Ms Wendy Stephens v DL & KF Gaylard
[2024] FWC 1113
•29 APRIL 2024
| [2024] FWC 1113 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Wendy Stephens
v
DL & KF Gaylard
(C2023/6199)
| COMMISSIONER DURHAM | BRISBANE, 29 APRIL 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – heat of the moment – jurisdictional objection dismissed.
On 13 October 2023, Ms Wendy Stephens (Applicant/Ms Stephens) made a General Protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). The Applicant alleges that she was dismissed by DL & KF Gaylard T/A Chick-A-Dee Gourmet Food Bar (Respondent) on 22 September 2023 in contravention of her workplace rights.
On 11 November 2023, the Respondent filed a Form F8A response to the Applicants application. The Respondent opposed the application by way of raising a jurisdictional objection that the Applicant was not dismissed.
A person may only apply to the Commission for the Commission to deal with the dispute under section 365 of the Act if the person has been dismissed. The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford states that determining if an Applicant has been dismissed is an antecedent issue.[1] Therefore, a jurisdictional objection based on the Applicant not being dismissed must be decided before the Commission exercises its conciliatory powers under section 368 of the Act.[2]
Hearing of the Jurisdictional Objection
On 5 December 2023, I issued Directions for the parties to file their material in relation to the jurisdictional objection.
On 29 February 2024, the question of whether the Applicant was dismissed was dealt with by way of determinative conference.
The Applicant represented herself and Mr Doug Gaylard, the owner of the Respondent business, represented the Respondent.
The Respondent did not call any witnesses or file any material beyond the Form F8A. Although he stated he had some witness statements prepared, his description of them seems to indicate that they go to the issue of merits and not to the jurisdictional objection. In any event, in accordance with my Directions, the Respondent had ample time to file further evidence and chose not to do so. Orally, the Respondent also made some submissions going to his version of events in the moments leading up to, and including, the alleged dismissal.
The Applicant called Ms Lenore Little and Ms Janice Davidson as witnesses. The Applicant also filed brief submissions, supporting material and the witness statements of herself, Ms Little and Ms Davidson. However, I do note the oral and written evidence of Ms Little and Ms Davidson was limited regarding the question of whether there was a dismissal, as they were not present during the alleged dismissal.
Much of the material provided by the Applicant focused on the merits of matters, which is not relevant to determining whether she was dismissed by the Respondent. Accordingly, though I acknowledge the significance of the material to Ms Stephens, I do not traverse all of it in this decision, other than where it is relevant to the question of whether she was dismissed.
Prior to the hearing of the matter, my chambers constructed a paginated Court Book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Evidence of the Respondent
Apart from raising the jurisdictional objection that the Applicant was not dismissed, the Respondent provided the following statement on its Form F8A.[3]
“That Wendy Stephens said stick you [sic] job up your f…… a….. and walked out.” (alleged remarks)
For posterity, the Respondent alleges that the expletives used in the Applicants remarks are ‘fucking’ and ‘arse’. It is unnecessary for me to refer to the above sentence in paragraph 11 as anything other than the ‘alleged remarks’ herein.
Evidence of the Applicant
The Applicants evidence can be summarised as follows:
She arrived at work on 22 September 2023 and had some sort of altercation with another employee.
The Applicant states that the employee left the shop after their argument.
In response to the argument, Ms Kaye Gaylard appeared at the shop and told the Applicant she “couldn’t have this”.[4] Upon seeking clarification, Ms Gaylard repeated the statement to the Applicant.
The Applicant then asked Ms Gaylard whether she was choosing the other employee over her, to which Ms Gaylard replied “yes”.[5]
The Applicant then went outside to talk to a friend and left some time later.
Background/Timeline
Considering the written and oral evidence of the parties, I consider the below to be an accurate background. I only make factual findings in relation where it is relevant to the question of whether the Applicant was dismissed or not.
On 22 September 2023, the Applicant attended work in the early hours of the morning and began preparations for the day. The Applicant notes that Ms Sam Wilson, another employee of the Respondent arrived at approximately 7:00am and appeared anxious about a phone call between the Applicant and Ms Gaylard the previous night.[6] The contents of this call, for present purposes, are irrelevant. What is relevant is that the Applicant stated she did not want to discuss the issue and wanted to get on with her work. However, Ms Wilson was still upset.
Some time later that morning, the Applicant made a comment to Ms Wilson, which triggered Ms Wilson to respond with “you’re insane”.[7] The Applicant took offense to this and retorted. Both the Applicant and Ms Wilson were upset at this point of the conversation.[8]
The Applicant then recalls Ms Wilson leaving the shop. The Applicant wanted to leave too but could not leave the shop alone and therefore remained in the shop until Ms Gaylard arrived.[9]
Shortly after, Ms Gaylard arrived and at this point, Ms Gaylard allegedly said that she “couldn’t have this.” When the Applicant sought clarification as to what Ms Gaylard meant, Ms Gaylard repeated her statement. The Applicant subsequently asked “are you picking Sam [Ms Wilson] over me?” to which Ms Gaylard allegedly said “yes”.[10]
The Applicant says she was quite confused and very upset at this point. She stated words to the effect of wanting to go home and come back Monday once things had cooled down. The Applicant suggests at this point that Ms Gaylard may have repeated that she “could not have this”. The Applicant then went to leave the store.[11]
According to the Respondent, at this point upon leaving the store, the Applicant made the alleged remarks.[12] The Applicant then walked out, sitting out the front with two women unknown to the Respondent (Ms Little and Ms Davidson) and left some time after.
Approximately 5 minutes after the Applicant left, Ms Gaylard called the Applicant asking her to return the back door key, to which she did.[13]
According to the Applicant, she returned to the shop on 26 September 2023, where Mr Gaylard came out the front and handed her a cheque, which was not accepted as the Applicant wanted cash.[14]
Notwithstanding, the cheque was later accepted and the Applicant has not since returned to her employment.
Relevant Legislation
Section 365 of the Act provides:
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 365 of the Act requires a person to be dismissed in order for the Commissions jurisdiction to be enlivened. ‘Dismissal’ is defined in section 386(1) of the Act, which provides:
(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.
Consideration
The analysis of whether there has been a termination at the initiative of the employer for the purpose of section 386(1)(a) is to be conducted by reference to termination of the employment relationship.[15]
Deputy President Kovacic outlined the relevant considerations in determining whether a dismissal was “at the initiative of the employer” in Israel Mor Hiam v Jodack Pty Ltd T/A Snap Caulfield South[2016] FWC 2265:[16]
“[30] A Full Bench of the then Australian Industrial Relations Commission considered the meaning of the expression ‘Termination at the initiative of the employer” in Searle v Moly Mines Ltd (Searle). Specifically, the Full Bench said in Searle:
“[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer” ‘in O’Meara v Stanley Works Pty Ltd. For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:
‘[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 (Bupa) also considered the legal principles pertaining to section 386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”, the Full Bench stated:[17]
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
Based on the material available to me, even if Ms Gaylard said to the Applicant that she “could not have this”, it is not sufficiently clear if that constituted a dismissal there and then. In my view, this exchange alone cannot reasonably have been intended to bring the employment relationship to an end or had that probable result.
I instead find the Applicants alleged remarks prior to leaving the store on 22 September 2023 to be the point at which the employment relationship had ended, as Mr Gaylard in his evidence said that he accepted the Applicants alleged remarks to be a resignation.
However, at this point in time, the Applicant was in a heightened emotional state as a result of the upset caused by the Applicants earlier argument with her co-worker, Ms Wilson. Mr Gaylard accepted that the Applicant was upset in his oral evidence.
Mr Gaylard, in accepting the Applicants words as an ostensible resignation, failed to clarify or confirm with the Applicant at any point that she genuinely intended to resign. The Respondent admitted to not seeking clarification from the Applicant in his oral evidence. It follows that the statement by the Applicant to Mr Gaylard is captured as a ‘heat of the moment’ resignation as discussed by the Full Bench in Bupa. In line with that authority, the failure of the Respondent to clarify or confirm genuine resignation with the Applicant means that it can be characterised as a termination of the employment at the initiative of the employer.
Further, the Applicant stated that Ms Gaylard rang her shortly after leaving to request a key be returned, yet there is no indication that the Respondent contacted the Applicant within a reasonable time (i.e. at this point or in coming days) to clarify or confirm whether she genuinely intended to resign through the statement. The Respondent should not be able to rely on the events of 22 September 2023 alone as an expression of the Applicant’s intention to resign from her position.
In the coming days, the Respondent had ample opportunity to confirm or clarify the resignation of the Applicant and failed to do so.
To the extent the Applicant’s conduct on 22 September 2023 may be considered a resignation, I am of the view that the resignation had no legal effect following the Full Bench’s decision in Bupa, and the Applicants employment was terminated on the employer’s initiative within the meaning of section 386(1)(a) of the Act.
Conclusion
Given my findings, the Applicant has been dismissed within the meaning of section 386(1) of the Act, meaning the Respondents jurisdictional objection is dismissed.
The Applicant is therefore entitled to have the Commission deal with the dispute according to sections 365 and 368 of the Act.
As a result, I will convene a conciliation conference with the parties to explore the resolution of the matter. A Notice of Listing will follow forthwith.
COMMISSIONER
Appearances:
W. Stephens for herself
D. Gaylard for the Respondent.
Hearing details:
2024
Brisbane
29 February
[1] [2020] FCAFC 152 at [67].
[2] Ibid at [65].
[3] Court Book, pages 31-39.
[4] Ibid, page 10.
[5] Ibid, page 11.
[6] Ibid, page 28.
[7] Ibid, page 10.
[8] Ibid, page 28.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid, pages 31-39.
[13] Ibid, page 11.
[14] Ibid, page 12.
[15] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[16] [2016] FWC 2265 at [30].
[17] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [47].
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