Ms Fiona Marie Giles v River Murray and Mallee Aboriginal Corporation
[2024] FWC 2673
•4 OCTOBER 2024
| [2024] FWC 2673 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Fiona Marie Giles
v
River Murray and Mallee Aboriginal Corporation
(U2024/8661)
| COMMISSIONER THORNTON | ADELAIDE, 4 OCTOBER 2024 |
Application for an unfair dismissal remedy - jurisdictional objection, no dismissal – applicant dismissed within meaning of s 386 – jurisdictional objection dismissed
Ms Fiona Giles (the Applicant) claims she was unfairly dismissed by the River Murray Aboriginal Corporation (the Respondent or RMMAC) on 11 June 2024. She filed her unfair dismissal claim pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) on 24 July 2024.
The Respondent objected to the application on the basis that Ms Giles had not been dismissed.
For Ms Giles to proceed with her claim in the Commission her employment must have been terminated at the initiative of her employer.[1] Whether a dismissal occurred is the first jurisdictional issue to be dealt with in this matter.
For the reasons set out in this decision, I find that the Respondent did dismiss Ms Giles from her employment on 11 June 2024.
Background
Ms Giles commenced as a Project Officer with the Respondent on 6 March 2024, after an earlier period of employment in the same role between February and September 2023. When she was re-engaged by the Respondent it was to work three days a week, instead of the previous four days. Ms Giles’ employment contract says: “The days to be worked are Monday, Tuesday and Wednesday unless varied and approved in advance by the General Manager.”[2]
The Respondent arranged what parties both agreed was an important meeting of stakeholders, the First Peoples Working Group, on 4 June 2024. Mr Barker, the General Manager of the Respondent expected Ms Giles to attend as taking minutes and providing support to the Working Group was part of her role. Ms Giles, in her written and oral evidence, also conveyed her understanding that she was expected to attend the Working Group meeting on 4 June 2024.
On 28 May 2024, Ms Giles met with Mr Barker at the office of the Respondent in Berri, regional South Australia. She says in her written evidence that she “finally got to speak to [Mr Barker] in his office about a double booking that involved the Murray Darling Basin Authority … Native Fish Recovery Strategy … and my attendance at the First Peoples Working Group meeting”[3]. The Native Fish Recovery Strategy event was a showcase of successful fish breeding projects conducted in collaboration between landowners, local authorities and traditional owners, and was taking place interstate at the same time as the Working Group meeting.
In her evidence, Ms Giles explained that she thought both meetings were important. She said she wanted to ask Mr Barker whether the Native Fish Recovery Strategy should be part of her role. She also conveyed that it was her intention in the meeting to discuss with Mr Barker her view that she should travel to New South Wales for the Native Fish Recovery Strategy meeting, instead of attending the Working Group meeting.
Ms Giles said in her evidence that one of the reasons that she preferred to attend the Native Fish Recovery Strategy meeting was that at the previous Working Group meeting she had felt “useless in front of the [Working Group] members”[4] and staff because she had not been provided with a laptop to assist her to take minutes. Ms Giles gave evidence that since commencing in the role with the Respondent in March 2024, she had only been provided with a paper notebook and a USB device, and no other resources to perform her work.
Ms Giles said that Mr Barker had been too busy on 28 May 2024 to discuss her attendance at the Working Group meeting. However, in her oral evidence Ms Giles confirmed that she did not raise the issue with him because she had formed the view after seeing him that he did not have time to discuss the matters she wanted to raise with him.
Mr Barker gave evidence that the Respondent expected Ms Giles at work on Monday, 3 June 2024 but she did not attend. His evidence was that Ms Giles had not responded to emails the week before about preparation for the Working Group meeting and there was work to be done for the meeting the following day. Mr Barker says he and another staff member attempted to contact Ms Giles by phone on 3 June 2024 and ascertain her whereabouts.
At 7:58am on 4 June 2024, Ms Giles sent a text message to Mr Barker telling him that she was not able to attend the Working Group meeting that day.[5] Mr Barker says that he responded “I have been advised. We attempted to contact you yesterday. Is there a reason? I also need to meet with you to discuss timesheets and your contract. I request we meet this afternoon. Please advise your availability”.
Also on 4 June 2024 at 8:40am, Ms Giles sent a leave form to the Respondent requesting leave from 30 May 2024 until 10 June 2024.
After some communication by text message about whether Mr Barker had in fact tried to call Ms Giles the day before, Mr Barker says he sent a further message: “I am unable to approve your leave and we need to meet. I received no notice you would not be in the office yesterday and received notice via another person you would not be attending today’s meeting. We need to discuss both matters”.
Ms Giles next contacted the Respondent on Tuesday, 11 June 2024 when she sent a text message saying: “I won’t be in until Monday, leave without pay for the fortnight.” Mr Barker responded by asking Ms Giles to call him and adding: “Please note your leave has not been approved and we need to discuss your absence from the office last week”.
At 1:36pm on the same day, Mr Barker sent the following text message:
“Hi Fiona as I have not heard from you RMMAC will now address your contract and make a final payment.”
Ms Giles gave evidence that after receiving that text message she called Mr Barker and asked what he meant by the text message. Ms Giles said Mr Barker said to her: “you interpret that how you want to interpret that.”
Mr Barker’s evidence was that he did not recall having a conversation with Ms Giles on that day as she has alleged.
Ms Giles formed the view after receiving the text message that her employment had been terminated.
Ms Giles, for the first time since she was absent from work on 3 June 2024, admitted when questioned during her evidence that on 3 June 2024 she had travelled to New South Wales to the Native Fish Recovery Strategy showcase, despite not having the Respondent’s permission or advising Mr Barker in advance that she was not attending the Working Group meeting.
On 17 June 2024, the day Ms Giles was due to return to work, Mr Barker sent a text message to Ms Giles asking her to call him and saying: “I wish to discuss your employment contract.”
Ms Giles responded by text: “The text message from you last Tuesday confirms that I’m already out of a job.”
Mr Barker responded: “I have attempted on multiple occasions to contact you. The RMMAC Board and I would still like to. When are you available?”
Ms Giles responded: “I don’t understand this message. The RMMAC Board and you would still like to … what?”
Mr Barker responded: “I would like to meet with you to discuss employment and the status of your contract with RMMAC.”
Ms Giles again responded and said: “Read your text you sent me last Tuesday. Arrangements for final payment means you have made your decision.”
Mr Barker then said in a responding text message: “the offer to meet is there. Please advise if you would like to meet. The events of the last few weeks require discussion. I have made multiple attempts to contact you.”
As at the date of hearing, Ms Giles had not agreed to meet with Mr Barker. In addition, she had not been sent written correspondence confirming her dismissal and no notice payments or accrued entitlements (if she had any) had been paid.
The Respondent submitted that it had not paid entitlements or issued a letter confirming termination because they had not dismissed Ms Giles. Further, Mr Barker said that the Respondent wanted to meet with Ms Giles to “address employment contract matters.”[6] Mr Barker further confirmed that no final payment has been made and the Respondent has a “desire to work with Fiona Giles to resolve this matter.”[7]
Ms Giles says she understood the text message from Mr Barker on 11 June 2024 to mean that she was dismissed and she expected that her leave entitlements would be paid into her bank account within the next pay cycle.
Consideration
Section 394 of the Act says that: “a person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy” (emphasis added). An unfair dismissal application requires a dismissal to have occurred as a jurisdictional fact.
Section 386(1) defines a dismissal as:
“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.”
Ms Giles relies on section 386(1)(a) of the Act as she submits that her employment was terminated at the initiative of the Respondent. Termination is at the initiative of the employer if the action of the employer is the “principal contributing factor” that leads to the ending of the employment relationship and if the employer did not take the action the employment relationship would have remained on foot.[8]
The Commission recently considered the approach to be taken in determining whether a dismissal has in fact occurred in the matter of Alexandrou v Randstad Pty Limited[9]:
“[57] Determining whether, on the facts, a person has been dismissed is an objective exercise. That a person believes they have been dismissed or another believes or believed the contrary does not make it so.
[58] A finding of whether there has been a dismissal is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.
[59] This principle was summarised in the Federal Court judgement of Rares J in Koutalis v Pollett:[10] “…it depends upon what a reasonable person in the position of the parties would have understood was the objective position…based on what each party…had said or done, in light of the surrounding circumstances”.[11]
Mr Barker did not use words that expressly set out for Ms Giles that her employment had been terminated. In this matter there is no express statement, written or oral, that conveyed unequivocally to Ms Giles that she had been dismissed from her employment.
Ms Giles relies on the action of the Respondent sending a text message on 11 June 2024 and using the words: “as I have not heard from you RMMAC will now address your contract and make a final payment” as the act of termination of employment.
It is for me to consider the evidence as a whole and ascertain if any inferences can be drawn from the conduct of the parties in order to determine whether a dismissal occurred.
When asked what he meant by the words in his text message of 11 June 2024, Mr Barker said “that we [the Respondent] need to look at what our responsibilities are in the contract” referring to Ms Giles’ contract of employment “and if we had to make a final payment we would make a final payment and do the calculations around that but didn’t get to that point. When we looked at the contract we realised we still wanted to speak to [Ms Giles]”.[12]
Mr Barker went on to explain that the final payment he referred to in the text message were amounts that may be owed to Ms Giles under her employment contract and included payments that are often made on termination, including accrued leave.
Mr Barker later clarified that the Board had not made a decision to terminate the employment of Ms Giles on 11 June 2024 but that he wanted to convey in the text message that given Ms Giles’ unauthorised absence and lack of contact with him that he “had no choice in terms of saying … I am going to have a look at the contract” and intended to convey to Ms Giles that “this is getting quite serious”.[13] Mr Barker said that at the time he sent the text message he was not sure if Ms Giles was going to return to work and whether the Respondent had to prepare a separation certificate or pay out accrued leave.[14]
Mr Barker’s explanation did not persuade me that he did not dismiss Ms Giles on 11 June 2024. He explained that a week after sending the text message of 11 June 2024, he contacted Ms Giles again in an effort to “sort it all out”. However, when asked about the purpose of his communication to Ms Giles on 11 June 2024, his explanation confirms that he put in writing to Ms Giles words to the effect that the Respondent was going to look into their obligations under her contract of employment to make payment of entitlements due to her at the conclusion of her employment.
The words used by Mr Barker in his text message of 11 June 2024 conveyed information relevant to the termination of an employment relationship. The use of the words “as I have not heard from you” suggest to me that Mr Barker was making reference to what he perceived to be misconduct on the part of Ms Giles in failing to communicate with him or that he had a view that she had abandoned her employment. But it is the words “make a final payment” that lead me to draw an inference that Mr Barker did terminate Ms Giles’ employment in sending the text message and that she would subsequently receive her final employment entitlements. I find that it is reasonable for a person in Ms Giles’ position to conclude that she had been dismissed when she was informed she would be paid a final payment.
Mr Barker’s evidence that he was consistently making efforts to meet with Ms Giles to discuss her ongoing employment are inconsistent with the words he used in the text message that the Respondent “will now address your contract and make a final payment.” The words used by Mr Barker do not suggest that the Respondent may consider a final payment if no further contact was received from Ms Giles or that the Respondent was hoping to meet to discuss the future of Ms Giles’ employment with the organisation.
I have also considered the conduct of Ms Giles as part of the overall context of this matter. The relevant circumstances include Ms Giles:
(a)not presenting for the Working Group meeting when she was aware that the Respondent required her attendance;
(b)not seeking permission to travel interstate for an event she was yet to clarify was part of her role;
(c)not requesting leave in advance of taking leave;
(d)being informed that her leave had been refused but taking the leave anyway;
(e)informing the Respondent that she was not returning to work when initially indicated and would be taking leave without pay without seeking permission; and
(f)not responding to the Respondent’s efforts to contact her.
In my view, it was reasonable in the context of the above circumstances for Ms Giles to form the view her employment had been terminated by Mr Barker when she received the text message on 11 June 2024.
Further, Mr Barker was aware that Ms Giles had the view her employment had been terminated from at least 17 June 2024 when she said in a text message to him: “The text message from you last Tuesday confirms that I’m already out of a job.”
If Mr Barker did not intend to dismiss Ms Giles as he says, it is curious that he did not take any steps to correct her view. Whether Ms Giles and Mr Barker spoke in person or not on 11 June 2024 as she claims, Mr Barker still had opportunities to correct Ms Giles’ understanding that she had been dismissed. In subsequent correspondence to Ms Giles, Mr Barker reinforced he wanted to meet with Ms Giles to discuss her employment, the status of her contract and the events of the previous few weeks. However, he never said words to her that made clear her employment had not been terminated.
Whilst either party’s subjective view as to whether a dismissal occurred is not the relevant consideration, Mr Barker’s conduct in not confirming during the text message exchanges with Ms Giles that her employment remained on foot is part of the evidence as a whole that I have considered in reaching my decision.
Sending the text message of 11 June 2024 containing the words already set out was the principal contributing factor that led Ms Giles to understand that her employment had been terminated. In my view, that understanding was reasonable in the context of the overall circumstances described.
In evidence, Mr Barker said he could not have dismissed Ms Giles because he does not have authority to terminate an employee without the consent of the Respondent’s Board. However, Ms Giles said that she understood that Mr Barker, as the most senior employee of the Respondent, had the authority to dismiss her from employment. It is reasonable that Ms Giles formed a view that Mr Barker, as General Manager, would have the authority to dismiss her.
Objectively considering the circumstances of this matter as a whole and drawing the inferences from the conduct I have set out above, I find that the Respondent dismissed the Applicant from her employment on 11 June 2024. In my view, the conduct of the Respondent in sending the text message to the Applicant on 11 June 2024, considering her otherwise unauthorised absence from work, and using words that conveyed a final payment would be made to her, constituted a dismissal from her employment.
The efforts made by Mr Barker commencing a week after the termination of employment to communicate with Ms Giles and arrange a meeting directed at ‘sorting it all out’ do not detract from the fact that Ms Giles’ employment had already been terminated on 11 June 2024.
Next steps
As I have found that Ms Giles was dismissed as she asserts on 11 June 2024, Ms Giles must now seek an extension of time to file her claim. Ms Giles filed her unfair dismissal claim 22 days beyond the statutory time limit or 43 days after she was dismissed. This matter will now proceed to a hearing in order for me to determine whether there are exceptional circumstances in this case[15] that persuade me to exercise discretion to extend the time for Ms Giles to file her application.
In the hearing of the first jurisdictional objection, it came to light that Ms Giles had been employed with the Respondent between February and September 2023 on a fixed term, 6 month, contract of 4 days per week (the first contract). After the conclusion of that contract, Ms Giles did not perform any work for the Respondent until she signed a new employment contract on 6 March 2024 (the second contract), for another 6 months, working 3 days a week. There was arguably a break in her service following the completion of the first fixed term contract before she commenced the second contract of employment.
However, I note the letter of offer signed by Ms Giles on 6 March 2024 refers to an “Extension of contract – First Peoples Project Officer” and says “(RMMAC) is pleased to offer you an extension to your current part-time contract”. The letter of offer also says: “All other terms and conditions in your original employment contract dated 8th February 2023 will continue to apply.”
This brings into question whether Ms Giles meets the further requirement that she complete a minimum employment period in order to be a person protected from unfair dismissal.[16] Section 383 of the Act prescribes:
Meaning of minimum employment period
The minimum employment period is:
(a)if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b)if the employer is a small business employer--one year ending at that time.
The Respondent indicated in its Form F3 Employer Response that at the time immediately before the dismissal, RMMAC employed “Approximately 20 on head count”[17]. This suggests that the Respondent is not a small business employer. However, in his oral evidence, Mr Barker said the number of employees immediately before Ms Giles’ dismissal was likely less than ten employees.[18]
Whether the Respondent is a small business employer, the length of Ms Giles employment and whether there was a break in her contracts of employment, may require further consideration to ascertain if Ms Giles has met the minimum employment period necessary for the Commission to have jurisdiction to deal with Ms Giles’ unfair dismissal application.
I make no findings in this decision about either the existence of exceptional circumstances or whether the minimum employment period has been met by Ms Giles.
Conclusion
I have found that Ms Giles was dismissed within the meaning of s.386(1)(a) of the Act. This jurisdictional objection of the Respondent is dismissed.
This matter will now be listed for another hearing to address the two further jurisdictional issues.
COMMISSIONER
Appearances:
F Giles, the Applicant on her own behalf.
B Barker for River Murray and Mallee Aboriginal Corporation, the Respondent.
Hearing details:
Adelaide (Video via MS Teams)
2024
30 August.
[1] See sections 385 and 386 of the Act.
[2] Applicant’s Contract of Employment dated 6 March 2024.
[3] Statement of the Applicant at paragraph 8.
[4] Ibid at paragraph 11.
[5] The relevant text messages referred to in this decision were not put into evidence, however, there was no factual dispute between the parties as to what was said in the various messages extracted in the decision. Only the relevant parts of the messages are quoted.
[6] Submissions of the Respondent at paragraph 45.
[7] Ibid at paragraph 45.
[8] City of Sydney RSL & Community Club Ltd v Balgowan [2018] FWCFB 5 citing Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 at 205; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75].
[9] [2024] FWC 2502.
[10] [2015] FCA 1165 at [43].
[11] This approach was subsequently applied in the leading decision of a Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941.
[12] Oral Evidence of Mr Barker at 23:58.
[13] Ibid at 29:21.
[14] Ibid at 30:22.
[15] See section 394 of the Act.
[16] See section 382 of the Act.
[17] Respondent’s Form F3 – Employer Response at 1.7.
[18] Audio recording of hearing at 2:54:03.
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