Ms Memphis Oswald v Brivey Pty Ltd
[2011] FWA 1353
•3 MARCH 2011
[2011] FWA 1353 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Memphis Oswald
v
Brivey Pty Ltd
(U2010/12819)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 3 MARCH 2011 |
Alleged unfair dismissal - termination on the employer’s initiative.
[1] Ms Memphis Oswald applied under s.394 of the Fair Work Act 2009 (the Act) on the basis that she had been unfairly dismissed under s.385 of the Act from her employment at Red Rooster, Lavington, NSW on 23 September 2010. The application stated the employer to be Byrns Family Trust and the documentation proceeded on that basis, but I was satisfied at the hearing on 22 and 23 February 2011 that the employer was Brivey Pty Ltd.
[2] It also became apparent from the evidence during proceedings that the first question to be determined was whether Ms Oswald had been dismissed within the meaning of s.386. Since Ms Oswald conceded that termination of her employment was not to be characterised as dismissal within the meaning of s.386(1)(b), the question for determination in this case was whether Ms Oswald was dismissed as defined by s.386(1)(a). S.386(1) therefore relevantly provides:
“386 (1) [Definition] A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; …”
[3] The events at the heart of this matter may be simply stated.
[4] Ms Oswald was employed as a casual trainee shift manager at the Lavington Red Rooster franchise and was rostered to work from 4.30 pm to 9.30 pm on 23 September 2010. At 5.38 am that morning she sent a text message to the shift manager on duty at the store to the effect that she was not feeling well and would phone before lunchtime to let her know if she could attend her shift later that day. 1 She sent another text message at 11.01 am and phoned the Red Rooster store at 11.18 am2 to advise that she would not be attending work that afternoon. Responding to a missed call, Ms Oswald phoned the Red Rooster store again at 11.44 am.3
[5] According to Ms Oswald’s evidence, the duty manager told her “I have been told by Matt [Byrns] and Jenny [Schulz] to tell you if you don’t come in to your shift today you will get the sack, you don’t have a job here.” 4 The duty manager alleged to have said this did not give evidence and Ms Schulz, the franchise owner, denied giving any such instruction;5 it was not covered in Mr Byrns’ evidence.
[6] At 11.48 am, Ms Oswald phoned her mother, Lorinda De Wolf, who offered to phone Ms Schulz to “find out what was going on”. 6Ms De Wolf spoke to Ms Schulz at 11.55 am and, though there are two quite different accounts of that conversation, the upshot was that Ms De Wolf then rang Ms Oswald and reported that Ms Schulz had told her “Well, if she [Ms Oswald] doesn’t show up then she has no job.” 7Ms Oswald made no attempt to contact Ms Schulz8 or Mr Byrns but acted on her mother’s report of the phone conversation with Ms Schulz to attend the Red Rooster store around 12.30 pm to return her store key and collect a few belongings.9 At 5.14 pm that afternoon, she visited Albury Base Hospital and obtained a medical certificate10 which Ms De Wolf handed to Mr Byrns that evening at the Red Rooster store. The content of the conversation then between Ms De Wolf and Mr Byrns is disputed.
[7] Ms Oswald in her evidence 11 and in submissions12 maintained that her employment was terminated by the employer in the phone conversation between her mother and Ms Schulz. It will be apparent, therefore, that findings on the content of that discussion are critical to determination of whether the termination of Ms Oswald’s employment was on the employer’s initiative.
[8] The evidence here is unsatisfactory, not aided by each side being unrepresented and unfamiliar with presenting an evidentiary case. Mr Byrns included in his statement an account of what he heard Ms Schulz say on her end of the phone discussion with Ms De Wolf, 13 but in view of his oral evidence on this point14 and demeanour in the witness box I am unable to give it much weight. Similarly, I do not set great store on Ms De Wolf’s evidence. She was argumentative and evasive as a witness and having seen her evidence I do not accept that, for example, Ms Schulz called her “a liar”. Ms Schulz, however, did not serve herself well either in presenting a clear account.
[9] On the evidence before me, it is very difficult to discern the real content of the phone conversation between Ms De Wolf and Ms Schulz. But having carefully weighed the issues of credit in this case, I prefer Ms Schulz’s account of the conversation. It is clear that Ms Schulz hung up on Ms De Wolf after the discussion became heated. It is also clear that Ms De Wolf made comments to the effect that “I’m not happy about how you have been treating her [Ms Oswald]” 15or “I’m not happy with the pressure Memphis is feeling in her job.” 16I accept that Ms De Wolf told Ms Szhulz it was best if Ms Oswald did not return to work at Red Rooster.17
[10] There is no doubt that Ms Oswald’s employment came to an end as a result of the conversation between Ms De Wolf and Ms Schulz - she has not attended work at Red Rooster Lavington since 22 September 2010. But in my view the employment was not terminated on the employer’s initiative. Ms Oswald terminated her employment, acting on her mother’s view of the discussion.
[11] Being satisfied, therefore, that Ms Oswald was not dismissed within the meaning of s.386(1)(a), I have considered whether, on the basis of my findings above, the termination constituted dismissal within the meaning of s.386(1)(b). Ms Oswald’s concession referred to in paragraph [2] above was made in the context that she accepted her mother’s report of the phone conversation with Ms Schulz as accurate. This concession is not to be relied on in view of my findings above. However, having considered all the material before me and the issues of credit, I am satisfied that Ms Schulz’s conduct on 23 September did not force Ms Oswald to terminate her employment. But for Ms De Wolf’s intervention, in my view it is likely Ms Oswald would still be employed at Red Rooster Lavington.
[12] In my own experience it behoves a judicial officer to be sparing in comments on the public record about those who conduct or appear in cases before him or her. This is just such a case, where the most helpful course for all involved is to make only those findings and to provide reasons sufficient to decide the case.
[13] The application is dismissed.
Appearances:
M Oswald appeared for herself.
J Schulz appeared for Brivey Pty Ltd.
Hearing details:
2011
Wodonga
February 22 and 23.
1 Exhibit A-2, para 15; also Transcript PN 144.
2 Exhibit A-1 and Transcript PN 144, 164.
3 Transcript PN 164 and Exhibit A-1
4 Exhibit A-2, para 18. See also PN 164.
5 Transcript PN 665-7.
6 Exhibit A-2, para 230. See also PN 164, 514.
7 Transcript, PN 164.
8 Transcriopt PN 448-9.
9 Exhibit A-2, para 21. Ms Oswald’s evidence at the time of her statement was that she has not spoken to Ms Schulz or Mr Byrns since 22 September. (Exhibit A-2, para 24.)
10 Exhibit A-1.
11 Transcript PN 425.
12 Transcript PN 1137.
13 Exhibit R-2.
14 Transcript PN 726, 783, 791.
15 Exhibit A-12, page 2, para 5.
16 Exhibit R-1.
17 Exhibit R-1, Transcript PN 666, 680.
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