Ms Judy Moyes v Mothers Pantry

[2017] FWC 2901

[2017] FWC 2901

FAIR WORK COMMISSION

DECISION

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

Ms Judy Moyes
v
Mothers Pantry
(U2017/667)

COMMISSIONER HUNT BRISBANE, 26 MAY 2017

Application for an unfair dismissal remedy.

[1] This decision, now edited, was given ex tempore at the conclusion of proceedings on 25 May 2017.

[2] Ms Judy Moyes applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Mothers Pantry.

[3] Mothers Pantry objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because it was lodged more than 21 days after the dismissal took effect.

[4] The jurisdictional objection was heard in Brisbane with a video-link to Mackay 25 May 2017 and both parties were granted leave pursuant to s.596(2)(a) of the Act to be represented at the proceedings. Ms Moyes gave evidence on her own behalf and Ms Natasha Brunker gave evidence on behalf of Mothers Pantry.

Relevant Statutory Provisions

[5] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

…”

Background

[6] Ms Moyes commenced working with Mother’s Panty Pty Ltd in September 2015 as a casual employee. She predominantly worked as a pie van driver, visiting workplaces selling her employer’s food.

[7] It is not disputed Ms Moyes’ employment was terminated on her employer’s initiative. The matter is before the Commission to determine a jurisdictional objection to Ms Moyes’ application. Mothers Pantry states Ms Moyes employment ended during a telephone conversation on 9 December 2016, and the application having been filed 23 January 2017, is out of time.

[8] Ms Moyes agrees there was a conversation between herself and Ms Brunker on 9 December 2016, but denies she was told or understood her employment to have been terminated. Ms Moyes states she continued to believe she was employed and it wasn’t until she was definitely informed in a text message on 2 January 2017 that she will not be put back on the roster that she understood she had been dismissed from her employment.

[9] It is evident from the material admitted into evidence that Ms Moyes had troubles in her employment. Ms Brunker had a number of discussions with her about her performance, and ultimately had to prevent her from driving the pie van because of the complaints Mothers Pantry had received about Ms Moyes’ performance.

[10] In 2016, Ms Moyes was brought back into the shop and taken off the pie vans. I accept there were discussions between Ms Brunker and Ms Moyes as to Mothers Pantry seeking to hire new van drivers, and I am satisfied it was made clear to Ms Moyes she would not be allowed to drive the pie van, despite her desire to do so.

[11] Ms Moyes’ hours of work did reduce in November 2016 to three hours per day, five days per week. Understandably she felt the pinch of that decision, and it’s not disputed she informed Ms Brunker she would need to seek alternative or additional employment.

[12] Ms Moyes required some time off in late November 2016 to attend to a family medical crisis. This leave was approved by Mothers Pantry. On 30 November 2016, Ms Moyes text Ms Brunker the following:

“Hi tash. Just letting you know we will be back on the 9th. So will be back to work on the 11th. Can you message me my roster that weekend please.”

[13] Clearly, Ms Moyes was expecting to return to work. It is not submitted that the termination had been effected prior to this, although it was oddly submitted for Mothers that the employment had ended in August, but I understand that to mean the pie van work ended in August. Clearly, Ms Moyes worked during September, October and November 2016. She had not been dismissed by the date she sent the text on 30 November.

[14] Ms Moyes text Ms Brunker the following on 7 December 2016:

“Good morning tash. Hey I see there is an advert on gumtree for staff wanted for 4.30am shift. Is there a chance that I can still do that as I loved that shift and the pie vans. Please consider me. As I would like to go back to a full shift again. Thankyou and see you all on Monday. Don’t forget to text my roster on Friday when you do it. Cheers”

[15] Ms Brunker’s witness statement is to the effect that in telephone discussion on 9 December she informed Ms Moyes the business had found two new employees and she was ‘finished’. In questions from me today, Ms Brunker said she did not say ‘finished’, but is of the recollection she said to Ms Moyes that there were two new employees and there was no more work for her.

[16] Ms Brunker denies informing Ms Moyes that she should make further inquiries in January 2017 as to the new roster.

[17] Ms Moyes’ evidence is that during the telephone discussion on 9 December she was informed two new employees had been employed, but Ms Brunker said to her to check back in the new year, as Ms Brunker would reschedule the new roster.

[18] Ms Moyes’ evidence is that was not informed that she was dismissed.

[19] On Saturday, 31 December 2016, Ms Moyes sent to Ms Brunker the following text message:

“Tash just checking if I’m on the roster next week.”

[20] There was no reply.

[21] On Monday, 2 January, Ms Moyes sent the following text message:

“Tash did you get my text Saturday??”

[22] Ms Brunker replied by text:

“Unfortunately we will not be putting u back on the roster. Call in and we can have a talk if u wish. I will be here until 1 pm”

[23] Ms Moyes replied:

“Unfortunately??? Really. Can I ask why”

[24] Ms Brunker replied:

“I can have a talk in person if u wish”

Consideration

[25] While I accept Ms Moyes had some difficulties during her employment with understanding how frustrated the business was with her, and even her text message on 7 December was seeking a return to the pie vans that would not, on Mothers Pantry’s evidence ever eventuate, I find that Ms Moyes’ employment did not end on 9 December 2016.

[26] If Ms Brunker’s intent was to dismiss Ms Moyes on 9 December 2016, she had an obligation to positively state so, not just simply state there were two new employees. I do not accept Ms Brunker said to Ms Moyes that she was finished, nor do I accept that she said there was “no more work for her”.

[27] I find Ms Brunker informed Ms Moyes she had employed two new employees and she effectively was not rostered to work during December 2016. I accept Ms Moyes’ evidence that Ms Brunker invited her to contact her in the new year to see what the roster looked like.

[28] In Ayub v NSW Trains 1, a Full Bench of this Commission stated:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties”” [citations omitted]

[29] I find Ms Brunker did not inform Ms Moyes on 9 December 2016 her casual employment was terminated.

[30] Ms Moyes’ employment ended by a text message sent by Ms Brunker on 2 January 2017. The language, tone and tense of the text message make this clear. The message states:

“Unfortunately we will not be putting u back on the roster.”

[31] It makes no reference to, as put by the Respondent, this being common knowledge between the two because it occurred on 9 December. You would expect the text to say to the effect, as discussed earlier, we decided not to put you back on the roster.

[32] Further, the invitation to come and discuss in person the reasons why would be completely unnecessary if it had been made clear to Ms Moyes on 9 December, even providing an allowance for what Ms Brunker considered as Ms Moyes’ inability to comprehend discussions between the two.

[33] Ms Moyes’ conduct in protesting the dismissal on 2 January, and promptly requesting a separation certificate is testament to the fact that she considered her employment terminated on 2 January 2017, and not earlier. It is her evidence, and I accept it that if she had been informed of her dismissal on 9 December 2016, she would have acted to seek further information and a separation certificate.

[34] Having found that the dismissal occurred on 2 January 2017, and not 9 December 2016 as submitted by Mothers Pantry, the application is within time, having been filed on the 21st day after the dismissal. Mothers Pantry’s jurisdictional objection is dismissed. The application will continue to a hearing on the substantive issues.

[35] On that point, it is submitted by Mothers Pantry that the dismissal was effected in accordance with the Small Business Fair Dismissal Code, and Ms Moyes secured alternative employment within weeks. If the latter is the case, and having regard to the somewhat troubled history of Ms Moyes and the warnings received during her employment, the parties are encouraged to consider resolving the application amongst themselves. It might be noted, however, that there does not appear, on the material presently before the Commission on the jurisdictional issue, that there was any particular incident preceding the dismissal on 2 January 2017 other than the general dissatisfaction of Ms Moyes’ performance.

[36] The parties will be invited to participate in a further conference before a member of the Commission.

COMMISSIONER

 1   [2016] FWCFB 5500.

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