[2020] FWC 2347

FAIR WORK COMMISSION

DECISION

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

Ms Kellie Smith
v
Australian Leisure & Hospitality Group Pty Limited
(U2018/12783)

DEPUTY PRESIDENT ASBURY

BRISBANE, 8 MAY 2020

Application for an unfair dismissal remedy – Whether Applicant dismissed – Applicant was a casual employee – Applicant resigned employment as a result of reduction of hours – Whether reduction of hours amounted to repudiation of employment contract or constructive dismissal – Applicant not dismissed – Application dismissed.

BACKGROUND

[1] This Decision concerns an application by Ms Kellie Smith (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of her dismissal by Australian Leisure and Hospitality Group Pty Ltd (ALH/the Respondent). The Applicant was employed on a casual basis as a Food and Beverage Attendant from 13 October 2010 at the Parkwood Tavern. The Applicant has made two unfair dismissal applications each asserting that she was constructively dismissed by virtue of a significant reduction in her rostered hours. In the first application filed on 11 December 2018, the Applicant alleged that she was dismissed on 22 November 2018 when a roster was published by the Respondent which resulted in her hours being reduced and that the dismissal took effect on 26 November 2018 when the roster commenced.

[2] ALH objected to the first application asserting that the Applicant was not dismissed as she had continued to work in accordance with the roster after her alleged dismissal. A Mention/Conference was held and at the insistence of the Applicant the matter was listed for hearing on 11 – 13 March 2019. On 4 March 2019 the Applicant filed a second application for an unfair dismissal remedy contending that her employment was terminated at the initiative of the employer on 11 February 2019 when she was forced to resign due to reduction in her rostered working hours. The Applicant elected to pursue the second application and withdrew the first application. The original hearing dates were vacated. ALH objected to the second application asserting that the Applicant was not dismissed but had resigned her employment.

[3] In summary the events which led to the Applicant’s resignation commenced when the Applicant was issued with a warning in relation to her conduct on 7 November 2018. The conduct was that the Applicant engaged in a conversation with a colleague during working time and the Venue Manager Mr Sharkey determined that the Applicant and her colleague had not met ALH’s standards of customer service. The Applicant took issue with the warning and maintains that thereafter she was targeted by Mr Sharkey and other managers of the Respondent and her hours were reduced to the point where she had no option but to resign.

[4] ALH contends that the Applicant reacted unreasonably to the warning, continued the conduct about which she had been warned and for this reason was allocated shifts in other parts of the venue which resulted in reduced hours. ALH further contends that as a casual employee the Applicant could be required to work shifts in all areas of the Parkwood Tavern and that her hours could vary from week to week. ALH further contends that following the warning the Applicant refused to engage with the Venue Manager and other managers, did not accept shifts that she was offered and chose to resign her employment.

[5] ALH does not dispute that the Applicant is a person protected from unfair dismissal consistent with s. 382 of the Act and that she has completed a period of employment of at least the minimum period defined in s. 383 of the Act. It is also not in dispute that the Applicant’s employment as a casual employee was on a regular and systematic basis and that she had a reasonable expectation of continuing employment so that she is a person protected from unfair dismissal. The Applicant is covered by a modern award. ALH is not a small business employer and the dismissal was not a case of genuine redundancy.

[6] Directions were issued set for the filing of material and the matter was dealt with by way of hearing on the basis that there were disputed facts and I considered that a hearing was the most appropriate way to deal with the matter. The parties agreed that the hearing would deal with jurisdiction and merits. The Applicant was represented by Mr Merritt who is a former employee of the Respondent. Mr Merritt is neither a lawyer nor a paid agent.

[7] It was suggested by the Respondent’s Human Resources Manager in his evidence that the Applicant was assisted by a third person to prepare correspondence sent to him by the Applicant prior to her dismissal and that the same person probably prepared the material filed by the Applicant in support of her application. If Mr Merritt advised the Applicant about her course of conduct and correspondence with Mr Pyers prior to the ending of her employment and/or assisted her to prepare the material filed in these proceedings, then Mr Merritt was more hinderance than help. This was particularly so during the course of the hearing when Mr Merritt on behalf of the Applicant levelled allegations at the Respondent’s witnesses which were at best misconceived.

[8] The Respondent was represented by Mr See of Counsel. My reasons for granting permission for the Respondent to be legally represented were set out in a Decision released on 21 June 2019. 1

[9] At the hearing the Applicant gave evidence on her own behalf. 2 Evidence was also given for the Applicant by former work colleagues Ms Lisa King and Ms Angel-Leigh Gray. Ms King provided a witness statement3 and Ms Gray attended pursuant to a notice requiring her attendance issued at the respect of the Applicant. and gave evidence for the Applicant. Evidence for the Respondent was given by:

• Mr Ezra Pyers – Human Resources Manager Queensland and New South Wales 4;

• Mr Alan Sharkey – Venue Manager, Parkwood Tavern 5;

• Mr Robert Miller – Assistant Manager, Parkwood Tavern 6;

• Ms Sallyann Hartley – TAB Supervisor Cecil Hotel and formerly Bar Attendant and TAB Supervisor at the Parkwood Tavern 7; and

• Ms Toni Phillips – Venue Support Officer Parkwood Tavern 8.

[10] Evidence relevant to the matters in dispute is summarised below.

EVIDENCE

The Applicant’s employment

[11] The Applicant was employed at the Respondent’s Parkwood Tavern from October 2010 in the role of Food and Beverage Attendant. In that role the Applicant’s duties included the service of food and drinks to patrons and responsibility for ensuring prompt and professional service to patrons. Mr Sharkey tendered the Applicant’s position description signed by her on 28 October 2010. The position description for the Applicant’s role includes providing customers with outstanding levels of service. The Applicant also signed an acknowledgement form on 4 April 2012 indicating that she understood and accepted ALH’s Employee Code of Conduct. Mr Sharkey said that the Applicant had completed multiple on-line training courses including “Creating a Rich Customer Experience” and the “ALH On-line Induction” which required her to read and agree to the ALH Group Code of Conduct.

[12] Mr Sharkey tendered copies of training materials including for courses attended by the Applicant, indicating that staff are trained in matters including: greeting customers; awareness and perception of customer needs and what is happening in the room; serving customers as soon as possible; and ensuring that customers in the gaming room at machines are offered service. The training also makes clear that employees should not engage in personal discussions while customers are waiting at the bar and in one example it is emphasised that it where two employees are engrossed in a conversation they should stop what they are doing when a customer enters the room or is waiting for service. Mr Sharkey’s evidence was that the training emphasises that good service includes serving from behind the bar and walking around and speaking with customers away from the bar. It may also include delivering food and drink to customers.

[13] The Applicant said that the letter of appointment “implies an acknowledgement” of an ongoing employment relationship that “has not been renewed on a weekly basis”. The ongoing nature of the Applicant’s employment is also said to be evidenced by the provision to her of a staff discount card and the fact that she applied for leave on 5 August 2018 and took such leave in the week commencing 29 October 2018 and that the Respondent generally required casual employees to indicate their availability in advance of a roster. Further, the Applicant contends that her employment was regular and systematic, that she had a reasonable expectation of ongoing employment with similar hours and had made herself available and accepted work sufficiently often so that it could be said that her employment could no longer be regarded as simply occasional or irregular. 9

[14] Mr Sharkey said casual employees are not guaranteed shifts and there is no specific day or time they must be provided with work or any specific number of hours per day or per week. Instead, casual employees are assigned shifts as needed by the business where those shifts are not otherwise filled by permanent employees. Whether casual employees are assigned shifts depends on factors including what tasks need to be performed, whether the casual employee has the skills needed, the availability of the casual employee over the week and across weeks, performance in their role and conduct at work. Casual employees have the ability to make themselves unavailable without the need for approval.

Incident on 7 November 2018

[15] It is not in dispute that on 7 November 2018 the Applicant was working a shift in the gaming room. This room is adjacent to the restaurant. Mr Sharkey states that he walked into the restaurant and noted three customers waiting at the register to give their orders and prepared meals sitting on the counter waiting to be served to customers at tables. Mr Sharkey said that he did not know the whereabouts of the employee who should have been in the restaurant (Ms Angel-Leigh Gray). Mr Sharkey was required to deliver the meals to the customers at their tables and informed customers waiting to be served that a staff member would attend to them shortly.

[16] Later Mr Sharkey viewed CCTV footage to ascertain the whereabouts of Ms Gray who should have been in the restaurant. Mr Sharkey noted that Ms Gray was in the gaming room and that Ms Gray and the Applicant were talking for “several minutes” at the time that customers were waiting at the register in the restaurant and meals were ready for delivery to tables. Mr Sharkey said that customers in the gaming room were also not receiving good service because the Applicant was standing behind the bar talking and was not interacting with customers away from the bar.

[17] Under cross-examination Mr Sharkey was asked when he noticed customers standing in the restaurant and said that he saw three customers waiting at the till as well as a number of meals ready to be delivered to customers. Mr Sharkey also said that he knew that customers were waiting for meals because he was required to run the meals to their tables. Mr Sharkey was not sure how many meals he delivered but said that he made more than one trip.

[18] Mr Sharkey was also asked about where the other staff member who was rostered to work in the restaurant with Ms Gray on 7 November and said that the other staff member had been called by a manager to go to another area and it was not necessary that he take action in relation to the absence of that staff member from the restaurant area.

[19] The Applicant said in her evidence that Ms Gray was in her area because the dishwasher in the restaurant was broken and Ms Gray brought glasses to the dishwasher in the gaming room to be washed. The Applicant tendered CCTV footage of her and Ms Gray at the relevant time. The CCTV footage was produced by the Respondent pursuant to an Order issued at the request of the Applicant requiring its production.

[20] The Applicant sought that the Commission and the parties view the CCTV footage at the hearing, while Ms Gray was giving her evidence. The Applicant’s request was acceded to. The footage shows the Applicant and Ms Gray holding a conversation that went for approximately three minutes and thirty seconds. Both the Applicant and Ms Gray appear to be engrossed in the conversation and are not looking around at patrons or into the restaurant area. The footage begins at 12:07:01pm (as marked on the video footage) with Ms Gray standing at the sink behind the bar, and the Applicant walking around behind the bar area, and appearing to be putting some items away. The Applicant then joins Ms Gray at the sink, and begins a conversation with her. During part of the conversation the Applicant is polishing glasses while she is conversing with Ms Gray, who also appears to be washing items at the sink. From around 12:09:35pm the Applicant can be seen standing next to Ms Gray continuing the conversation, and at 12:09:55 pm Ms Gray walks away from the sink and stands in the doorway from the gaming area back to her section and continues to talk to the Applicant. The Applicant and Ms Gray continue their conversation until 12:10:26 pm when Ms Gray leaves the bar area to return to the restaurant.

[21] The Applicant said that the video showed that they were both doing something and that the Applicant was polishing glasses. The Applicant also said that she did not know what they were talking about and they were probably talking about glasses or stock or something work related. Further the Applicant said that the footage shows Ms Gray standing at a corner of the bar in the gaming room where Ms Gray could see her section.

[22] Ms Gray confirmed that during her shift on 7 November 2018 she had “wandered over” to the gaming area to use the dishwasher as the one in her area was broken. Ms Gray agreed that she was talking to the Applicant and said that she could not remember the subject of the conversation, but it was probably work related as she did not have a relationship with the Applicant outside work. Ms Gray said that she could not have seen customers in her area from while she was standing at the sink in the gaming room but could have seen them from the corner of the bar.

[23] Ms Gray said that she could not remember whether there were customers waiting but conceded that this was probably the case and that she was aware that Mr Sharkey had been required to take some meals out to customers. Ms Gray also conceded that she did not need to stay in the gaming room and could have left as soon as she had placed the dishes in the dishwasher. Ms Gray further conceded that instead of leaving the gaming room after placing the dishes in the dishwasher she stayed in the gaming room talking to the Applicant. Ms Gray said that she could not remember whether the Applicant was working while they were talking.

Disciplinary process in relation to the Applicant’s conduct on 7 November 2018

[24] On 7 November 2018 the Applicant was given a letter by Mr Sharkey setting out allegations about her conduct on that day and notice of the requirement to attend a meeting with Mr Sharkey the Venue Manager to be held on 8 November. Much was made by the Applicant of the fact that there were two versions of the letter. Mr Sharkey tendered both versions of the allegations letter as Annexure Q and Annexure S to his witness statement. The first version of the allegations letter stated that the Applicant’s recent conduct in the workplace may be in breach of ALH Employee Code of Conduct and that her performance in the role of Gaming Attendant had fallen below the expected standards. The first allegations letter also stated that:

“On 7 November 2018 you failed to provide the expected level of customer service for your role by talking to another staff member away from your designated service area resulting in customers not being greeted in an appropriate time frame.” 10

[25] The allegations letter went on to set out the key responsibilities for the role of Gaming Attendant including attending to customers’ needs promptly, and concluded by informing the Applicant that depending on the outcome of the meeting on 8 November that she may be subject of disciplinary action including the termination of her employment. The Applicant was advised that she was entitled to bring a representative with her to the meeting. There is a space on the allegations letter for the Applicant to sign.

[26] The Applicant said that she did not know what the meeting was about and that the allegations letter did not make reference to an incident or reason for her attendance at a meeting. The Applicant also said that the timing of the written notice and the requirement that she attend the next day meant that she did not have 24 hours’ notice of the meeting. The Applicant also said that the allegations letter was false because she did not leave her area.

[27] The meeting was held on 8 November 2018 and was attended by the Venue Manager Mr Sharkey. The Applicant attended with Ms King as her support person. The Applicant said that at the meeting she was informed that she had engaged in a conversation with Ms Gray that left a patron waiting in the restaurant area for several minutes. The Applicant said that initially she was told that she left her designated work area when in fact it was Ms Gray who left her work area. The Applicant also said that the customer who was allegedly left waiting for service was in the restaurant area was not visible from the Applicant’s position in the gaming room.

[28] The Applicant said that she was informed by Mr Sharkey that he would discuss the matter with the Respondent’s Human Resource Management Department in relation to the consequences of the allegations and that this may result in the Applicant receiving a formal written warning. This confused the Applicant as she had remained in her designated work area and had not neglected customers in the gaming room.

[29] In her evidence Ms King confirmed that she ceased employment with the Respondent in October 2017 and had not worked with the Applicant since that time. Ms King attended the meeting on 8 November with the Applicant and said that at the meeting Mr Sharkey told the Applicant that she performed her duties well and is looked up to by the other staff at the Parkwood Tavern. Ms King also said that Mr Sharkey asked the Applicant to sign a document but the Applicant refused to do so because it was not accurate and indicated that the Applicant had left her designated area when it was Ms Gray who had left her designated area. Ms King said that Mr Sharkey acknowledged that the Applicant had not left her designated area and stated that he would re-word the document and the Applicant would be required to sign it. Ms King states that she told the Applicant that she was within her rights to refuse to sign the document.

[30] Under cross-examination Ms King maintained that at the meeting on 8 November 2018 Mr Sharkey said that the Applicant was a senior staff member and that younger staff looked up to her because she performed her duties well and had known the venue for some time. Ms King also said that she believed that the document that the Applicant was asked to sign at the end of the meeting was a written warning.

[31] Ms King also said that after the meeting she went outside to the gaming bar with the Applicant and Mr Sharkey came out holding a document and told the Applicant that she needed to sign it. Ms King said that the Applicant stated that she would not sign the document because it incorrectly stated that she left her area and that she had told the Applicant she did not need to sign anything.

[32] At my request Ms King was shown the two versions of the allegations letter in an attempt to identify the document that the Applicant was requested to sign. Ms King said that her view that the document the Applicant was asked to sign on 8 November 2018 was a written warning was on the basis that Mr Sharkey stated at the meeting on that date that he had a written warning for the Applicant to sign. Ms King could not identify the document that the Applicant was asked to sign on 8 November 2018 and could not state whether the document was one of the two versions of the allegations letter or some other document.

[33] According to Mr Sharkey’s evidence, at the meeting on 8 November 2018 the Applicant disputed the allegations on the basis that she asserted there were no customers left waiting to be served in her designated area. Mr Sharkey conceded that the first version of the allegations letter was incorrect and said that after realising that this was the case, he caused a second version to be prepared setting out the allegation in the following terms:

“On 7 November 2018 you failed to provide the expected level of customer service for your role by talking to another staff and not attending to your gaming patrons.” 11

[34] In his reply Affidavit, Mr Sharkey disputed the Applicant’s claim that she did not understand the allegations about her conduct on 7 November. While conceding that the first allegations letter was incorrect in the manner in which the allegation was framed, Mr Sharkey maintained that this was corrected at the meeting. In this regard, Mr Sharkey said that at the meeting on 8 November he acknowledged that the Applicant had not left her designated work area. Mr Sharkey also said that the incorrect wording in the first version of the allegations letter did not confuse the Applicant as she recalled the incident and responded by stating that she was not outside her work area that she should not be disciplined because she was in her work area at the time. Mr Sharkey confirmed that the Applicant refused to sign the revised the allegations letter.

[35] Mr Sharkey said that after the meeting on 8 November he considered the Applicant’s response to the allegations as well as the CCTV footage, the training the Applicant had completed and the events as he had experienced them, and found that the Applicant had not provided the appropriate level of customer service. Mr Sharkey based his views on the fact that despite there being no customers needing to wait for service in her assigned room, the Applicant should have been interacting with customers and talking to them. Instead the Applicant was talking to Ms Gray who was away from her area and the Applicant should have limited her discussion with Ms Gray so that Ms Gray could return to her own work area.

[36] Mr Sharkey determined to issue the Applicant with a written warning in relation to her conduct on 7 November 2018. The written warning tendered by Mr Sharkey is dated 12 November 2018 and records that on 7 November 2018 the Applicant failed to provide the expected level of customer service for her role by talking to another staff member who was away from their designated service area resulting in customers not being greeted in an appropriate time frame. The warning letter also records that the Applicant’s response was that as she had not left her designated area, she did not believe that her conduct warranted a formal warning. The letter concludes with the following statement:

“On the basis that ALH finds that your conduct constitutes misconduct, you are provided a written warning. Any further breaches of company policy and/or inappropriate behaviour may result in further disciplinary action up to and including termination of your employment. I accept your commitment to improve your conduct in the area above. Please do not hesitate to ask if you need assistance to reach the standards required for you to continue a successful career with ALH.” 12

[37] In relation to the issuing of the warning the Applicant complains that she was required to attend a second meeting with no advance notice and was not advised that she could have a witness present. No written notice of the meeting was provided. The Applicant states that she was advised that she was to receive a written warning and she was required to sign the warning to acknowledge receipt. The Applicant said that she was confused and intimidated at the meeting. The Applicant also said that she did not believe that she had failed in any customer service requirements or that a written warning was required. During her employment at the Parkwood Tavern the Applicant has never received a verbal or written warning.

[38] Mr Sharkey said that the Applicant had been informed that the outcome of the meeting on 8 November was that the Applicant’s responses would be considered and that he would seek further advice before determining what disciplinary action, if any, would be taken against her and that the Applicant understood that this was the case as indicated in her evidence to the Commission. Mr Sharkey also said that as the meeting on 12 November was simply called for the purpose of him providing the Applicant with the outcome of his deliberations he did not see the need for her to have a support person present when she was handed the disciplinary letter. Further, Mr Sharkey said that the Applicant did not appear to be confused or intimidated at the meeting and did not take the opportunity he provided to her to ask questions. The warning letter tendered by Mr Sharkey is signed by the Applicant. Mr Sharkey’s evidence about the meeting of 12 November 2018 was supported by Mr Miller who also attended.

[39] While not disputing that she received a written warning, the evidence of the Applicant about the written warning and the allegations letter and the submissions made by the Applicant and her representative from the bar table about these matters, were somewhat confusing. Initially the Applicant contended that the first meeting at which the allegations were put to her occurred on 21 November and that the second meeting at which she was handed the warning letter occurred on 22 November 2018. The Applicant later conceded that the first meeting was on 8 November and the second meeting on 12 November. In her witness statement and during the hearing the Applicant agreed that she did sign something on 12 November 2018.

[40] However, the Applicant also “noted” in her written submissions that the signature on the warning letter tendered by Mr Sharkey as Annexure S to his affidavit “bears no resemblance” to the Applicant’s signature on other documents also tendered by Mr Sharkey. During the hearing the Applicant asserted from the bar table that the signature on the warning tendered by Mr Sharkey is not her signature. After pointing out the seriousness of an allegation that Mr Sharkey had tendered a fraudulent document, I stood the matter down to allow the Applicant an opportunity to decide whether she wished to press the allegation. The Applicant withdrew the allegation.

Disciplinary process in relation to Ms Gray’s conduct on 7 November 2018

[41] In her evidence to the Commission Ms Gray confirmed that she received a written warning at the same time as the Applicant. Ms Gray also said that she had previously received a number of verbal warnings about talking to colleagues during working time. Ms Gray said that in her meeting with Mr Sharkey she was informed that while she was in the gaming room talking to the Applicant a customer was waiting for four minutes. Ms Gray said that Mr Sharkey told her that this was poor customer service and that she would receive a first written warning. Ms Gray said that she agreed she was in the wrong and signed the warning. Ms Gray also said that she viewed this as a serious matter and was concerned about losing her job. This caused her to ensure that she did not engage again in the conduct about which she had been warned. Ms Gray also said that prior to receiving the written warning she was spoken to about talking to other staff when she should have been working and received two verbal warnings. Ms Gray said that when she received the written warning she understood that the matter was serious and her job could be at risk.

[42] In response to questions from the Commission, Ms Gray agreed that she should not have been standing talking to the Applicant. Ms Gray also said that it was her fault for going over and talking and she should have just put the dishes in the dishwasher and walked away. In cross-examination Ms Gray said that at the meeting Mr Sharkey told her that at least one person was waiting at the cash register for four minutes and that he had been required to run meals out to customers. Ms Gray also said that Mr Sharkey told her that the meeting was a performance discussion and she should not discuss it with anyone and keep it confidential.

[43] The Applicant said that after leaving the meeting on 12 November 2018 she asked Ms Gray whether she had been required to sign a similar form and was advised that Ms Gray had not been required to do so. As a result the Applicant felt that the blame had been placed on her and she had been unfairly victimised and targeted. Under cross-examination the Applicant agreed that she communicated with Ms Gray via Facebook in or around December 2018 and asked Ms Gray again whether she had received a warning. After saying she could not remember what response Ms Gray gave, the Applicant agreed that Ms Gray said that she did receive a written warning and the Applicant knew this before she prepared her witness statement and submissions for the Commission.

[44] Mr Sharkey said that the Applicant’s claim that she was unfairly targeted because Ms Gray did not receive a written warning for her involvement in the incident on 7 November is wrong and confirmed that on 8 November 2018 Ms Gray received a warning for her part in the incident. Mr Sharkey also said that the investigation in relation to Ms Gray’s conduct followed much the same course as that relating to the Applicant but there was a significant difference in that unlike the Applicant, Ms Gray admitted to her conduct so that Mr Sharkey was able to determine the matter without seeking further advice.

[45] Mr Sharkey denied that he victimised or targeted the Applicant and said that where the Applicant compared her experience to that of Ms Gray she failed to recognise key differences that affect how Mr Sharkey determines which casual hours are offered to casual employees. In this regard, Mr Sharkey said that after issuing the Applicant with the written warning on 12 November 2018 her conduct and behaviour continued in the same manner and eventually worsened. In comparison, Ms Gray’s overall conduct and performance improved. According to Mr Sharkey, the difference in the casual hours offered to the Applicant as compared to Ms Gray is reflective of this. In cross-examination Mr Sharkey accepted that he may have given Ms Gray verbal warnings about talking to other staff before the written warning was given. In this regard Mr Sharkey said that any such warning was probably just given “on the go” and was not a formal warning.

[46] Ms Phillips also gave evidence about the warning given to Ms Gray. Ms Phillips said that unlike the Applicant Ms Gray kept the fact that she had received a warning confidential and to Ms Gray’s credit had improved her conduct and performance after being given the warning.

Events after the Applicant was issued with a warning on 12 November 2018

[47] There was a range of evidence about the Applicant’s conduct after she was issued with the warning on 12 November 2018. Ms Gray who was issued with a warning in relation to the same incident said that thereafter the Applicant made contact with her on Facebook and asked Ms Gray whether she had received a warning. Ms Gray said that she told the Applicant that she had received a warning but she could not talk about it. In re-examination Ms Gray said that the date she told the Applicant that she had received a written warning was 2 December.

[48] Ms Gray also provided information about customers who had told her that the Applicant did not smile at them or talk very much after the warning was issued. Ms Gray said that the Applicant was still in the gaming room for a few weeks after 12 November 2018. In response to questions seeking more detail about the customers referred to in her evidence, Ms Gray said that some were asking about the Applicant and whether she was okay. Other customers raised the issue of written warnings with Ms Gray and asked her whether she would get into trouble if she spoke to them. Another regular customer who comes in with his wife commented that the Applicant did not smile and laugh any more and seemed to be angry with them.

[49] The Applicant said that in the week following the issuing of the warning she was constantly under the scrutiny of Mr Sharkey. On one occasion when the Applicant approached the chef and asked him about the specials on the restaurant menu for that night, Mr Sharkey told her that she had neglected customers and that no-one was watching her section. The Applicant said that this was not correct and that she was still in the bar area approximately three metres from the gaming lounge. The Applicant also said that when she attempted to explain that she was asking about menu specials as she was the only person who wrote them on the blackboard, Mr Sharkey said that it did not matter if it was work related and under no circumstances was the Applicant to leave her designated work area.

[50] The Applicant said that on another occasion within a week, another staff member from the Sports Bar came down to make coffee while he was working and on a further occasion was on the floor while the Applicant was checking on customers. The Applicant was also informed by the Assistant Manager that she was again observed on CCTV interacting with other staff members and this had been noted.

[51] The Applicant also said that she was aware that she was under surveillance and being monitored on camera and that notes were being taken. The Applicant viewed this as vindictive and extreme and said that she ceased talking to all staff even when they would make enquiries about how gaming worked. The Applicant said that she was replaced in the gaming area by a person who was not trained in gaming and that when that person would ask her a question she would advise her to radio a manager as the Applicant was not allowed to talk to other staff. The Applicant said that this was very upsetting for her.

[52] According to the Applicant it got to the point where other staff would not look at her as she was not allowed to talk, even though other staff were observed by the Applicant to be having personal conversations when she walked past them. The Applicant also gave examples of other staff having personal conversations in the workplace including an incident on 17 November 2018 involving the Assistant Manager, Mr Miller. The fact that there were no personal consequences for those staff was seen by the Applicant as unfair and caused her to feel like an outsider. The Applicant also said that had mental health problems and was placed on anti-depressants by her doctor for anxiety and mild depression.

[53] In the week commencing 26 November 2018 the Applicant was completely removed from gaming lounge rosters and her hours were reduced from 28 per week to 12. The Applicant said that she approached Mr Sharkey to ask why this had occurred and was informed that she had been talking to other staff. In response to a question as to whether other staff who had been out of their sections had their hours reduced, the Applicant was told by Mr Sharkey that she should not be talking and that he would not be discussing those matters. The Applicant said that she works in the hospitality industry and needs to communicate with other staff. The Applicant also said that she always asks the chefs about specials as her gaming customers often make enquiries and she needs to inform them about this.

[54] The Applicant said that after several weeks with no further instructions or meetings with Mr Sharkey on whether her behaviour was improving, her hours continued to drop down to nine, then six then three and a-half hours per week. As a mother of two children and with no indication of when her hours would be restored, the Applicant said that she had no choice but to seek other employment as she could not survive on three and a-half hours per week. The Applicant also said that she had refrained from talking to other staff and had reached the point where most of her colleagues believed she did not like them and notwithstanding this her hours were not increased.

[55] Under cross-examination the Applicant said that she did not tell customers that she had been given a warning but did tell them her hours had been cut. The Applicant also agreed that she had a discussion with Ms Gray on Facebook in relation to whether Ms Gray received a warning and attended a second meeting notwithstanding that she had been told not to discuss these matters.

[56] In relation to the gaming room the Applicant agreed that this is where money comes into the Hotel and it is important to make sure that customers in that area are happy. Further, the Applicant agreed that it was necessary for employees working in the Hotel in customer service roles to smile and be pleasant even if they are not feeling like doing so. The Applicant maintained that she was told that her hours had been cut because she was talking to other staff and that this was unfair and incorrect. In response to a proposition in cross-examination that her own behaviour had resulted in the reductions to her hours, the Applicant said:

“…I would get to work, I would see Alan or Robbie and because I felt so victimised, like, I would just have to look at them and I would be in the toilet crying.

Yes? --- Like, I would get there and I would spend half an hour in the toilet crying.

Yes? --- You know, then I would have to make sure I wasn't because I had to look at customers. I didn't want to look at customers like this. You know, even Ezra would call me before my shift and I would have to go to work crying.

Yes? --- Toni- I saw her, like, multiple times crying. She encouraged me to go get another job, so I'm not sure how she was supposed to help me, but she saw me crying. The fact that if I looked at someone I'd start crying - I felt isolated. No one wanted to talk to me because I wasn't allowed to talk to anyone and yet I would walk past people having conversations all day. I could hear conversations. They were talking about stuff like at home and just crap. Nothing about work and yet I couldn't talk to someone about - like, a chef about what the specials were going to be that night. Then I lost hours and I - that is what he told me and I just kept losing hours. There was no, "You're doing the wrong thing. You're doing this, you should be that." There was nothing to encourage me or give me any hope that any more hours were coming. I tried to go somewhere else. I wasn't allowed to, so I just - every time I got there - like, I went to my doctor just balling my eyes out. Like, I was on antidepressants. I have never done that in my life. Like, I'm the happiest person and I just felt so - yes, like, it was horrible. Like, I had customers - you know, I'm trying not to cry in front of them and, you know, trying to be pleasant to them because I didn't want them to know what was going on. Like, some knew because obviously I've been there eight years. Like, there is a lot of people there that I know very well.” 13

[57] Mr Sharkey’s evidence was that after the Applicant was issued with a written warning on 12 November 2018, the Applicant’s behaviour continued on at least two more occasions later in the week. According to Mr Sharkey, the first occurred when the Applicant was seen talking to another employee for several minutes when they were both in the gaming room and the second when the Applicant was talking to the Chef in the kitchen away from the gaming room which was her assigned area. Mr Sharkey disputed that the Applicant was talking to the Chef while she was in the gaming room and said that the Applicant was in the kitchen when he spoke to her about this matter.

[58] Mr Sharkey said that as a result of the Applicant’s ongoing misconduct and poor performance he reconsidered the factors relevant to offering shifts to the Applicant. Mr Sharkey considered that when compared to other casual employees, the Applicant was no longer performing her shifts in the gaming room at a standard that was better than, or at the same level as, other employees within the pool of casual employees. As a result Mr Sharkey removed the Applicant from consideration for available shifts in the gaming room.

[59] Mr Sharkey also said that when compared to other employees within the casual pool, he still considered the Applicant’s performance and conduct to be of a standard to be offered shifts within the Hotel and subsequently he offered her shifts in the restaurant. According to Mr Sharkey, the offer of work in a different room in the Hotel has no effect on the Applicant’s status as an employee under the Hospitality Industry (General) Award 2010 classification of Food and Beverage Attendant Grade 3 as the Applicant can be assigned to work either in the gaming room or the restaurant. Mr Sharkey acknowledged that the available shifts in the restaurant are of a much shorter time span than those in the gaming room and that the hours the Applicant has worked are less on both a daily and overall weekly basis.

[60] In relation to the Applicant’s claim that she was put under scrutiny unfairly, Mr Sharkey denied that he told the Applicant she was not allowed to talk to other staff. Rather, Mr Sharkey said that he told the Applicant to stay within her own section and focus on customers in that section and that if she needed information – for example Chef’s specials – she could obtain it without leaving her section. Mr Sharkey also said that his expectation was that the Applicant would not socialise with other employees to the detriment of customer service and would use her discretion and not engage in long conversations with other employees that would distract her and those employees from providing service to customers.

[61] Mr Sharkey agreed that he did not provide the Applicant with further instructions or hold meetings with her regarding her performance before her hours dropped to 9 hours per week but maintained that this was because the Applicant refused to talk to him between December 2018 and his transfer to another venue. Mr Sharkey said that when he attempted to talk to the Applicant she ignored him and on multiple occasions, turned her back on him. Mr Sharkey said that as Venue Manager this is unacceptable and clearly misconduct. However, rather than taking disciplinary action against the Applicant Mr Sharkey decided to give her space with the hope that she would work out her frustrations. When the situation did not improve, Mr Sharkey spoke to Mr Miller and it was agreed that Mr Miller would approach the Applicant to discuss her conduct and performance.

[62] Mr Miller said that after the Applicant received the written warning he observed her working in the restaurant and that her attitude was very different. According to Mr Miller, before the warning the Applicant was a good team player who worked well with other team members towards providing good customer service. Mr Miller said that on the day he observed the Applicant working in the restaurant her attitude was poor and she seemed not to want to help other employees on the shift or engage in any conversation with them. It seemed to Mr Miller that the Applicant was being intentionally difficult as if to show that if she could not stand around and socialise she would not talk with anyone she does not want to talk to. Mr Miller also said that when he was out of the room and in the office he observed the Applicant via the CCTV camera and saw her standing around socialising with other employees. After a few days Mr Miller approached the Applicant and discussed this conduct with her but instead of improving the Applicant’s conduct worsened.

[63] Mr Miller said that the Applicant’s conduct towards him specifically also got worse and the Applicant stopped acknowledging him when he attempted to speak to her. Mr Miller is often the approved manager on shift as required under the Liquor Act and as part of the Applicant’s role she was required to follow his direction. For this reason Mr Miller believes that it was suitable that other employees were offered shifts instead of the Applicant. Mr Miller also said that he became aware that the Applicant’s conduct towards other employees had declined. Between December 2018 and January 2019 three employees approached Mr Miller and asked not to be rostered to work with the Applicant, expressing concerns that she had a poor attitude and was unprofessional.

[64] In January 2019, Mr Miller approached the Applicant on a confidential basis about the complaints he had received. Mr Miller said that the Applicant acted as though she was not listening to him. Mr Miller confirmed the expectations that he and Mr Sharkey had in relation to the Applicant’s conduct and the Applicant gave no acknowledgement of those expectations or commitment to achieving them. According to Mr Miller, the Applicant’s conduct and performance did not improve after the meeting and remained poor. In relation to the Applicant’s evidence about Mr Miller joking around with the chefs in the kitchen when he was supposed to be covering for the gaming area, Mr Miller said that he did not recall such an incident but it would not be unreasonable for him to leave an area when covering for other employees on breaks because when on shift, he is the approved manager and is responsible for the entire venue. The Applicant on the other hand is not the approved manager and is responsible only for her own area.

[65] Mr Miller said that his expectation of the Applicant was not that she never talk to any other employee as this is neither practical or reasonable in a customer focused role as part of a team. The expectation is that the Applicant will not neglect the provision of good customer service by prioritising socialising with other employees. Mr Miller also said that the Applicant is expected to not engage with other employees in regular long non-work related conversation when there is work to be done that would benefit customers, as this affects both her own performance and that of the other distracted employee or employees. Mr Miller has the same expectation of all employees particularly those on during busy service periods or when there are several high priority duties to be done to prepare for service. That the Applicant twisted this requirement to mean that she was not able to talk to anyone was neither an expected or reasonable outcome of Mr Miller’s conversation with the Applicant and Mr Miller said that this indicated the Applicant ignored his feedback and worked actively against it.

[66] Under cross-examination Mr Miller accepted that after the warning was given, the Applicant continued to work in the Gaming Room for the next two weeks but maintained that he had worked with the Applicant in the restaurant after the warning and observed the change in her attitude towards other staff members. In response to a question about how the Applicant’s conduct was different, Mr Miller said that prior to the written warning he liked the Applicant very much as a staff member and classed her as a senior staff member who could give help to less experienced members of the team. Mr Miller named the three staff members who had complained about working with the Applicant after she received a warning. Mr Miller also said that the Applicant’s attitude while working in the restaurant was that she did not want to be there.

[67] Mr Miller agreed that the Applicant had covered some shifts for other employees after 12 November 2018 but maintained that he attempted to make contact with her by telephone on four or five occasions to offer shifts and the Applicant did not return his calls. Mr Miller agreed that he had not produced telephone records to establish this. Mr Miller was also shown a mystery shopper report posted on the Parkwood Tavern Facebook page on 13 August 2018 indicating poor service and agreed that no warning was given to any staff member in relation to that post. Mr Miller also said that a mystery shopper report is an outsider’s perspective looking in and a different situation than poor work performance observed by a manager about which a warning is given. Mr Sharkey said under cross-examination that he made the mystery shopper post. Mr Sharkey agreed that no warnings were issued to any staff in relation to the mystery shopper report but said that he held a staff meeting where it was discussed.

[68] In relation to his discussion with the Applicant Mr Miller said that it was not only staff who had not wanted to work with the Applicant. Patrons also reported that the Applicant had informed them that she had been given a warning and would make comment about what had happened to the Applicant.

[69] Ms Phillips also gave evidence about the Applicant’s conduct both before and after the warning. Ms Phillips’ view of the Applicant prior to her being given the warning on 12 November 2018 was that she was generally approachable, talkative and friendly and appeared to provide good customer service. After the warning letter was issued to the Applicant Ms Phillips observed that the Applicant moped about, did not engage with all of the customers and looked unapproachable and unfriendly. Ms Phillips also said that the Applicant’s conduct to her was rude and unprofessional and the Applicant would grunt at Ms Phillips when Ms Phillips said hello to her in the workplace.

[70] Ms Phillips said that other staff complained to her that the Applicant was discussing the warning in the workplace. It is Ms Phillips’ opinion that the Applicant did not accept the warning and instead of taking the direction to improve on her customer service skills, the Applicant appeared to just want to continue to argue about the warning rather than caring about her job and the impact she was having on customers and staff. Ms Phillips’ also said that in her opinion, if the Applicant had maintained the same standard of customer service as she had prior to the warning, then she would have continued to be offered the same number of hours.

[71] In response to the Applicant’s allegation that Ms Phillips had left the gaming area unattended while speaking to the Chef, Ms Phillips said that while she could not recall the incident, her position is not a customer service focussed role and when she provides assistance to customer service staff, she does so to supplement their efforts. Ms Phillips said that because of the nature of her role she would not be subject to discipline for leaving a service area unattended as she is not responsible for any service areas.

[72] Under cross-examination Ms Phillips agreed that contrary to her witness statement she was not involved in the meeting on 12 November when the Applicant was given the warning but was in the office in the vicinity of the meeting when it took place. In response to questions about how she knew that the Applicant’s performance was dropping Ms Phillips said that she was called out to cover for the Applicant while she was in the bathroom being upset. Ms Phillips also said that she saw the Applicant crying at work on several occasions.

[73] Ms Hartley gave evidence about her interactions with the Applicant following her promotion to the position of TAB Supervisor with effect from 1 October 2018. Ms Hartley said that prior to her promotion she had worked alongside the Applicant on multiple shifts and found her to be positive and friendly and to provide good customer service. Ms Hartley also said that after her promotion the Applicant’s attitude towards Ms Hartley and other team members changed and became rude and abrupt. In this regard Ms Hartley’s evidence was that when asked to help with customer service the Applicant would respond with a single word or in short curt sentences making Ms Hartley feel uncomfortable. Other team members in gaming also told Ms Hartley that the Applicant had treated them in a similar manner. Ms Hartley said that the Applicant’s attitude to customers also changed and Ms Hartley witnessed the Applicant being rude and abrupt to customers when Ms Hartley went to that area on several occasions to make coffee.

[74] Under cross-examination Ms Hartley maintained that she interacted with the Applicant either when they crossed paths in the Hotel or when she covered gaming breaks. In response to the proposition that the Applicant was working alone in the gaming area for several weeks after the warning was issued, Ms Hartley said that customers and staff came to her and asked what they had done to upset the Applicant because of the Applicant’s behaviour. Ms Hartley agreed that the Applicant helped her when requested but said that the Applicant was “mopey”. Ms Hartley was unable to answer a question about why she stated that the Applicant’s behaviour changed from 1 October when other witnesses said it changed from 12 November when the Applicant was given a written warning.

Reduction in hours worked by the Applicant

[75] The Applicant tendered a document evidencing shifts that she worked in the gaming room and the restaurant from 14 May 2015 until 11 February 2019 14. That document shows that up until 19 November 2019 the Applicant was regularly rostered to work 8.5 hour shifts in the gaming room and that she also worked 3 hour shifts in the restaurant. The document also shows that the Applicant worked an average of 28 hours per week in the period from 14 May to 19 November 2018 and that her weekly hours ranged from 14.5 to 33.5 hours per week. After 19 November the Applicant worked only in the restaurant and was allocated shifts of 3.25 to 3.5 hours duration. The weekly hours worked by the Applicant in the period from 19 November to 11 February ranged from 13 to 3.5 hours in the two weeks prior to her employment ceasing.

[76] In relation to her hours of work, the Applicant agreed that these had fluctuated around her childcare commitments and that for some periods of her employment she had only been able to work day shifts. The Applicant also agreed that her hours were varied. The Applicant maintained that she was told her hours were cut because she was talking to other staff and that she was given no other explanation or advice as to what she needed to do in order for her hours to increase.

[77] According to Mr Sharkey, the Applicant has been offered shifts on a casual basis throughout the course of her employment and has not been guaranteed shifts. Instead, shifts have been allocated on the basis of the factors identified by Mr Sharkey. Mr Sharkey also pointed to the fact that the Applicant had worked twenty shifts since the date stated in her first application as the date upon which her dismissal took effect. Mr Sharkey stated that the Applicant continued to be offered shifts depending on her suitability based on the factors he identified. Mr Sharkey said that it is simply the case that from 7 November 2018, the Applicant was not offered shifts because she was not conducting herself at work or performing in her role in a way that would justify her being offered shifts over other available casual employees in a specific part of the venue.

[78] Mr Sharkey also took issue with the Applicant’s assertion that she could not physically survive on 3.5 rostered hours per week and had no other choice but to resign. In this regard, Mr Sharkey said that since December 2018 the Applicant had refused to respond to phone calls from him and other employees when additional shifts were being offered at short notice. Prior to receiving the warning about her conduct on 7 November 2018, the Applicant would often be called in and would work additional shifts when she could. To the best of Mr Sharkey’s knowledge nothing had changed that would have stopped her from continuing to do so and it is Mr Sharkey’s understanding that the Applicant was making a decision not to work. This meant that eventually she would not be offered shifts over those who did make themselves available and who answered calls and wanted to work.

[79] Mr Sharkey also pointed out that on the day the Applicant resigned he was no longer the Venue Manager of the Parkwood Tavern and had transferred to another venue on 4 February 2019 with his last day at the Parkwood Tavern being 3 February 2019, one week before the Applicant resigned. From that time, Mr Sharkey had no input or influence on the number of hours to be offered to the Applicant and could not be considered to have constructively dismissed her. The Applicant could have worked at both the Parkwood Tavern and her new job which is a common occurrence among casual employees in the hospitality industry. The Applicant could also have remained in employment at the Parkwood Tavern and worked under the new Venue Manager. Instead the Applicant chose to resign when according to Mr Sharkey, other meaningful options were available to her.

[80] Mr Miller also gave evidence that after the warning on 12 November he called the Applicant on multiple occasions to offer her shifts and that she did not answer her telephone. Prior to being given the warning, when the Applicant was called in relation to covering shifts at short notice the Applicant would always answer her phone and try to help out by working the additional shifts when she could.

[81] In relation to the Applicant’s claim that she was forced to resign due to a reduction in her working hours, Mr Pyers said that from 12 November 2017 to 21 January 2018 the Applicant earned a gross pay of $4,650.68 and from 12 November 2018 to 20 January 2019 hear earnings were $4,681.72. Mr Pyers agreed that at the time the Applicant’s employment ended her hours had reduced to approximately 3.5 per week.

The Applicant’s interaction with Mr Pyers

[82] Mr Pyers’ witness statement was prepared in response to the first unfair dismissal application but tendered as his evidence in the second application. Mr Pyers gave evidence about a series of interactions he had with the Applicant by email and telephone after she was given the written warning. On 30 November the Applicant sent an email to Mr Pyers stating that she had concerns in relation to a reduction in her hours and attaching a letter which she had attempted to send to Mr Sharkey. The email stated that the Applicant had been informed by Mr Miller that he could not assist with her concerns and that the Applicant wished to have her concerns noted with HR. The attached letter addressed to Mr Sharkey raised a number of issues each prefaced with the words “I note” or “I submit” including:

• The Applicant was not given “a reasonable period of 24 hours’ notice” of the requirement to attend the meeting on 12 November;

• No time or facts to support the allegation were set out in the notice to attend the meeting;

• Mr Sharkey advised at the meeting that the Applicant and Ms Gray had engaged in a conversation for 3 minutes and 43 seconds and the information was not contained in the notice to attend the meeting and no evidence was provided to support the statement;

• Upon consideration Mr Sharkey acknowledged that the Applicant did not leave the designated service area;

• No customers were required to wait in the designated service area staffed by the Applicant;

• The allegation was “proven to be false” and there was no breach of Company policy to warrant disciplinary action;

• In 8 years of service no verbal or written warning has been received by the Applicant;

• The allegation in the written warning was altered;

• The Applicant felt intimidated and required to sign the document;

• This was a failure to comply with ALH Group Code of Conduct Process and Fair Work Australia disciplinary process guidelines;

• The written warning based on the failure to support the allegation constitutes an unfair and unreasonable action and failed to correctly follow disciplinary process as required by the Code of Conduct.

[83] The letter concluded with a request that the disciplinary notice be withdrawn immediately and removed from the Applicant’s personnel file. Mr Pyers states that he responded to the Applicant by email immediately, asking:

“Did you know the event being alleged prior to the meeting?

If you did not know the event prior to the meeting, once you did know the event being alleged did you have any difficulty responding to the allegation? What was that difficulty?

[156] It was not strictly necessary that the Applicant be given a letter setting out the allegation at all. The meeting was for the purpose of putting the allegations to the Applicant and allowing her to respond. There was no decision made at the meeting and Mr Sharkey could simply have requested the Applicant attend the meeting and put the allegation to her orally at the meeting. I also do not accept that fairness required the Applicant be given 24 hours’ notice of the meeting.

[157] I do not accept the Applicant’s assertion that the allegation was proven to be false or incorrect. It is clear from the video footage that the Applicant requested be viewed during the hearing that the allegation was correct. The Applicant stood talking to Ms Gray for 3 minutes and 30 seconds during a busy lunch period when she had no legitimate reason to do so and when she should have been proactively looking to serve customers in her own area. That conduct alone justifies a warning without the added issues that customers were waiting in the restaurant area for service and Mr Sharkey had to run meals to tables because Ms Gray was not in her designated area. I also do not accept the Applicant’s assertion that the letter that was given to her immediately after the meeting was a warning letter. The letter given to the Applicant immediately after the meeting, which she refused to sign, was the corrected allegation letter which clarified that the Applicant had not left her designated area.

[158] Further, I do not accept that fairness required that the Applicant be given 24 hours notice of the meeting where she was handed the warning letter or that she be allowed to bring a support person. I accept Mr Sharkey’s evidence that the purpose of the meeting was to hand the Applicant the warning letter and to record that she had been given the letter. The substantive discussions about the subject matter of the warning had already occurred and the Applicant had a support person at that discussion.

[159] Fourth, the Applicant’s response to the written warning was unreasonable and her conduct at work deteriorated after she received the warning. The Applicant’s own evidence is that Mr Sharkey made positive comments about her during the meeting at which the allegations were discussed including that she was a senior staff member and was looked up to by more junior employees. Such comments should have encouraged the Applicant to simply accept the warning and get on with her job.

[160] The Applicant also stated in her evidence that she was teary and crying at the thought of attending work and engaging with Mr Sharkey and that she spent time at work crying. This is consistent with Ms Phillips’ evidence that the Applicant was crying at work and that on one occasion Ms Phillips had to fill in for the Applicant because she was upset and in the bathroom. I also accept the evidence of the Respondent’s witnesses that the Applicant was disgruntled at work and discussed the fact that she had been given a written warning with work colleagues and patrons. The Applicant’s endeavours to contact Ms Gray to question Ms Gray about whether she had been given a warning is in my view indicative of the Applicant’s conduct generally which was to involve other parties in a matter that was between the Applicant and her employer and should not have been the subject of discussion with work colleagues or patrons. Ms Gray, who was called by the Applicant to give evidence, also stated that the Applicant’s conduct at work deteriorated after she was given the written warning.

[161] I accept that the Applicant avoided Mr Sharkey and would not speak to him. I also accept that Mr Miller counselled the Applicant about her conduct after she had been given the written warning and the Applicant ignored Mr Miller or refused to engage with him. Further, I accept Mr Sharkey’s evidence that the Applicant was talking to other staff members in working time and thereby repeating the conduct she had been warned about. In her evidence to the Commission the Applicant demonstrated a lack of insight about her own conduct and was intent on deflecting attention from her conduct by making baseless allegations against other employees and managers of the Respondent.

[162] It is also the case that in her evidence to the Commission the Applicant exhibited the conduct that was complained of by Mr Sharkey and other managers and employees of the Respondent. Even making allowances for the fact that a hearing is a difficult situation, the Applicant was argumentative and refused to concede points that were unarguable. In this regard the Applicant persisted with allegations that were set out in her written statement and submissions but which were shown to be incorrect at the time she gave her evidence to the Commission. The Applicant’s representative also made baseless assertions about being denied the opportunity to call witnesses and of not receiving a copy of the CCTV footage in accordance with the notice to the Respondent to produce it. The reality was that the Applicant had been informed that if she wished to rely on a witness statement that the witness would need to be present. The Applicant was allowed to call a witness at short notice and the witness was interposed. Further, when her assertions about not receiving the CCTV footage were challenged, the Applicant conceded that she did receive it but had attempted to open it on a mobile telephone and had been unable to do so. The Applicant also conceded that she had not raised any issue with the receipt of the CCTV footage at the relevant time.

[163] I did not find the Applicant to be a credible witness. The attitude of the Applicant was in stark contrast to that of Ms Gray who accepted in her evidence to the Commission that she should not have stayed in the gaming area talking to the Applicant and that she took the warning seriously and endeavoured to improve her conduct. I also accept that Ms Gray’s conduct did improve notwithstanding that she was counselled about talking to other staff after being given the written warning.

[164] While it is the case that the Applicant’s conduct after the written warning probably warranted a further written warning I accept Mr Sharkey’s evidence that he hoped that the Applicant would simply get over whatever was upsetting her, accept the warning and revert to an acceptable level of conduct in the workplace. I also accept that Mr Miller counselled the Applicant about her conduct and her attitude after the warning. Regrettably, the Applicant did not improve and instead continued with her unacceptable behaviour. While the Respondent could be criticised for failing to issue a further written warning to the Applicant, it is highly improbable that it would have altered the Applicant’s conduct given her unreasonable reaction to the written warning that was given to her on 12 November 2018.

[165] Fifth, the Applicant was unreasonable with respect to her engagement with Mr Pyers. The letter dated 27 November 2018 sent to Mr Pyers on 30 November 2018 made a series of assertions. Although the letter did not formally invoke the dispute resolution provisions in clause 9 of the Award, Mr Pyers responded to it and asked the Applicant a series of questions which were entirely reasonable, including asking the Applicant to provide him with a full account of events from her perspective, and indicated that he was open to investigating any issue the Applicant had with the written warning. The Applicant’s response to Mr Pyers sent on 30 November 2018 was aggressive, combative and rude.

[166] Essentially, the Applicant refused to engage in the dispute resolution procedure she now claims to have invoked by stating that she had no need to provide her account of the events she sought to complain about. The Applicant also hung up on Mr Pyers when he attempted to have a telephone conversation with her about the issues she had raised and did not call Mr Pyers back notwithstanding he told her that she should do this if she wanted him to look into the matters she had raised. The Applicant asserts that she told Mr Pyers that she did not want to discuss the matter by telephone and wanted all correspondence in writing. This request is not included in her two emails and she was unable to point to a document which included that request. In any event, if such a request was made, it was unreasonable. The Applicant raised her issue with Mr Pyers and it was not for her to dictate how he should deal with it. The Applicant had no previous issue with Mr Pyers and there was no reason for her to refuse to have a discussion about her issues with him. I am also of the view that the tone of the Applicant’s correspondence with Mr Pyers indicates that she would never have accepted an outcome other than the warning be removed from her personnel file and when Mr Pyers did not immediately take this step the Applicant disengaged from her contact with him as she had done with her managers at the Parkwood Tavern.

[167] When these factors are considered, it is apparent that the Applicant was not dismissed. The Applicant did not have a contractual guarantee in relation to the quantum of hours she would work, the times she would work or the area that she would work in. The reduction in her hours was the result of the employer exercising a right to engage her in whatever part of its operations her skills and experience could be utilised. Accordingly, the reduction in the Applicant’s hours did not constitute repudiation of her contract of employment by the Respondent.

[168] I am also unable to accept that the Respondent or its managers engaged in conduct or a course of conduct that forced the Applicant to resign. The Applicant engaged in conduct of a kind to which a written warning was a reasonable response. In giving the Applicant a written warning in relation to her conduct Mr Sharkey did not take an action which was intended to bring the Applicant’s employment to an end or which would have that probable result. The reduction in the Applicant’s hours was also not an action which was intended to bring the Applicant’s employment to an end or which would have that probable result.

[169] The Applicant continued to work in the gaming area for two weeks after the written warning was issued. This evidences that Mr Sharkey hoped that she would simply accept the written warning and get on with doing her job. It was only when the Applicant repeated the conduct she had been warned about and her attitude deteriorated that she was not rostered on shifts in the gaming area and was moved to the restaurant. It was the nature of the shift requirements in the restaurant that brought about the reduction in the Applicant’s rostered hours. If Mr Sharkey wished to terminate the Applicant’s employment, he could have issued her with further warnings and done so. Mr Sharkey did not take this step notwithstanding that the Applicant’s conduct after being given a warning would have given Mr Sharkey cause to issue further warnings and possibly to terminate the Applicant’s employment.

[170] The Applicant had options other than resignation. The obvious option was to accept the warning and get on with her job. The Applicant effectively had two weeks to do this after being issued with the written warning by virtue of the fact that she continued to be rostered in the gaming area. The Applicant managed to obtain other employment within two weeks of her resignation and she could have taken up that employment while also maintaining her employment with the Respondent. Mr Pyers’ uncontested evidence is that it is common for employees in the hospitality industry to have two jobs. The Applicant could also have pursued her grievance about being given a written warning by engaging with Mr Pyers in a reasonable manner. Mr Pyers’ response to the Applicant’s correspondence was measured and reasonable and if the Applicant genuinely wished to have her issue addressed she had an opportunity to do so. Instead, the Applicant engaged in correspondence that was aggressive and rude and when her demands that the warning be removed from her personnel file were not met immediately, the Applicant resigned her employment. Notwithstanding that the Applicant probably took this step in a fit of pique and without proper consideration of all of the implications, it was not a step that conduct by the Respondent forced her to take

[171] To the extent that the Applicant asserts that Mr Pyers conduct in blocking her attempts to transfer to another venue were part of a course of conduct that forced her resignation, I do not accept that this was the case. At the point the Applicant sought the transfer she had made her first unfair dismissal application notwithstanding that she was working shifts at the Parkwood Tavern. It was reasonable and understandable that Mr Pyers pointed out to the Applicant that her assertions in the first unfair dismissal application that she had been dismissed, were inconsistent with the fact that she was still working at the Parkwood Tavern and that she could not be transferred to another one of the Respondent’s venues if she was not employed by the Respondent.

[172] The Applicant’s case before the Commission is misconceived. The letters to Mr Pyers sent before the Applicant resigned her employment are in a similar vein to the Applicant’s submission and statement of evidence in these proceedings. If the Applicant was assisted by another person to prepare that material, then it is regrettable that the person who provided such assistance has led her to the position she now finds herself in. By resigning her employment, the Applicant disentitled herself to payment of her accrued long service leave entitlements. The Applicant would be entitled to payment if she was found to have been unfairly dismissed.

[173] Unfortunately for the Applicant I do not accept that she was dismissed. Accordingly, the Commission does not have jurisdiction to deal with her unfair dismissal application and that application must be dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr A Merritt on behalf of the Applicant.

Mr A See of Counsel instructed by Mr E Pyers for the Respondent.

Hearing details:

12 & 13 September.

2019.

Brisbane.

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 3771.

2 Exhibit A1 – Kellie Smith Witness Statement.

3 Exhibit A6 – Lisa King Witness Statement.

4 Exhibit R1 – Affidavit of Ezra Pyers.

5 Exhibit R2 Affidavit of Alan Sharkey; Exhibit R3 Affidavit in Reply of Alan Sharkey.

6 Exhibit R4 Affidavit of Robert Miller.

7 Exhibit R5 Affidavit of Sallyann Hartley.

8 Exhibit R6 Affidavit of Toni Phillips.

9 Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078.

10 Exhibit R2 Annexure R.

11 Exhibit R2 Annexure Q.

12 Exhibit R2 Annexure S.

13 Transcript 12 September 2019 at PN528-531.

14 Exhibit A3 Kellie Smith Hours Rostered v Completed.

15 Thranscript 12 September 2019 at PN983-984

16 Transcript 12 September 2019 at PN1075-1078.

17 (2006) 58 AILR 100

18 [2016] FWC 4161.

19 [2018] FWCFB 5 at [25].

20 [2017] FWCFB 5162

21 Ibid at [70] – [71].

22 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425.

23 [2018] FWCFB 5.

24 (1995) 62 IR 200.

25 Ibid at 205-206.

26 Unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ.

27 Ibid at page 3.

28 AIRC Print PR973462.

29 Sappiden, O’Grady, Riley Macken’s Law of Employment Eighth Edition Law Book Company 2016 at 8.80 page 337.

30 (1994) 57 IR 288 at 289.

31 Ibid at 289.

32 [2011] FWA 5930.

33 Ibid at [20] – [22].

34 Ibid at [49] – [51].

35 Ibid at [52] – [53].

36 [2014] FWC 2024.

37 [2017] FWC 4662.

38 [2016] FWC 4161.

39 [2017] FWCFB 3906.

40 Ibid at [16] – [17].

41 (2007) 233CLR 115.

42 Ibid [44] – [49].

43 [2018] FWCFB 5 at [18] – [20]

44 Ibid at [25].

45 Ibid at [29].

46 [2019] FWC 6336

Ms Kellie Smith v Australian Leisure & Hospitality Group Pty Limited