Paula Laorga v Anastasia Bennett
[2023] FWC 3142
•22 DECEMBER 2023
| [2023] FWC 3142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Paula Laorga
v
Anastasia Bennett
(U2023/9117)
| DEPUTY PRESIDENT CROSS | SYDNEY, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy
On 30 June 2023, Ms Paula Laorga (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application), against Anastasia Bennett (the Respondent). The Applicant was employed from at least 14 June 2022 until around 1 September 2023, as a Nanny for the Respondent’s two children.
In the hearing of the matter the Applicant and the Respondent represented themselves. On 24 October 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:
(a) On 6 November 2023, the Applicant filed Outlines of Submissions with attachments, together with the Applicant’s Statement of Evidence;
(b) On 20 November 2023, the Respondent filed Outlines of Arguments together with attachments, and a Respondent Statement of Evidence; and
(c) On 24 November 2023, the Applicant filed an Applicant’s Final Statement of Evidence with annexures.
The Hearing of the Application, in the form of a determinative conference, occurred on 29 November 2023 (the Hearing).
The Issues Before the Commission
While an unfair dismissal application, the issues for determination in this matter are:
(a) Did the Applicant resign her employment, or did the Respondent dismiss the Applicant; and
(b) Did the Applicant consent to the termination on 1 September 2023.
The relief sought by the Applicant is a claim for 4 weeks payment in lieu of notice. It will become apparent that the conversation between the Applicant and the Respondent on 28 July 2023, is crucial in determining the issues before the Commission.
Background
The Applicant was employed pursuant to an Employment Agreement dated 12 May 2022, that was subsequently replaced by an Employment Agreement dated 7 August 2023 (the Contracts). The Contracts each provided:
Notice Period
Either party may terminate your employment by the giving of 4 weeks written notice to the other.
The Applicant originally worked four days a week for the Respondent, however that was reduced at the request of the Applicant to three days a week, and on 30 August 2023 to two days a week.
In early 2023, the Applicant obtained other additional employment with King Furniture. In August 2023, the Applicant chose to pursue continued and expanded employment with King Furniture together with other studies, and cease her employment with the Respondent.
At 1.24pm on 28 July 2023, the following text exchange occurred:
Miss Laorga:
Hi Anastasia, how is everything going? From next week im going to be working during the weekends so unfortunately, I won’t be available on Mondays
Miss Bennett:
Hi Paula, are you coming on Monday 31st or not? Well have to discuss as I cant change Valentina’s daycare easily so well have to discuss what days will work for both of us
In the Form F2 Application, the Applicant stated:
On the 30th of August I decided to have a conversation with [the Respondent] to make her aware that I was not able to fulfil the fixed term of the contract and that I had the intention to leave the job to continue only with my other part- time job.
In the Hearing, each of the Applicant and the Respondent were asked to specifically state their recollections of the conversation of 30 August 2023. Those recollections were as follows:
(a) The Applicant
THE DEPUTY PRESIDENT: What were the words that you say were actually said by you?
MS LAORGA: Well, I asked her to think about what she wanted to do now, if I was leaving, if she wanted to hire a nanny or book a place in a childcare facility, because these two things take time. So one doesn't hire a nanny tomorrow or book childcare facility tomorrow, you need time and so I asked her to consider what she wanted to do and then let me know how long she wanted me to keep working with her.
THE DEPUTY PRESIDENT: So the exact - I'm sorry, the problem with the law is we need direct speech, not an outline. What, exactly, were the words you said, as best as you can recall?
MS LAORGA: 'I want to resign. I need you to tell me when you will be able to replace me'.
THE DEPUTY PRESIDENT: Right.
MS LAORGA: 'Keeping in mind that we have a contract with four weeks notice, but if you need more I can give you more, I'm flexible'.
I also asked her to be gentle with me because it was a difficult decision for me to make. I was very attached, especially to the little girl, the youngest, and I said to her to please keep that in mind.[1]
(b) The Respondent
MS BENNETT: The recollection was she was having lunch with my daughter, outside, my youngest daughter. I went outside to sit with them. I asked her, 'How's your day?', she said, fine she was okay. My daughter was having lunch. She seemed a little bit not herself so I asked her, 'Is everything okay?'. She said, 'No, actually I want to talk to you about something'. I said, 'Okay, sure'. We had very good communication always, so I said, 'No problem'. She told me she was quite upset, she was very busy because she, you know, took on the King Living job, her studies. She said, 'You know I like your family very much, I love the girls, I love working with you', she says, 'but I can't work any longer'. She said, 'I don't have time for anything else'. She said, 'I like to go to the gym', which I knew she liked to go to yoga locally. She said, 'I don't have time for the gym, I don't have time for my friends, I don't have time for my house'. She sublets a house. She said the house needed some work because tenants were moving out and in, and, you know, she was a little bit upset. I said, 'Okay'.[2]
She said, 'I want to finish up now' but she said, 'I understand that puts you in a difficult situation'. I said, 'Yes'. I said, 'So you want to finish up immediately?', and she said, 'Yes, if I can'. I said, 'Okay'. I said, 'Look -', I'm a little but surprised but not really because she was reducing her days, so it was sort of not expected but I wasn't surprised. I said - she told me she already found another nanny, at the park, that could take her spot. I said, 'No, it's way to difficult to basically introduce another nanny to the equation, it takes time to get the kids acquainted'.[3]
She was in our lives for a long time, all the time, so I told her, 'Give me some time, I'll talk to Steve and I'll fix something out'. I asked her if I can still use her casually and she said, 'Yes, no problem'. So I said, 'If I need you to come in and out', she said, 'No problem'. I said, 'Let's finish up the day as it is'. So I said, 'Let's just continue on the way our days normally go. You finish up at 5 or 5.30', I forgot what time she was meant to finish up at that point. She said, 'Okay'. We finished up the day, no problem. I spoke to my husband that night. I said, 'Steve, she's really unhappy, you know, she's taken on way too much with all this stuff. I don't want her - like she still told us that basically we can still use her casually, what shall we do?'. We thought about it for a while. He said, 'Look, it's not as per our agreement but it doesn't matter at this point because, you know, if she's not happy - like we care about her we don't want her to continue working and also we don't want someone looking after our girls who's, you know, quite distressed and obviously doesn't want to not be here but has taken on too much'. I said, 'Okay, let me just talk to her and tell her it's okay to finish up now', and we parted way.[4]
At 11.15am on 1 September 2023, the following text exchange occurred:
Miss Bennett:
Hi Paula, thanks for the chat earlier in the week. We are obviously disappointed as we had been very flexible in all things, including reducing days from 4 to 3 and then 2 days at your election. But I understand the issues you are having with the workload.
With all that in mind its best that you finish up now and I really want to wish you all the best in the next part of your career. Well still stay in touch of course.
Kid regards, Anastasia
Miss Laorga:
I understand, I’m sorry, I’ve done my best
Miss Bennett:
It’s okay I understand. Enjoy your weekend. Xx
Miss Laorga:
You too xx
The Applicant claimed that she was “…totally counting on the salary of at least one more month working for them.” On 12 October 2023, in separate proceedings with the Fair Work Ombudsman regarding leave payments, the Applicant provided a statement that stated: “I resigned on the 30 August 2023, and I gave notice but I still I wanted to be available”.
The Applicant was required to produce pay records from her employment with King Furniture. Those records disclosed increases in the income of the Applicant from King Furniture in the second, third and fourth weeks after the employment ceased, however the proportion attributable to increased work with King Furniture was not entirely clear due to a system of trailing commissions.
Conclusion Regarding Facts
I prefer the evidence of the Respondent regarding the conversation of 30 August 2023. That preference is based on the following two reasons:
(a) The Respondent’s recollection is internally consistent in that it anticipates an agreed date of cessation of employment. The Applicant’s recollection, on the other hand, expresses a desire to cease employment as soon as possible, but then introduces the four week notice period that is of indeterminate application; and
(b) The Respondent’s recollection is externally consistent in that it is consistent with contemporaneous records from the time in the form of the text messages. Justice Lee has recently made observations regarding the utility of contemporaneous records. In TWU v Qantas Airways Limited,[5] his Honour observed:
... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[6] his Honour observed:
As will become evident, these contemporaneous records and the inferences to be drawn from them assume some importance in determining the relevant facts, many of which are not in dispute. This is unsurprising, as it is the review of such contemporaneous emails and other documents as may exist, and the probabilities that can be derived from those materials, that provide the best foundation for fact-finding.
The absence of any reference to the four week notice period in the text messages of 1 September 2023, is indicative of that notice period not being an issue, as is the apology expressed by the Applicant. Those text messages support the conclusion that the Applicant was keen to cease employment with the Respondent, and effectively consented to the cessation of employment at that time.
Consideration
(a)Dismissal
The Respondent submitted that the Applicant resigned on 30 August 2023, as she advised the Fair Work Ombudsman. I reject that submission. The Applicant enquired about ceasing her employment on 30 August 2023, but the conversation lacked the requisite certainty required for a resignation.
I find that the Applicant was dismissed by text message on 1 September 2023, when she was advised “With all that in mind it’s best that you finish up now…”, however I also find that dismissal was effectively with the consent of the Applicant whose desire was to leave employment with the Respondent, and pursue the existing employment with King Furniture on an expanded capacity as soon as possible.
There were no other jurisdictional objections to the Applicant’s application being determined by the Commission. Specifically, I am satisfied that:
(a) her unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;
(b) the Applicant is a person protected from unfair dismissal in that:
(i) she had completed the minimum employment period set out in ss 382 and 383 of the Act; and
(ii) her salary was below the high income threshold;
(c) her dismissal was not a case of genuine redundancy (s.385(d)); and
(d) her dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).
(b)Was the Dismissal Harsh, Unjust or Unreasonable?
The only outstanding issue is whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal. To this end, I must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not.
Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
(b) Whether the person was notified of that reason;
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters that the FWC considers relevant.
(c) Whether there was a Valid Reason
In Rode v Burwood Mitsubishi,[7] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd[8](Selvachandran). The Full Bench found:
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
I have accepted that the Applicant was dismissed by text message on 1 September 2023, when she was advised “With all that in mind it’s best that you finish up now…”, however I also found that the dismissal was effectively with the consent of the Applicant whose desire was to leave employment with the Respondent, and pursue the existing employment with King Furniture on an expanded capacity as soon as possible. In those circumstances I find there was a valid reason for the dismissal.
Procedural fairness- s.387(b)-(e)
Sub-sections (b) - (e) of s 387 of the Act may be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. It is correct to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair if the employee was not afforded procedural fairness.
In the unusual circumstances of this matter, where the Applicant was seeking a prompt cessation of her employment, procedural fairness was not a particularly relevant factor. The matter did not involve any concerns about the Applicant’s performance and no warnings had been issued in this regard (s.387(e)).
Size/Human Resource Specialists ss 387(f), (g)
Neither party submitted that the size of the Respondent’s enterprise or its access to human resource management specialists or expertise was likely to have impacted the procedures followed in effecting the dismissal.
Conclusion
I have made findings in relation to all matters specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I have found the Respondent had valid reasons for the dismissal of the Applicant, and that it was effectively with the consent of the Applicant. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Miss Paula Laorga (the Applicant).
Mrs Anastasia Bennett (the Respondent).
Hearing details:
29 November 2023.
Sydney.
In-Person.
[1] PN94-PN100.
[2] PN106.
[3] PN107.
[4] PN109.
[5] (2021) 308 IR 244, at [16].
[6] (2019) 286 IR 52, at [10].
[7] Print R4471, at [18] and [19].
[8] (1995) 62 IR 371
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