Ms Jenny Chau v Eleano Staff Pty Ltd T/A Emporium Terry White Chemist

[2017] FWC 6147

[2017] FWC 6147

FAIR WORK COMMISSION

DECISION

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

Ms Jenny Chau
v
Eleano Staff Pty Ltd T/A Emporium Terry White Chemist
(U2017/8807)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 NOVEMBER 2017

Resignation – whether employee dismissed during the notice period – applicant not given work on the last day - no dismissal at the initiative of the employer – question of unpaid wages and entitlements - application dismissed.

[1] This decision concerns an application by Ms Jenny Chau for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act).

[2] Ms Chau resigned from her employment with Eleano Staff Pty Ltd (Eleano) on 24 July 2017, giving three weeks’ notice. She claims that two days before her resignation was to take effect, she was dismissed by her employer, and that the termination of her employment was unfair.

[3] Ms Chau’s application was heard before me on 10 November 2017. The proceedings were conducted by way of recorded conference. Ms Chau appeared at the hearing and gave sworn evidence. There was no appearance by or on behalf of Eleano.

[4] Mr Warren O’Nealewas identified in Ms Chau’s application as the contact person for Eleano and the application was sent to him by the Commission on 17 August 2017. No employer response form was filed by Eleano. A notice of listing was sent to Mr O’Neale on 6 September 2017, together with directions that Eleano file and serve an outline of argument and a statement of evidence. Despite numerous reminders, none were filed.

[5] On 30 October 2017, Mr O’Neale sent to my chambers a one page statement setting out his response to the claim and advising that he would not be able to attend the hearing due to ‘professional commitments’. He attached a brief statutory declaration of Ms Claire Dransfield, Eleano’s staff coordinator, and a copy of the applicant’s resignation letter.

[6] On 31 October 2017, my associate wrote again to Mr O’Neale, advising that, as per the original notice of listing, any request for an adjournment of the matter must be made on substantial grounds, and that in the absence of an application for an adjournment being granted, the matter would proceed on 10 November 2017 irrespective of whether Mr O’Neale attended. Later that day Mr O’Neale contacted my associate and confirmed that he would not be attending the proceeding and that he relied on the documents that he had earlier sent to my chambers.

Initial matters to be considered

[7] Section 396 of the Act requires that I decide four matters before considering the merits of Ms Chau’s application. I am satisfied of the following matters.

[8] Firstly, Ms Chau’s application was made within 21 days of the alleged dismissal on 11 August 2017, as required by s.394(2) of the Act.

[9] Secondly, Ms Chau was a person protected from unfair dismissal, as she earned less than the high income threshold (s.382).

[10] Thirdly, Ms Chau’s dismissal was not a case of genuine redundancy.

[11] The fourth matter I must consider before proceeding to the merits of the application is whether Ms Chau’s alleged dismissal was consistent with the Small Business Fair Dismissal Code (Code). There is no material before me to indicate or suggest that the employer is a small business for the purposes of the Act, nor that any alleged dismissal was consistent with the Code. Eleano contends there was no dismissal. However, there is no evidence of any valid reason, warnings or other steps that would show compliance with the Code. Based on the material before me, I am satisfied that if Ms Chau was dismissed, the dismissal was not consistent with the Code.

Was Ms Chau dismissed?

[12] Ms Chau was employed as a pharmacy assistant at the Emporium Melbourne Terry White Chemist for approximately 3 years. On Monday 24 July 2017, she submitted to Eleano a letter of resignation stating that she had found another job, and provided three weeks’ notice of the termination of her employment. She stated that her last day would be 13 August 2017.

[13] Ms Chau gave evidence that she ordinarily worked 5 days a week, comprising weekdays and weekends, in accordance with a roster. After giving her letter of resignation to Mr O’Neale in person on 24 July 2017, she worked as usual for the rest of that week and the following week. Ms Chau produced to the Commission pay slips showing that she worked and was paid for 47 hours in the week ending 28 July 2017, and 45 hours in the week ending 4 August 2017.

[14] Ms Chau gave evidence that she worked on Saturday 5 August and Sunday 6 August 2017, but that she was not paid for this work.

[15] Ms Chau’s evidence was that she was rostered to work on 7, 8 and 10 August 2017, but took carer’s leave to look after her grandmother, who was ill. Ms Chau provided to her employer, and tendered to the Commission, an ‘attendance certificate’ dated 10 August 2017, signed by a Dr Roque. It stated that Ms Chau ‘has been looking after her sick grandmother for this week of 7-11 August 2017.’ I asked Ms Chau about what she did on these days. She said that she looked after her grandmother for several hours, but stated quite openly that on each day she also attended training with her new employer, from 2pm to around 6 to 7pm. Accordingly, it is difficult to see how Ms Chau’s absences on these days could qualify as carer’s leave under s.97 of the Act.

[16] On 11 August 2017, Ms Chau was rostered to work but was ill. She provided to Eleano, and tendered to the Commission, a medical certificate dated the same day and signed by a Dr Thangaraju. It stated that she had attended for ‘assessment of symptoms’ and that for the period 11 August 2017, she was ‘unfit to continue her usual occupation’. By the end of the day, the symptoms had passed. Ms Chau contacted Mr O’Neale and said that she was feeling better and was able to work her last shift on 13 August 2017. Mr O’Neale stated that he did not believe Ms Chau had been sick and that he did not want her to work the last shift.

[17] In her application, Ms Chau states that she told Mr O’Neale that if he did not let her work the shift, that would mean he had to pay her 3 weeks’ pay. Evidently this was based on advice she had been given that a refusal to allow her to work the shift would constitute a dismissal. This brings us to the nub of the present application.

[18] Mr O’Neale did not tell Ms Chau that he was dismissing her. He did not say that her employment would end earlier than the date Ms Chau had specified in her letter of resignation, namely 13 August 2017. Ms Chau’s evidence was that Mr O’Neale told her that he did not want her to work on 13 August 2017. In her outline of argument, Ms Chau further states that Mr O’Neale sent her an SMS in which he said that he had ‘had to make other staff arrangements’ 1 for the shift.

[19] As noted earlier, the employer did not comply with directions to file an outline of argument and evidence. There is a real question as to whether I should have regard to the brief material that was filed late, in the absence of any application for an extension of the deadlines or an explanation as to why the deadlines were not complied with. I have decided to accept the material for consideration, as it provides at least an alternative perspective on Ms Chau’s application.

[20] In his correspondence to the Commission of 29 October 2017, Mr O’Neale states that Ms Chau was not dismissed and that he objected to her application on jurisdictional grounds. He also stated that, after submitting her resignation letter, Ms Chau had informed Ms Dransfield that she would be unavailable for weekday shifts, and perhaps weekend shifts, during the notice period. Ms Dransfield’s statutory declaration is to the same effect.

[21] In the proceedings before me, Ms Chau gave sworn evidence that she never said this. The sworn evidence of a witness who attends a proceeding and is available for questioning is generally to be preferred to the evidence of a witness who does not attend the proceedings. I accept Ms Chau’s evidence that she did not make the statements attributed to her about her availability during the notice period. As it turned out, Ms Chau was available during the first two weeks of the notice period, but was not available for the weekday shifts from 7 to 11 August 2017.

[22] An application for an unfair dismissal remedy cannot succeed unless the person has been dismissed, as defined in s.386. 2 A dismissal occurs where a person’s employment ‘has been terminated on the employer’s initiative’. When an employee resigns on notice, it remains possible for the employer to terminate the employment during the notice period. If that occurs, there is a termination at the initiative of the employer, the employee has been ‘dismissed’ for the purposes of the Act, and an unfair dismissal application may be brought, subject to the satisfaction of the other statutory criteria. On 11 August 2017, Mr O’Neale could have decided to dismiss Ms Chau, effectively bringing forward the end date of her employment. However, in my view, he did not do so. Rather, he simply did not require Ms Chau to work her last shift.

[23] Further, the decision not to provide Ms Chau with work on 13 August 2017 did not in my view repudiate her contract of employment, such as to give rise to a dismissal at the employer’s initiative. At common law an employer does not ordinarily breach the contract of employment by not providing work. There are well-known exceptions to this rule; 3 none of them is enlivened in the present case. On one view at least, there is a growing acceptance of an employee’s right to be provided with the opportunity to perform work.4 However, any nascent norm in this area seems unlikely to have application in the present case, where a single shift has been allocated to another person.

[24] I note that, had there been a dismissal in this case, the measure of any compensation is likely to have been only one day’s pay. The assessment of compensation under the unfair dismissal provisions in the Act is essentially concerned with what a person might realistically have earned if she had not been dismissed, subject to the statutory cap and the other considerations that the Commission must take into account (see XL Express (Personnel) Pty Ltd v Biffin). 5

Unpaid entitlements

[25] The consequence of Ms Chau still being employed by Eleano on 13 August 2017, and being ready and available for work, is that she is entitled to payment for that day. As noted above, Ms Chau’s evidence was that she has not been paid in respect of work performed on 5 and 6 August 2017.

[26] Ms Chau also stated that Eleano has not made superannuation payments to her as required by law, and that it has not paid out her accrued annual leave. One consequence of the employer choosing not to attend the proceedings or file comprehensive materials pursuant to directions is that there is no rebuttal of these most serious allegations on the public record.

[27] However, claims in relation to unpaid wages and entitlements are not ones that can be entertained by the Fair Work Commission in an unfair dismissal application. They require the exercise of judicial power, and must be brought in a court. Many cases come before the Commission which involve elements that must be judicially determined. Ideally there would be a mechanism, within constitutional limitations, that would allow all of the relevant employment allegations to be determined at the same time, or consecutively but immediately. As it is, however, claims for unpaid wages and entitlements must be separately pursued in a court.

Conclusion

[28] I have determined that Ms Chau’s employment was not terminated at the initiative of her employer. Accordingly, she was not dismissed, and cannot have been unfairly dismissed for the purposes of s.385.

[29] Ms Chau’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms J Chau appeared for herself

No appearance by or on behalf of Eleano Staff Pty Ltd

Hearing details:

2017

Melbourne

10 November

 1   Section 6d of the Applicant’s outline of argument

 2   See s.385(a)

 3   See Creighton and Stewart’s Labour Law, Sixth Edition, [15.49] – [15.55]

 4   Ibid, at [15.55]

 5   [2017] FWCFB 5441 at [35]

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