Ms Gwenda Stewart v Fountainhead Organic Health Retreat

[2010] FWA 7555

[2010] FWA 7555

FAIR WORK AUSTRALIA

DECISION

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

Ms Gwenda Stewart
v
Fountainhead Organic Health Retreat
(U2010/6546)

COMMISSIONER SIMPSON BRISBANE, 28 SEPTEMBER 2010

Unfair dismissal - termination at the initiative of the employer - application dismissed.

[1] On 24 February 2010 Ms Gwenda Stewart (the Applicant) filed an application pursuant to section 394 of the Fair Work Act 2009 alleging that the termination of her employment by Fountainhead Organic Health Retreat Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] A conciliation conference was scheduled between the parties on 27 April 2010 however did not proceed. A conciliation conference was conducted on Tuesday 17 August 2010 before Commissioner Spencer however the matter was not settled. Directions were issued for a Hearing in relation to the jurisdictional objection of the Respondent that the Applicant was not terminated on the employer’s initiative.

[3] The Hearing was conducted on 2 September 2010 at the Maroochydore Court House. The Applicant represented herself at the Hearing and the Respondent was represented by Mr Gerald Enjalran, General Manager of Fountainhead Organic Health Retreat.

[4] One witness statement was filed on behalf of the Applicant from Ms Bavani Shanmuganathen. The Applicant advised that Ms Shanmuganathen is a resident of Kenya and therefore was unable to be present at the hearing. I decided to adjourn the hearing in order to allow the Applicant an opportunity to attempt to contact Ms Shanmuganathen in order to determine if evidence could be provided by telephone.

[5] The Applicant was unable to contact Ms Shanmuganathen. A Directions order for the hearing requiring the serving of submissions and witnesses statements had initially been provided to the parties several months in advance. The hearing date was subsequently changed to 2 September 2010 however the Applicant had ample opportunity to attempt to make arrangements for Ms Shanmuganathen to be available to give evidence by telephone. On this basis I decided to proceed to hear the matter.

[6] The Applicant did not provide a witness statement however provided oral evidence on her own behalf. The Respondent called two witnesses, Carol McLoughlin and Gerald Enjalran who both prepared witness statements.

[7] Fountainhead Organic Health Retreat operates within a working organic farm in Maleny. The Retreat offers health and education programs which run over a number of days or weeks. The Applicant worked for the Respondent from 13 July 2009 to 17 February 2010.

[8] The Applicant alleges that her termination stems from a disagreement over her sale of gymnasium equipment to Wayne Parrott, the owner of the Respondent. The Applicant says that this arrangement was struck in October 2010, a list of equipment which she was prepared to sell to Mr Parrott was prepared and an agreement reached.

[9] The equipment had to be transported from Melbourne. The Applicant said that prior to the delivery of the equipment the Applicant provided another more extensive list of equipment that she was prepared to offer to Mr Parrott however this more extensive list was rejected on the basis that the cost of transport was too great.

[10] The equipment arrived however some of it had been damaged in transit. The Applicant stated that the transportation of the equipment was the responsibility of Wayne Parrott. The Applicant said that some two months later she made arrangements for a tradesperson to assemble the equipment on behalf of the Respondent.

[11] The Applicant gave evidence that she owned certain other equipment which was on loan to the Respondent which she subsequently removed.

[12] Shortly afterwards the Applicant said that she received by email on 15 February 2010 a second list of equipment from Wayne Parrott which demanded from her items of equipment which had previously been rejected. The Applicant communicated with Wayne Parrott by a return email and says that she reminded Wayne Parrott that this was a second list of equipment and not the list agreed to between the parties.

[13] The Applicant claims that following this email exchange she believed the matter would be clarified at a face to face meeting with Wayne Parrott. It was her evidence that on 17 February 2010 while in the office she was shown an email by Gerald Enjalran which he had received from Wayne Parrott. The email was not produced in evidence by either the Applicant or Respondent. The Applicant said the following in evidence about what happened in the office;

What I actually got was I walked into the office to where Gerard was and he showed me an email he had received from Wayne and in it was to that effect some words that he didn't authorise then general manager Carol to authorise that second list - the adjustment to the list of equipment that was coming up, only he could do that and that he didn't want to see that woman again and that's what was shown to me. I was stunned because I wasn't expecting it, I was expecting - I went to a meeting, just clear everything up and I didn't foresee this. I asked if I could, because I was trying to grapple my thoughts, it came to me as a shock and specially seeing the wording "that woman" really, really upset me. I asked to take - I went to take the copy away with me so I could read it through and have a look at it properly outside the office. I was told that I was not permitted to remove it from the office or make a photocopy of it. I immediately - I actually then said to Gerard, "Does that mean that's it?" Because I read it as I had been dismissed because Wayne no longer wanted to see me again. Gerard made a - didn't verbally make a comment, just made a gesture like this, and I've taken that as - actually at the time I took it as embarrassed, he didn't know what to do, like it was out of his hands, with the opening of the hands it was like out of his hands. I left immediately the office 1.

[14] The applicant had formed the view on seeing the text in the email that she had been dismissed from employment. The applicant was particularly upset by the words “that woman” which she understood to be referring to her.

[15] In regard to the dispute about the arrangement for the purchase of gym equipment by Fountainhead Retreat from the Applicant, Gwenda Stewart also made it clear that she saw it as dishonest on the part of the Retreat to try to claim equipment that had been rejected.

[16] Later in her evidence she said the following about her actions immediately following seeing the email in the office;

I went back to the retreat. In those 15 minutes I've been shown the piece of paper and coming back to the retreat I just thought I'm not going to stay here. So I left and - I left immediately, was still under the impression I had been dismissed. All the way back I was really, really upset that no, I had - that I was referred to as "that woman" and spoken to or just treated like that when I had given about $1500 worth of equipment free to the retreat. I had given so much time and effort and just went the extra mile for the retreat and just saw it as really dishonest, trying to claim equipment that he had rejected. Once I got home I realised that I should have told Gerard that I wasn't going to finish out my shift and that’s when I sent the email to him saying that it had - there were many emails I was going to send but I decided just to keep it very simple and say that, yes, after seeing the wording of "that woman" it really had upset me a lot, "that woman", and that I had been wasting my time there, referring to all the free equipment I had given the retreat and trying to help and set up some equipment, there's no equipment there for the guests to use so I really went out of my way to try and help them. So that's when I sent the email. I also rang up and spoke to Fair Work and I said to them that it was really strange the way it all happened, went down but this is what happened. I explained to them the story and that’s when they said I should lodge this. 2

[17] Under cross examination Gwenda Stewart said that she assumed that the email had been sent to Gerald Enjelran. 3 There was never a suggestion by the Applicant that the email was intended to be sent to her.

[18] The Applicant tendered written submissions summarising her case 4. Ms Carol McLouglin who had previously been the General Manager of the Respondent gave evidence for the Respondent that she was the point of contact on behalf of the Respondent for the purchase of equipment from Gwenda Stewart. Ms McLoughlin disputes the version of the discussions that had taken place regarding the sale of gym equipment to Fountainhead Retreat from Ms Stewart. It was her evidence that transport was under Ms Stewart’s direction and that when the equipment arrived and on stocktake it was found many items had been damaged during the move and this caused great inconvenience and expenses to the company.5

[19] Gerald Enjelran also provided a witness statement and gave sworn evidence. It was his evidence that at about midday on 17 February 2010 the Applicant came into the office to type out a report for one of the guests of the retreat. 6

[20] Mr Enjelran said that the Applicant asked him if she could use his computer to type the report and he agreed. He said he proceeded to have a conversation with another member of staff and he recalled the Applicant standing up from his computer and saying words to the effect ‘I won’t accept this’ and ‘I’m going now’.

[21] Gerald Enjalran went on in his statement to claim it was not until a guest came to the office and asked for the whereabouts of the Applicant as the Applicant had a training session booked with that guest that Gerald Enjalran began to look for her. He said he made arrangements for another member of staff to take over the training session. 7

[22] He then received an email from the Applicant at approximately 1.51pm which was attached to Mr Enjalran’s witness statement and which said as follows;

“Hi Gerard,

After seeing the email Wayne sent and referring to me as “that women”, I saw no point in wasting any more of my time there. I have been honest with my actions and intentions and it is very disappointing that Wayne has not been in this matter. I wish you the best of luck with your future at FH.

Regards

Gwenda Stewart.” 8

[23] Gerald Enjalran said he sent the Applicant an email on 23 February 2010 seeking clarification that the email dated 17 February 2010 was her resignation. On or about the 28 February 2010 he telephoned the Applicant on her mobile phone number and left a voicemail message. It was his evidence that he had not received any response to either of his attempts at contacting the Applicant.

[24] Gerald Enjalran denied he called the Applicant into the office on 17 February 2010. He also denies showing the Applicant any email from Wayne Parrott, and states that he did not ask or force or suggest the Applicant resign from her position of employment at the Retreat.

[25] Further to this the Respondent said that the Applicant was offered a promotion to a position of Leader/Manager of the personal trainers.

[26] Mr Enjalran denied in cross examination that he showed the email that was sent from Mr Parrott to him, to Ms Stewart. 9

[27] Mr Enjelran tendered the written submissions of the Respondent. 10

Conclusion

[28] The Applicant relies on Section 386(1) of the Act which 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.”

[29] It is agreed between the parties that the email communication that Gwenda Stewart alleges terminated her employment was not directed to her, it was directed from Wayne Parrott to Gerald Enjalran.

[30] It was Ms Stewart’s evidence that the Respondent had planned showing her the email to ‘get a reaction from her’. 11 She also said the following;

So they certainly did, it was planned to get a reaction otherwise no, I would not have just walked out and hence that's why the email went back that afternoon because I felt so bad about it that I had done that. But it can given the opportunity to have a copy and wasn't allowed to take a copy of that email, if I had a copy of it I could have probably read it through and analysed a little bit more but it was the way it was all presented to me and the non-committal to (indistinct) when I asked him, "Does it mean that that's it?" and he didn't clear it up for me at all. 12

[31] It seems reasonably clear from Ms Stewarts own evidence that she did not seek to clarify the meaning of the email sent from Wayne Parrott to Gerald Enjelran once she had seen it. In her own evidence she has said that had she been given a copy of the email she would have analysed it a bit more. She however uses as a justification for her decision to interpret what she had read in the email as meaning that she had been terminated that Mr Enjelran didn’t ‘clear it up for me at all’. 13

[32] Ms Stewart’s own evidence indicates that she was unsure herself what the intention behind the email from Wayne Stewart to Gerald Enjelran was. Further even on her own evidence about the alleged exchange between herself and Gerald Enjalran, which Gerald Enjelran rejects, she accepts that he did not seek to interpret the meaning of the email for her.

[33] In fact, no one from the Respondent communicated directly to the Applicant any intention to terminate her employment on 17 February 2010. It is common ground that there was no real discussion between Gerald Enjalran and Gwenda Stewart about the meaning of the email.

[34] There is no evidence of a proper discussion between Gerald Enjalran and Gwenda Stewart about the Applicant’s ongoing employment. Gerald Enjalran’s evidence is that there was no conversation at all. Gwenda Stewart’s evidence is that she posed a question to Gerald Enjalran as she described in her evidence as follows;

Gerard made a - didn't verbally make a comment, just made a gesture like this, and I've taken that as - actually at the time I took it as embarrassed, he didn't know what to do, like it was out of his hands, with the opening of the hands it was like out of his hands. I left immediately the office.

[35] Even if the version as provided by the Applicant is correct the employer’s conduct does not amount to termination at the initiative of the employer.

[36] I believe on seeing the email which was not directed to her, but to the General Manager, Gerald Enjalran, she drew conclusions about the intentions of Wayne Parrott to terminate her employment which were not open to draw at that stage. She did not take what would have been reasonable steps in the circumstances to seek to clarify the situation but instead took it upon herself that she had been terminated when in fact she had not.

[37] I find that the email forwarded by the Applicant to the respondent at 1.51pm on 17 February 2010 was a resignation. The language used in the email where she says “she saw no point in wasting any more of my time there” indicates she had taken a decision to terminate the employment relationship. The fact that Gerald Enjalran made several attempts to contact the Applicant on both the 23 February 2010 seeking clarification that the email dated 17 February 2010 was her resignation and on the 28 February 2010 by leaving a message on her mobile phone indicates that the Respondent was trying to resolve with the Applicant what the status of the relationship was.

[38] In O’Meara v Stanley Works Pty Ltd 14 a Full Bench considered the meaning of the expression “termination at the initiative of the employer”. In that matter the Full Bench said:

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 S904, 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. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”[Mohazab at page 205.] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.

[39] I do not accept that there has been an action on the part of the Respondent which was either intended to bring the Applicant’s employment with the Respondent to an end, or had the probable result of bringing the employment relationship to an end. Gwenda Stewart has interpreted the email to have a particular meaning but I do not believe she had a reasonable basis for drawing that conclusion.

[40] On the evidence I believe it is not unreasonable to conclude that Wayne Parrott did not intend for Gwenda Stewart to see or become aware of the contents of the email which she has stated she understood to mean that she was dismissed.

[41] I have found on the evidence that Gwenda Stewart has not proved that she did not resign voluntarily. Her employment was not terminated at the initiative of the employer. Therefore there is no jurisdiction to consider the application and it must be dismissed.

COMMISSIONER

Appearances:

Ms G Stewart on her own behalf.

Mr G Enjelran for the Respondent.

Hearing details:

2010.

Maroochydore:

2 September.

 1   Transcript of proceedings on 2 September 2010 at PN28

 2   Transcript of proceedings on 2 September 2010 at PN28

 3   Transcript of proceedings on 2 September 2010 at PN43

 4   Exhibit 3

 5   Exhibit 1 paragraph 3-7

 6   Exhibit 2 paragraph 4

 7   Exhibit 2 paragraph 7-8

 8   Exhibit 2 GPE1

 9   Transcript of proceedings on 2 September 2010 at PN128

 10   Exhibit 4

 11   Transcript of proceedings on 2 September 2010 at PN59

 12   Transcript of proceedings on 2 September 2010 at PN59

 13   Transcript of proceedings on 2 September 2010 at PN59

 14   PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C

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