Nikki Spaans v Get Well Soon Enterprises Pty Ltd

[2024] FWC 3310

[2024] FWC 3310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Nikki Spaans
v

Get Well Soon Enterprises Pty Ltd

(C2024/6180)

DEPUTY PRESIDENT DEAN CANBERRA, 29 NOVEMBER 2024

Application to deal with contraventions involving dismissal – whether Applicant was dismissed.

1. This decision concerns an application made under s.365 of the Fair Work Act 2009 by Ms Nikki Spaans (Applicant) for the Commission to deal with a general protections dispute involving her alleged dismissal by Get Well Soon Enterprises Pty Ltd (Respondent).

1. The Respondent has raised a jurisdictional objection that the Applicant was not dismissed for the purposes of s.365 and within the meaning of s.386 of the Act.

1. Section 386 of the Act relevantly provides that a person has been dismissed if:

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

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

1. A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

1. A hearing was conducted on Thursday 7 November 2024 to determine the jurisdictional objection. The Applicant was self-represented and Mr T Plummer appeared for the Respondent.

When is a person dismissed?

1. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassol[2], a Full Bench considered the circumstances in which an employee’s employment is ‘terminated on the employers initiative’. Amongst other matters, it found that it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]

1. While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]

1. All the circumstances must be examined, including the conduct of both the employer and employee.[6] In other words, it must be shown that there is an act of the employer which results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

Brief background

1. The Respondent operates a medical clinic in Wodonga, Victoria.

1. The Applicant commenced employment on 5 December 2022 as a Medical Admin/Receptionist.

1. On or around 6 August 2024, the Applicant created a WhatsApp group chat to which Mr Grover (Director of the Respondent) and two other employees were invited. Ms Bownds, one of the other employees, raised a query in the group chat about whether they were being paid correctly under the award.

2. On 9 August Mr Grover and the Applicant met to discuss the pay issue (the meeting). The Applicant said she instigated the meeting because of Mr Grovers’ response to the pay issue raised in the group chat, in which he said:

   “Hi Girls I had a chat with David, this is the max we can offer. If you girls are not happy please start looking at other options and I will advertise. Please let me know tomorrow and I will reduce shift.”

1. There is a dispute about whether the Applicant was dismissed during the meeting.

1. Without the Respondent’s consent, the Applicant recorded the meeting which was tendered without objection in the hearing. The last few minutes of the recording were inaudible and so provide limited assistance in determining the issue in dispute.

1. Neither party suggested that s386(b) was applicable in this case.

The case for the Applicant

1. The Applicant gave evidence that she was dismissed during the meeting with Mr Grover.

1. The Applicant says that during the meeting, Mr Grover told her he could cut her shifts because she was a casual employee and that was the nature of casual employment. Mr Grover confirmed he had called ‘accounts’ on the night of 6 August 2024 to confirm what the staff were being paid. The Applicant asked him if he had found out what award covered their employment, and he replied saying he would follow that up “in his own time”. The Applicant asked him if she could wait while he called the accountant to find out what award applied, and instead she was asked to return to work. As she was leaving, she says she told Mr Grover that she would check back with him at lunchtime that day to see if he had an answer. The Applicant said that Mr Grover then said “You know what this is your notice, leave” in an aggressive manner. She says she then returned to her desk, collected her belongings and left the building.

1. The Applicant provided a text message exchange between the Applicant and Ms Lyza Cara, an employee of the Respondent. In the text exchange the Applicant told Ms Cara that Mr Grover said “you know what this is your notice you can leave”, and so she left.

2. The Applicant gave evidence that Ms Bownds was dismissed on 7 August 2024. The Applicant says it was due to her raising the pay issue. Apparently, Ms Bownds was reemployed shortly after the Applicant was dismissed.

3. The Applicant says that Mr Grover removed everyone from the group chat immediately after the meeting concluded. She gave evidence that she did not attend work after the meeting because she had been given notice of her dismissal, and no-one followed up with her about her non-attendance.

The case for the Respondent

1. Mr Grover gave evidence that he was invited to the group chat. He says Ms Bownds messaged the group saying she did not think they were being paid correctly. On seeing the message, Mr Grover called his accountant to seek advice. He was told by the accountant that he would need to review the award, employment contracts and their rates of pay before he could provide a response.

1. Mr Grover said he responded to the group chat at that time, indicating that was the maximum the business could afford at that time, and he asked the three employees to confirm their plans as he was concerned they might not attend work the following day.

2. He says that he invited the Applicant to a meeting on 9 August 2024 to discuss the pay issue. His evidence was that as soon as the meeting began, the Applicant began to raise her voice at him and asked him why the queries that had been raised a few days earlier had not been rectified. Mr Grover says he told the Applicant that he had raised the matter with the accountant and he couldn’t provide an answer to her at that time. He says that the Applicant then “began punching her hand and sticking up her middle finger in my direction”. She then said words to the effect of: “call him [i.e. the accountant] now”.

3. Mr Grover says he tried to calm her down but was unable to do so. He said he was scared and concerned for his safety and that of others in the workplace, and he had never seen her in that state before. He says that because of her behaviour, he asked her to leave the office and go home for the day.

4. He provided an incident report that he completed immediately after the meeting. The incident report includes the following:

   “On 09 August 2024, at approximately 10:00 AM, I called Nikki Spaans into my office to discuss a matter she had raised earlier. Upon entering, Nikki immediately displayed hostile behaviour, shouting about a WhatsApp message and her employment award. I attempted to calmly address her concerns, informing her that the accounts were not yet finalized, and therefore, I was not aware of her current award status.

Despite my attempts to provide a reasoned explanation, Nikki's behaviour escalated. She became physically aggressive, demanding that I call the accountant immediately in her presence. During this time, she pointed at her watch, made fists, and aggressively punched one fist into her palm, using the phrase ‘I am super mad’ to emphasize her anger. She expressed dissatisfaction that I had not addressed the issue for three days since the WhatsApp message was sent.

To reassure her, I explained that our practice ensures no employees are underpaid and that I rely on the accounts for accurate information. I also offered to clarify with the accountants if there was any confusion regarding her award level. However, Nikki continued to act in a threatening manner, suggesting that other staff members had been or would soon be dismissed, further escalating the tension in the room.

At this point, Nikki’s behavior had become highly aggressive and threatening. I genuinely feared for my personal safety as well as the safety of the patients and other staff members present in the clinic. To ensure a safe environment, I stood up and firmly instructed Nikki to leave my office immediately. I also told her to leave the clinic, emphasizing that such behavior was unacceptable and would not be tolerated under any circumstances.”

1. Mr Grover says that at no stage did he terminate her employment. He says he expected her to return to work, and only covered her shifts in the following days when it was evident that she was not attending.

2. Mr Grover gave evidence that he expected he would have a response from the accountant by the time the Applicant returned to work, at which time he would have informed her of the response by the accountant, and held a disciplinary meeting based on her unacceptable conduct during the meeting. However, she did not return.

3. A few days after the meeting, Mr Grover received a claim from the Fair Work Ombudsman that the Applicant had made. Given her non-attendance at work for the few days after the meeting combined with the claim, he considered she had decided not to return to work and took this as her resignation.

4. He says the first he became aware that the Applicant considered she had been dismissed was when he received this application.

1. Ms Cara gave evidence that when the Applicant left the meeting, she was visibly ‘mad’ and told Ms Cara that she was leaving. Ms Cara said she was unsure whether the Applicant had been dismissed or whether she had decided to leave on her own accord. This is consistent with the text message exchange between the Applicant and Ms Cara where Ms Cara says: “this morning, did he like asked u to leave or u chose it because there was no point of staying?”.

Consideration

1. As noted earlier, to find that a termination of employment is at the employer’s initiative, it is sufficient that the employer’s conduct would, on any reasonable view, be likely to bring the employment relationship to an end. It must be shown that there is an act of the employer which results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

1. In this matter it is difficult to determine with any certainty what happened at the end of the meeting. The key issue is whether at the end of the meeting Mr Gover said words to the effect of “this is your notice, leave”. These words are certainly not audible in the recording of the meeting.

1. The evidence in this matter is inconclusive in that in some respects it points towards a finding that the Applicant left of her own accord, and in other aspects points to the Respondent dismissing her.

1. The recording makes clear that the Applicant was frustrated and mad, which she admitted in cross examination. It also makes clear that she raised her voice during the meeting. She agreed that her raised voice demonstrated that she was frustrated, and she explained this by say that Mr Grover had a history of “not doing things” that she asked him to do. It is clear she was upset and angry.

1. The recording also makes clear that Mr Grover told her he would follow up the pay query, and towards the end of the meeting Mr Grover asked her to return to her desk. Mr Grover did not raise his voice and it is evident he was attempting to placate the Applicant during the meeting.

1. The behaviour of both Mr Grover and the Applicant after the meeting does not assist. The Applicant did not attend work after the meeting for her rostered shifts (noting there was some dispute about when these shifts were). She says it was because she was dismissed. There is no evidence that the Respondent followed up about her non-attendance, which would have been expected if she simply had not turned up to work. The Respondent says it was because she had in effect resigned by not returning to work, and because he received a claim from the Fair Work Ombudsman a few days later.

1. There is no correspondence between the Applicant and the Respondent after the meeting either from the Applicant confirming she had been dismissed, or from the Respondent confirming she had been sent home for the day.

1. Both parties made contemporaneous notes, in the form of the Incident Report by the Respondent, and a text message to another employee by the Applicant. Both are consistent with the parties’ respective cases.

1. Ultimately, the onus is on the Applicant to demonstrate she was dismissed. She needs to show that there was an act of the Respondent which resulted directly or consequently in the termination of her employment and the employment relationship was not left voluntarily by her. She has not done so, and as a result I cannot be satisfied in this case that she was dismissed.

1. As a result, the jurisdictional objection made by the Respondent is upheld and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

N Spaans on her own behalf.
T Plummer of Irwell Law Pty Ltd for Get Well Soon Enterprises Pty Ltd.

Hearing details:

2024.
By video:
November 7.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[3] Ibid.

[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].

[6] Whirisky v DivaT Home Care[2021] FWC 650at [77].

Printed by authority of the Commonwealth Government Printer

<PR781818>