Owen Wheeler v Daniel Sjahlendra T/A Al Dente

[2023] FWC 1071

[2023] FWC 1071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Owen Wheeler
v

Daniel Sjahlendra T/A Al Dente

(U2023/1608)

COMMISSIONER MCKINNON SYDNEY, 9 MAY 2023

Application for an unfair dismissal remedy – whether dismissed

1. Mr Owen Wheeler was employed as a Kitchen Assistant by Daniel Sjahlendra trading as Al Dente (Al Dente) from 24 February 2021 until 27 February 2023.

1. On 28 February 2023, Mr Wheeler applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Al Dente objects to the application on the basis that Mr Wheeler was not dismissed.

1. A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[1] Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.

1. Termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.

1. The question is whether Mr Wheeler was dismissed for the purposes of section 386(1). For the reasons that follow, I am satisfied that Mr Wheeler was dismissed from his employment with Al Dente on 27 February 2023.

Was Mr Wheeler dismissed?

1. The events in dispute occurred over a period of approximately three minutes, in a meeting on 27 February 2023 between Al Dente’s Head Chef, Mr Irwan Kok, Mr Steven Browning, Preparation Chef, and Mr Wheeler. The meeting was held at the request of Mr Kok and it began at approximately 1.30pm.

1. Mr Kok had a piece of paper with him. As the meeting started, he wrote the words “My Kitchen” on the piece of paper and underlined them. He then said to Mr Wheeler and Mr Browning, in words to the effect:

“Right - we are not making any money and I kind of want to start doing things in the kitchen for myself. I’ll give you 2-3 weeks to find another job – if not, we have to cut your hours or find another solution.”

1. Mr Wheeler immediately became angry and said, words to the effect, “thanks for making it clear”. He stormed off. About 30 seconds later, he came back – not to the meeting, but to his ordinary work. He continued working until his finish time of 2.30pm. As he left the premises, in a voice that was loud enough for other staff to hear, he said in words to the effect:

“Well, thank you very much for what you’ve done, it’s been nice to know everyone. I probably won’t see you again. I would like all that money thanks” (referring to his entitlements).

1. Mr Sjahlendra asked Mr Wheeler how he would like to be paid his money, and Mr Wheeler responded by saying “I’ll have my entitlements in cash.”

1. As he walked out, Mr Wheeler said:

“That’s it, Irwan just got rid of me. Steve will stay.”

1. He then went home. At 2.53pm, Mr Wheeler began a text message exchange with Mr Sjahlendra:

Mr Wheeler:               “I don’t know why or how it has come to this, but it has. If you’re not making any money that’s not really my problem I’m sorry about that. I’m just there to do the work that im [sic] there for and go home. I’ve put hours and hours in and so much effort into that place and this is how it turns out. But Steve will still say, but yeah all good. I can’t be casual. I need to pay rent and pay bills. If I’m not full time then I won’t stay there I’m sorry Daniel.”

Mr Sjahlendra:           “I know how much you put effort as well bro, and i did ask Irwan about that. And he did said [sic] that the meeting meant to be for Steve, but instead you blew up and walk off from the table before Irwan finished what he has to say. Also, Steve is not staying, he will be only doing few hours until he gets a new job.

I do appreciate that you did step up for the last 2 weeks, that’s why i am shocked as well when you told me that Irwan laid you off. Sorry bro.”

Mr Wheeler:               “Yeah well I’m not staying around for two weeks knowing that I have to find a new job. It will just be awkward and shit for me mate So if you don’t want me to be there or don’t need me there then I guess that’s it.

All Irwin had to say was I want to be by myself, and you guys aren’t making any money and I’ll give you two weeks to decide on a new job.

I’m not staying around is because he has catering and all this hard work that needs to be done then just for two weeks time I get sacked. In my mind that’s just shit man.”

Mr Sjahlendra:           “Its okay bro, otherwise it will be awkward as you said. Sorry it has come to be like this. All the best in the future.”

Mr Wheeler:               “Sorry mate all good no stress have a good one.”

Mr Sjahlendra:           “Do you want me just wire the annual leave by bank or cash?”

Mr Wheeler:               “I need thursday. Friday and today aswell [sic] as my hours there.

1. There was no further communication between the parties until the commencement of this application.

1. On the evidence, I am not satisfied that Mr Wheeler resigned. None of what he said or wrote on 27 February 2023 could reasonably be understood as him communicating an intention to resign. What he was communicating was his distress at being told that his job would either be gone within 2-3 weeks or be cut back to a level that he could not afford to sustain. On his way out the door, when Mr Wheeler said “Irwan just got rid of me”, it should have been clear to the business that Mr Wheeler thought he had been dismissed. Mr Sjahlendra heard what was said, as he wrote of his shock at hearing that Irwan had “laid you off” in a subsequent text message to Mr Wheeler.

1. If it was not already clear to the business that Mr Wheeler thought he had been dismissed, the position was restated from 2.53pm the same afternoon. In text messages to Mr Sjahlendra, he set out what Mr Kok had said to him. He indicated that he still wanted to work full time, rejected what may have amounted to a repudiation of the employment contract, and chose not to work out the period of notice proposed for him to find another job.

1. In messages to Mr Sjahlendra, Mr Wheeler wrote “I can’t be casual. I need to pay rent and pay bills. If I’m not full time then I won’t stay there”. The word “if” suggests that he was open to continuing to work but on a full time basis. Mr Wheeler wrote “So if you don’t want me to be there or don’t need me there then I guess that’s it”, inviting Mr Sjahlendra’s reassurance that he was either wanted or needed by the business. He wrote “I’m not staying around is because he has catering and all this hard work that needs to be done then just for two weeks time I get sacked”, communicating his decision not to work out what he understood to be a period of notice of termination.

1. I accept that Mr Wheeler did not remain in the conversation for long enough to hear everything Mr Kok may have wished to say. However, to the extent that there is a conflict in the evidence about what was said to Mr Wheeler in the meeting on 27 February 2023, I prefer Mr Wheeler’s evidence. It is consistent with his subsequent text messages to Mr Sjahlendra and in particular, his description of what he had been told by Mr Kok when he wrote “All Irwin had to say was I want to be by myself, and you guys aren’t making any money and I’ll give you two weeks to decide on a new job.” Mr Browning, whose evidence was marked by hesitation, appeared to concede that words to this effect had been said. Mr Wheeler’s version also explains why he was so upset, so early in the meeting with Mr Kok. It makes no sense that Mr Wheeler would react so quickly, and so angrily, if all that had been raised was the possibility of change.

2. Al Dente submits that it understood Mr Wheeler’s conduct in the heat of the moment on 27 February 2023 as his resignation. I reject the submission and the evidence given to that effect. The text messages from Mr Sjahlendra to Mr Wheeler are instead evidence of his tacit endorsement of the position communicated to Mr Wheeler by Mr Kok.

1. If I am wrong about that, and Mr Sjahlendra genuinely believed that Mr Wheeler had resigned, he had a duty to clarify or confirm with Mr Wheeler after a reasonable time that he genuinely intended to resign. In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2], a Full Bench of this Commission summarised the position under the Act in relation to resignation that may amount to a termination at the initiative of the employer and observed, in relation to section 386(1)(a), that:

“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.”

1. Mr Sjahlendra took no steps to clarify or confirm the position with Mr Wheeler or to contradict what might have been a misunderstanding, such as by assuring Mr Wheeler that he had not been dismissed, or that Mr Kok had no authority to dismiss him, and that he was wanted back at work – whether on his existing terms and conditions of employment or otherwise.

1. This was despite the obvious emotional distress being experienced by Mr Wheeler when he walked away from the meeting with Mr Kok, and when he left work at the end of his shift approximately one hour later. There was an opportunity to communicate about the matter in a calmer fashion by text message shortly after the exchange once Mr Wheeler arrived home. The opportunity was taken up by both Mr Wheeler and Mr Sjahlendra. But in this later exchange, there was no attempt to clarify or confirm whether Mr Wheeler had resigned, or to correct any misunderstanding in relation to whether he had been dismissed.

1. I reject the evidence of Mr Sjahlendra that in response to Mr Wheeler’s statement that Mr Kok had “got rid of” him, he told Mr Wheeler that he had the final say as he was in charge of the kitchen. The assertion finds no support in the evidence of the other witnesses to the exchange, or in the subsequent words or actions of Mr Sjahlendra in relation to Mr Wheeler. Mr Sjahlendra never sought to have the final say in relation to Mr Wheeler’s employment, either by confirming or overruling the advice from Mr Kok to Mr Wheeler in the meeting before Mr Wheeler stormed out. Mr Sjahlendra instead allowed Mr Wheeler’s understanding that he had been dismissed to persist. The only thing he sought to correct (by denial) was Mr Wheeler’s assertion that Mr Browning would be staying on. In doing so, he reinforced what Mr Wheeler and Mr Browning had been told about their hours being cut and needing to find another job. The statement that “Steve is not staying, he will be only doing few hours until he gets a new job” also turned out not to be true. Mr Browning did stay on, working the same total hours of work each week, as Mr Wheeler had assumed would be the case.

1. While he had the opportunity to do so, Mr Sjahlendra chose not to correct what might have been a misunderstanding on the part of Mr Wheeler, either by advising that he had not been dismissed, or asking him to come (back) to work. He expressed his surprise about what Mr Kok had said, but did not then communicate any different view or lack of support for Mr Kok’s advice to the effect that Mr Wheeler had to find another job or he would have his hours cut. Mr Sjahlendra agreed with Mr Wheeler that he should not return to work for the proposed 2 week notice period on the basis that it would be “awkward”. He then apologised, wished Mr Wheeler all the best and organised his final pay.

1. It may be that Mr Sjahlendra was scared of Mr Wheeler after he stormed out of the business shortly after the meeting with Mr Kok. But I do not accept that he was so scared that he could not have sought to achieve a different outcome in relation to Mr Wheeler’s employment had he wished to, and once things had calmed down. The two had worked together in a very small business for two years. Mr Sjahlendra referred to Mr Wheeler as “bro”. If he was scared or worried about a future confrontation with Mr Wheeler in person, the necessary clarification or assurance could have been provided to Mr Wheeler in writing, including by text message during their exchange on 27 February 2023 from 2.53pm.

Conclusion

1. For these reasons, I find that Mr Wheeler’s employment was terminated at the initiative of Al Dente. I am satisfied that Mr Wheeler was dismissed for the purposes of section 386(1).

1. The jurisdictional objection is dismissed. The matter will now be listed for conciliation and directions will issue separately.

COMMISSIONER

Appearances:

O Wheeler on his own behalf.
A Dunshea of Steele and Co Solicitors on behalf of the respondent.

Hearing details:

2023.
Sydney (by video):

May 3.

[1] Fair Work Act 2009 (Cth), s 385(a).

[2] [2017] FWCFB 3941 at paragraph [47].

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