Ms Gabrielle Whitaker v T & M Capobianco Unit Trust T/A Bianchini Pty Ltd

[2013] FWC 4630

[2013] FWC 4630

FAIR WORK COMMISSION

DECISION

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

Ms Gabrielle Whitaker
v
T & M Capobianco Unit Trust T/A Bianchini Pty Ltd
(U2013/9006)

COMMISSIONER HAMPTON ADELAIDE, 24 JULY 2013

Alleged unfair dismissal - jurisdictional point - whether applicant dismissed - disputed facts about conversation leading to the conclusion of the relationship - findings made - statements made by managers objectively understood to conclude the relationship - managers had sufficient real or ostensible authority - dismissal at employer’s initiative found - further proceedings to be conducted unless resolved by the parties.

1. Introduction and case outline

[1] This matter concerns an application by Ms Gabrielle Whitaker pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent is cited as being T & M Capobianco Unit Trust T/A Bianchini Pty Ltd (Bianchini). 1

[2] Ms Whitaker was engaged from March 2012 within the florist section of the business conducted by Bianchini. Although engaged as a casual employee, Bianchini accepts that the nature and extent of that service is sufficient for Ms Whitaker to be otherwise protected from unfair dismissal as contemplated by s.382 of the Act.

[3] On 17 April 2013, there was a discussion between Ms Whitaker and two managers of Bianchini that were involved in the conduct of the florist operation. At the conclusion of that meeting, Ms Whitaker left the building, and in effect, the employment relationship. What occurred in that meeting, and its legal import, are in dispute in this matter.

[4] Given the evident factual conflict, I was obliged to conduct a hearing or conference in order to make the necessary findings leading to the determination of the jurisdictional issue. 2

[5] Having consulted the parties, 3 a determinative conference was conducted by the Commission on 11 July 2013.

[6] Ms Whitaker, who was represented with permission by Ms Purdy, contended that she was dismissed at the initiative of Bianchini. That is, the employer had indicated that it intended to, and did, bring the employment relationship to an end through its actions and statements. Further, the relevant representatives of Bianchini had the necessary authority to dismiss her.

[7] Bianchini, which was represented with permission by Ms Thompson, contended that nothing said or done in the meeting on 17 April 2013 formed any basis for a dismissal at the employer’s initiative. Further, the personnel in the meeting had no real or ostensible authority to dismiss Ms Whitaker. Rather, Bianchini contended that Ms Whitaker resigned or abandoned her employment and was not dismissed.

2. What is a dismissal for present purposes?

[8] Given the positions contended by the parties, it is necessary for me to consider whether a dismissal has taken place within the meaning of the Act. Section 386 provides as follows:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[9] I note that Ms Whitaker has not contended that a “forced resignation” took place so as to fall within the scope of s.386(1)(b) of the Act. The circumstances of s.386(2) and (3) do not arise in this matter.

[10] The general legal principles to be applied in this case have been agreed by the parties and are well settled. Stated succinctly, they include:

• A termination at the initiative of the employer involves the action of the employer as the principal constituting factor leading to the termination; 4
• The employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result; 5 and
• In determining the question whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required. 6

[11] I leave aside for the moment the approach to be taken to the dispute about the authority of Bianchini’s representatives in the meeting conducted on 17 April 2013.

3. The evidence

[12] Ms Whitaker provided an affidavit 7 and was cross examined during the course of the determinative conference conducted in this matter.

[13] Bianchini provided statements and led evidence from the following:

• Mr Mark Capobianco - Managing Director; 8
• Mr Anthony Fragnito - Buying Manager; 9 and
• Mr John Vello - Store Manager. 10

[14] Each of these witnesses were also cross examined.

[15] Mr Capobianco’s evidence went predominately to management arrangements within the business. He was not involved in the immediate events surrounding the 17 April 2013 meeting.

[16] As outlined earlier, there are direct factual conflicts between the parties as to what was said and done during the meeting on 17 April 2013 and immediately thereafter. I have resolved that conflict having regard to my impression of the witnesses and the overall probability of events. Importantly, this includes the plausibility and consistency of explanations provided by the parties for their conduct both during and following the meeting.

[17] In resolving the factual disputes, I have also had regard to the fact that Ms Whitaker’s version of events is supported by notes prepared shortly after the meeting and there is an indication that the two managers concerned prepared their statements to some extent together. I have also taken into account a view that I have formed that certain events in the immediate lead up to the meeting may have been taken out of context by Ms Whitaker.

[18] Notwithstanding that reservation, I found the evidence of Ms Whitaker about the actual meeting to be marginally more direct, consistent and persuasive.

[19] After weighing up the partially competing considerations outlined above, I have on balance concluded that Ms Whitaker’s version of the key events is generally to be preferred.

4. Findings of fact

[20] Ms Whitaker was employed as a Florist in March 2012. Mr Vello was involved in the interview and hiring process. Although engaged as a casual employee, she worked regularly and apart from the events leading to this application had an expectation of ongoing employment.

[21] Mr Capobianco is the effective owner and overall manager of the business and generally makes “hiring and firing” decisions personally. Mr Vello and Mr Fragnito are managers and play a significant role in the day to day conduct of the store including dealing with staff issues. In the case of Mr Vello, this includes the development and implementation of rosters and following up with staff that are late or absent and a significant role in the hiring process. Although dismissal decisions are generally made by Mr Capobianco, there is some uncertainty between the managers as to whether this extends to all decisions. 11 In any event, it was reasonable for Ms Whitaker to operate on the understanding that Mr Vello and Mr Fragnito had the power to dismiss employees in the absence of Mr Capobianco.

[22] There had been few issues of concern regarding Ms Whitaker’s work performance and conduct. In general terms, Bianchini managers considered her to be a good employee. From time to time, Ms Whitaker had been spoken to about the need to cover some small tattoos as this was a “dress” requirement that was not always consistently followed. More importantly, an issue arose about the manner in which an order for flowers required for a baptism on 14 April 2013 had been dealt with by Ms Whitaker.

[23] It is not necessary at this juncture to consider whether Ms Whitaker has made the errors leading to the non-delivery of this order. It is however clear that Bianchini considered that this had happened and the non-delivery was the cause of much embarrassment to the business, particularly given that it involved a significant venue that it was seeking to further develop as a client.

[24] Mr Capobianco was away overseas during the first part of April 2013 and was not aware of any of the developments touching upon this matter until his return a few days after the meeting held on 17 April.

[25] Upon Ms Whitaker attending for work on 17 April, Mr Vello requested that she meet him and Mr Fragnito in the upstairs boardroom. Although Ms Whitaker indicated that the presence of extra staff and some other factors on that day were indicative of an impending dismissal, I accept the explanation provided by Bianchini for most of these events. It is however a reasonable presumption that knowledge of the scheduled meeting in the boardroom, held by Ms Whitaker and some of the other employees in the shop, may have had some impact upon the atmosphere at the time.

[26] Upon attending the boardroom, Ms Whitaker found Mr Vello and Mr Fragnito in attendance with an order form on the table. Mr Fragnito then outlined a series of allegations about errors made in relation to the order for 14 April and emphasised the significance of those mistakes and the embarrassment caused. Ms Whitaker interrupted Mr Fragnito and sought to explain her perspective on the matters.

[27] It is probable that Ms Whitaker’s response agitated Mr Fragnito, who then made reference to her constantly making mistakes and having too many meetings with Mr Capobianco. Ms Whitaker then explained that she had a single meeting with Mr Capobianco about her tattoos and this led to a discussion about her having to be told a number of times to cover them up.

[28] In due course, Mr Fragnito indicated words to the effect that Ms Whitaker was not progressing. Ms Whitaker became upset and Mr Fragnito repeated the suggestion and then said words to the effect of “You’re not fitting in”; “You need to leave and find another job”; and “It’s time to leave now.”

[29] Ms Whitaker then started crying and after an awkward silence, Mr Fragnito referred again to the order and the mistakes made by her. Ms Whitaker asked “What do you want to come out of this meeting?” and after a further period of silence she said, “You want me to leave?” Mr Fragnito then replied “yes”.

[30] Ms Whitaker then left the meeting and went downstairs. Ms Whitaker, walked through the store, spoke to some of the staff, and informed those who queried about her crying that she had been fired. She then signed off, left her clock-on card and work key, collected her belongings and left the premises.

[31] Ms Whitaker did not attend her next scheduled work shift and Bianchini made no direct or indirect attempts to make contact with her after the events of 17 April 2013.

5. Consideration

[32] The essential issue here is whether a dismissal took place at the initiative of the employer. That is, assessed objectively, did Bianchini engage in some action that was intended to bring the employment relationship to an end, or had that probable result? Further, was that action the principal constituting factor leading to the end of the relationship?

[33] It is common ground that Ms Whitaker was not directly informed that she was dismissed or terminated.

[34] Given the context, the exchanges that took place in the meeting of 17 April 2013 led to the conclusion of the relationship. Further, the statements as a whole made on behalf of Bianchini should be objectively understood as bringing the employment to an end.

[35] Whether or not Mr Vello and Mr Fragnito subjectively intended the meeting to be for this purpose at the outset, the statements made during the meeting would be understood objectively to be a dismissal.

[36] On that basis, it is necessary to consider the issue arising about the authority of Mr Vello and Mr Fragnito. I have made relevant factual findings above. Although it was contended on behalf of Ms Whitaker that this was not properly a matter for the Commission, I consider that where this issue arises, it should be considered. At the very least, it goes to the question as to whether the exchange that took place on 17 April 2013 should have been understood to have been a dismissal at the employer’s initiative.

[37] Given the role played by the Managers in the workplace, and the absence of Mr Capobianco overseas, I am satisfied that they had actual or at least ostensible authority to dismiss Ms Whitaker. 12 Further, given the conduct of the relevant meeting, the actions of either or both Managers would reasonably be taken by Ms Whitaker to represent the actions of the employer.

6. Conclusions

[38] I find that Ms Whitaker has been dismissed by Bianchini within the meaning of the Act. Accordingly, there is jurisdiction for the consideration of the application on its merits including whether the dismissal was unfair having regard to the considerations in s.387 of the Act.

[39] I will shortly conduct a directions conference to make arrangements for the hearing and final determination of the matter. However, I note that the application has not been subject to any conciliation to this point and would recommend that the parties seek to resolve the matter in advance of that conference in light of the findings made in this decision.

COMMISSIONER

Appearances:

A Purdy of the Young Workers Legal Service with permission for Ms Whitaker.

A Thompson of Griffins Lawyers with permission for T & M Capobianco Unit Trust T/A Bianchini Pty Ltd.

Hearing details:

2013

Adelaide

July 11.

 1   I note that the respondent has stated its identity as Bianchini (Newton) Pty Ltd t/as Tony and Mark’s Fruit and Veg. If necessary, this should be confirmed prior to any orders being made by the Commission to dispose of the application.

 2   Section 397 of the Act.

 3   Section 398(4) of the Act.

 4   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at [205].

 5   Searle v Moly Mines Limited [2008] AIRCFB 1088.

 6   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 - 528.

 7   Exhibit A2.

 8   Exhibit R2.

 9   Exhibit R3.

 10   Exhibit R4.

 11   The evidence of Mr Vello at transcript PN295 to PN298 and the evidence of Mr Capobianco concerning the understanding of employees about the issue.

 12   See also Buck v Crown Limited AIRC PR914349, 15 February 2002, per Williams SDP.

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