Ms Elizabeth Atkinson v L.R.G Catering Pty. Ltd T/A Marine Provisioning Australia

[2015] FWC 3046

[2015] FWC 3046 [Note: An appeal pursuant to s.604 (C2015/4099) was lodged against this decision - refer to Full Bench decision dated 6 August 2015 [[2015] FWCFB 5362] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Atkinson
v
L.R.G Catering Pty. Ltd T/A Marine Provisioning Australia
(U2015/2248)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 MAY 2015

Summary: whether unfairly dismissed - whether dismissal at employer’s initiative.

[1] This decision concerns an application by Ms Elizabeth Atkinson under s.394 of the Fair Work Act 2009 (“the Act”), who is seeking an unfair dismissal remedy in relation to her alleged dismissal from her role as a casual kitchen hand with LRG Catering Pty Ltd T/A Marine Provisioning Australia (“the employer”).

[2] The employer provides luncheon provisions (mostly) to day cruises in the Whitsunday Passage in pre-packed boxes, and (to a much lesser extent) it provides catering for the bowls club from which it rents its kitchen premises. The employer provides some 300 meals per day.

[3] Ms Atkinson had been performing duties in the cleaning/kitchen duties role since approximately July/August 2013.

The claims

[4] Ms Atkinson claimed that she was treated lamentably by Mr Grahame Lorenzen (the Director of the employer) over the course of her employment and that Mr Lorenzen was disposed to significant changes in mood and temper. She recalled Mr Lorenzen as having “always been controlling and abusive.”

[5] Ms Atkinson had claimed that such was her concern about Mr Lorenzen’s conduct that she had refused to accept a new position as she “really did not want to work any more hours with Graham.”

[6] When Mr Lorenzen had been unable to go to New Zealand on a holiday owing to work commitments, Ms Atkinson claimed that “this made Graham even more abusive.”

[7] Ms Atkinson provided two particular examples of Mr Lorenzen’s conduct. One example provided was that he required her not to leave dishcloths all around the kitchen (when the ownership of those dishcloths was disputed).

[8] On another occasion, Ms Atkinson recounted in her written evidence that Mr Lorenzen became suddenly animated when a new employee started to assemble the slicer - that he considered a “dangerous machine”. Ms Atkinson made the point to Mr Lorenzen that the slicer had not been turned on at the time and the new employee was at no risk.

[9] But beyond these two instances, Ms Atkinson claimed that there were a particular set of circumstances that occurred on 31 December 2014 and 2 January 2015 that provide the explicit context of her alleged dismissal.

[10] Ms Atkinson claimed that on 31 December 2014 she had been instructed to perform a series of tasks by Mr Lorenzen, while he was absent. She claimed that Mr Lorenzen returned earlier than she had anticipated and that he formed a belief that she had not completed the task to his satisfaction. According to Ms Atkinson, Mr Lorenzen then set about speaking to her in particularly abusive terms such as saying, “Don’t bullshit you’re a liar [...]”, when she sought to defend her efforts.

[11] Shortly thereafter, Ms Atkinson claimed that Mr Lorenzen “pushed me out of the way” when she was preparing to wash dishes and “yelled right up in my face, “Get out if you don’t want to wash up.””

[12] At this stage Ms Atkinson says that she was in a distressed state and at Mr Lorenzen’s direction moved outside to help a co-worker (Mr Chase King) clean up.

[13] Ms Atkinson conceded that she may have been “coursing” (sic) Mr Lorenzen at this time:

“I said to Chase between tears, “This is fu**ed no matter what I say or do - you won't believe me he’s gone crazy, He’s fu**ed.”

[14] Ms Atkinson contended that at this point she returned inside to continue the washing up and discovered that Mr Lorenzen had calmed down. But soon thereafter Mr Lorenzen was said to have returned to the topic of her efforts in his absence and “snapped again yelling at me in my face.” Mr Lorenzen was said to have alleged that Mr King had carried out some of the duties Ms Atkinson had claimed she had completed in his absence and again called her “a liar.”

[15] Mr Lorenzen was said to then have “pushed [Ms Atkinson] out of the way and yelled at [her] to get out.”

[16] Ms Atkinson claims that she then walked away to obtain her bag but Mr Lorenzen “ran around to stand in [her] way.”

[17] Ms Atkinson claims that Mr Lorenzen was again “yelling up in my face,” and said to her, “Your a liar so get out” (sic). Ms Atkinson claimed that at this point she returned the key to the work premises (by leaving it on a bench) and removed herself from her place of work.

[18] At the urgings of another person, Ms Atkinson telephoned Mr Lorenzen the following day. They appear to have had a conversation (eventually) in which Ms Atkinson was invited to return to work. Ms Atkinson claimed that in the course of the conversation she had “started to cry” and said, “you yelled at me [and] called me a liar.” According to Ms Atkinson, Mr Lorenzen was said to have replied to the effect that “he didn’t talk to his staff like that”.

[19] Ms Atkinson recommenced work on 2 January 2015 for reasons that she says she “needed the money.”

[20] Ms Atkinson claims that in the course of her shift Mr Lorenzen directed her to turn the dishwasher on. Ms Atkinson observed that two other employees were completing duties around the benches adjacent to the dishwasher and indicated to Mr Lorenzen that she would turn it on when they completed their tasks. Mr Lorenzen was said to have agreed with this course of action.

[21] Shortly thereafter, Ms Atkinson discovered there was no hot water and went outside to ask a co-worker whether they had hot water. Upon returning to the kitchen Mr Lorenzen was said to have “yelled at [...] for leaving the kitchen.”

[22] Ms Atkinson says that she then obtained some pots in which to boil water and went about her duties. Ms Atkinson claimed that Mr Lorenzen “was still yelling at [her]”, and appeared to have blamed her for the pilot light having gone out on the hot water system and in addition “yelled for [her] to get outside and to get things to wash up.” Ms Atkinson claimed that by this time she was crying and had mentioned to her co-worker, Mr Brett Morley, that “this is bullshit he’s gone crazy its not my fault there is no hot water.” (sic)

[23] Ms Atkinson claimed that she returned to the kitchen having collected a large number of trays but found Mr Lorenzen “was still yelling” at her. Ms Atkinson claimed she “moved away as he was frightening [her].”

[24] Ms Atkinson claimed that she was unable to wash the dishes as directed as the water was now too hot, and in response to this Mr Lorenzen had “pushed” her out of the way. Mr Lorenzen was then said to have informed Ms Atkinson that if she did not want to do the job she should “go”.

[25] Ms Atkinson claimed she walked over to obtain her bag but Mr Lorenzen “stood in [her] way at the back door [and] was yelling at [her] to get out.” Mr Lorenzen was said to have further directed Ms Atkinson to “get out you old cow that’s what you are an old cow now get out.”

[26] Ms Atkinson claimed that with her exit barred she attempted to leave the workplace by walking out through the public bar “to get away from him” but Mr Lorenzen “followed yelling at me to get out and give him back the key.” Ms Atkinson replied that she had returned a key to Mr Lorenzen on 31 December 2014 when she left the workplace.

[27] Mr Lorenzen was said to have threatened to call the police if Ms Atkinson did not return her key.

[28] The sum total of these circumstances was that Mr Lorenzen’s conduct was said to be so abrasive and abusive that it was no longer possible for Ms Atkinson to perform duties at the workplace. Either Ms Atkinson was dismissed when Mr Lorenzen said “Go” to her in the context of the abusive conduct by Mr Lorenzen, or else she was forced to resign by the course of conduct of Mr Lorenzen because it was unreasonable for her to remain in the workplace in the circumstances.

[29] Mr Lorenzen claimed that there was a different and wider set of facts relating to the events that transpired between 31 December 2014 and 2 January 2015.

[30] In essence, Mr Lorenzen contended that Ms Atkinson had resigned her employment on 31 December 2014 following an altercation with him over her work efforts in the kitchen. Mr Lorenzen claims that he subsequently contacted Ms Atkinson on 1 January 2015 and invited her to recommence working with the business. He claimed that Ms Atkinson agreed to resume her duties on 2 January 2015. However, upon arriving for her shift that day Ms Atkinson was said to have refused to do any duties, in any meaningful sense, and left work prior to completing any tasks.

[31] In particular, Ms Atkinson had refused to do the washing up because the water was too hot - though she was an experienced dishwasher and could have easily introduced some cold water to make the water temperature more tolerable. Mr Lorenzen maintained that Ms Atkinson remained obstreperous regardless of her claimed willingness to return to work.

[32] Mr Lorenzen therefore maintained that Ms Atkinson had resigned her position on 31 December 2014, had never resumed employment as she stated she would on 2 January 2015, and that, in effect therefore, there was no jurisdiction for the Commission to determine the application as she had not been dismissed at the initiative of the employer for purposes of s.385 of the Act.

[33] The background to these claims appears to be made somewhat clearer by the evidence, in the first instance, of Mr Chase King, who worked with Ms Atkinson.

[34] Mr King claimed that on 31 December 2014 he recalled Mr Lorenzen assigning a number of kitchen duties to Ms Atkinson whilst he (Mr King) was out with Mr Lorenzen.

[35] Mr King claimed that upon their return, Mr Lorenzen observed that the kitchen appeared to be in the same state as it had been when he left. Ms Atkinson took umbrage at this observation on Mr Lorenzen’s part. Mr King soon afterwards left the kitchen to perform duties outside, but he overheard Mr Lorenzen explaining that he had left directions as to what had to be done in his absence and where the relevant resources were situated. Mr King claims he subsequently heard Ms Atkinson respond “in very coarse language” claiming to the effect that she had done all she could do under the circumstances.

[36] Mr King’s evidence was also to the effect that it was effectively only Ms Atkinson’s voice that was audible from his vantage point. And this was because her voice was the voice that was raised.

[37] Mr King recalled that Ms Atkinson came outside eventually - to help him at Mr Lorenzen’s direction - and commented to him that, “I was so close to packing up and just leaving.” Mr King said that Ms Atkinson continued “to talk in a derogatory way about” Mr Lorenzen.

[38] Mr King recalled that Ms Atkinson went back into the kitchen and he could “hear her swearing at Graham and continuing with her derogatory remarks towards him.”

[39] Mr King’s evidence was that he could not hear Mr Lorenzen contributing to any exchange with Ms Atkinson: he could only hear Ms Atkinson’s raised voice.

[40] Mr King then left the workplace and upon his return was met by Ms Atkinson who was in a “distraught” state and explained that, “He just sacked me! Told me to hand in my keys and get out.”

[41] Mr King approached Mr Lorenzen who explained that he would let Ms Atkinson settle down and would contact her later, which he appears on the evidence (of Ms Atkinson) to have done.

[42] It appears - consistent with the chronology set out above - that having been contacted by Ms Atkinson, Mr Lorenzen thereafter did invite Ms Atkinson to resume work on 1 January 2015, and Ms Atkinson did in fact attend the workplace on 2 January 2015.

[43] However, on that day (2 January 2015), Mr Brett Morley, another of Ms Atkinson’s co-workers, maintained that he had overheard a verbal altercation between Ms Atkinson and Mr Lorenzen in the kitchen (over a water issue) and that he had heard Mr Lorenzen direct Ms Atkinson to assist in cleaning outside.

[44] Mr Morley claimed that Ms Atkinson did come outside to assist him but was “swearing and cursing about Graham [...]”

[45] Indeed, Ms Atkinson’s language was such that Mr Morley directed his 15 year old son to leave the work area so that he was not exposed to her conduct at the time.

[46] Mr Morley claimed he saw Ms Atkinson go to her car shortly thereafter to return and to continue arguing with Mr Lorenzen. A little later, Mr Morley observed that Ms Atkinson was asked to leave and upon being so requested returned to the kitchen, obtained her personal items and then went back to her car.

Irregularities in the Applicant’s evidence

[47] But Ms Atkinson’s characterisation of Mr Lorenzen was not shared by the other witnesses.

[48] Two other employees, Mr Chase King and Mr Brett Morley, to whom I have referred above, provided a very different character assessment of Mr Lorenzen as an employer. Neither supported Ms Atkinson’s claims that Mr Lorenzen was “always [...] abusive and controlling.” Nor did they support claims that Mr Lorenzen was disposed to yelling in employees’ faces and demonstrating aggressive conduct. Mr Morley could manage only that Mr Lorenzen would be emphatic in an argument, but no more. And when he directed Ms Atkinson to perform work outside, he claimed Mr Lorenzen was direct and firm, but not aggressive or threatening.

[49] Indeed, Mr King gave evidence that Mr Lorenzen had only made a light hearted comment (which corroborated Mr Lorenzen’s own evidence) about the amount of work that Ms Atkinson had completed during his and Mr Lorenzen’s 45 minute absence on 31 December 2014. But Ms Atkinson had unfortunately (and perhaps unavoidably) misread the situation and presumed the comment had been directly critical of her work efforts. Ms Atkinson was “pretty upset and angry” about the comment, Mr King claimed.

[50] As I have mentioned above, in the course of the altercation between Mr Lorenzen and Ms Atkinson on 31 December 2014, Mr King claimed that he could only hear Ms Atkinson’s voice, and it was raised and she was swearing at Mr Lorenzen. Mr Morley said that on 2 January 2015, when Ms Atkinson had been sent out to help him from the kitchen by Mr Lorenzen, she was in an agitated state. Such was the agitation that she was swearing strongly about Mr Lorenzen and Mr Morley disposed to direct his son away from the area to avoid Ms Atkinson’s demonstrative behaviour.

[51] I found the evidence of Mr King and Mr Morley to be highly persuasive, to the extent of their observations of the conduct on 31 December 2014 and 2 January 2015. They gave their evidence frankly and in a matter of fact manner, and were free of any encumbrance despite being employees. This was an issue, I add, into which I enquired with some care in the course of the hearing.

[52] Ms Atkinson’s evidence did not concede very much at all about her own contributing conduct to the deteriorating relationship with Mr Lorenzen. She preferred instead to characterise Mr Lorenzen as an unrelenting villain. This is not to suggest that Mr Lorenzen was blameless in respect of the exchanges that occurred in the workplace on 31 December 2014 and 2 February 2015: Mr Lorenzen conceded he was agitated by Ms Atkinson’s conduct and indeed mentioned that when he returned her call on what appears to be New Year’s Day, he apologised for raising his voice to her the previous day when he told her to “Go!” (though otherwise claiming he did not treat his employees as Ms Atkinson had claimed).

[53] Ms Atkinson’s claims also bear the hallmarks of exaggeration.

[54] As mentioned above, Ms Atkinson considered Mr Lorenzen as having “always been controlling and abusive,” that she “really did not want to work any more hours with Graham,” and that when he was frustrated by not being able to take a holiday owing to work commitments, “this made Graham even more abusive” still.

[55] But for all of this, Ms Atkinson also stated to Mr Lorenzen and to her co workers that she was very happy at work and the structure of the crew was contributing to a very amenable workplace. In the course of the proceedings Ms Atkinson openly conceded that she informed Mr Lorenzen that immediately prior to the incidents on 31 December 2014 and 2 January 2015, she found the workplace very enjoyable. In cross examination with Mr Lorenzen, Ms Atkinson explained how she had been happy in the workplace and had communicated that to Mr Lorenzen at the time, who said that he had been quite “chuffed” by Ms Atkinson’s feedback to him:

MS ATKINSON: I stated in my statement that I was really enjoying my work with you.

MR LORENZEN: Yes. And you also stated that to me personally, and that was about a week or so before this incident and I was quite chuffed. I thought that was really great. I appreciated it.

[56] But Ms Atkinson argued so in the context of her claim that she would never have resigned or otherwise repudiated her employment on 2 January 2015 because she was “so happy in the workplace.”

[57] None of this, of course, is capable of integration at an evidentiary level. Ms Atkinson’s evidence is plainly inconsistent and self serving. It is contradicted by the evidence of Mr Morley and Mr King, as well as by that of Mr Lorenzen. Ms Atkinson’s claims here bring into question the fundamental thrust of her wider claims against Mr Lorenzen and his alleged conduct.

[58] Ms Atkinson’s historical references to Mr Lorenzen’s conduct (the dishcloths and slicer examples referred to above) carry little weight as evidencing a particular course of conduct on Mr Lorenzen’s part.

[59] The evidence of Mr King and Mr Morley was to the effect that Ms Atkinson’s conduct was a significant contributing source of the relationship issues with Mr Lorenzen. That is, whilst Ms Atkinson claimed Mr Lorenzen initiated the aggressive use of language, the evidence of Mr Morley and Mr King was to a different effect altogether: their evidence demonstrated that Ms Atkinson herself was a source of aggressive use of language in the workplace. Mr Lorenzen’s evidence was to this effect, so was that of Mr King (who recalled that he could only hear Ms Atkinson’s coarse language, because her voice was loud).

[60] Mr Lorenzen gave evidence that Ms Atkinson had reacted aggressively to his query as to what work she had completed in his absence (on 31 December 2014), and that he attempted to diffuse the situation by asking Ms Atkinson to carry out work outside. Mr King’s evidence supported this construction - he recalled Ms Atkinson came out to help him at Mr Lorenzen’s direction, indicated that she came close to “just packing up and leaving” and spoke in “derogatory terms about Graham”. Ms Atkinson returned to the kitchen a few minutes later and Mr King recalled hearing her “continuing with her derogatory comments towards” Mr Lorenzen. Mr Lorenzen claimed that Ms Atkinson called him a “fu**ing idiot” (Ms Atkinson claimed that she never used the word “idiot”, but did recall using the phrase “fu**ing crazy” at one point).

[61] Mr Lorenzen claims that Ms Atkinson took her bag and left the premises only to return after a few minutes and direct more abuse towards him. At this point Mr Lorenzen concedes he directed her to leave the premises and “Go!”, and Ms Atkinson did that.

[62] Mr Lorenzen claims that on 2 January 2015, Ms Atkinson refused to carry out dishwashing and sterilising duties because the water was too hot. Mr Lorenzen considered this to be intentionally obstructive behaviour (as Ms Atkinson was an experienced kitchen hand and could have added cold water to reduce the temperature). There was an exchange in unpleasant terms it seems between the two parties and Mr Lorenzen again directed Ms Atkinson to perform duties outside the kitchen area and assist Mr Morley and his son. Once outside, Mr Morley recalled that Ms Atkinson “stood around and started swearing and coursing about Graham to us.” (sic) Mr Morley directed his son to leave the area so he would not be exposed to Ms Atkinson’s conduct.

[63] Mr Morley’s evidence was that he observed Ms Atkinson walk off to her motor vehicle, only to return a few minutes later “to continue arguing with Graham.”

[64] Mr Lorenzen claimed that Ms Atkinson thereafter took her bag and exited the kitchen through the bar area. She returned a short time later (which was Mr Morley’s observation) and swore at him again, and at this point Mr Lorenzen claimed that he retaliated (by claiming Ms Atkinson was a “silly old cow”) before Ms Atkinson again left the premises.

[65] Whilst I am not in a position to be able to identify every exchange that occurred between the parties on 2 January 2015, on the balance of probabilities I prefer Mr Lorenzen’s construction of events. I do so for the reasons given above. I also found that Mr Lorenzen did not seek to be dogmatic about his evidence. He offered evidence that was not directly in his interests - by volunteering that he had indeed “yelled” at Ms Atkinson on 31 December 2014 when he asked her to “Go”, and conceded he called Ms Atkinson a “silly old cow” on 2 January 2015 (as set out above).

[66] Having had the benefit of hearing the witnesses in this matter, and comparing Ms Atkinson’s evidence to that of Mr King and Mr Morley, and considering the inconsistencies in Ms Atkinson’s evidence, I am of the view that Ms Atkinson has greatly exaggerated her claims in respect of Mr Lorenzen’s conduct.

[67] Whilst Ms Atkinson portrayed herself as a victim in the face of Mr Lorenzen's relentlessly abusive conduct, Mr Morley and Mr King gave no such evidence in support of her claims in this regard, even though they were well-placed to observe a range of the relevant interactions on 31 December 2014 and 2 January 2015.

[68] On the balance of probability I have reached the view that Ms Atkinson’s conduct on 31 December 2014 had reached an intolerable point and that Mr Lorenzen dismissed Ms Atkinson when he ordered her to leave the premises. Mr Lorenzen conceded he yelled “Go” to Ms Atkinson.

[69] But with the employment relationship re-established on 2 January 2015, it was Ms Atkinson herself who initiated her departure from the workplace that day by her conduct in refusing to perform prescribed duties, speaking in coarse terms to Mr Lorenzen and leaving the workplace. Mr Lorenzen’s comment to Ms Atkinson that she was a “silly old cow” only came after Ms Atkinson returned to the workplace on 2 January 2015 (after already leaving once on that day) and does not constitute words or conduct relevant to the Applicant’s decision to repudiate her employment. After all, Ms Atkinson had not returned for any purpose relating to her employment or for purposes of re-establishing the employment relationship.

[70] When the evidence is considered as a whole - and particularly so on the basis that it has been heard directly - I consider that Ms Atkinson was not dismissed from her employment at the initiative of her employer - Mr Lorenzen - but rather resigned (or otherwise repudiated) her employment herself on 2 January 2015. Ms Atkinson did not perform the duties she was directed to perform, personally abused Mr Lorenzen and left the workplace at her own initiative. Ms Atkinson had come close to taking this course of action on 31 December 2014, and on 2 January 2015, she gave effect to that impulse.

[71] Further, it seems to me on the balance of probability that Ms Atkinson did so not in circumstances where she was forced to do so because of the conduct of her employer, but rather did so in circumstances where other options were available to her. One of these options was to engage constructively with Mr Lorenzen, but her impulses (as observed by Mr King and Mr Morley) were to a more negative effect altogether.

Legislative requirements

[72] The Act requires that to be eligible for an unfair dismissal remedy, an employee must have been dismissed at the initiative of the employer or else resigned because he or she was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[73] Section 385 of the Act provides as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed [...]

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.

[74] Because of my findings as made above, Ms Atkinson’s application is not competent for reason she was not dismissed at the initiative of her employer, nor was she forced to resign because of Mr Lorenzen’s conduct or course of conduct. Reasonably, in the context of the overall conduct, Mr Lorenzen accepted service of Ms Atkinson’s effective resignation after she exited the premises on 2 January 2015. Ms Atkinson made no subsequent effort to rescind her effective resignation or to seek clarity as to her employment status thereafter, which is an indicator of the definitive nature of the intended result of her conduct that day.

[75] In light of these findings, I must dismiss Ms Atkinson’s application as made under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms E. Atkinson, Applicant

Mr G. Lorenzen, of the Respondent

Hearing details:

By telephone

2015

30 April

Printed by authority of the Commonwealth Government Printer

<Price code C, PR566980>