Ms Karen Boylan v Pilbeam Hall P/L ATF the Pilbeam Hall T/A Mick's Sports Store

[2014] FWC 6423

[2014] FWC 6423

FAIR WORK COMMISSION

DECISION

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

Ms Karen Boylan
v
Pilbeam Hall P/L ATF The Pilbeam Hall T/A Mick's Sports Store
(U2014/741)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 SEPTEMBER 2014

Summary: whether dismissal harsh, unjust or unfair - alleged resignation - reasonable person would not accept resignation had occurred - valid reason found - wider circumstances of conflict in a marginal, small business with no HR expertise considered - dismissal not harsh etc.

[1] This matter concerns an application by Ms Karen Boylan (“the Applicant”) who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”), in relation to her alleged dismissal by her employer, Pilbeam Hall P/L ATF The Pilbeam Hall T/A Mick’s Sports Store.

[2] The Applicant had performed duties as a casual sales person for her employer since late April 2012 and at the time of her alleged dismissal had been promoted to the position of assistant manager.

[3] The Applicant claims in her written statement that on 20 February 2014 she was not given any explanation for her dismissal other than that she was informed by her employer, Ms Pilbeam Hall (the owner and manager of the store);

“to take your pay and get the f**k out of my store.”

[4] The Applicant contends that her employer had planned her dismissal. She alleges that Ms Hall asked to meet with her at the rear of the shop and already had her pay in an envelope. According to the Applicant there was virtually no conversation other than that set out above.

[5] The Applicant surmises that her employer dismissed for reasons that her employer had become “disgruntled” because she was not being subsidised for her wages (in contrast to the situation with other staff), and the Applicant had brought to her (Ms Hall’s) attention the cash flow difficulties the business was experiencing at “pay day’, which had angered Ms Hall.

[6] In respect of the former matter, the Applicant contended that Ms Hall employed employees from an employment agency on the basis of a subsidised wage. Between September 2013 and February 2014, the Applicant claims Ms Hall had employed four new government subsidised employees.

[7] The Applicant claims that her hours were reduced to 22 hours per week from her original 30 hours per week and that this was largely decided for reason that Ms Hall sought “to accommodate new staff.”

[8] The Applicant claims that she protested the reduction in her hours and complained that she had been the longest serving employee and the reduction in hours was unfair to her.

[9] It was at that point that Ms Hall made the comment referred to above.

[10] After Ms Hall had made that comment the Applicant responded by asking about her back pay. Ms Hall was said to have stated:

“I don't know what you're talking about, and I said get out!”

[11] With that, the Applicant claimed that she collected her personal belongings and left the store.

[12] The Applicant claimed that she returned to work a few days later to collect her certificate of separation. Ms Hall was said to have stated to the Applicant that the certificate of separation was being organised and that the reason given for the separation was that the Applicant had ceased work voluntarily for reason that she had:

“walked out during your shift so that means that you quit.”

[13] The Applicant says that she replied that:

“You told me to get the f**k out of your store, to me that means you fired me. Why would I quit? I'm getting married at the end of the year!”

[14] The Applicant complains that employer conducted her business in an informal manner and she (the Applicant) was underpaid and her statutory entitlements were disregarded in the course of her employment. The Applicant complained that the loss of her employment had had economic consequences, which have been made worse because of alleged “slanderous comments” made about her by Ms Hall.

[15] Ms Hall for her part contended that the relevant discussion was of an entirely different nature.

[16] It appears from the evidence that the period of time leading up to February 2014 was characterised by some relationship difficulties in the store between the Applicant and a junior employee by the name of “Ella”. This appears to have created a climate of some considerable tension in the small workspace of the store.

[17] Ms Hall’s evidence is that there were two interactions between her and the Applicant. The first of these took place on Wednesday 19 February 2014, and the second took place on Thursday 20 February 2014. The Applicant’s evidence as set out above conflates these two incidents as Ms Hall claims them to have been - into one day (that being Thursday 20 February 2014).

[18] Ms Hall claims that on Wednesday 19 February 2014 (in the early afternoon) she had approached the Applicant for the purposes of amending her roster. She reduced the hours, she said, of both of her experienced casuals from 5 to 4 shifts per week.

[19] Ms Hall stated that it appeared the Applicant did not take kindly to this development and at the end of the discussion, without speaking, “just walked over, grabbed her bags, and walked out of work before her shift ended.”

[20] Another person in the store at the time (a trainee by the name of Mr Tim Lucciannio who was undertaking a Certificate III in Retail) also gave evidence that on 19 February 2014 he witnessed a discussion between Ms Hall and the Applicant about a new roster. He stated that:

“What I remember was Debbie talking to Karen and then witnessing Karen just walk over [and] pick up her bag from the cupboard and walk out of the shop without saying a word to anyone.”

[21] Mr Lucciannio’s observations in this regard corroborated Ms Hall’s evidence. Mr Lucciannio’s evidence was given confidently under questioning.

[22] Ms Hall stated that she believed the Applicant had “finished up her employment” by leaving work in such circumstances.

[23] The following morning, Ms Hall stated that the Applicant returned to work and continued to perform her duties as she ordinarily would, but seemingly without a word being said or the Applicant acknowledging anyone in the shop.

[24] After some two and a half hours had passed, Ms Hall stated that she called the Applicant down to the rear of the shop so that she could sort out the difficulties that had arisen.

[25] Ms Hall conceded that the discussion “escalated into a yelling match” with the Applicant “screaming it was not part of her job to train or assist juniors”.

[26] At this point, Ms Hall stated that she had “no option” but to tell the Applicant to leave the store and “to ring her when she decided what she was going to do.”

[27] The Applicant’s daughter, who was helping out in the store at the time, gave evidence that she recalls her mother using words to the same effect and also that she witnessed the Applicant as she “stormed down to the bag cupboard, grabbed her things and then left the premises”.

[28] Ms Hall claims that the following Monday morning, 24 February 2014, the Applicant re-entered the store “screaming psychotically” at her and demanding that she return her (the Applicant’s) original employment details form. The Applicant was said to have demanded this because she believed Ms Hall “was going to use them to steal money out of her account”. Ms Hall claims that this incident occurred as she was serving a customer.

[29] Ms Hall also contended that the Applicant claimed that she (Ms Hall) owed her monies and that “unless I paid $1000 into her wedding account she would make me pay in other ways”. Ms Hall considered this extortion.

[30] In March of 2014 Ms Hall provided an employment separation certificate to the Applicant for purposes of accessing Centrelink related benefits. On that form Ms Hall indicated that the reason for the cessation of work was due to the “employee ceasing work voluntarily”.

[31] The nub of Ms Hall’s defence in this application is that she at no time dismissed the Applicant from her employment. Rather, the Applicant - according to Ms Hall - repudiated her employment by leaving work without authorisation on 19 February 2014.

Legislative provisions

[32] Section 387 of the Act provides as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

(a) whether there was a valid reason(s) for the dismissal

[33] There is a deal of disputed evidence in this matter. The Applicant’s witness statement made no reference to any conversation or conduct on 19 February 2014 and focused exclusively on the discussion of 20 February 2014. Upon questioning however, the Applicant volunteered evidence around the discussion of 19 February 2014. It was never satisfactorily explained why the Applicant had omitted such contextually relevant evidence (until such time as she had read the evidence of Ms Hall).

[34] It seems to me that the Applicant’s evidence is exaggerated in so far as it sought to identify the reasons for the reduction in her hours in Ms Hall’s intention to accommodate new staff and discounted wage arrangements. Ms Hall makes clear in her evidence there were no such new staff or employees and that the only reason the Applicant’s hours were being reduced was because of business conditions, which were decidedly flat at the time. Ms Hall made clear that she had reduced the hours of her other adult casual employee - the bike mechanic - by the same amount as the Applicant. The Applicant referred to Mr Lucciannio as being the new employee who started on 19 February 2014. Mr Luccianno’s evidence (which I discussed above) shows him, in actuality, to be a school-based traineeship placement who had attended the store one day per week since the New Year.

[35] Both Ms Hall and the Applicant agreed that on 19 February 2014 that Ms Hall had given “the requirements of the business” as a reason for reducing the hours.

[36] It therefore seems to me to be unsustainable, from an evidentiary perspective, that Ms Hall would then give a different reason (and one unrelated to the actual factual situation) on 20 February 2014 for reducing her hours, as alleged by the Applicant.

[37] That said, it appears to me that on 19 February 2014 the Applicant and Ms Hall fell into a dispute about the reduction in the Applicant’s hours, and the Applicant reacted emotionally in the context of an interaction. The Applicant contended that she was “quite upset” and had “cried” about the circumstances of which she was advised. It seems to me to follow quite logically that the Applicant would remove herself from the workplace in a manner that brought into question her continuing commitment to her employer. I very much doubt the Applicant left work in the normal manner, as she suggested she did, given her admitted state of mind at the time. Mr Lucciannio’s evidence, which I touch on below, supports this conclusion.

[38] The incident, as it was, became a further stressor in the workplace. There appears to have already been some tensions over some period of time (irrespective of who may or may not have been responsible for those tensions).

[39] That said, the Applicant returned to work the next morning and continued to perform her ordinary duties (notwithstanding that there may have been a lingering tension over the events of the prior day).

[40] Ms Hall for her part believed that the Applicant had resigned her employment by leaving work prematurely the day prior, following their altercation, if it can be called that.

[41] Whether this is true or not, barely anything turns on it. I say this because it would be impossible to conclude that the Applicant had repudiated her employment (by resignation) even if she did indeed leave work some minutes only before the normal conclusion of her shift. At the very most, the Applicant may have left work some 15 minutes before the conclusion of her ordinary shift (if Ms Hall’s case is accepted). If she did so leave work at that time, the Applicant was in an elevated emotional state of mind at the time and Ms Hall understood this. The Applicant resumed work the following morning.

[42] Such conduct on the part of the Applicant is not determinative of a resignation. It may have been preferable if the Applicant had telephoned Ms Hall as soon as possible after the altercation and explained her circumstances. But in any event, knowing that the Applicant had reacted emotionally to her advice about reducing hours owing to business conditions, Ms Hall was sufficiently well apprised of the context of the Applicant’s conduct. It should have come as no surprise to her that the Applicant resumed work the following day. And it should therefore be reasonably assumed that the Applicant had not intended to resign from her employment. In any event, there is also no evidence that Ms Hall accepted the repudiation of the Applicant's contract of employment by any express statement or conduct.

[43] Generally, then, even if I accept Ms Hall’s construction of events I do not consider that the circumstances that arose on 19 February 2014 constituted a resignation on the part of the Applicant. A reasonable person would not consider that the Applicant’s conduct, as limited as it was and without any verbal context, amounted to a resignation.

[44] When the Applicant resumed work on the morning of 20 February 2014 there was undoubtedly a measure of tension in the workplace. At around 11 AM that morning Ms Hall called the Applicant in to discuss (or perhaps better still, confront) the situation.

[45] The nature of the exchanges that occurred in that conversation between the Applicant and Ms Hall are not easily discerned. The Applicant’s evidence was very limited. The Applicant claims through her viva voce evidence that Ms Hall confirmed that she was reducing the Applicant’s hours in order to accommodate new staff. But this is highly unlikely for the reasons I have set out above: there were no new staff that needed to be accommodated (irrespective of the appropriateness of so doing). And in any event, it was agreed between the parties that the previous day Ms Hall had explained the need to reduce the number of hours for her two senior staff members was because of the downturn in the market - the needs of the business. Why would Ms Hall give a different reason - let alone a reason that would clearly agitate the Applicant - the following day?

[46] The Applicant argued that when she complained about having her hours reduced, Ms Hall said, “well if you don't like it, then take your pay and get the f**k out of my shop!”

[47] Some 10 minutes or so thereafter the Applicant phoned Ms Hall and indicated her intention to challenge her dismissal, and perhaps more still.

[48] Ms Hall’s evidence about the conversation of 20 February 2014 was limited as it was candid. She stated that she could recall very little of the conversation for reason that the exchange became highly emotive and “escalated into a yelling match”.

[49] Ms Hall recalled the Applicant refusing to entertain the suggestion that her role included training junior employees.

[50] Ms Hall agreed, further, that she directed the Applicant to leave her store (in no uncertain terms) and did so out of concern for customer safety.

[51] Importantly, Ms Hall recalled that she added at the very end of the interaction with the Applicant that she requested the Applicant to “ring when she decided what she was going to do.”

[52] Ms Hall’s daughter, Ms Tegan Hall, was in the store at the time of the incident. She was not in close proximity to the exchanges. But it appears as Ms Hall and the Applicant concluded their conversation (as it was) and moved their location, Ms Hall’s daughter heard her mother state words to the effect that;

“Just get your things and go. Ring me when you decide what you want to do.”

[53] Ms Tegan Hall also stated that she overheard the Applicant mention that she would not assist in training juniors.

[54] The evidence generally is not without its difficulties.

[55] I find the Applicant’s construction of the conversation on 20 February 2014 to provide a contrived narrative: the Applicant complained that she could not afford to have her hours reduced and Ms Hall maliciously tells her to “get the f**k out of my shop!” in response. It appears to me that the conversation was not so one-sided: there was a heated exchange between the parties that may well have traversed a range of issues. Ms Hall for her part conceded openly that she that she did direct the Applicant to leave the store in what were strong terms in the context of a heated exchange, but without recourse to an aggressive expletive as the Applicant claimed. I prefer Ms Hall’s evidence, given candidly, that there was a shouting match, and she directed the Applicant to leave the store, but not in the aggressive context the Applicant claims.

[56] The Applicant’s evidence, I add, was confusing as her written statement appears to conflate the events of 19 and 20 February 2014 (into one day, that being 20 February 2014). The Applicant’s viva voce evidence did not clearly disentangle the content of the two conversations, as she believed them to be.

[57] But should I accept Ms Hall's evidence that she did not instigate the dismissal of the Applicant, but merely sought that she (the Applicant) clarify her future employment intentions?

[58] Ms Hall’s evidence was that given the extreme nature of the exchanges that occurred she directed the Applicant to leave the store (because the Applicant was a threat to “the safety of my staff and customers”). Ms Hall nonetheless invited her to ring her at a subsequent point to communicate her future intentions.

[59] This is not evidence that I consider to be naturalistic.

[60] Ms Hall’s evidence was that over the course of 19 February and 20 February the workplace had been characterised by a very heightened emotional state. This erupted in the meeting on the morning of 20 February 2014. Ms Hall conceded that the exchange was of such a degree of intensity that she could recall very little about what was said.

[61] In such a context, I do not find that it is reasonable for Ms Hall to have nonetheless composed herself to degree to which she was able to articulate a request for the Applicant to telephone her at a subsequent point to clarify her (the Applicants) intentions.

[62] The Applicant for her part had no recollection of having heard Ms Hall make a request for her to telephone her to bring some definition to her employment expectations.

[63] On the balance of probability, I accept that Ms Hall directed the Applicant to leave the workplace in the context of a second emotional charged exchange, and by so doing, the Applicant reasonably concluded that she had been dismissed by her employer. That is, it was no longer a reasonable option for the Applicant to return to her place of employment following the tenor of the exchange that occurred between them.

[64] Given this, the Applicant was dismissed at the initiative of her employer. But this is a finding that goes only so far and requires contextualisation. This is that task to which I turn further below.

[65] I should add that I have come to this conclusion about Ms Hall’s evidence having disregarded the evidence of her daughter, as given in these proceedings.

[66] Ms Tegan Hall, Ms Hall’s daughter, appeared to corroborate Ms Hall’s claim that she had said to the Applicant “ring me when you decide what you want to do.”

[67] Mr Tegan Hall also indicated that her mother directed the Applicant to leave the store because, “Mum had to end the conversation for the safety of customers and staff.”

[68] Ms Tegan Hall also sought to corroborate her mother’s claim that the Applicant had stated that, “it was not part of her job to train or assist juniors.”

[69] Mr Tegan Hall’s evidence appears to me to be contrived. It uses words drawn directly from her mother’s statement about her motives for directing the Applicant to leave the store (“safety of my staff and customers” and “safety of customers and staff”). There was no good reason for Ms Teegan Hall to inject into her evidence material relating to the possible motivation of her mother in requiring the Applicant to remove her from the business premises.

[70] Further, Ms Tegan Hall had no further knowledge of the exchanges that occurred between the Applicant and Ms Hall and did Ms Hall. Indeed, Ms Tegan Hall had effectively the identical recollection of the conversation as a mother.

[71] This leaves the evidence in an unhealthy state. Ms Tegan Hall’s evidence is unnaturally aligned with that of her mother. My observations lead me to conclude the evidence of Ms Tegan Hall is unreliable. I so concluded on the basis that I expressly enquired of Ms Tegan Hall whether she had taken her mother’s evidence into consideration when writing her own statement. She denied so doing.

(a) whether a valid reason(s) for the dismissal

[72] Having concluded that there was a dismissal at the initiative of the employer, I now turn to consider whether or not there was a valid reason for the dismissal.

[73] In many respects, both the Applicant and Ms Hall share responsibility for the interactions that occurred between them on 19 February and 20 February 2014. The Applicant as a casual employee did not accommodate the workplace changes indicated to her in a cooperative or reasonable manner. She reacted emotionally and negatively. She was not apologetic about her reaction to her employer's advice and 19 February 2014, nor seemingly inclined to adopt a more conciliatory tone at the commencement of work the next day.

[74] But for the purposes of establishing whether or not there was a valid reason for the dismissal, I need only to look to the conduct of Ms Hall on 20 February 2014, whereupon she directed the Applicant to leave her store in the setting of a heated exchange. I have concluded that this direction given in such a context amounted to an effective dismissal of the Applicant from her employment. Ms Hall in all likelihood may not have intended or set out to dismiss the Applicant when she directed her to leave the business premises. A direction for the Applicant to leave the store was a product of the heated exchange between the two parties. And I will say more about this below. But her conduct was such that the Applicant reasonably assumed (absent any other communication from her employer) that she had been dismissed (and she made that abundantly clear to Ms Hall in her telephone call to her a few minutes later).

[75] I consider that Ms Hall had no valid reason for the dismissal of the Applicant at that time: her conduct in effecting the dismissal (even if not consciously intended) was a product of the emotional intensity of the exchange with the Applicant, and could not be said to be sound or defensible. Of course, this is conduct that needs to be contextualised for the purposes of a determination as to whether a dismissal was harsh, unjust or unreasonable (which I will turn to below).

[76] I point out that the Applicant did assert that there may have been other reasons for her dismissal (or rather, her reduction in hours), but this was not made out at the evidentiary level. Indeed, Ms Hall’s decision to reduce the casual employee’s hours applied to the other casual as well, not just the Applicant.

(b) whether the person was notified of that reason

[77] In the circumstances I have set out above there was no opportunity for the notification of any reason for the dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[78] The circumstances of the effective dismissal did not give rise to an opportunity on the part of the Applicant to respond to any reason related to her conduct.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[79] This was not a matter that was relevant to the context in which the effective dismissal took place.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[80] So far as the dismissal was related to the Applicant’s conduct, it was not relevant to an issue of performance on the part of the Applicant.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[81] The evidence of Ms Hall was that the business is of a particularly small size, appearing to employ a very small number of casuals, of around three in number (excluding the school-based placement who undertook training one day per week). .

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[82] Ms Hall’s evidence was that she had no training in human resource management and the business had no such expertise at hand. This, I reasonably assume, affected Ms Hall’s view on the employment status of the Applicant following the 19 February 2014 incident. Mistakenly, Ms Hall believed the Applicant had resigned her position by exiting the store in the manner she did.

(h) any other matters that the FWC considers relevant

[83] In the end, the relationship between the Applicant and the Respondent broke down irretrievably. Neither the Applicant nor Ms Hall appears to have been able to retain a level of composure in their workplace interactions. When Ms Hall informed the Applicant that she needed to reduce the number of shifts per week of the Applicant (and that of the other casual employee) from five to four owing to a downturn in the business cycle, the Applicant had reacted in an emotional manner and became “very upset” and cried. It appears to me on the balance of probability that she also departed the store on 19 February 2014 in a particularly unhappy frame of mind.

[84] As I have mentioned above, the Applicant did not resume work on the morning of 20 February 2014 in a conciliatory tone, given that it was she who reacted emotionally and negatively to Ms Hall’s advice the previous day. And it is the case that it appears that neither of the parties were able to compose themselves for a reasonable exchange on the morning of 20 February 2014: the meeting appears to have quickly dissolved into a heated exchange.

[85] There had been workplace tensions prior to the events discussed above, but the parties, on the whole seem to have made their way through those difficulties, at least to some measure to the relevant point in time (February 2014). But when the Applicant responded in such emotive terms to the business changes (which affected both the senior casual employees) communicated by Ms Hall, the scope for the parties to interact in a constructive manner thereafter was compromised fatally.

[86] The setting in which the parties interacted is important to note. The business is a very small business. The business conducts its affairs in an informal manner for the most part, in the state of its cash flow suggests it is a marginal operation, with cash flow problems. The Applicant's own evidence was suggestive of this. There is no expertise of any kind in relation to employee management matters. It employs a very small number of employees; around three or so on a casual basis. The environment is intensely personalised and individuals cannot long defer interactions with one another.

[87] It was the Applicant’s reaction to the necessity for Ms Hall to reduce her hours (along with the hours of the other casual) because of the soft sales market that appears to have seriously destabilised the relationship between the Applicant and Ms Hall. Once destabilised, the relationship became more seriously compromised when they confronted one another the following day. As I said above, I cannot apportion blame to one party alone as to the dysfunctional state into which the relationship fell on 20 February 2014.

[88] To this I add that Ms Hall (without the benefit of any human resource expertise) did not set out to dismiss the Applicant. It was her conduct in the heat of the moment that gave rise to the dismissal (arguably best characterised as constructive dismissal in the end). Ms Hall for her purposes continued to assume that the manner of the Applicant’s departure from work on 19 February 2014 was and indicated that the Applicant had “quit” her job.

[89] Indeed, it was the Applicant’s own evidence, accepted by Ms Hall during the proceeding, that Ms Hall stated to the Applicant when they came face to face again on Monday 24 February 2014 that she (Ms Hall) was of the belief that the Applicant had “quit” her job by walking out on 19 February 2014. In the context, I have no reason to disbelieve the genuineness of Ms Hall’s subjectively held belief (that her conduct was not intended to bring the Applicant’s employment to an end).

[90] This then is the context in which the dismissal took place.

[91] These matters turn on a particularly fine judgement. But in the end, I consider that when the contextual circumstances I have set out above are all taken into account, the dismissal, as it was, was not harsh, unjust or unreasonable.

[92] It may not frequently be the case that a dismissal in which a valid reason has been established for the purposes of s.387(a) of the Act nonetheless will result in a finding that the dismissal was not harsh, unjust or unreasonable. But having heard the witnesses (an important opportunity in the context) and taking into account all the circumstances of this case, it appears to me that this judgement best reflects the totality of the unfortunate circumstances that arose in a marginal and very small enterprise in a regional location with slender resources, and where both the Applicant and the Respondent bear some responsibility for the situation in which they found themselves. It is a finding that best captures the totality of the circumstances, noting that both the Applicant and Ms Hall have experienced difficulties of various kinds as a consequence of the breakdown of their relationship.

[93] The application under s.394 of the Act is therefore dismissed. Notwithstanding the finding in this regard, I note that the Applicant may have outstanding entitlements due to her as payment in lieu of notice under s.117 of the Act; but that was not a matter on which there was close submission. The Applicant’s claims as they may be in relation to underpayment of wages are matters that may be investigated by the Fair Work Ombudsman (though Ms Hall claims to have at all times dealt fairly with the Applicant).

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Boylan, Applicant

Ms D. Pilbeam-Hall, of the Respondent

Hearing details:

By telephone

2014

10 & 17 September

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555464>