr McNally:

“Hi, just got in touch with Jasmine that she was unaware of Cherry not having a second job that should have been filled out in her personal paperwork for tax etc.”

[28] Ms Omecillo responded on 6 March 2019 as follows:

“…………His family or business problems are his and his alone they are not relevant. In his statement regarding Qantas paying them late was always their reasons years and years ago. 

In response to his comment that i told the girls not to turn up for work if they don't get paid is totally untrue. I believe he was talking to May Cambonero and not me. Regarding about not turning up with no notice, as i mentioned before this only happened when i haven't received my payment as you can see in my payslips and bank account statement that i have provided.

About his grandson [name] and [his] girlfriend [name] stating that they had same problem with me not turning up is untrue as well, as i have mentioned i had my operation on the month of May, if i am not mistaken it was on the 23rd of May 2018 and i provided them my medical certificate. I may have a couple of nights that i was taking time off before my operation as i am not well enough, i have health problems too like i have extremely bad eczema, gall bladder problem and migraines but i always let my supervisor know my condition…………

In regards to Mat's comment about he was worried about the threat he received. If they think it is a dangerous threat to them why they did not report this to the Police? What i texted him is "I'm still waiting to get paid, please don't put me in a situation where my husband will get involved because it could turn out to be very messy for you" meaning I would go to Fair Work. I would respectfully suggest that as he says he had other threats that the problem is entirely his and not mine. I believed they have a lot of threats from employees, threats to dubbed them to the government officials and yes fair work received a lot of complaint from them even before but sad to say only few are pursuing. It was a very unhealthy environment, workers having fight with them verbally, seeing workers walking out, health and safety not being implemented (example: workers bringing their little kids at work walking around the factory, Indians brought their parents with them and helped them folding blankets) paper works a mess, wages a mess, no policies and procedures implemented.

About my second job i believe it is irrelevant to this matter. I am hard working person and conscientious worker and all i ask is that i am paid a fair wage for a fair days work which is what i always gave. I always carried out my duties to the best of my abilities and my work style or ethics, never came into questions until i asked for my pay which wasn't forthcoming. I believed he fired me because ii asked for my money and fight for my right and i am a threat to them for fighting what is right.

in finishing this message, i would like to say Mr McNally's excuse is because Qantas did not pay them on time and that is the reason why he did not pay his employee on time or giving them whats appropriate benefit for the employees then he should think what will happen to our families and to our other responsibilities like bills, its a chain effect. while i was working in the laundry i have seen and heard a lot of my co workers trying so hard asking and begging for their money because they have to pay their bills, landlors and kicking them out for not paying ren.t Phil doesnt care about that, all he says is that they have financial problems. That is why i work hard because i am the bread winner in the family , would he give a damn if i say my family is in need of money to buy food and to pay for tuitions and other bills? He got a lot of asian employees and most asian send money overseas for their families. so imagine how many families being mucked around stressing how they can get money becasue their sons and daughters whom they are relying on did not send money because their employer did not pay them?

in my 12 years in Australia i never encountered and employer or company who did not pay the workers and not doing the right thing, i thought this thing doenst exist till i expereinced it myself [sic]”

[29] Following receipt of Ms Omecillo’s submissions I informed the parties that my decision was reserved.

Consideration

[30] Ms Omecillo’s submission is that she was dismissed at the initiative of the respondent on 1 October 2018 and has made her application within time. I understand it is the respondent’s submission that Ms Omecillo effectively resigned her employment by her text message of 17 September 2018 and her failure to attend for work in the weeks following. I understand it is the respondent’s contention that if that is correct, there has not been a dismissal. If there has been a dismissal, the application is then out of time and it would be necessary for an extension of time to be granted by the Commission.

Was Ms Omecillo terminated at the initiative of the respondent?

[31] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) a Full Bench of the Industrial Relations Court of Australia declined to exhaustively describe what is meant by ‘termination at the initiative of the employer’, but did state: 1

“…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.”

[32] In O’Meara v Stanley Works Pty Ltd 2 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …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.”

[33] In Barkla v G4S Custodial Services Pty Ltd, a Full Bench of this Commission relied upon the detailed consideration of case law set out in O’Meara. 3

[34] Having considered the evidence and submissions before me, when regard is had to the Form F3 and the reasons given by the respondent at [8] and [9] of this decision, I understand the contention from the respondent is that either Ms Omecillo abandoned her employment by not attending for work, or the respondent concluded after two weeks from the text message of 17 September 2018 that Ms Omecillo’s employment should be terminated.

[35] I accept Ms Omecillo’s evidence that there had been numerous occasions throughout 2018 where she, and her colleagues, had held discussions with the respondent to determine when payment would be made for work already performed. Ms Omecillo was repeatedly disappointed with both the response from the respondent and the failure of the wages owed to materialise in her bank account. I accept her evidence that there appeared to be an excuse by the respondent for the failure to properly remit wages.

[36] I accept Ms Omecillo’s evidence, and those of her supporting witnesses that in a meeting with Mr McNally, he suggested to those present that he understood and agreed if they did not wish to attend for work until they received payment. I understand and accept this evidence to mean that Ms Omecillo and her fellow workers were not threatened with dismissal or abandonment of employment in this scenario. I am not persuaded that because Mr Decent assumed management responsibility in Mr McNally’s absence this affected Ms Omecillo’s reliance on the earlier, agreed understanding.

[37] I am not satisfied that Ms Omecillo abandoned her employment on or shortly thereafter 17 September 2018. I find that she correctly determined that she was still employed while in the act of chasing payments owed to her. While the period between her last attendance at work was longer than usual, I find that her employment remained on foot.

[38] It is telling that the Form F3 nominates the date of 1 October 2018 as the date the respondent informed Ms Omecillo of her dismissal. I find that the text messages from Mr Decent to Ms Omecillo on 1 October 2018 constituted the dismissal. The messages were, in my view, an action on the respondent’s part to intend to bring the employment to an end. I accept Ms Omecillo’s evidence that she did not consider her employment had come to an end until she received the text messages on 1 October 2018.

[39] On the issue of the ‘threat’ contained within the text message sent by Ms Omecillo on 17 September 2018, I agree that it is not a pleasant text message. On account of Ms Omecillo’s English language skills, I accept her evidence that it did not constitute a threat of violence. I accept that it warned Mr Decent relevant to the mess of involving authorities due to the long and unacceptable underpayment of wages.

[40] Further, if Mr Decent was particularly threatened by the text message, he did not respond as one would expect. He responded with:

“Pays getting processed tomorrow So check your bank on Wednesday”

Conclusion

[41] I determine that the dismissal took effect on 1 October 2018 on the respondent’s initiative. The application having been made on 14 October 2018 is within the 21 day time limit, and no extension of time is necessary.

[42] The respondent’s jurisdictional objection is dismissed.

[43] The respondent’s second jurisdictional objection relevant to the dismissal being a case of genuine redundancy is dismissed.

[44] I accept Ms Omecillo’s evidence that she commenced employment on 19 February 2018, and at the time of the dismissal had met the minimum employment period of six months. Accordingly she is a person protected from unfair dismissal.

[45] The application will be allocated to a member for arbitration of the substantive issue.

COMMISSIONER

Appearances:

Ms Omecillo, C for the Applicant

Hearing details:

Brisbane, 11 February 2019

Final written submissions:

Submissions of the Respondent, 27 February 2019;

Submissions of the Applicant, 6 March 2019

Printed by authority of the Commonwealth Government Printer

<PR706748>

 1   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 205.

 2   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 3   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July 2011) at [24]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23].