Ms Priccilla Lana Tekani v The Trustee for Adente Services Trust

[2024] FWC 1971

[2024] FWC 1971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Priccilla Lana Tekani
v

The Trustee For Adente Services Trust

(C2024/3430)

DEPUTY PRESIDENT MASSON MELBOURNE, 26 JULY 2024

Application to deal with contraventions involving dismissal

1. On the 24 May 2024, Ms Priccilla Lana Tekani (the Applicant) lodged an application pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 4 May 2024 by the Trustee For Adente Services Trust (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised two jurisdictional objections to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act and that she had made another application dealing with the dismissal. The latter objection was not pressed at hearing.

1. The Respondent’s jurisdictional objection that the Applicant was not dismissed is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386 of the Act.

1. Following allocation of the matter to my Chambers, Directions were issued on 18 June 2024 for the filing of material in relation to the jurisdictional objection. Both parties filed material in accordance with the directions issued. The hearing to deal with the jurisdictional objection was listed for 25 July 2024 at which the Applicant appeared and gave evidence while John Hill (Business Owner) appeared on behalf of the Respondent.

Background and evidence

1. The Respondent manages the Fountain Gate Bingo Centre (the Bingo Centre) and employs approximately 26 employees. The Applicant who had been a regular player at the Bingo Centre prior to her employment commenced employment on a casual basis on 19 April 2024 as an ‘all-rounder’, which once trained would have required the Applicant to perform all duties within the Bingo Centre including the machines, catering and Bingo calling.

1. The Applicant states that she received limited training or induction on commencement and was aggressively confronted by a fellow employee Sharon Hansen in her second week of employment regarding the Applicant’s belief that she was allowed to continue playing Bingo despite being an employee. The Applicant states this confrontation with Ms Hansen left her feeling she had done something wrong and made her uncomfortable in her job. She says she subsequently contacted Sue Hill who is Mr Hill’s wife and raised concern at how she had been treated by Ms Hansen and advised that she wished to avoid working with Ms Hansen in the future.

1. The Applicant further states that following her complaint to Ms Hill, she was subsequently rostered to work on shift with Ms Hansen in the kitchen despite having raised concerns regarding Ms Hansen’s behaviour towards her. The Applicant states she was called a liar by Ms Hansen over what she told Ms Hansen she had learnt in the kitchen on her previous shift. She also states she was again attacked over the bingo playing issue previously discussed with Ms Hansen. The Applicant says there were further incidents on 4 May 2024 which caused her great anxiety and stress from being treated unfairly on her shift. She says there was no support from co-workers who witnessed events and there was no management on site at the time. She says these events led to her having a panic attack and a break down over how she was treated in the workplace.

1. Mr Hill rejects that the Applicant had been treated poorly by any staff and referred to a series of text messages exchanged between the Applicant and Mrs Hill between 15 April & 29 April 2024 which did not indicate any problems or concerns. Mr Hill states that to the contrary, the text messages exchanged between the Applicant and Mrs Hill indicated that the Applicant was ‘loving the job’, was appreciative of the training she was receiving and felt she was being supported by Mrs Hill.

1. The Applicant states that she contacted Ms Hill by telephone on 4 May 2024 to explain what had happened that day and acknowledges she was distressed and crying during the conversation. She further states that Mr Hill then got on the phone during the conversation and told her to call him tomorrow, also told her that she would see she was in the wrong and that she was also the wrong person for the job. He then hung up abruptly according to the Applicant which she says left her feeling more distressed and under the impression that she had been dismissed. She states she then sent a text message to Mr Hill questioning how she could be dismissed after simply following the chain of command in raising a concern. She says she received no reply nor any follow-up from either Mr or Mrs Hill despite sending further text messages to Mr Hill on 4 May 2024.

1. Mr Hill agrees that the Applicant contacted he and Mrs Hill by telephone between 2-3pm on 4 May 2024. He states that he and his wife were driving in their car and that they took the call on speaker. He states that the Applicant was in a continuous heighted state and that he and his wife were unable to interrupt her. He says that after some time he shouted into the phone after loudly calling the Applicant’s name on four occasions to get her attention and then told her to go home and to call him the following day when she was composed and relaxed. Mr Hill denied that he had said words to the effect that she would realise she was in the wrong and that she was the wrong person for the job.

1. A text message from the Applicant to Mr Hill sent at 6.20pm on 4 May 2024 was produced by Mr Hill during the proceedings at the request of the Commission. The text message was lengthy and need not be reproduced in full. The tenor of the text was that the Applicant was upset at her perceived treatment in the workplace by Ms Hansen and at the response of Mr and Mrs Hill. The Applicant relevantly stated in the text message as follows;

“………………..

As I was trying to clarify at the time without disrespecting you or sue was that you believed I was in the wrong and that I was very upset which I was and that tomorrow I would see I was wrong……

…………….

I’m devastated at following the chain of command in the workplace. Would leave to this outcome at unfair treatment and dismissal in the workplace.
Sincerely priccilla”

1. Mr Hill was cross-examined on the telephone conversation with the Applicant on 4 May 2024 and the follow-up text message sent to him by the Applicant at 6.20pm on that day. He was unable to explain why the Applicant made references in the text message to her being told that she would see she was wrong and that she had been dismissed. It was put to Mr Hill that the references in the text message supported the Applicant’s version of the telephone conversation in which she claimed that Mr Hill had told her that she would see was in the wrong and was the wrong person for the job. Mr Hill continued to deny that he had made such statements to the Applicant during the telephone conversation on 4 May 2024. Mr Hill confirmed that he did not at any subsequent point respond to the Applicant’s text message of 4 May 2024 by way of text or telephone call.

1. The Applicant states that she did not turn up for her rostered shift on 7 May 2024 as she believed that she had been dismissed. She further claims that neither Mr or Mrs Hill contacted her to discuss the alleged bullying she had raised nor seek to establish the reasons for her non-attendance for the 7 May 2024 shift. Mr Hill agreed that he did not follow-up with the Applicant to establish her well-being following the events of 4 May 2024 or following her failure to attend her rostered shift on 7 May 2024. He stated that he regarded the Applicant as having abandoned her employment although he did not seek to confirm that with the Applicant at any point either in writing or by telephone.

Has the Applicant been dismissed? 

1. The threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(1)A person has been dismissed if:

(a)  the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

1. Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I discern from the Applicant’s case as articulated in the proceedings that she claims to have been dismissed within the meaning of the first limb of s. 386(1), that being she was dismissed at the Respondent’s initiative. It is to that I now turn.

1. The authorities in respect of the meaning of the term ‘dismissed’ are well traversed. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[3] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’  

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-    

“... a termination of employment at the instance [of] the employer rather than of the employee.”    

and at 5:-    

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”  

1. It is uncontroversial and the text messages in evidence confirm that that up until early May 2024 the Applicant was enjoying her role with the Respondent and was appreciative of the support she received from the staff member that was training her and also from Mrs Hill. It is also apparent that events took place on shift on 4 May 2024 that upset the Applicant, and which led to her telephone conversation mid-afternoon that day with Mr and Mrs Hill and that during that conversation the Applicant was extremely upset. There is conflicting evidence of what was said by Mr Hill in that telephone conversation. The Applicant claims certain statements were made by Mr Hill which made clear to her that she had been dismissed while Mr Hill denies having made such statements.

1. The Applicant in her evidence states that during the telephone conversation on 4 May 2024, Mr Hill told her to call him the following day, that she would see she was wrong and that she was the wrong person for the job. Mr Hill denies making the latter two statements while accepting he had told the Applicant to compose herself and call him the following day. Mr Hill could not however reconcile the contents of the 4 May 2024 text message from the Applicant, which is set out in paragraph [10] above, with his denial of having made statements to the effect that the Applicant would see that she was wrong and that she was the wrong person for the job. I found Mr Hill’s denials of these statements to be unconvincing in circumstances where the contents of the Applicant’s text message sent following the 4 May 2024 telephone call directly support the Applicant’s version of the telephone conversation. I consequently prefer the Applicant’s evidence on what Mr Hill said to her during that conversation. I find that Mr Hill did in fact tell the Applicant that she would see she was wrong, that she was the wrong person for the job and then abruptly hung up. This had the effect in my view of communicating to the Applicant that she had been dismissed.

1. The Applicant’s belief that she had been dismissed was reinforced by Mr Hill’s subsequent conduct. He did not contact the Applicant following the text message sent at 6.20pm on 4 May 2024 or at any subsequent time to correct her belief she had been dismissed. Nor did he or Mrs Hill contact the Applicant when she failed to attend the rostered shift on 7 May 2024 to establish why she had not attended that shift. Nor did Mr or Mrs Hill show any apparent concern for the Applicant’s welfare despite being aware that the Applicant was in a heightened emotional state on 4 May 2024. No steps were taken by the Respondent at any point to follow-up with the Applicant as to her state of mental health or to clarify her intentions regarding her employment. The Respondent’s submission that the Applicant abandoned her employment is rejected. 

1. The Respondent communicated to the Applicant that she was the wrong person for the job, and she took this as effecting her dismissal. She raised her dismissal in a follow-up text sent shortly after the telephone conversation on 4 May 2024 and no steps were taken by the Respondent to correct the Applicant’s belief that she had been dismissed. The Applicant reasonably believed and accepted that the conduct of the Respondent ended her employment. It follows from the foregoing that the employment of the Applicant ended at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act.

Conclusion

1. I find that the Applicant was dismissed within the meaning of s. 386(1)(a) of the Act. It is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. The requirements of s 365 have been met. The respondent’s jurisdictional objection is dismissed. The application will shortly be listed for a conciliation conference.

DEPUTY PRESIDENT

Appearances:

P Tekani, Applicant.
J Hill for the Respondent.

Hearing details:

2024.
Melbourne:
July 25.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[2] Ibid at [51].

[3] [1995] IRCA 625; 62 IR 200.

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