Nadia Dus v The Gold Coast Italo-Australian Club Limited
[2020] FWC 5150
•25 SEPTEMBER 2020
| [2020] FWC 5150 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nadia Dus
v
The Gold Coast Italo-Australian Club Limited
(U2020/1690)
COMMISSIONER HUNT | BRISBANE, 25 SEPTEMBER 2020 |
Application for an unfair dismissal remedy – whether applicant resigned in heat of the moment – applicant not dismissed within meaning of the Act – jurisdictional objection upheld – application dismissed.
[1] On 15 February 2020, Ms Nadia Dus has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from Gold Coast Italo-Australian Club Limited (the Club) and the dismissal was harsh, unjust or unreasonable.
Background and jurisdictional objections
[2] Ms Dus commenced employment with the Club on 28 September 2018 as a casual Administration Officer.
[3] Ms Dus nominated the termination date within her completed Form F2 – Unfair Dismissal application as 29 January 2020. If this was the correct date of dismissal, it would result in her application having been made within the statutory 21-day time limited pursuant to s.394 of the Act.
[4] The Club objected to the application on two jurisdictional grounds; firstly, that Ms Dus had not been dismissed in accordance with s.386 of the Act and instead had resigned from her employment on 22 January 2020. Secondly, the Club contended that if Ms Dus had been terminated, the application was made three days after the statutory time limit.
[5] On 6 April 2020, correspondence from Vice President Catanzariti’s chambers was sent to Ms Dus outlining that the Club had contended that the application was lodged three days outside the 21-day time limit within the Act, and that she may be required to seek an extension of time for her application to proceed. Ms Dus was informed that the Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application in time. Ms Dus was invited to address the relevant criteria.
[6] Ms Dus provided submissions for consideration that are outlined below.
[7] On allocation to me, I determined that both the jurisdictional objections and the merits application should be heard at the same time. Directions were issued to both parties to file material and submissions relevant to the jurisdictional objections and merits of the matter.
[8] The matter was listed for hearing before me on 16 June 2020. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.
[9] Ms Julia Leeds of Gorval Lynch was granted leave to appear on behalf of Ms Dus at the determinative conference. Ms Dus also appeared and gave evidence in support of her application. Ms Robyn Wallace, President, appeared for the Club and gave evidence. On 11 June 2020 after review of the material filed by the Club, I ordered Ms Justine Sandry and Ms Angela Lohrey-Mills give evidence in these proceedings at the determinative conference on 16 June 2020.
[10] It is necessary to note that Ms Wallace is the President of the Club. I understand it is an honorary position. She stated during the determinative conference that she is a successful hotel owner.
The Legislative Framework
[11] Section 385 of the Act sets out when a person will have been unfairly dismissed, and states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[12] Section 386 of the Act sets out when a person has been dismissed from their employment and states:
“386 Meaning of dismissed
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”
[13] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…..
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[14] It is first necessary to determine if Ms Dus was dismissed pursuant to s.386 of the Act. If I find that she was not dismissed pursuant to s.386 of Act, then the application will be dismissed. If I find that Ms Dus was dismissed pursuant to s.386 of the Act, I must first determine the date Ms Dus was dismissed in order to consider whether her application was made within the statutory time limit.
Evidence of Ms Dus
[15] Ms Dus’ evidence was informed by events preceding a meeting held on 22 January 2020.
[16] In early January 2020, Ms Wallace, President of the Club and Ms Dus’ direct manager, advised her that a second employee would be hired to perform accounts work. It is Ms Dus’ evidence that on or around 8 January 2020 she had a conversation with Ms Wallace to the following effect:
| Ms Dus: | Why are you are hiring another office person if the club is losing money? I mean you’ve asked me to work at the bar in addition to my usual duties in order to cut costs. Is this person going to replace me? Is my job safe? |
Ms Wallace: | Don’t worry about it, your job’s safe. The new employee is being hired to replace our bookkeeper and will be taking on the accounts and payroll. They can also assist you with your duties if you’re extremely busy. |
[17] On or around 15 January 2020, Ms Lohrey-Mills was recruited by the Club to fill the second office position.
[18] Ms Lohrey-Mills was previously business partners with Mr David Johnstone who operated and ran the Elvis Museum out of the Club’s Colosseum Room in 2019. Ms Dus’ evidence is that Mr Johnstone had filed a claim with the Queensland Civil and Administrative Tribunal (QCAT) seeking a percentage of the bar takings at the Club during the Elvis Museum’s period of operation. Mr Johnstone had requested copies of bar reports from the Club to support his QCAT claim. As far as Ms Dus was aware, the reports were never provided to Mr Johnstone.
22 January 2020
[19] On 22 January 2020, Ms Lohrey-Mills approached Ms Dus during the morning, and according to Ms Dus, the following was discussed:
Ms Lohrey-Mills: | I’ve been talking to Robyn about the current profit and loss statements and she’s asked if you can get me bar taking printouts for all events from the past year? |
Ms Dus: | Why would you need all that information? That’s a bit odd. Let me just go and confirm with Robyn. |
[20] Ms Dus was suspicious of Ms Lohrey-Mills’ request given her prior business relationship with Mr Johnstone. She considered the documents requested by Ms Lohrey-Mills were those which had been sought by Mr Johnstone.
[21] Ms Dus sought clarification from Ms Wallace. Mr Carlo Marchesoli, Vice President of the Club was with Ms Wallace when the following was discussed:
Ms Dus: | Robyn, did you ask Angela to ask me for bar reports from all events from the past year? It’s just a little bit strange because she used to work with David and that’s the exact information he wants. |
Ms Wallace: | No, I never asked her to do that. Why don’t you go and grab Angela and some paper and come here to sit down. |
[22] At approximately 12:00 pm on 22 January 2020 a meeting was held to discuss Ms Lohrey-Mills’ request for the documents. Ms Dus, Ms Wallace, Ms Lohrey-Mills and Mr Marchesoli attended the meeting that occurred in the bistro of the Club. Ms Dus states that the following was discussed:
Ms Wallace: | So what’s going on? |
Ms Dus: | I’m just a little concerned that Angela asked me for the information that David wants and that she told me that you had asked her to get them from me when you didn’t. |
Ms Lohrey-Mills: | I actually didn’t say it like that, I worded it differently. |
Ms Wallace: | Ok look, just give Angela the documents, she clearly didn’t ask you for them in the way you think she did. |
Ms Dus: | Why are you now telling me to give them to her when 5 minutes ago you told me that you didn’t ask for them and that I shouldn’t give them to her? |
Ms Wallace: | I didn’t say not to give them to her, stop trying to start trouble. |
Ms Dus: | I wasn’t trying to start trouble, I’m just concerned for the club and asked a question. |
Ms Wallace: | Your attitude is just so wrong. Clearly you are the reason why the club is losing $100,000 a year, you’ve shown such a poor attitude and have not made any meaningful contribution to the club. |
[23] Ms Dus stated that the meeting escalated to Ms Wallace berating her, her attitude and the quality of her work for several minutes without letting her respond to her comments. Ms Dus stated she burst into tears and felt that she was backed into a corner and could not defend herself. She briefly left the table to compose herself and when she returned, it is her evidence the following conversation took place:
Ms Wallace: | Nadia, there is no space in the workplace for your attitude and your work. I’ve asked you to do so many things over the past few weeks that you haven’t done. You tell me that there is only one of you and that you can’t possibly do everything, but then when we hire someone to help you, you automatically think the worst of them and try to make trouble. This is just more evidence of your terrible attitude |
Ms Dus: | Well if that’s what you think of me, then I’ll quit. |
[24] Ms Dus stated that following the meeting she returned to her desk and continued to perform her usual duties until approximately 4:00 pm.
[25] That evening, the following text messages were exchanged between Ms Wallace and Ms Dus on 22 January 2020 and 23 January (original text kept):
Ms Dus: | Robyn, I’m devastated about what happened today and just so u know… the last thing I wanted to do was leave. I’m sorry. I was just so upset at what eventuated… and all because I genuinely had the best interests of the Club at heart. It wasn’t personal it was honestly me being concerned… and turns out I was right to b concerned. I sear on both my dogs lives that what I told u Angela came and said to me was exactly that. There was no way she meant anything else, she couldn’t have. I thought the world of her until today. When u told me u didn’t ask her to come to me and ask for the figures of the bar takings for each event over the past year that screamed alarm bells to me because I know that was the information David wanted so he could go thru with his Court bullshit. That’s why I came straight to u. I was quite surprised it didn’t raise alarm bells to u aswell. To b sat down and have u say what u said to me, whilst others were present… I’m sorry but that really upset me. It only just made my insecurities about my job even worse and made me feel like an absolute idiot, an unappreciated one at that. If u felt like that about me I just hoped u would have said it to me alone rather than in front of other people. I truly work so hard in my job, I try so hard to make a difference in a situation that isn’t exactly easy, I’m not lazy and lately have had a lot of responsibility which doesn’t bother me either. I’ve worked my ass off. So I’m sorry if u felt I was being disrespectful or having attitude today, it truly wasn’t the case at all. I’ve got a lot more respect for u than u think. I actually look up to u as a person and I think of u as not just my boss, but a friend aswell, so I’d never intentionally disrespect you. I just felt like it was a massive kick in the guts for me and I felt like I was somewhat backed in a corner. To say what u did today in front of others really hurt, that’s the only reason I got up and walked away for five minutes. I was upset. In my eyes all I was doing was coming to make h [you] aware of a situation that I thought would concern u, it wasn’t to have a whinge or a bitch, I’m past that, all it was was to relay to u what i was asked because I felt iwas something that was concerning, and I’m sure anyone else would agree, given the situation the Club was in because of David’s bullshit and the fact he had asked for the same information not even a week prior. I never intended for things to go awol like they did. U know as well as I do that I actually like my job and I’m grateful to have had one, and I need it more than I need fresh air right now… I just wanted to try and help u understand that I was pretty upset to walk out. It’s the last thing in the world I wanted or needed right now [emoticon of sad face]. |
Ms Wallace | Nadia the day you except your part in what happened today then you will be worth so much more as a friend and an employee, never in my working career have I put up with the disrespect you have dished out over the last 18 months not turning up to work on so many occasions more than I care to think about, bringing the dog in, the moment you are challenged you go into a sulk, all the drama you are involved in that are never your fault it is always some else’s fault, just last week the drama of loosing your house, every time this happened I would think back to the same next the dog will be here again, never on time to work never, I could not rely on you to even open for the bookkeeper & who always covered for you me. I truly wanted to take you to the next career place lift you above what you are doing now, if for one second you didn’t see what you had to offer yes you have some great gifts, I know you had my back you were loyal but at what cost. I run a business from afar if my staff were losing money we loose do you think I would try & fix it no I would make them do it or they would be gone & I would find someone who cold. None of you get it & no one worries about it except me when was the last time you lookd at the weekly profit & loss you could do it by looking at the takings & then the costs staff & outgoings at least instead of pushing me to do these small change gig works on the big functions eg wakes, weddings did you ever send even one brochure to any organistaion. Today no staff rosters, when was the last time you put up an events calendar I will tell you October, I asked you a week ago to fix the webpage & put Saturday on. Yes his could all be because there are to many jobs for one staff member to do, solution put on someone else that you would direct to do the extra work & work as a team but no you decided she was going to take your job, no she wasn’t she was going to be the person who gave you the time to get all this done but you blew it, if I was you I would had had her running so fast so should have met herself coming back but you weren’t able to stand up and take the management roll so you screwed it up not me. One other think I asked her a week ago to look at the profit & loss of the bar maybe I am wrong but I trust what she asked for not saying something to you in front of Carlo & Ange you don’t think we were in a panic last Friday when you decided to go on strike and leave 2 people there on Friday of all days who didn’t have a clue how to do anything, poor Carlo how many times have you put him in a bad situation when he was trying to find you. One other thing Angela never told David about the bar takings that was Darren & he thought what David wanted to do was a good idea, as we don’t have anyone running the club, his words when I confronted him today, so what do you think I should do what that Judas, don’t answer I already know what to do. All I ever tried to do was support you, but you make it impossible. |
Ms Dus: | That Facebook and web page r up to date. I printed and posted a Jan calendar but took it down because there were gaps and changes in entertainers. There r gaps every month from now on. If u look at my computer u will see I have even already done Feb calendar but there r holes in it so I haven’t posted it. I’ve done all the posters for next month aswell. I’ve been trying for months to get these functions packs out but we couldn’t because of the kitchen. They r all … had many idea that I know will help but no one ever listed. So from what uv written am I right in saying that u don’t understand why today upset me so much and u don’t want me there anymore? |
Ms Wallace: | If I thought you would change but you won't tomorrow will just be another drama if not tomorrow the day after, if you truly care as much as you say you wouldn't walk out & leave everyone in the lurch, you would have said I resign I will leave in a week. |
Ms Dus: | But what did I do wrong today by coming and telling u what I did? Was it a drama that I was concerned by what u was asked to do? U told me urself u never asked her to ask me that. What would have happened if I had given her that information and not cared about the Club. I told u I was sorry for walking out and i didn't want to. I meant that. I'm truly sorry if I caused drama in the past, it's the last thing I ever wanted and to be honest I really enjoy being at work… I appreciate everything u have done for me and the fact I even have a job, despite what u may think or how it may look. I always did my absolute best and had high hopes now that there is finally a good chef so I am quite upset at the way this has panned out.. we all have problems and yeah maybe I should have told u a few things. I t may have helped u understand how much my job actually meant to me. I don’t blame anyone for anythings that’s happened to me, only one thing which destroyed my life completely and I don’t like to talk about it. I don't even think I told my parents exactly what happened ... it was terrible, no one deserves that and I still find it hard to deal with at times ... but that's the only thing I've ever really blamed someone else for. I take full responsibility for things I do wrong, always. I'd never point the finger and blame anyone, Maybe I should have told u I don’t know, it may have helped u see how much my job actually ment to me… and why I needed it so badly.. if u don’t want me there there’s nothing I can do about it tho. I am sorry tho for what happened and I’m sorry that I think so little of me and the way I did my job. I really enjoyed working with u. It wasn’t the way u thought it was tho, honest. All those things u thought I hadn’t done were done. |
Ms Dus: | And another thing, I never had access to the accounting system or any profit and loss reports etc, I didn't even have access to Justine's computer so it kind of made it hard for me to b able to constantly monitor that. I never got shown any financials. All I ever got shown was when the bar takings didn't add up and even u said urself how was I able to work that out without access to thin s. Also I never said that Angela told David what the bar taking were. I said that Angela had approached me this morning and thold me that u had asked her to ask me to give her the takings for each event we have had. When I asked u if that was true and u said no. U and I had the discussion about the job after last week and I was happy with what u discussion about the job after last week and I was happy with what u told me. I even told Angela this when I started this morning. We were fine. Maybe I should have just given her what she wanted but considering who she used to, not only work for but b in business with, I thought I was doing the right thing by consulting u because I thought it was a strange request and u urself told me u didn't ask her to do that. So really I lost my job because I was looking out for the best interests of the Club ... as much as I like her I still think u need to b careful as it was only a week or two ago she was signing those letters and everything else. U were so quick today to run me. U were so quick today to run me down in front of her, as if it was all my fault that we lost the money, quick to forget about anything food that I had done. That’s the bit that hurt the most. I’ve worked my ass off. I didn’t deserve that. Yes I am still awake so no it's not only u that loses sleep. I'm sorry for the message at stupid o'clock but I've been sitting here all afternoon and all night upset at everything that's happened. |
23 January 2020
[26] Following this text message, Ms Dus’ evidence indicates that multiple screen shots of marketing data from the Club’s Facebook page was sent to Ms Wallace at 5:32 am on 23 January 2020.
[27] In reply, Ms Wallace sent the following text message at 7:19 am on 23 January 2020:
“What is the point, if I didn't know what contribution you have made to the club especially marketing then I would be a fool, the point you have not taken on board is you can't spend 18 months having major dramas eg being homeless and not turning up to work and then not expecting people to say enough is enough, for all the good you do it was counteracted by the worry of weather you would turn up or not there was always going to come a day when I would snap any other person who ever worked for me wouldn't have lasted a week but I kept giving you another chance & then another chance yesterday was the final straw no that you told me about Angie but your attitude, there is no place in the workforce for attitude or not being reliable, Nadia you did this to yourself no one else, until you face the fact that you alone put yourself in this position your outcome will always be the same.
Perhaps if I hadn't received these texts and you not excepting your part in what happened the outcome may have been different you can only push people so far.
I hope you find what you are looking for.” [Original text]
[28] Ms Dus stated that following the above text message exchange she was unsure about the status of her employment with the Club. She had the impression that Ms Wallace did not want her to return to work the following day.
[29] At approximately 3:00pm on 23 January 2020, Mr Marchesoli went to her house to pick up some party invitations that Ms Dus was preparing for him. A conversation occurred between the two regarding the meeting which had occurred the previous day. It is Ms Dus’ evidence the following conversation took place:
Mr Marchesoli: | I spoke to Robyn and told her she should apologise to you and that you should return to work as normal. I’m disgusted at the way she treated you yesterday. Unfortunately she’s not listening to me and she keeps refusing to let you come to work |
Ms Dus: | So what does that mean? Do I not have a job anymore? I’ve just moved into this apartment to be closer to work, my rent needs to be paid and now I have absolutely no idea where I stand. |
Mr Marchesoli: | It might be a good idea to write to the committee. |
28 January 2020
[30] On 28 January 2020, Ms Dus wrote to the Club’s committee and Ms Veronica Kovac, the Secretary of the Club explaining the events of 22 January 2020 and sought to clarify the status of her employment. Although lengthy, it is necessary to set out the letter in full:
“28 January 2020
The Board
The Gold Coast ltalo-Australian Club
[address]
To members of the Board,
RE: EMPLOYMENT
I am writing this to you to make you aware of the compromised situation I am in and also to clarify my position with The Gold Coast ltalo-Australian Club.
There was a meeting held last Wednesday . During this meeting between Robyn, Carlo, Angela and myself, with all due respect, I felt that Robyn verbally attacked me personally and the standard of my work. Robyn also directly blamed me for the financial situation the Club is in and had only told me the day before that the Club had lost $100k in the last financial year.
Prior to this meeting, Angela had come to me and requested the bar takings for the events over the past year. Angela told me that Robyn had requested this. This rang alarm bells to me because it was the same information David had requested and is also what he is trying to get the Club to pay him. He issued the Club with Court documents only the week before with a Court mediation set down for 10 February 2020. No doubt you are all aware of the drama David is causing the Club. The fact Angela had asked me for this information caused me some concern. I questioned Robyn about it and was told that she never asked Angela to request that information from me.
Robyn then asked both myself and Angela to come and sit with her and Carlo for a meeting. This meeting came about after I raised the concern to Robyn regarding Angela's request for information which, to me, was in general concern for the Club. I thought it was strange that Angela would ask me for the same information that David had asked for.
At this meeting, amongst other things Robyn questioned my abilities and my work and then went on to yell at me in front of Carlo and Angela. I was shocked to the point I felt I had to walk away so I excused myself and left for five minutes. When I came back to the meeting, I was again belittled and spoken down to so I left and went back to my desk. I'm not often left with nothing to say but I was so upset and stressed from the way I was treated that I had to leave. Prior to leaving I gave Angela my set of keys to enable her to lock the bar and the Club because she had no keys of her own.
During that evening and the following day there were a number of texts sent between Robyn and myself. In those text messages Robyn implied that I no longer have a job. I am happy to provide the Board with copies of these texts if required.
Regarding my work and Robyn's claims that I had not done my work and that it wasn't up to date, the Wordpress back end and login details, as well the dates on my computer will confirm that my work was up to date. I always work above and beyond my required hours, as you are aware. In order to save the Club money and to cut down on costs, leading up to the day of the meeting I had been doing the job of two people, both doing my front desk position as well as doing the bar, running back and forth all day.
The Club employs a bookkeeper to manage the financials. I have never had access to profit and loss statements or the Club's bank accounts. I can't even login to the computer used by the bookkeeper.
I have been very committed to the Club. The following are the jobs I have been doing:
1. Front desk management/reception
2. Answering phone
3. Meeting and greeting members and guests
4. Processing memberships and maintenance of member's register
5. Preparing outgoing correspondence
6. Social media maintenance
7. Website maintenance and updates
8. Online marketing
9. Importing/exporting databases
10. Email marketing using Mailchimp and Microsoft Outlook
11. Preparation of advertising for letterbox drops
12. Designing advertising and marketing material for events and entertainers 1 3. Booking and liaison with entertainers
13. Preparation of mail
14. Preparation of invoices in relation to functions and grounds hire/lease
15. Answering incoming enquiries and taking customer bookings 1 7. Booked and organised private functions from beginning to end 1 8. Preparation of function packs
16. Weekly reports on bar takings for bookkeeper
17. Petty cash payments and weekly reconciliation
18. Archiving documents
19. Ordering stock for bar
20. Working behind the bar
21. Cash handling and counting floats
22. Reconciliation of daily takings from front desk (and also bar when I was working in that area).
23. Processing credit card payments in, person and over the phone
24. And whatever else I needed to do for the Club
As you can appreciate I am really stressed and am unsure of what to do. The point is have I been dismissed? Shall I come back to work as of tomorrow? I would like to know what my position is because of this situation?
If I am unable to return to my position. I feel like I have been unfairly dismissed from a job that I enjoy and have worked so hard towards, as you all are aware.
I accept that there have been times that I have been late due to having no drivers licence and I apologise for that however I always ensue that my work is done, and don't leave until it is, to make up for being late.
I have even, by my own choice, diverted the office phone to my mobile over some weekends to ensure the Club doesn't miss out on any bookings leading up to functions or events.
I would really like to resolve this. I have been advised to contact a lawyer but I would rather continue to work.
I await your reply.
Kind regards,
Nadia Dus”
29 January 2020
[31] Ms Dus stated that she did not receive a formal response to her letter. The following day, Mr Bruno Tonasov, one of the Club’s committee members telephoned Ms Dus to confirm receipt of the letter and advised he would speak with Ms Wallace to ensure that she could return to work.
[32] Ms Dus received email correspondence from Ms Wallace regarding the status of her employment on 29 January 2020 as follows:
“Dear Nadia
On Wednesday 22nd January, in front of 3 witnesses, you resigned on the spot. You then went into the office and told Justine you’d resigned as well. You also gave no notice and put the Club in a very difficult position. At no time did anyone fire you. In the ensuring time we have replaced you with another office person. Thank you for your time with us but your position is no longer available.
Kind regards,
Robyn Wallace
President”
[33] Ms Dus submitted that the email from Ms Wallace left her completely shocked as it was the first time she had been notified that she was no longer employed by the Club and that she had already been replaced.
[34] Ms Dus responded to Ms Wallace’s email at 12:39 pm on 31 January 2020 as follows:
“Dear Robyn,
Thank you for your email.
I did not resign. I had have resigned. I would have done so in writing and I would have given the Club adequate notice.
It was quite obvious that the comment I made during the meeting was made in the heat of the moment and due to the fact I was upset at the way in which I was treated by you and so shocked that you chose to do so in front of other people.
I believe the things you said, both to me and bout me, were unfair and unjust. I believe you acted in a very unprofessional I manner towards me and the things you were saying clearly upset me and shocked me to the point I felt I had to leave. I did not just walk out. After this happened I continued to work, both at my desk and behind the bar before leaving later that afternoon.
That same evening, being Wednesday 22 January 2020, I sent you a number of messages which told you how much I appreciated my job and that I wanted to come back the following day. It was you who told me, in not so many words and amongst other things, no to come back to work. Your messages implied that I no longer had a job.
I had spoken with you only two weeks prior regarding my job as I was concerned as to why you would put someone else on in the office when I told you I was capable of doing the accounts, processing invoices and payroll if need be. I raised my concerns with you and asked whether you were intending on replacing me because I couldn’t understand your reasons for putting another person on, especially when you told me you were trying to cut costs. You told me that Angela was being hired to do the accounts, to work in the bar and to assist me should I need it. You very clearly told me it was NOT to take my job.
Prior to this meeting I had been working the job of two people, both behind the bar and doing my front desk duties, which I outlined in my previous letter. You told me this needed to be done to cut cost. I had been working very hard to make sure both jobs were done, and they were. I am able prove that.
My question to you is, if no one fired me then why did you not let me return to work when it was very clear, in my messages to you, that that's all I wanted to do???
My messages to you very clearly state how much I appreciate and want my job.
I didn't leave the Club in a very difficult position at all, I know how much work I do and I know it needs to be done which is why I sent those messages to you. It was you who implied I was not welcome to come back. Now you tell me you have already replaced me and my position is no longer available???
Your reply to my letter stated that "in the ensuing time we have replaced you with another office person'. Does this mean that you lied to me to me when you told me my job safe? Was it your intention all along to get rid of me? Is that why you tried to blame me for the loss of money?
As far as I'm aware the only new person in the office is Angela, who started the day before we had the meeting.
I await your reply.
Kind regards,
Nadia Dus”
[35] Ms Dus stated that she did not receive correspondence from Ms Wallace or the Club about her employment following her email dated 29 January 2020.
Evidence of the Club
[36] On 21 February 2020, the Club filed its Form F3 – Employer response to Unfair Dismissal application. The Club raised the jurisdictional objections that Ms Dus had resigned from her employment on 22 January 2020 and was not dismissed in accordance with s.386 of the Act and furthermore, Ms Dus’ application was made three days after the statutory time limit.
Ms Robyn Wallace
[37] Ms Wallace submitted that Ms Dus had not been dismissed. She stated that on 22 January 2020, Ms Dus demanded a meeting to which she agreed to. At that meeting Ms Dus made an allegation against Ms Lohrey-Mills. Ms Wallace stated that Ms Dus would not accept her explanation that she had issued a direction to Ms Lohrey-Mills to review the profit and loss statement, nor would she listen to Ms Wallace.
[38] Ms Wallace stated that Ms Dus then requested a written job description, to which Ms Wallace advised was unnecessary as Ms Dus had been performing the role for 18 months.
[39] She stated that Ms Dus then left the discussion, and Ms Wallace found this to be annoying given it was Ms Dus who had wanted the meeting. When Ms Dus returned to the meeting she would not talk, and Ms Wallace asked her to state what she wanted. Ms Dus responded that she wanted the same duties. Ms Wallace informed her that she held the same position and Ms Lohrey-Mills was to assist Ms Dus, when required.
[40] It is Ms Wallace’s evidence that Ms Dus stood up and stated, “I resign, I am out of here”. Ms Dus then sat at reception for about an hour, assisting in the bar area for approximately 10 minutes, making coffees.
[41] During the determinative conference, Ms Wallace stated that she did not want to have the meeting with Ms Dus on 22 January 2020, and she simply wanted Ms Dus to get on with her own work. Ms Wallace had not wanted to employ Ms Lohrey-Mills, but it had been Ms Dus who had wanted that to occur. Ms Wallace’s evidence is that Ms Dus had informed her that Ms Lohrey-Mills would be good for the Club as she could put together big shows and was easy-going.
[42] When approached by Ms Dus, she stated that she had asked Ms Lohrey-Mills to obtain the statements. She told Ms Dus to sit down. Ms Wallace held many concerns with respect to Ms Dus’ employment, including her continued insistence on bringing her very large dog to work when it was not permitted, and her tardiness. None of this was discussed at the meeting of 22 January 2020. She simply wanted her to work out the roles between herself and Ms Lohrey-Mills.
[43] Ms Wallace considered that Ms Dus had resigned her employment and chose not to allow her to withdraw it. She did not want to give her a second chance as she considered that she had been through a lot with her.
[44] She stated that very quickly after Ms Dus’ resignation an ad was placed on Gumtree and it was filled by an Italian woman who didn’t work out. It was then later filled by another person. She said the role was filled “in hours”.
Ms Angela Lohrey-Mills
[45] Ms Lohrey-Mills stated that she met Ms Dus when her previous business, Gold Coast Entertainment Network was hiring a room in the Club for an Elvis Presley museum. When the Club severed the contract with Gold Coast Entertainment Network, she was required to find part-time employment. Ms Dus had suggested that the Club hire Ms Lohrey-Mills and she then commenced on 15 January 2020 working three days per week.
[46] Ms Lohrey-Mills agreed with Ms Wallace that she would take care of the bigger entertainment shows, assist with accounts, serve in the bar when she was suitably trained, and help Ms Dus where required.
[47] Ms Dus was busy on 15 and 16 January 2020, and Ms Lohrey-Mills offered to assist. This was politely refused by Ms Dus, who explained that she was angry with Ms Wallace for having been put on bar duty. Ms Lohrey-Mills thought it odd that Ms Dus arrived late for work at 10:00am on both days when she was due to commence at 9:00am. The Club’s meeting minutes needed to be prepared which only Ms Dus could do.
[48] By the afternoon of 16 January 2020, Ms Lohrey-Mills’ evidence is that Ms Dus was becoming angrier. When she asked her for the entertainment calendar, Ms Dus replied, “I DO the entertainment”. Ms Lohrey-Mills was aware of this, but she needed to see the calendar to determine if there were spots available for the large shows. Ms Lohrey-Mills responded that she understood Ms Dus’ role and she was available to help her.
[49] When Ms Lohrey-Mills assisted Ms Dus clean tables, Ms Dus said to her, “You’re on the big money so you should be doing what you’re [paid to do]”. Ms Lohrey-Mills did not know Ms Dus’ hourly rate at the time and continued to assist cleaning the tables. Her evidence is that she is now aware that Ms Dus’ rate was higher than her own.
[50] Later in the afternoon whenever anybody asked her a question she responded, “It’s now Angela’s job, ask her”. Ms Lohrey-Mills explained to her that they each had roles and she would be happy with set job descriptions so they could each understand their responsibilities.
[51] That afternoon when Ms Dus had completed the minutes, Ms Lohrey-Mills considered that she was still angry. Her evidence is that Ms Dus stated that she was going to sit at the reception computer and “resign”, but then stood to leave and said she would instead resign from home. Ms Dus did not print the minutes, as required, and given there were issues with the printer, Ms Lohrey-Mills had to drive home and print the meeting minutes from her home and return to the Club.
[52] On 17 January 2020 Ms Dus had not attended for work and at 10:15am Ms Lohrey-Mills rang and left a message for her and then sent her a text message asking if she was OK and what she was doing. Ms Dus returned the text asking why she wished to know. She further stated that she was annoyed with Ms Wallace. Ms Lohrey-Mills replied that even if Ms Dus did want to resign, she would encourage Ms Wallace to hire another person and she only wanted to work three days per week, and she wasn’t looking to replace Ms Dus. She encouraged Ms Dus to come in to work so it could be discussed. Ms Lohrey-Mills was, by this stage annoyed with Ms Dus because of her negative attitude. Ms Dus didn’t say she was coming in to work and this affected Ms Lohrey-Mills’ ability to learn the role.
[53] When Ms Wallace arrived at the Club on 17 January 2020, Ms Dus wasn’t there. Ms Lohrey-Mills explained the situation. She offered to leave the role, but Ms Wallace informed her no, she was needed, and it had been Ms Dus who had wanted help hence why she was employed.
[54] Ms Dus attended the Club after having been to Campbells. Ms Lohrey-Mills said that she considered that Ms Dus was distant with her, but not angry. She stayed for an hour helping Matt at the bar and then left. As she was leaving Ms Lohrey-Mills said, “I’ll see you next Wednesday”, to which Ms Dus replied, “No you won’t”. Ms Lohrey-Mills’ evidence is that Matt informed her that Ms Dus had told him she was “on strike”.
[55] On 22 January 2020, the next day Ms Lohrey-Mills attended for work, she wasn’t sure what to expect, however Ms Dus was fine with her. She described the mood as happy until she requested the financial figures for the functions so she could work out costings for the P&L. She considered that Ms Dus became suspicious and asked her why she wanted them. She explained that Ms Wallace wanted her to work on them for profitability. Ms Dus said she’d ask Ms Wallace and when she returned, she stated that Ms Wallace had never asked Ms Lohrey-Mills for the figures. Ms Lohrey-Mills said yes, she did, and let’s go ask her. Her evidence is that Ms Dus became angry and said, “Let’s do that”.
[56] The meeting with Ms Wallace took place and Ms Wallace confirmed that she did want Ms Lohrey-Mills to have the figures. Ms Dus wanted to know what her job was now, having become angry. Ms Wallace asked her what she wanted to do, to which Ms Dus replied that she wanted her job. Ms Wallace responded, “You have your job, work as a team”. Ms Dus became agitated and left the table and returned a few minutes later. Ms Lohrey-Mills doesn’t recall all of the conversation but understands it was tense with Ms Wallace becoming frustrated at Ms Dus’ behaviour and Ms Dus being uncooperative.
[57] Mr Marchesoli was at the meeting and tried to encourage Ms Dus to “work with everyone”. After a further period of time Ms Dus stood and said words to the effect, “I’ve had enough, I’m resigning”. She then went to reception.
[58] The meeting concluded, and when Ms Lohrey-Mills went to reception Ms Dus accused her of using the wrong word “function” to “set her up” and make Ms Wallace angry with her. Ms Dus stated that she had now taken her job, she hoped Ms Lohrey-Mills was happy, and Ms Dus knew a rat when she saw one, and if she lost her house it was on Ms Lohrey-Mills’ head. Ms Lohrey-Mills explained to Ms Dus that she didn’t have to leave, it was her job, she had her own and nobody wanted her to leave.
[59] Ms Lohrey-Mills stated that after around 15 minutes or so she lost her patience and refused to discuss it with Ms Dus any further. She considered that she was being irrational, so she went to assist Ms Wallace with the bar. Ms Dus further assisted by making coffees. Ms Lohrey-Mills thanked her to which Ms Dus angrily replied, “Well you’ll have to learn it, it’s YOUR job now”.
[60] Ms Lohrey-Mills spoke to both Ms Dus and Ms Wallace and said that if she had incorrectly used the word “functions” earlier she apologised, and it was unintentional.
[61] Ms Lohrey-Mills’ evidence is that after a further uncomfortable period of time Ms Dus left the Club keys with her, walked out, still accusing her of taking her job and said, “Good luck”.
Ms Justine Sandry
[62] Ms Sandry is the Managing Director of Office Fundamental, a bookkeeping service to the Club. Her evidence is that she arrived at the Club at 10:00 am on 22 January 2020 to complete bookkeeping services.
[63] It is Ms Sandry’s evidence that while she was working in the office behind reception, Ms Dus entered the office and stated that she had just quit. Ms Sandry asked Ms Dus what had happened, however Ms Dus walked out of the office. Ms Dus returned to the office approximately 10 to 15 minutes later and stated that she had quit because she had been told by Ms Wallace that she was shit at her job and she did not deserve to be spoken to like that.
[64] Ms Sandry’s evidence is that after making these comments, Ms Dus finalised a few administrative task and continued to provide instructions and information to Ms Lohrey-Mills about outstanding tasks. Following this, Ms Dus gave the Club keys to Ms Lohrey-Mills and packed her personal belongings. During the determinative conference Ms Sandry stated that she observed Ms Dus finalising tasks and doing a handover. Ms Dus sat at reception with her handbag in her lap when she was meant to be working.
[65] Ms Sandry stated that as she left the Club, Ms Dus said “Good luck”. She did not consider it to be a kind comment.
[66] In a second statement titled “Nadia’s Work”, Ms Sandry provided seven dot point examples of problems she experienced while working alongside Ms Dus.
Reply evidence of Ms Dus
Reply to evidence of Ms Wallace
[67] Relevant to Ms Wallace’s concern in being asked for a job description by Ms Dus, Ms Dus did not consider it was an unreasonable or onerous request, particularly when Ms Lohrey-Mills had just commenced work and some tasks were overlapping. She considered that a job description would have allowed the two to understand where the tasks fell.
[68] Ms Dus stated that during the meeting on 22 January 2020 she went to the bathroom to calm down. When she returned to the meeting Ms Wallace would not give her an opportunity to speak, saying words to the effect, “Shut up and don’t be disrespectful”.
[69] Ms Dus denied saying that she resigned, but agrees she said, “If that’s what you think of me, I’ll quit”. She described them as never forming a resignation. She stated that she was hurt and frustrated by Ms Wallace’s statements about her attitude and performance and considered they had not earlier been raised with her. She stated that her comment was made in the heat of the moment and was an attempt to convey how upset she was that Ms Wallace had made hurtful comments. She submitted that it was not a clear resignation.
Reply to evidence of Ms Lohrey-Mills
[70] Ms Dus denied that she made any comments about resigning her employment on 16 January 2020. Her evidence is that she said to Ms Lohrey-Mills, “I’m going to forward the recording to myself and finish the minutes at home.” Ms Dus did not provide evidence that she did, in fact do that and then provide the minutes to the committee.
[71] Ms Dus denied that she said to Matt that she was “on strike”.
[72] Relevant to Ms Lohrey-Mills’ evidence regarding the coffee discussion, Ms Dus stated:
“I did attend the bar to assist with the line of customers as this task formed a part of my day to day duties. I was under the assumption that this task would be transferred to Ms Lohrey which is why I told her that running the coffee machine was her job. My comments were not rude nor did they relate to my alleged heat of the moment resignation.”
Reply to evidence of Ms Sandry
[73] Ms Dus denied that she entered the office and said to Ms Sandry “I’ve just quit”. She recalled entering the office in tears immediately following the meeting with Ms Wallace, Ms Lohrey-Mills and Mr Machesoli and recounted the meeting to her. She said to Ms Sandry, “If that’s what Robyn thinks of me, then I’ll quit”.
[74] Ms Dus denied leaving the workplace in any other way than she normally would. She stated that she provided the Club keys to Ms Lohrey-Mills because she would need to lock up after Ms Dus had left. She stated that she simply collected her handbag as she normally would.
[75] Ms Dus concluded that she had not resigned her employment and had intended to work as normal, and therefore there was no reason to discuss with Ms Sandry any issue about her return to work.
Evidence given during the determinative conference
[76] Ms Dus specifically denied making a sarcastic comment to Ms Lohrey-Mills as she left on 22 January 2020, stating, “Good luck”.
[77] Ms Wallace put to Ms Dus that she had previously threatened to resign from her employment. Ms Dus denied this.
Ms Dus’ submissions
[78] Ms Dus submitted that she did not resign from her employment on 22 January 2020 and the relationship did not end until such time as she was dismissed on 29 January 2020 at the Club’s initiative.
[79] It was submitted that the Commission is tasked with determining if Ms Dus’ comments on 22 January 2020 amounted to a heat of the moment resignation
[80] Ms Dus referred to the decision in Kwik-Fit (GB) Limited v Lineham 1992 IRLR 156 (“Kwik-Fit”), which provides at [188] with respect to the test to be applied: 1
“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’)... These we refer to as ‘special circumstances’. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.”
[81] Ms Dus also referred to the decision in Sean Jen Eyong v Vital Packaging [2017] FWC 887 in which Commissioner Williams stated at [54] in applying the Kwik-Fit test: 2
“The Courts have in the past found that where there are special circumstances it may not be reasonable to immediately accept an apparent resignation but rather that a reasonable period should first be allowed to pass to see if circumstances arise which put the employer on notice that it would be desirable for them to make further enquiry to ensure that resignation was really intended. That said where an employee unambiguously communicates their intention to resign no further enquiry is required.”
[82] Ms Dus submitted that she did not unambiguously communicate her resignation to the Club on 22 January 2020 by stating, “If that’s what you think of me, then I’ll quit”. She submitted that the words were said in the heat of the moment during which time she was aggrieved. She submitted that the argument with Ms Wallace constitutes a special circumstance.
[83] Given the existence of the special circumstance, it was submitted that it was unreasonable for the Club to assume that Ms Dus had intended to resign on 22 January 2020 and to have immediately accepted her resignation. It was submitted that the existence of a special circumstance creates an onus on the part of the Club to allow a reasonable period of time to pass, to determine whether there was some other indication to show that the resignation was not intended by Ms Dus. 3
[84] It was submitted that the following demonstrates that Ms Dus clearly indicated to the Club that she did not intend for her comments during the 22 January 2020 meeting to be taken as her resignation:
(a) Immediately following her comments, she returned to her desk and continued on with her regular work duties until her scheduled finish time;
(b) On the evening of 22 January 2020 she sent lengthy text messages to Ms Wallace apologising for her part in the argument and indicating her intention to return to work;
(c) On 23 January 2020 she met with Mr Marchesoli to further clarify the status of her employment;
(d) On 28 January 2020 she wrote to the Club’s Committee seeking clarification as to whether she had been dismissed from her employment; and
(e) She did not provide the Club with any written letter of resignation.
[85] It was submitted that the above circumstances were sufficient to have put the Club on notice that further enquiry was required to determine Ms Dus’ true intentions. It was submitted that if Ms Dus had truly intended to resign from her employment on 22 January 2020, she would not have engaged in such significant and repeated attempts to clarify the status of her employment.
[86] It was submitted that the Club failed to act reasonably when forming the assumption that Ms Dus had allegedly resigned in the heat of the moment on 22 January 2020. Ms Dus contends that the step that effectively terminated her employment was the email sent by Ms Wallace on 29 January 2020.
[87] Ms Dus submitted that she was never made aware that the Club had allegedly accepted her heat of the moment resignation on 22 January 2020, despite her repeated enquiries into the status of her employment. She contended that had she intended to resign from her employment on 22 January 2020 there would be no need for Ms Wallace to clarify this fact seven days later.
[88] Ms Dus submitted that rather than taking the time to discuss the events of 22 January 2020 with Ms Dus, the Club immediately accepted the resignation and sought Ms Dus’ replacement. Pursuant to authorities, Ms Dus submitted this was an unreasonable act on the part of the Club.
Consideration
[89] It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation.4
[90] However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.5 Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.6
[91] I have had regard to the evidence leading up to the events of 22 January 2020. I accept Ms Lohrey-Mills’ evidence that on her second day of work, on 16 January 2020, after having been employed at the urging of Ms Dus to Ms Wallace, Ms Dus was carrying on at work in an aggressive manner. In my view, having regard to Ms Lohrey-Mills’ evidence, Ms Dus was making the workplace uncomfortable, carrying on as though Ms Lohrey-Mills had come in to take her job.
[92] Ms Dus’ statements to Ms Lohrey-Mills were rude and unnecessary. I accept Ms Lohrey-Mills’ evidence that Ms Dus stated that she was going to resign, and then said that she would do so at home (but did not). It was left to Ms Lohrey-Mills, two days into the role to go home and print the meeting minutes because Ms Dus had left in a huff.
[93] The following day was not much better. Ms Dus arrived at work late, and while her manner was better than the day before, when Ms Lohrey-Mills bid a typical farewell of “I’ll see you next Wednesday”, Ms Dus replied, “No you won’t”. In my view, Ms Dus was terribly upset and was planning on leaving her employment. There was an event brewing which would tip Ms Dus into resigning her employment. That occurred on 22 January 2020, the next working day when Ms Lohrey-Mills requested the P&L information.
[94] Having considered all of the evidence before me, Ms Dus acted unreasonably in demanding a meeting occur immediately. Ms Wallace was not prepared for such a meeting, and having heard Ms Wallace’s evidence, she appears to me a mature women who takes a no-nonsense approach. She had been urged by Ms Dus to put Ms Lohrey-Mills on as an employee and was confronted with Ms Dus carrying on about her job security and segregation of roles. She informed Ms Dus that she should get on with her work and teach Ms Lohrey-Mills what she needed to know, but Ms Dus was not satisfied with that response. I accept that Ms Wallace probably said things that Ms Dus did not want to hear, however I consider that Ms Wallace could have been even more firm with Ms Dus if she had wanted to. She could have raised with Ms Dus her repeated insistence on bringing her dogs to work and her tardiness. She did not, yet Ms Dus took offence to Ms Wallace’s berating of her, and accordingly stated that she was resigning.
[95] There are different accounts as to what was said, as follows:
Ms Dus: “Well if that’s what you think of me, then I’ll quit”.
Ms Wallace: “I resign, I am out of here”.
Ms Lohrey-Mills: “I’ve had enough, I’m resigning”.
[96] Whichever account is correct, I consider that any one of them constitutes a clear and unambiguous statement that Ms Dus was resigning and no longer wished to be employed.
[97] I accept the evidence of the Club’s witnesses following Ms Dus’ resignation. I accept that she saw Ms Sandry and informed her that she had quit because she had been told by Ms Wallace that she was shit at her job and did not deserve to be spoken to like that. I prefer Ms Sandry’s evidence to Ms Dus’ where Ms Dus stated that the first thing she said when she entered the office is, “If that’s what Robyn thinks of me, then I’ll quit”.Ms Dus was worked up by this stage, and I don’t accept that Ms Sandry has fabricated evidence that Ms Wallace had told Ms Dus that she was shit at her job. Ms Sandry would only know this if it had been said by Ms Dus.
[98] I do not accept that Ms Dus conducted herself that afternoon as though it was a normal afternoon. I consider that she was relatively stroppy and came out to assist with making coffee for a short period of time because it was evident that nobody else could do it. I accept Ms Lohrey-Mills’ evidence that Ms Dus said to her, following her thanking her, “Well you’ll have to learn it, it’s YOUR job now”. I do not accept Ms Dus’ evidence that she made such a statement at [72] simply because she considered that Ms Lohrey-Mill would take that task on. I find that it was said with spite.
[99] Relevant to Ms Dus sitting at reception with her handbag on her lap, it seems to me an odd thing to do. It would be the last thing Ms Dus needed when she left on a typical afternoon. It appears to me that Ms Dus had it on her lap as she was agitated and deciding how and when she would leave after having resigned. On her own evidence within her text messages she left the Club early.
[100] The statement of Ms Dus on leaving the Club, “Good luck” is indicative of Ms Dus not returning. I accept the evidence of the Club’s witnesses that it was said in a sarcastic tone.
[101] If Ms Dus did not think that she had resigned, it is expected that she would have been at work on 23 and 24 January 2020, the next two working days. She was not. Following her resignation on 22 January 2020 Ms Dus sent a multitude of text messages to Ms Wallace. The first message sent by Ms Dus was her attempt to explain her loyalty to the Club and why she had held such suspicions to Ms Lohrey-Mills’ request to see the P&L statements. She opened the text message with, “The last thing I wanted to do was leave.” Ms Dus seeks to now resile from that. Ms Dus did not, in this text message, indicate that she wished to withdraw her resignation.
[102] Ms Wallace replied that evening with a few ‘home truths’ to Ms Dus. In Ms Wallace’s second text message she asserted that Ms Dus had left the business in the ‘lurch’ and it would have been more appropriate for Ms Dus to have resigned after providing notice. Ms Wallace informed her that she didn’t think she would change.
[103] Ms Dus responded, “I told u I was sorry for walking out and i didn't want to. I meant that”. Ms Dus used language indicating that she knew that the employment was over:
“….if u don’t want me there there’s nothing I can do about it tho. I am sorry tho for what happened and I’m sorry that I think so little of me and the way I did my job. I really enjoyed working with u. It wasn’t the way u thought it was tho, honest. All those things u thought I hadn’t done were done.” [Original text]
[104] Early the next morning, on what would have been a working day, Ms Dus wrote:
“…. So really I lost my job because I was looking out for the best interests of the Club…” [Original text]
[105] Ms Wallace sent the following text message early on 23 January 2020:
“……Perhaps if I hadn't received these texts and you not excepting your part in what happened the outcome may have been different you can only push people so far.
I hope you find what you are looking for.” [Original text]
[106] I consider that to be a clear and concise acceptance that Ms Dus no longer has a job with the Club, and that Ms Wallace considered that Ms Dus had brought it upon herself. She was responding to the effect that if Ms Dus had not text her, and instead had taken responsibility for herself, there might have been a second chance afforded to her. However, Ms Wallace did not accept Ms Dus’ assertions in her text message and considered that Ms Dus could not or would not take ownership for her misgivings. The statement, “I hope you find what you are looking for” is a clear statement that there was no future with Ms Dus at the Club, and I consider Ms Wallace’s statement to be unequivocal that she considered that it was at Ms Dus’ hand.
[107] How Ms Dus considered that her employment was still on foot is beyond me. I consider that she thought, bolstered by the conversation with Mr Marchesoli that she could attempt to side-step Ms Wallace and plead to the Club Committee. She didn’t attempt to go to work on 23 or 24 January 2020, her usual working days. In the following week her next working day was 29 January 2020, and she waited until 28 January 2020 to send an email to the Club Committee seeking their involvement in the matter, asking if she was still employed.
[108] I consider Ms Dus’ actions in writing to the Committee to be disingenuous and an attempt to provide a work-around Ms Wallace. On her evidence there was some encouragement from some Committee members that she could continue to work at the Club, but at least one of those was not present when Ms Dus resigned her employment.
[109] I do not consider that Ms Dus resigned her employment in the heat of the moment. Her actions the week earlier lead me to conclude that something had been bubbling within her and the conversation on 22 January 2020 fortified her internal deliberation that she did not wish to work at the Club. She felt disrespected. I do not accept that she was.
[110] Even if I were to accept that Ms Dus’ resignation was in the heat of the moment, and constituted special circumstances, I consider that Ms Wallace evaluated the information before her to determine if the resignation was truly intended.
[111] Ms Wallace’s actions in swiftly replacing Ms Dus were necessary for the operation of the Club, and Ms Dus did not, in my view, have regard for her exit from the Club on 23 and 24 January 2020 and what it would mean for the Club.
[112] I do not accept that Ms Wallace did not make appropriate enquiries with Ms Dus about her resignation. The text messages between Ms Dus and Ms Wallace were lengthy, and I consider that Ms Wallace had regard to what Ms Dus put and determined Ms Dus’ explanations to be unsatisfactory. While Ms Wallace may not have had sufficient regard to what Ms Dus was attempting to say regarding her loyalty to the Club relevant to what she considered to be a suspicious request to view the P&L statements, Ms Wallace had determined that she had afforded all relevant opportunity to Ms Dus over the period of 18 months of employment.
[113] I do not consider that Ms Dus properly articulated to Ms Wallace that she wished to withdraw her resignation. She simply stated how important the job had been to her and she regretted having had to walk out. The employment was properly accepted as a resignation by Ms Wallace, and Ms Dus’ subsequent conduct on 29 January 2020 in writing to the Committee was too little, too late. I do not accept that the Club had an obligation one week following Ms Dus’ resignation to consider her pleadings.
Conclusion
[114] For the reasons set out above I find that Ms Dus was not a person dismissed from employment within the meaning of s.386 of the Act and the jurisdictional objection raised by the Club is upheld. It is not necessary therefore for me to determine the second jurisdictional objection of whether the application was made within the statutory time limit.
[115] I must dismiss the application for lack of jurisdiction. An Order [PR723111] will be issued together with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 Kwik-Fit (GB) Limited v Lineham 1992 IRLR 156 at [188].
2 Sean Jen Eyong v Vital Packaging [2017] FWC 887 at [54].
3 Ibid at [59].
4 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
5 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12],; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.
6 Ibid.
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