Ms Ebal Berre Kuloglu v Hey Mr. Pty Ltd
[2023] FWC 2577
•5 OCTOBER 2023
| [2023] FWC 2577 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Ebal Berre Kuloglu
v
Hey Mr. Pty Ltd
(C2023/2985)
| COMMISSIONER DURHAM | BRISBANE, 5 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – change in employment type from permanent to casual – jurisdictional objection dismissed
On 24 May 2023 Ebal Berre Kuloglu (Ms Kuloglu/the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act) alleging contraventions of the Act.
Ms Kuloglu alleges that she was dismissed by Hey Mr. Pty Ltd (the Respondent/Mr Seo) on 8 May 2023 in contravention of her workplace rights.
The Respondent opposed the application, by way of raising a jurisdictional objection that the Respondent did not dismiss Ms Kuloglu.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by the Respondent before Ms Kuloglu’s application can proceed.
I issued directions on 30 June 2023, which were subsequently amended on 20 July 2023 to provide more time to the parties to file their material.
The question of whether Ms Kuloglu was dismissed was dealt with at a Determinative Conference on 14 September 2023. Materials in support were filed by both Ms Kuloglu and the Respondent, with Mr Jung Hua Seo appearing on behalf of the Respondent. Additionally, Mr Vaughn Eric Kruger and Mr Osman Aydogan attended the Determinative Conference to provide oral evidence. It is noted that, though Ms Kuloglu has limited English language skills, she was happy to proceed without an interpreter and Mr Kruger was called upon as needed to assist. The material provided can be summarised as follows.
Evidence of the Respondent
Mr Seo’s evidence can be summarised as follows:
Mr Seo maintains that he did not dismiss Ms Kuloglu, rather he simply changed her position from part-time to casual.
Mr Seo argues that because he had formed the view that Ms Kuloglu was not available to work, he was left with no choice other than to advertise for a new kitchen hand.
In order to do this, he says that he needed to “move” Ms Kuloglu to a casual position so that he could find a replacement and offer the hours to them.[2]
Evidence of the Applicant
Ms Kuloglu’s evidence can be summarised as follows:
Ms Kuloglu began experiencing pain in her back and hands in March 2023.
After raising this with Mr Seo, and seeking time off in order to attend medical appointments and rest, the relationship between her and Mr Seo changed.
During her employment with Mr Seo, Ms Kuloglu accessed a total of two sick days.
On 25 March 2023, Ms Kuloglu took one day of sick leave. She believes that from this point onwards, rather than trying to help her recover, Mr Seo increased her shifts and regularly requested that she work additional days.
Ms Kuloglu believes that she made every attempt to work these new shifts, even when she was unwell, because she feared losing her job.[3]
On 30 April 2023, Ms Kuloglu provided a medical certificate indicating that she was unfit for work until the 4 May 2023.
Shortly after providing the medical certificate, the staff “WhatsApp” group, that had been very active, went silent.
The next day, 1 May 2023, she received the following text message:[4]
"Hi Ebal, I would like to notify you that your position will be changed to casual position next week. I had to hire another staff during your situation, I have to give her some hours. So I won't be able to guarantee you the part time hours. You will have all your remaining leaves in your bank next week. Thanks."
After receiving this message, Ms Kuloglu received no further contact from Mr Seo.
Ms Kuloglu formed the view from Mr Seo’s actions that she had been dismissed.
Fact Not in Contention
The following factor is not in contention, that on 1 May 2023, Mr Seo advised that he would unilaterally changed Ms Kuloglu’s position to casual the week commencing 8 May 2023.
Background
Ms Kuloglu is a qualified engineer in her home country, Turkey. Ms Kuloglu speaks limited English and is undertaking English Language studies with a view to eventually resuming her career as an engineer in Australia.
Ms Kuloglu commenced employment with the Respondent on 1 February 2023 as a part-time kitchen hand. Due to her study commitments, Ms Kuloglu had limited availability and was not available to work full time. [5] Both parties agree that Ms Kuloglu was engaged for at least 20 hours per week, however Ms Kuloglu maintains that due to her study commitments she had made it clear to Mr Seo that she had limited availability outside of her agreed shifts.
Employment Contract
Whilst Ms Kuloglu was not provided with any formal documentation outlining the terms of her employment, her pay slips describe her as part-time and show that she was accruing annual and personal leave. [6] On the basis of the evidence provided, I have formed the view that Ms Kuloglu was employed on a permanent part-time basis, for a minimum of 20 hours per week.
Events Leading to the Change in the Employment Status
Whilst not directly relevant to the question of whether Ms Kulolgu was dismissed, the events that led to the change in her employment status provide some useful context.
It is of note that during her employment, Ms Kuloglu took a total of two sick days, consisting of 25 March 2023 and 14 April 2023.
With respect to 25 March 2023, Ms Kuloglu provided evidence confirming that she took sick leave on this day due to pain and swelling in her hands. She was paid one day of sick leave on this occasion, but believes that from this point onwards, the relationship between her and Mr Seo changed.[7]
On 14 April 2023 Ms Kuloglu took her second sick day. At this time, she also sent a text message to Mr Seo indicating that she would like to take some of her accrued recreation or sick leave the following week so that she could see her doctor and give her body a chance to repair. [8] In this text message she indicated that she would work the upcoming weekend, because she did not want to leave Mr Seo “in trouble” before taking the leave.[9]
Ms Kuloglu states that she attended work on the 15 April 2023 as promised. Towards the end of the shift, she says Mr Seo asked her to finish 30 minutes early and offered to drive her home. During the car ride home, Mr Seo indicated that she was not suitable for the job and that she needs to find another job so that he could find a new kitchen hand.[10] He also indicated that as an alternative, he might be willing to consider offering her some work at Hey Mr. Dutton Park, but to do this he would have to change her from part-time to casual.[11]
Ms Kulolgu said she left the car with the understanding that Mr Seo would email her with a proposal. She followed up with a text message thanking Mr Seo for the talk in the car and asking him to please email her with information regarding the offer for a change in position, including expected hours, however no response was received. [12]
Later that night the roster for the following week was published and she had only been granted two days annual leave. [13] She also noted that her usual shift patterns had been changed. Rather than granting her request to access leave so that she could rest and recover, she had been assigned more shifts. She also noticed that she had only been assigned shifts up to the Friday of that week and that the weekend shifts had been allocated to “new kitchen staff”.[14]
Later that evening Ms Kuloglu found an advertisement that had been placed by the Respondent for a new part-time kitchen hand.[15]
Over the next few days, Ms Kuloglu continued to work the new additional shifts that had been assigned to her. Ms Kuloglu also stated that during this time, she was not receiving breaks during her shifts. It is Ms Kuloglu’s view that this was done in response to her asking for sick leave. Ms Kuloglu’s evidence is that she felt she could not refuse Mr Seo for fear of losing her job. [16]
On the 23 April 2023, the next week’s roster was published and Ms Kuloglu’s shifts had again increased. [17] At this point, she says she had only one day off between 20 and 30 April 2023. [18] To this point, Ms Kuloglu states: [19]
“Because of all the hard shifts and no break I was feeling exhausted and my body, having had little rest and no time to recuperate was in serious pain. I went home and cried every night. Each morning I woke up with numb and swollen hands and was dreading the day ahead. It felt like he was working me so hard to force me to quit.”
On the 30 April 2023, Ms Kuloglu contacted Mr Seo to advise that she was very unwell and was not going to be able to come to work. [20] Later in the day, she sent Mr Seo a medical certificate stating that she was unfit for work from 30 April 2023 up to 4 May 2023.[21]
Shortly after sending the certificate, Ms Kuloglu noticed that the “WhatsApp” group for staff, that was usually very active, went silent [22]
The next day, 1 May 2023, Ms Kuloglu received the following text message from Mr Seo: [23]
"Hi Ebal, I would like to notify you that your position will be changed to casual position next week. I had to hire another staff during your situation, I have to give her some hours. So I won't be able to guarantee you the part time hours. You will have all your remaining leaves in your bank next week. Thanks."
The End of the Permanent Employment Relationship
During the Determinative Conference I took the opportunity to clarify with Mr Seo what his intentions were when sending the above text message, and to explore his understanding of permanent and casual employment.
In response to a question about his understanding of the difference between a permanent part-time worker and a casual worker, Mr Seo replied that casuals can work 38 hours but do not get guaranteed hours unlike part-time employees who must be provided with 20 hours and annual leave.
When asked his understanding of the rules as they relate to dismissing a permanent employee, Mr Seo replied that a special form of pay had to be provided to the employee of one or two weeks’ wages depending on how long the employee worked for the employer. Mr Seo further stated that he believed that less than one year equated to one week’s wages being paid to the employee and over one year would be two or three weeks’ wages.
I subsequently asked if the special form of payment he was referring to was the notice period. Mr Seo confirmed that this was what he was referring to.
It is at this point that Mr Seo’s evidence becomes somewhat inconsistent. On one hand Mr Seo states that he did not dismiss Ms Kuloglu, yet on the other, he states:[24]
“She was not fired, the position was changed due to company circumstances, and notice was given in sufficient time.”
Given Mr Seo was able to articulate an understanding that notice was required to terminate a permanent employee, it would seem that his reliance on the fact that sufficient notice was given to Ms Kuloglu regarding the change to a casual position, indicates that he was aware that his actions constituted the termination of Ms Kuloglu’s employment. In the alternative, Mr Seo was of the mistaken belief that, provided he gave sufficient notice, he could simply “move” Ms Kuloglu from one employment type to the other. In either event, the clear result of his actions were an ending of Ms Kuloglu’s permanent employment.
Mr Seo was also asked if he had explained to Ms Kulolgu the implications of being moved from permanent to casual. Mr Seo replied that he had messaged Ms Kuloglu to say that he could not guarantee part-time hours anymore. Ms Kuloglu confirmed that she was not provided any further explanation, nor was she given the option to stay as a permanent employee.
Mr Seo also confirmed that Ms Kuloglu’s entitlements had been paid out.
When asked whether, through his actions, he intended to end Ms Kuloglu’s part-time employment in order to move her to casual employment, Mr Seo confirmed that was the case.
Relevant Legislation
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer, and which is not agreed to by the employee.[25]
The analysis of whether there has been a termination at the initiative of the employer for the purpose of section 386(1)(a) is to be conducted by reference to termination of the employment relationship.[26]
It was not contended by either party that Ms Kuloglu had or had not resigned from her position. Therefore, section 386(1)(b) of the Act does not relevantly arise for consideration in this matter. As such, the Commission must determine, pursuant to section 386(1)(a) of the Act, whether the applicant was dismissed at the initiative of the employer.
Deputy President Kovacic, outlined the relevant considerations in determining whether a dismissal was “at the initiative of the employer” in Israel Mor Hiam v Jodack Pty Ltd T/A Snap Caulfield South [2016] FWC 2265:
“[30] A Full Bench of the then Australian Industrial Relations Commission considered the meaning of the expression ‘Termination at the initiative of the employer” in Searle v Moly Mines Ltd (Searle). Specifically, the Full Bench said in Searle:
“[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer” ‘in O’Meara v Stanley Works Pty Ltd. For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:
‘[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] 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.” (Underlining added)
Consideration
Mr Seo’s written and oral evidence demonstrates that he does not have a full appreciation of the difference between part-time employment and casual employment, nor does he have an understanding that an employer cannot simply “change” an employee from one type of employment to another at their election, or “due to company circumstances”.[27][28]
Further, I do not accept Mr Seo’s argument that Ms Kuloglu was not dismissed because casual shifts were available. Even if I had been swayed by this argument, the fact that Mr Seo did not make any attempt to contact Ms Kuloglu to offer her any casual shifts renders this argument baseless.
I have formed the view that the following actions taken by Mr Seo clearly demonstrated his intention to bring the employment relationship to an end, or had the probable result of bringing the employment relationship to an end:
Mr Seo advised Ms Kuloglu to look for another job as he needed to replace her.
Mr Seo subsequently advertised Ms Kuloglu’s job whilst Ms Kuloglu was still employed in this role.
Mr Seo assigned shifts to “new kitchen hand” in the roster whilst Ms Kuloglu was still employed in this role.
The day after notifying Mr Seo that she needed to take additional sick leave, Ms Kuloglu was sent a text message indicating that, from the next week, she would be moved to casual.
Ms Kuloglu was advised that her leave entitlements would be paid out; and,
No further contact was made with her from this point.
On the basis of the above, and Mr Seo’s own admission that he intended to bring Ms Kuloglu’s part-time employment to an end, I find that Ms Kuloglu’s employment was terminated by Mr Seo, without Ms Kuloglu’s agreement.
Conclusion
As I have determined that Ms Kuloglu was employed on a permanent part-time basis, Mr Seo’s actions to bring to an end the employment relationship without Ms Kuloglu’s agreement constitute Ms Kuloglu’s employment being terminated on the employer’s initiative.
Given my findings, Ms Kuloglu has been dismissed within the meaning of the Act, the jurisdictional objection is dismissed, and the application is to proceed. As such, there is jurisdiction for the Commission to convene a conference in this matter and, if satisfied that all reasonable attempts to resolve the matter have been, or are likely to be unsuccessful, issue the certificate as provided in section 368(3) of the Act.
As a result, I will convene a conciliation conference with the parties to explore the resolution of the matter. A notice of listing will shortly be provided to the parties.
COMMISSIONER
Appearances:
E. Kuloglu for herself
V. Kruger for the Applicant
O, Aydogan for the Applicant
J. Seo for the Respondent
Hearing details:
2023
Brisbane
14 September
[1] [2020] FCAFC 152.
[2] P.54 of the DCB – Form F8A.
[3] P.14 of the DCB – Form F8.
[4] P.64 of the DCB – Text Message Screenshot.
[5] P.10 of the DCB – Form F8.
[6] P.40 - 42 of the DCB – Applicant’s Pay Slips.
[7] P.14 of the DCB – Form F8.
[8] P.30 – 31 of the DCB – Text Message Screenshot.
[9] P.30 of the DCB – Text Message Screenshot.
[10] P.11 of the DCB – Form F8.
[11] P.55 of the DCB – Form F8A and P.11 of the DCB – Form F8.
[12] P.32 of the DCB – Text Message Screenshot.
[13] P.12 of the DCB – Form F8.
[14] Ibid.
[15] Ibid P.12 and P.35 - 37.
[16] Ibid P.12.
[17] Ibid P.13.
[18] Ibid.
[19] Ibid P.14.
[20] Ibid.
[21] Ibid.
[22] Ibid P.14.
[23] Ibid.
[24] P.49 of the DCB – Form F8A.
[25] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.
[26] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at para. 75.
[27] Cheryl Rosalie Walker v Beachbreak Holidays T/A Ezyflights [2012] FWA 10193 at [44] to [46].
[28] Emily Louise Thompson v Platinum Employment Group T/A Platinum International [2015] FWC 1017 at [21] to [22].
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