Ms Sheridan Corrie v Sheen Panel Service (Vic) Pty Ltd T/A Sheen Panel Service (Vic)

[2013] FWC 7830

[2013] FWC 7830

FAIR WORK COMMISSION

DECISION

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

Ms Sheridan Corrie
v
Sheen Panel Service (Vic) Pty Ltd T/A Sheen Panel Service (Vic)
(U2013/9875)

COMMISSIONER ROE MELBOURNE, 8 OCTOBER 2013

Application for unfair dismissal remedy - identity of employer and resignation or dismissal.

Introduction

[1] This matter concerns an unfair dismissal remedy application made by Ms Sheridan Corrie (the Applicant). The application was made against Sheen Panel Service (VIC) Pty Ltd T/A Sheen Panel Service (VIC) (the first Respondent). During the course of the proceedings I advised the parties of my conclusions and indicated that I would publish fuller reasons.

[2] I agreed to the Applicant being represented pro-bono given the complexity of issues concerning the corporate structure and relationship between the companies in the Sheen Panel Service group of companies. Mr Denys who is a Director of the first Respondent represented the first Respondent and also the company which the first Respondent says was the employer of the Applicant at the time of the termination, SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen.

[3] I relied upon the application and material attached to that application and the employer’s F3 Response. There was also an outline of submission from both the Applicant and first Respondent. The Applicant provided a witness statement and a statement was also provided by Mr Keating. Mr Keating was not available for cross examination. Many of the facts in this case were not in contention. Given that the Respondent was not represented I put to the parties each of the matters which I understood were not in contention.

[4] The Applicant was on approved annual leave from 18 April 2013 and was due to return to work on 1 May 2013. The Applicant was overseas. On 30 April 2013 the Applicant received a facebook message from Lana Denys who is the daughter of one of the directors of the first Respondent, Mr Blair Denys. Ms Denys is also an employee of one of the companies in the Sheen Panel Service group of companies.

[5] The facebook message exchange was as follows:

“Lana Denys: You are a horrible horrible human being. Just wait for Karma to come back and bite you in the ass.

Sheridan Corrie: What have I done?

Lana Denys: If it’s true that you’re engaged whilst STILL being married. We all think (blair included) that it’s inappropriate for you to come back to work.

Sheridan Corrie: Doesn’t matter...

Has Brett been phoned?

Lana Denys: Yes”

[6] Brett is a reference to Mr Brett Keating who is a director of one of the associated companies of the first Respondent SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen. Blair is a reference to Mr Blair Denys.

[7] On Wednesday 1 May 2013, the day when the Applicant had been due to return from leave, the Applicant’s mobile phone which had been provided to her when she first commenced work for the first Respondent in October 2009 was disconnected.

[8] On 6 May 2013 the Applicant telephoned Brett Keating to request a separation certificate. The Applicant and Mr Keating give conflicting evidence about the nature of this conversation. The Applicant received the certificate on 9 May 2013 which advised that the reason for the separation was “shortage of work”. In their submission the first Respondent says that “she did not contact her workplace until Monday 6 May 2013” but in his Statement Mr Keating says “I was able to contact Sheridan on Monday 6 May 2013.” In proceedings Mr Denys accepted that it was the Applicant who initiated the conversation with Mr Keating.

[9] The Applicant worked at a number of different Sheen Panel Service locations. For the first few months she worked solely at Head Office. Then she did bookkeeping work at the Dandenong office as well as working at the Head Office. Then during 2011 and 2012 she continued her work at Dandenong but also worked at Hastings during 2011 and 2012. Then she commenced at Bulleen on 6 March 2013 and worked at Bulleen and at the Hastings sites until the end of her employment.

[10] In her application she stated that: “I am aware that each branch is its own entity therefore I was paid out from each branch before commencing work at the next. But my employment with the company as a whole was ongoing throughout the entire period from 2009 until 2013.” The Applicant attached separate group certificates from each of the entities. The Applicant also attached information on the corporate identity of each of the entities.

[11] That information included 17 entities all except two of which trade under the name Sheen Panel Service. The parties agreed that the Head Office performs a number of functions in respect to each of the entities including: daily trading figures are sent to head office each day; gross wages figures are sent through each week; profit and loss and other financial details are forwarded each month; the bank statements for some outlets were controlled by head office; profit share distribution was deducted from outlet accounts by head office; head office charged for advertising, license fee, and other accounts; equipment was purchased centrally; and BAS and PAYG were checked centrally. The Applicant says that recruitment was often done by head office and that workshop expenses required authorization by head office but Mr Denys did not accept these two matters.

[12] Mr Blair Denys is a Director of Sheen Panel Service (VIC) Pty Ltd, SPS Dandenong Pty Ltd T/A Sheen Panel Service Dandenong, Repair Smash Pty Ltd T/A Sheen Panel Service Hastings, and SPCOC Pty Ltd T/A Sheen Panel Service Ocean Grove. These were the only sites where the Applicant worked apart from the last site which she worked at which was SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen. Mr Brett Keating is the director of this entity. I consider that it was not unreasonable for the Applicant to consider that Mr Denys had significant influence and a degree of control over her continued employment.

Consideration

[13] I consider that the first Respondent understood that the application for unfair dismissal remedy was directed at the employer of the Applicant and that Mr Keating was made aware of the application. Mr Keating is referred to in both the application and in the first Respondent’s response to that application. Mr Keating is the director of SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen which was an employing entity from 6 March 2013 until the end of the employment relationship.

[14] The evidence of Mr Keating provides some support for the role of Mr Denys in determining employment issues for SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen. In his statement he says the following about the conversation with the Applicant on 6 May 2013:

“She explained to me that she did have a Facebook Messenger conversation with Lana Denys. I advised Sheridan that her failure to return to work without contacting us was not appropriate. In our discussion she explained that she was unhappy with the conversation she had with Lana. I advised Sheridan to call Blair Denys and have the matter sorted out through the appropriate channels. As far as I am aware, Sheridan never spoke to Blair.”

[15] Mr Keating did not say “you have not been dismissed” and he reinforced the message that Mr Denys was the “appropriate channels” to resolve her employment status. Mr Keating makes it clear that he was aware of the Facebook conversation and therefore considered it likely that Sheridan might not return to work. The suggestion about talking to Mr Denys did not prevent Mr Keating sending out a separation certificate which was dated 8 May 2013 received by the Applicant on 9 May 2013. That certificate stated that the employment had ended due to shortage of work which clearly suggests termination at employer initiative.

[16] I am satisfied that Mr Keating acted as if the employment relationship had been terminated from 1 May 2013 onwards. The disconnection of the mobile phone reinforces this. Mr Keating says: “we placed on hold the company mobile service as we wanted to prevent any unauthorized expenses charged to the company phone especially if she was still overseas.” However, given that the phone had been active throughout the period of leave when the Applicant was known to have been overseas I am satisfied that the termination of the mobile phone service supports a conclusion that the employer was acting on the basis that the employment relationship was ended.

[17] I am satisfied that given the employment history of the Applicant at a number of Sheen Panel Service outlets it was reasonable for the Applicant to understand that if Mr Denys had said that it would be inappropriate for her to return to work then this was the effective termination of her employment. I am satisfied that Mr Keating and Mr Denys were aware of the facebook message and therefore understood that the Applicant believed that her employment had been terminated with the authority of Mr Denys. In the facebook message Lana Denys advised that Mr Denys approved the decision that the Applicant should not return to work and that Mr Keating had been informed. If this was an error then it was up to Mr Denys or Mr Keating to advise the Applicant that this was not the case and that she was able to return to work. It is irrelevant that Lana Denys was not a relevant manager. It is not uncommon for a manager to authorize someone else to pass on a message. Given the relationship between Lana Denys and Mr Denys there would be nothing unusual about her relaying a message even though she was not in a management position. The only action taken by Mr Denys or Mr Keating was to cut off the mobile phone service on 1 May 2013. The situation could still have been retrieved by Mr Keating on 6 May 2013 if he had said that it was an error and that the Applicant should return to work. This did not occur. In this situation I am satisfied that the Applicant’s employment was terminated by her employer. The termination was notified on 30 April 2013 and became effective 1 May 2013 when the employer stopped paying the Applicant and cut off her mobile phone.

[18] The Applicant’s intention in making the application for unfair dismissal was clear to the first respondent and to SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen. She provided full details of the nature of the employment relationship and the associated entities as part of her application. There is no unfairness in varying the application to correctly identify the employer.

[19] I accept the submission of the first Respondent that the employer of the Applicant at the time of the dismissal was not the first Respondent but was an associated entity SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen (ABN 92 592 141 413). For the reasons discussed earlier I will therefore pursuant to Section 586(a) of the Act vary the Respondent from the first Respondent to the associated entity SPSBUL Pty Ltd T/A Sheen Panel Service Bulleen (ABN 92 592 141 413).

[20] The parties agreed that the Applicant was also employed by Repair Smash Services T/A Sheen Panel Service Hastings (ABN 26658338749) at the time of the dismissal. Mr Bill Denys is the director of this company. The Applicant was not due to return to work on 1 May 2013 at this location.

[21] The Act provides as follows:

“386(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.”

[22] For the reasons discussed earlier I am satisfied that the facebook message constitutes the termination of employment at the employer’s initiative. This was confirmed by the subsequent actions and inaction of the employer. In the F3 employer response to the unfair dismissal application the first Respondent confirms that they knew that their action would lead the Applicant to assume her employment had been terminated. In the F3 Form they stated that “it was expected that the she (the Applicant) would not return due to the fact her marriage (to the “Company Director’s nephew”) has ended and was then engaged again to another gentleman within a few months”. The F3 also states that: “her actions following her separation from the Company Directors nephew was too hastily become engaged again obviously upset the daughter, who simply stated that it would be inappropriate to return to work assuming Sheridan’s embarrassment.” An employer stating that it would be inappropriate for an employee to return can reasonably be understood, unless otherwise corrected, to be a termination.

[23] Having determined that the Applicant was dismissed at the initiative of the employer and having determined to correct the name of the Respondent the jurisdictional objections have been finalized and the application will be allocated to a member of the Commission to determine whether or not the dismissal was unfair.

COMMISSIONER

Appearances:

Ms A Cunningham appeared as part of the pro bono program for the Applicant.

Mr B Denys with Mr A Stone appeared for the Respondent.

Hearing details:

2013

Melbourne

September 27

Printed by authority of the Commonwealth Government Printer

<Price code C, PR542968>