Mylie Kirsten Woodland v One4All Holdings Pty Ltd t/a Espresso Garage Southbank
[2022] FWC 1088
•9 MAY 2022
| [2022] FWC 1088 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mylie Kirsten Woodland
v
One4All Holdings Pty Ltd t/a Espresso Garage Southbank
(U2021/9668)
| COMMISSIONER HUNT | BRISBANE, 9 MAY 2022 |
Application for an unfair dismissal remedy – small business fair dismissal code – whether code complied with – code complied with – jurisdictional objection upheld – application dismissed
Introduction
On 28 October 2021, Ms Mylie Woodland (Ms Woodland) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from One4All Holdings Pty Ltd t/a Espresso Garage Southbank (the Respondent) on 18 October 2021 was harsh, unjust or unreasonable.
The Respondent operates a café in the inner-Brisbane suburb of South Bank. It is uncontested that at the time of Ms Woodland’s dismissal, the Respondent employed fewer than 15 employees and is therefore a small business. Ms Woodland was employed with the Respondent as a barista.
Ms Woodland appeared for herself in these proceedings. Mr Greg Chae, Director of the Respondent appeared on behalf of the Respondent. English is Mr Chae’s second language, evident from his written and spoken English.
Legislation
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
a. (a) the person has been dismissed; and
a. (b) the dismissal was harsh, unjust or unreasonable; and
a. (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
a. (d) the dismissal was not a case of genuine redundancy.
Section 396 of the Act sets out the following:
“The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
a. (a) whether the application was made within the period required in subsection 394(2);
a. (b) whether the person was protected from unfair dismissal;
a. (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
a. (d) whether the dismissal was a case of genuine redundancy.”
As set out above in s.396 of the Act, a consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was consistent with the Small Business Fair Dismissal Code pursuant to s.388 of the Act. The Commission is satisfied that the Respondent employed fewer than 15 employees as of 18 October 2021 and is therefore a small business.
The Code provides as follows:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
The effect of s.385(c) of the Act is that when a dismissal is consistent with the Code, it is not an unfair dismissal and the application must then be dismissed. If the dismissal is not consistent with the Code, the Commission must then consider whether the dismissal is unfair on the basis of the general criteria in s.387 of the Act. The Code deals with “summary dismissal” on the ground of serious misconduct and “other dismissal” on the basis of the employee’s conduct or capacity to do the job.
Background to the application
Ms Woodland commenced working for the Respondent on 14 February 2020. She stated that she was notified of her dismissal on 18 October 2021, which took effect that day.
I am satisfied the application was made within the 21-day time frame provided for in s.394(2)(a) of the Act, having been made within 10 days of the date of dismissal. Ms Woodland has met the minimum employment period of 12 months on account of the Respondent being a small business.
Ms Woodland stated that that the reason given for her dismissal was as follows:
“After working at espresso garage for quite sometime now, I was told I was no longer needed due to loss of business during covid.
I had approached my boss for 6 months prior in regards to no breaks an correct wge, not getting payslips on time nor getting paid on time.”
Ms Woodland stated that her dismissal was unfair for the following reasons
“1. Staff intervened [and] bullied me [through] boss;
2. New barista hired 1 week prior to my 1 week holiday;
3. was the longest staff member 19 months
4. was told by another staff I was no longer needed due to my complaint I’d previous made with fair work.
5. I do not believe I should [lose] my job for exercising work rights.”
The Respondent stated that Ms Woodland’s hourly base rate of pay was $26.49 as a casual grade 2 Food and Beverage attendant. Every week a new roster was made based on the availability of staff that week. The Respondent contended that it had complied with the Small Business Fair Dismissal Code.
The Respondent included attachments with the F3. The first attachment was a brief, undated statement from Mr Chae which read as follows:
“I run very small cafe named Espresso Garage.
Mylie was a casual employee as a barista and received weekly roster base on each staff's available day.
She wished to 1 week off at early Oct. Espresso Garage has run by 2 baristas, if one barista is away we need to hire other barista. So, I explained to Mylie the situation that there are become 3 baristas then your shift will be reduced. She also agreed the situation. After she came back her off, the roster was made based on each barista's available day. On Wednesday 13th of Oct, other staff who managing the cafe called me that Mylie did not leave the cafe even if her shift was finished. So, I called Mylie but she didn't answer. I called other staff to speak Mylie but she refused to speak with me. After 2 more days, she keeps stayed at the cafe without her roster. Other staffs complained to me because of her weird existence effected badly to other staff and customers and business.
On Friday, she requested me that reduce other 2 baristas’ shift hours not her. Otherwise, she threated me that she will keep stay at cafe without shift and it will count for her working hours. And, Mylie texted me she only wants to talk to me at police station. So, I replied her to see police station the next day. She said yes, but did not appear at police station.
So, I left my details, mylie details and the situation at Southbank police station. Police advised me that if I worry about the cafe business because of her inappropriate behaviour to staff and customers. Then, I can fire the casual staff and if she keeps coming then it is trespass.
Based on above situation, I do not accept Mylie's request.
And, I do not give her anymore roster and sent her 'No longer your service required'”
The second attachment was a further brief statement of Mr Chae regarding an underpayment alleged by Ms Woodland:
“Initially, I misunderstand the statement from Fairwork ombudsman. (a 20 minute paid break, which does count as time worked.)
I paid extra 20 minutes if she working more than 6 hours so far.
After that, I realized following statement is right
(If no unpaid meal break was scheduled for the employee, then they have to be paid 50% of the employee’s ordinary hourly rate extra after 6 hours of work (or 6.5 hours if agreed) until they are given a break or their shift ends.)
Thus, I re-calculated the difference.
Please check the attachment 03.”
The third attachment was a document showing the calculations leading to a total underpayment amount of $658.55 for breaks not given to Ms Woodland, which the Respondent agreed was owed to Ms Woodland.
Ms Woodland’s material
Ms Woodland filed a statement on 6 February 2022 which read as follows:
“Case of Mylie Woodland against Espresso Garage.
1) I was hired as the head barista at Espresso Garage on the 20th of February 2020, my duties included: Making coffee, serving customers as well as general opening and closing procedures.
2) In December of 2020, discussions between staff had started in regards to pay. We had all noticed a delay in pay being processed into our accounts each fortnight and all of us were being paid on different days. After calculating my pay and checking my payslips on multiple occasions, I had realised that my hourly rate on both weekdays and weekends was incorrect. I,as well as other employees, Jarred and Danni, were also not allowed to have unpaid breaks on days where we would be working from 5:30 in the morning until 2pm.
3) In January 2021, staff started resigning to find other jobs. I decided to confront Greg about wages and unreceived breaks and was met with an argument. I was accused of lying and told that I was trying to cause trouble within the business. It was also at this time, where I contacted fair work and was turned away multiple times and told to “keep asking my boss”.
4) In February 2021, Greg put me in charge of all problems that would occur in the cafe and to perform general manager duties, I asked to be paid at the rate of a supervisor or manager and Greg refused, so I did not accept the offer and continued to work as a casual employee and take care of all regular duties that was within my paygrade. Greg had now started ignoring my texts and calls about pays and wages, I had also received an email from my super provider stating that they had closed down my account due to Greg’s payments being missed.
5) In September 2021, I confronted Greg once again about our wages and breaks and mentioned that I had reported him to fair work, he then contacted other staff, stating that he no longer wanted to work with me. I had been experiencing extreme anxiety and stress due to this and had to take several days off. He asked me to have a meeting to discuss these issues, I refused to take part unless there was a third party involved, so this never occurred. He asked Melody, another staff member, to fire me, but I did not leave the workplace, this happened on two separate occasions.
6) Finally, on the 18th of october 2021, after refusing to leave for a third time, Greg called the police on me for trespassing and officially dismissed me as an employee.”
Ms Woodland provided a statement from her witness, Ms Danni Mulcahy, dated 13 January 2022, in the form of an email. The email reads as follows:
“Working at Espresso Garage faced me with a lot of financial hardship. There would be times where I wouldn’t get paid my fortnightly pay until a at least a week after the designated pay week. And when I would ask Greg about it, he would tell me it was just his accountant and there was nothing he could do. After eventually receiving my pay, there would always be money missing from it. (it did not add up with the amount of hours I’d worked). There were times where my payslip wouldn’t be sent and I would have to ask for it before I received it and again after asking Greg about this, he would blame his accountant.”
The email from Ms Mulcahy contained below it, an email from Ms Mulcahy dated 30 May 2021 which read as follows:
“Espresso Garage was an environment I never want to work in again. We were forced to work with no breaks and the owner would deliberately understaff us so we didn’t have time for a break. Every staff member (including myself) was underpaid by at least $5 an hour and payslips were rarely provided even upon request. Sometimes paycheques wouldn’t come until the third week of the month time and we were supposed be paid fortnightly.
Mylie Woodland was a wonderful coworker and always made sure things were done exactly how they needed to be. She has a true passion for making coffee and customer service. She deserves justice.”
In addition to the above statements, Ms Woodland provided a number of screenshots of text messages between her and various individuals including Mr Chae, a former colleague I shall refer to as Employee A, and another former colleague named Melody.
The text messages between Ms Woodland and Mr Chae are as follows, though not necessarily in chronological order as many screenshots did not contain dates:
| From | Date and time, if known | Message |
| Mr Chae | 10:39 date unknown | What letter ??? |
| Ms Woodland | 10:40 date unknown | THE LETTER SAYING HOW MUCH U PAY ME FOR BREAKS AN WHY IM LOSING LESS HOURS THEN OTHER STAFF Going home now see u tomorow going to police AND WHY CAL AN JAKE HAVE MORE HOURS ??????? Im not talking to u |
| Ms Woodland | 14:05 (date unknown, but message immediately following is dated 26 November 2020) | Still no pay, my housemate is gunna ask me to move out as im late for rent everyweek my rent is due Fridays, i have rang my bank an there is nothing showing up on there computer, can we sort sumthing out so i get paid before the wknd please |
| Ms Woodland | 26 November 2020 | Cant work sunday |
| Ms Woodland | 29 April 2021 | Still no pay, my bank is overdrawn an have been charged $10 for no money in there ? [screenshot of bank app showing $18.80 charge] |
| Ms Woodland | 13:38 18 May 2021 | Are we not getting payslips anymore? |
| Ms Woodland | 08:52 19 May 2021 | Not availible on 29th may |
| Ms Woodland | 06:35 22 May 2021 | Can i please have my payslip 2 wks late |
| Ms Woodland | 06:45 22 May 2021 | Wheres tad ???? |
| Ms Woodland | 06:58 22 May 2021 | Tad is late every day this week |
| Ms Woodland | 09:24 date unknown | […] just got off phone to fairwork an they told me to ask you to be paid immediately I know you need to wait until your pay goes into your account to pay, but it appears to be delayed more and more. Rent was due on 5th June and on checking this morning it still hasn’t been received to my account. Can you please rectify this as soon as possible. Regards |
| Ms Woodland | 09:48 date unknown | Weres my pay greg its late ?? |
| Ms Woodland | 05:40 29 September 2021 | [screenshot of email from a representative of the Fair Work Ombudsman stating: Im getting in trouble iv missed 2 appoint-ments this week, there comming in as you wont respond |
The text messages between Ms Woodland and Employee A were as follows, though again not necessarily in chronological order as many screenshots did not contain dates:
| From | Date and time, if known | Message |
| Ms Woodland | 07:51 date unknown | […] tin kicked outa my place, housemate sent greg message [emoji] |
| Employee A | 07:52 date unknown | Fucken’ wot? Kicked out? And nah, I haven’t been paid… Dunno if I’m gonna get paid today or Thursday anyways cos Greg only grabbed the books like, yesterday or the day before. |
| Ms Woodland | Unknown | Fukin cunt Yea shes tired of […] |
| Ms Woodland | 10:25 date unknown | Have u got payslip for last 2 pays |
| Employee A | 10:25 date unknown | Yeah, mans didn’t show up on Sunday either… Breaks would be nice, yeah… Completely forgot those were a thing. Nope… I don’t think anyone has… |
| Ms Woodland | 10:26 date unknown | Wat 3 times in 1 week [emoji] but greg threatns me lmfao |
| Employee A | 10:27 date unknown | I literally can’t fucken’ figure out how he’s still being rostered on. If one of us just had a no show or two, we’d have written warnings or some shit… |
| Ms Woodland | 10:29 date unknown | Yes at least we message well before fuk iv neva not just shown up to work with no contact |
| Ms Woodland | Unknown | No payslips still since 22 last month iv searched my […] |
| Employee A | 11:27 date unknown | Maybe he knows that’s all you need to fuck up his life… Once I got all of my affairs in order, I might go through the fair work process too… I’m sick of being stressed about money every fucken’ week cos I’m not getting what I’ve worked for. |
| Ms Woodland | 13:45 date unknown | Did u get paid yet |
| Employee A | 13:56 date unknown | Nuh, pay day for me is Fridays now for some reason… |
| Ms Woodland | 13:59 date unknown | I got paid yesterday morning stand up bro an ask him why ur been fukd over |
| Employee A | Unknown | Not as fucked over as Zac. Mans didn’t even get paid last time, had to wait till the start of the week to get his money after chasing Greg down. |
| Ms Woodland | 14:02 date unknown, but the message immediately following is dated 23 August 2021 | Really wow he neva said that makes me so angry |
| Employee A | 23 August 2021 | Yooo, you said it was about a 6 month wait for mugs, right? |
| Employee A | 12:23 date unknown | Holy shit, that is big news to me. Yeah, I haven't had a break since before Danii left ... Obviously not much comparison to your predicament but, still ... Is there actually a chance you'd be paid back all you're owed or is he gonna keep weaseling his way out of things? |
| Ms Woodland | Unknown | yes there goin to ring him to rei[…] |
| Ms Woodland | 19:47 (date unknown, but message immediately following is dated 20 October 2021 | […] tomorrow unless ur sick lol You are entitled to get 5 times 20 minutes. So, you were paid extra 1 . 66 Hours + free meal. Total: 41.91 Hours. Understand? I already explained this more than 5 times since last year by face to face. You told me “ok, I understand everything”. Then, what shall I do more ???” |
| Ms Woodland | 20 October 2021 | Im at fairwork u need to get onto it now before u loose […] |
| Employee A | 12:52 21 October | The only reasons I wish to leave is because I've been a barista since I was fifteen years old, and after seven years of spinning milk and never really finding any comfort attempting to study, I want to find a proper career I can pursue and make a living out of. Something I won't tire or bore from. And after working nearly a year here, I haven't been able to save any money or move forward with any of my plans/goals ... I need something with a structure that better suits my lifestyle ... No other reasons beyond my own, personal insights. |
The text messages between Ms Woodland and Melody were as follows, though again not necessarily in chronological order as many screenshots did not contain dates:
| From | Date and time, if known | Message |
| Melody | 11:23 | Yeah Ad you said you want to get rest time during our work time, I'm really appealing we need new someone who can handle the coffee when we are not busy or we need to teach kitchen and coffee for our team member for taking rest during our work time .. |
| Melody | 14:50 | Mylie How are you? I'm very sad cus greg is going through your complaint .. So .. He doesn't want to hire you anymore .. I was very happy to work with you .. but .. Your complaint .. makes greg is going through hard .. In my opinion .. When we work we at a hospitality business, We need to be a person who make happy benefit for everybody included owner. staffs. Customer (they are our income...) |
| Melody | 14:51 | I don’t want to make any is going through hardship with garage |
| Ms Woodland | 14:51-14:52 | Im ok see u in the morning [emoji] Yes we all hardship the boys tell me all time [emoji] See u tomorow greg needs to speak to me cause im bring police Customer are so happy im there an[…] |
| Ms Woodland | 15:57 | An u havnt had ur hours cut neither has zac or thag |
| Melody | 16:25 | Discuss with greg..Actually i told greg my wage go up as well..If he can not give for us.. I think we need to move to another job…..But i will be very sad.. break up the team.. |
| Ms Woodland | 16:29 | No Yes im sad im crying so much |
| Melody | 16:39 | I already told greg.. he definetely need to imrpve continualy our system for getting better everybody. Just let jake work as a serve barista.. for getting break time during our working time |
| Ms Woodland | Unknown | I need my hours 20 plus or its not gunna work, wed/sat See u tomorow my[…] |
| Ms Woodland | 17:34-17:35 | […] week while i was away so i should get normal hours. I get my housemate to email greg again |
| Melody | 17:36 | I'm really appealing after zac left, Jake work as a serve barista and all rounder for getting break time, we are going through hot summer. We must get some break.. |
| Ms Woodland | Unknown | This fortnight i get $317 my rent is 520[…] |
| Ms Woodland | 20:55 | […] greg to stop trying to scare me out of my job please |
| Melody | 20:57 | I just told greg [emoji] Myile and Cal don't like this roster .. they lost their hours .. And Let jake work as a all rounder first and let him serve for main barista for barista taking break time 30mins But I think greg just want to get more staff during end of years .. |
Material of the Respondent
On 17 January 2022, the Respondent filed a statement of Mr Chae. The statement reads as follows:
“Dear Commissioner
My name is Greg (Soohun) Chae and the owner of the café called Espresso Garage at South Bank.
I am writing this letter based on your requirements.
Requirements
(a) An outline of submissions in support of the Respondent’s jurisdictional objection that the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code;
- Please read attached ‘Small Business Fair Dismissal Code’ and
- ‘Letter of accountant’ – One4all SME Letter.(b) An outline of submissions in the alternative addressing the criteria under s.387 of the Fair Work Act 2009 (the Act), should the Commission determine the Code does not apply;
I run a cafe called Espresso Garage at South Bank.
Espresso Garage is a really small cafe (20 square meter) and 3 ~ 4 casual staffs are working during the weekdays and 5 ~ 6 staffs are working during weekend.
Mylie was one of casual employees as a barista.
Early October She requested to 1 week off. Espresso Garage has run by 2 baristas, if one barista is away we need to hire other barista. So, I explained to Mylie the situation that there are become 3 baristas then your shift will be reduced. She also agreed the situation.
After she came back her off, the roster was made based on each barista's available day.
On Wednesday 13th of Oct 2021, other staff who working the cafe called me that Mylie did not leave the cafe even if her shift was finished. So, I called Mylie but she didn't answer.
I keep calling her number for 30 minutes but she didn't answer the phone even she knew my calling. I also called other staff to speak Mylie but she refused to speak with me. And, she threatened to other staffs when they requested to Mylie speak with Me. When Other staff asked Mylie to leave the Cafe for serving customer, she yelling to the staff that "if you told me again to leave you are in trouble and it is bullying" So, staffs were scared and could not do proper business.
After 2 more days, she keeps stayed at the cafe without her roster and harassment and intimidating to the staffs who asked her to leave the cafe. Other staffs complained to me because of her weird existence effected badly to other staff and customers and business.
On Friday 15th of Oct 2021, she requested me that reduce other 2 baristas’ shift hours another. Otherwise, she threated me that she will keep stay at cafe without shift and it will count for her working hours. And, Mylie texted me she only wants to talk to me at police station.
So, I replied her to see police station the next day. She said yes, but did not appear at police station.
So, I left my details, Mylie details and the situation at Southbank police station. Police advised me that if I worry about the cafe business because of her inappropriate behavior to staff and customers. Then, I can fire the casual staff and if she keeps coming then it is trespass. * POLICE Ref No: [redacted]Based on above situation, I did not accept Mylie's request.
And, I worried and stressed about my business.
So, I did not give her anymore roster and sent her 'No longer your service required' The next week, however, Mylie she keeps coming and staying without roster and harassment and intimidating to the staffs and interruption to business. She just ignored other staff's request to leave. So, I called police asking to her leave the cafe. When police men arrived to cafe and asking her to leave, she requested me the Separate certificate for Centerlink money. Thus, I sent the separate certificate for her centerlink requirement. Even though, she received the separate certificate what she requested, she keep coming and asked me more and more for her advantage to receive more money from Centerlink. As explained above, my business and myself and my staffs were suffered from her behavior.
Thus, as a small business owner, I believe there were valid reasons for dismissal related to the person's capacity or conduct.
(c) Submissions in relation to the remedy sought by the Applicant, addressing ss.390-
392 of the Act; and
- Balance of back payment is already made
- There is no reinstatement or compensation. As she is a casual staff who is received a new roster every week and casual rate (Casual grade 2: $26.49 Weekday, $32 Saturday), she cannot claim unfair dismissal claim from beginning.
(d) A witness statement for each of the witnesses the Respondent intends to call at the hearing including any documentary material upon which the Respondent intends to rely.
- I have attached two witness statement.
Witness 1: Thomas Carpenter […] attached to Letter to Commissioner
Witness 2: Jake Nam […] attached to Espresso Garage Jake.”
On 17 January 2022, the Respondent filed a statement of Mr Thomas Carpenter which read as follows:
“I bear witness to the events with mylie and expresso garage. She was given a roster for the first week 14th and 15th october and she was staying past her rosterd hours and she was dismissed on the 18th and boss kept asking her to leave but she refused. The Boss tried to talk to her but she did not want to talk. The boss asked me to tell her to leave but she did not and she kept on coming to work for a few days after dismissal. I was told to let the boss know but she did not want to talk to the boss. I was informed to call the police if she turned up one day which she did and the police told her to leave. Mylie told me that if i was involved it would be bullying and i would be in trouble Regards
Thomas Carpenter”
On 17 January 2022, the Respondent filed a statement of Mr Jake Nam which read as follows:
“I am writing this in response to an application submitted to the Fair Work Commission from a former co-worker at Espresso Garage, Miley.
Miley and I worked together for a short period, as I had only worked there for a few months. We did not work together every shift, so I was not aware of the situation between management and herself.
From what I can recall, when her employment with Espresso Garage ended, she would still arrive to work unannounced, even though she was not rostered on. Additionally, the roster was always given to us in advance and management would always be transparent with this amongst all staff.”
On 25 February 2022, shortly before the hearing, the Respondent filed a reply submission which outlined the following:
“Reply to Mylie Woodland Statement
1. I purchased Espresso Garage business at 15th of Feb 2020.
Mylie started work from previous owner.2. Wage paid by fortnightly from Friday to Thursday. Every 2nd Friday, I collect the time sheet and over to my Accountant. On Monday, he checks the amount of tax then I transfer the money on Monday or Tue. The transferring of money was never late. Refer to printed bank statement.
Danny was junior staff age 18 years old. She received the $ 18/H base in 2020.
She worked only 5 hours per day. Non break payment is not applied. Refer to printed roster.3. I hired 3 new Barista during year 2020 and 2021. They are all resigned after argue with Mylie.
I thought that Mylie worries about her barista position and time if new is coming.
Non break payment was fully paid after amend.
4. Super is paid by quarter base not monthly. They are all paid.
Yes, I tried to ignore her text message when her mom and her share mate keep calling and text me by using her phone.
5. I never asked Melody and other staff(?) to fire Mylie.
Melody was an international student and asking her to fire Mylie is not make sense.
6. Mylie keep staying at Espresso Garage after her time on Roster and interrupted business and did not want to talk to me. So, I have to dismiss her the next week. We have to call police because she kept coming into the shop after dismissal and did not want to leave.”
Included with the above reply submission were screenshots of digital bank transfer receipts, which were referred to in point 2 in the above reply submission of the Respondent, along with two pages worth of rosters, referred to in point 2 above, covering the following periods:
• For Ms Woodland:
• • Mon 27 Sep to Sun 3 Oct;
• • Mon 4 Oct to Sun 10 Oct;
• • Mon 11 Oct to Sun 17 Oct;
• For Ms Mulcahy:
• • Mon 4 Jan to Sun 10 Jan; and
• • Mon 11 Jan to Sun 17 Jan.
Determinative conference
The hearing of this matter took place as a determinative conference on 25 February 2022 in-person in Brisbane. Ms Woodland appeared for herself, along with her friend and witness, Ms Danni Mulcahy. Ms Mulcahy is a former employee of the Respondent. Mr Chae appeared for the Respondent, along with his employee and witness, Mr Thomas Carpenter. While a witness statement was received from Mr Jake Nam, an employee of the Respondent, Mr Nam did not give evidence at the determinative conference.
On 24 February 2022, prior to the determinative conference, the Commission became aware that Ms Woodland had sent text messages to Mr Carpenter, witness for the Respondent, in the days leading up to the hearing. Screenshots of the following text messages exchanged between Ms Woodland and Mr Carpenter on 24 February 2022 were received by the Commission:
| From | Time | Message |
| Ms Woodland | 1:14PM | See u in court tomorow [emoji] Ur name is in listing [emoji] |
| Mr Carpenter | 1:16PM | Not looking forward to this at all |
| Ms Woodland | 1:16PM-1:17PM | U lied im showing judge ur messages tomorow an sueing U clearly said u did not want to get involved i showd police |
| Mr Carpenter | 1:17PM | Wait sueing me for what |
| Ms Woodland | 1:17PM | U lied |
| Mr Carpenter | 1:17PM | Yeah I did not want too but in the end felt like I had no choice |
| Ms Woodland | 1:17PM-1:18PM | I askd for ur help u said no u also said no to greg i have messages U said u were scared to loose ur job iv got messages U contradicted wat u said |
| Mr Carpenter | 1:18PM | So you wanted to contact me to say your sueing me |
| Ms Woodland | 1:18PM | Yea ok thomas thanks for lying to me [emoji] |
| Mr Carpenter | 1:19PM | All im doing is going there to tell them i called the police and that’s it, can’t say much more then that |
| Ms Woodland | 1:19PM-1:20PM | No fairwork just contact me with ur name i said that’s bullshit lies U cant u have to answer every question they ask u dont get a choice, an i also will be drilling u with questions an danny past staff comming |
| Mr Carpenter | 1:20PM | Well I got nothing to say other then you came to work with no roster and you left willingly when police turned up, can’t say anything more then that |
| Ms Woodland | 1:20PM | Thanks a lot ay Too late thanks ah |
| Mr Carpenter | 1:20PM | Whatever I’m over this |
| Ms Woodland | 1:21PM | U have to answer all questions by judge Its illegal not to |
| Mr Carpenter | 1:21PM | I know how it works |
| Ms Woodland | 1:21PM | My daughter n dad commin to Thanks alot man Ur aier Lier |
| Mr Carpenter | 1:21PM | That’s nice, what am I lying about |
| Ms Woodland | 1:22PM | See u tomorrow i got lots of questions [emoji] |
| Mr Carpenter | 1:22PM | All I said was that you came to work without a roster and I had to call the police, I never had a go at you cause yeah Fine have a good day |
| Ms Woodland | 1:22PM | The judge will ask u bout ur whole time workin with me not 1 question der |
| Ms Woodland | 1:23PM | Neva said u had a go at me u didnt, but u lied when i askd for help |
| Mr Carpenter | 1:23PM | Yeah and I can’t lie and we never had issues, we were good and I found you a good worker and great at what you do |
| Ms Woodland | 1:24PM | Im going to ask judge to request ur phone messages between staff n greg [emoji] All phone messages involved Everyone Not nice at all thanks ay |
| Mr Carpenter | 1:24PM | So you want my conversation with Greg which is the only person |
| Ms Woodland | 1:26PM | I get judge to request all ours |
| Mr Carpenter | 1:26PM | Ah ok |
| Ms Woodland | 1:28PM | Ur complaints to me bout under pay an ur job agencies will all be brought up, super all of it |
| Mr Carpenter | 1:29PM | Whatever |
| Ms Woodland | 1:30PM | Payslips breaks all of it its not just bout police u do realise this |
| Mr Carpenter | 1:30PM | Didnt realise that |
| Ms Woodland | 1:31PM | [emoji] i told u wks ago i have messages to prove it Judge has them |
| Mr Carpenter | 1:31PM | Okay what do you want from me, I regret the letter but saying all this is just not helping |
| Ms Woodland | 1:31PM | All ur messages i kept |
| Mr Carpenter | 1:31PM | Okay This is now harassment i feel |
| Ms Woodland | 1:32PM | Ok cool But u clearly stated in ur message u didnt want to help me or greg |
On 24 February 2022, I caused the following correspondence to be issued to Ms Woodland, cautioning her as to her interaction with witnesses appearing for the Respondent in these proceedings:
“Dear Parties
Reference is made to the above matter. A copy of this correspondence has been provided to Mr Carpenter.
The Commissioner advises that this afternoon, Mr Thomas Carpenter spoke with the Commissioner’s Associate to advise that he is feeling harassed and intimidated by the Applicant in these proceedings.
At 5:07pm today, Mr Carpenter forwarded to Chambers screenshots of text messages sent between the Applicant and himself.
The Commissioner considers that the messages sent by the Applicant to Mr Carpenter are very concerning, and may breach section 676 of the Fair Work Act 2009, reproduced below:
676 Intimidation etc.
A person commits an offence if:
(a) the person threatens, intimidates, coerces or prejudices another person; and
(b) the person does so because the other person has given, or proposes to give, information or documents to the FWC.
Penalty: Imprisonment for 12 months.
Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to the FWC (see section 343).
The Applicant must cease all contact with the Respondent and Mr Carpenter immediately.
Evidence will be given at the hearing tomorrow on this matter. The Commissioner will advise if she considers the Applicant has any case to answer and if so, the matter may be referred to the General Manager of the Commission to be forwarded to relevant authorities to determine if any breach of s.676 has occurred. To be clear, the Commissioner does not decide if there has been a breach of s.676 of the Act, but may, at her discretion, refer any concern she has to another authority.
The Commissioner notes that the Applicant has stated, in text messages to Mr Carpenter, that her father and daughter will be coming to the hearing tomorrow. No permission has been given for the Applicant’s father and daughter to attend the hearing, nor has the vaccination status of those two individuals been provided.
If the Applicant does wish for her father and daughter to attend to provide support during the proceedings, the Applicant must urgently advise the vaccination status of those two people. Everybody who attends the hearing will be required to produce evidence of their vaccination status.”
The evidence given by the parties and their witnesses at the determinative conference is discussed further below.
Evidence and submissions at determinative conference
At the determinative conference, Ms Woodland explained that before she went on a holiday in October 2021, she used to work 5:30am – 1:00pm, Monday to Friday, and 5:30am – 9:30am on Saturdays. On her return, she was not rostered for as many hours. She acknowledged that on 13 October 2021, she remained at the café beyond her 9:30am finish time. She considered that there was no reason for her to leave, and she knew that Mr Chae was trying to call her. Her evidence is that she wanted to stay, and that she was upset because she had lost her house. She said that she did not expect to be paid for the work she wanted to perform after 9:30am. Ms Woodland agrees that she stayed back beyond her normal finish time a few more times.
Neither of the parties had provided evidence of relevant text messages around 18 October 2021. It became necessary to review the text messages between Ms Woodland and Mr Chae on Ms Woodland’s telephone during the determinative conference. By the morning of 18 October 2021, Ms Woodland had sent a large number of text messages to Mr Chae, including by saying that she would bring the Police to the café the following Wednesday morning. I asked Ms Woodland what business the Police would have in attending the café, to which she replied that they would come along because she had not been paid properly. I informed Ms Woodland that this is not Police business.
Ms Woodland’s text messages to Mr Chae on 18 October 2021 included that she would work her normal shift the following Wednesday. I understand that to mean her hours of 5:30am – 1:00pm, as she had been staging a sit-in beyond hours of 9:30am.
Later in the day of 18 October 2021, Mr Chae informed Ms Woodland by text message that there would be no roster for her. The following day he informed her that if she continued to come to the shop without a roster it is trespass. He informed her that if she needed to talk to the Police, she could go to the South Bank Police station, as he had earlier been and there was a reference number linked to the issue between them.
It came to light during the determinative conference that following the dismissal on 18 October 2021, Ms Woodland attended the café on 20 and 21 October 2021 and worked. She helped to open up the café at 5:30am on 20 October 2021. Mr Carpenter tried calling Mr Chae on 20 October 2021 to let him know of the unusual situation, but Mr Chae did not answer. On 21 October 2021, Mr Carpenter sent a text to Mr Chae at 5:35am to say, “Mylie is here as well and working.”
Ms Woodland said that she worked until around 9:45am and wrote it on the hours-worked ledger. She said that she would have turned up on the Friday to work if the Police had not turned up to the café and asked her to move on, which she did.
Mr Chae stated that as part of the involvement with the Police, Ms Woodland was seeking a more favourable Separation Certificate so that she could obtain benefits from Centrelink. He said that if he had included ‘misconduct’ on the Separation Certificate, she might not be able to obtain benefits for some time. He provided to her a second Separation Certificate which did not include ‘misconduct’.
Consideration
Did the Respondent believe that Ms Woodland had engaged in conduct sufficiently serious to justify immediate dismissal?
Whether the Respondent, and namely Mr Chae, genuinely held the belief that Ms Woodland’s conduct justified immediate dismissal is a question of fact.
It is clear that throughout the employment relationship, there had been some difficulties between Ms Woodland and Mr Chae. Mr Chae appeared to me to be an incompetent employer, failing to pay to Ms Woodland her wages on time. She suffered enormous stress at having her wages paid to her late, including insecurity with her rental property. It was incumbent on Mr Chae to pay to Ms Woodland her wages as required by law, but he was hopeless meeting this important obligation.
I am satisfied, however, that in October 2021, Mr Chae lawfully decided that he would have three baristas in his operation. Regrettably, that meant that the hours of work available for the three baristas would reduce on account of sharing of the available hours. As disappointing as that was for Ms Woodland, I do not consider that the decision was for any unlawful reason, and not because Ms Woodland had been making complaints.
Ms Woodland was, I understand, still rostered to work four hours of a morning. I accept that the reduction in hours of work was not acceptable to Ms Woodland, as the reduced payment would not assist her meeting her financial needs. Ms Woodland’s response was eccentric and irrational; she made threats and followed through with them. She continued to stay beyond her rostered finishing time and caused distress to those she worked with and to Mr Chae. She was unable to accept that she must not attend for work beyond her rostered finish time.
Ms Woodland was not entitled to demand that she continue to work the hours she wanted to. Mr Chae was, on the face of it, entitled to roster Ms Woodland for four hours of a morning, despite her disappointment. If she had issues with that course of action, she was entitled to lawfully contest the issue. She was not, however, entitled to remain at work, disobeying instructions to leave. I accept Mr Chae’s evidence that she told him that she expected to be paid for the additional hours he did not want her to work.
While Ms Woodland’s actions did not constitute theft, fraud or violence, I do consider that Ms Woodland’s conduct was sufficiently serious to justify immediate dismissal. She was persistently and determinedly refusing Mr Chae’s instructions not to work beyond her rostered finishing time. I accept that she was making her co-workers feel uncomfortable and they clearly lacked the skills to properly deal with the matter.
While Ms Woodland was encouraging a Police visit, it was Mr Chae who first went to the Police to deal with the situation. He did so prior to the dismissal on 18 October 2021.
Even following the dismissal, Ms Woodland demonstrated her eccentric, irrational, and what I consider to be aggressive conduct by attending upon the café and working for two days. She put the Respondent’s employees in a very uncomfortable position; they were aware of the dismissal but were disempowered to do anything about her attendance. It took for the Police to attend on the café on 21 October 2021 for Ms Woodland to remove herself.
Was the Respondent’s belief based on reasonable grounds?
I find that the Respondent’s belief was based on reasonable grounds. Mr Chae was at a loss to remove Ms Woodland from the café after her short morning shifts. She was insisting upon staying. I consider that Mr Chae reasonably believed that the only way he could prevent Ms Woodland from working beyond her rostered hours was to dismiss her because she was refusing to, at times, take his call, and at other times, arguing over text message and insisting she would work her usual hours.
Ms Woodland’s post-dismissal conduct in returning to work at the café was extraordinary. In my view it reinforces exactly why Mr Chae had to take the action he did on 18 October 2021. Of course, he had no way of knowing, on 18 October 2021, that Ms Woodland would return on two occasions and perform work.
Conclusion
I am satisfied that the Respondent complied with the Code. The jurisdictional objection is upheld.
I must dismiss the application for lack of jurisdiction. An Order [PR741398] will be issued together with this decision.
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