Rachel Attard v TBT Greenway Pty Limited

[2023] FWC 3174

[2023] FWC 3174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rachel Attard
v

TBT Greenway Pty Limited

(C2023/5733)

COMMISSIONER MCKINNON SYDNEY, 1 DECEMBER 2023

Application to deal with a general protections dismissal dispute – whether dismissed

1. Ms Rachel Attard was employed on a casual basis by TBT Greenway Pty Limited (TBT Greenway) from 27 March 2023. The business operates cafés in the Australian Capital Territory. Ms Attard commenced full time employment in the role of Café Assistant Manager on 7 August 2023. Two weeks later, she stepped up into the role of Acting Manager while another employee was on personal leave. The role was short-lived because her employment came to an end on 6 September 2023 in circumstances that are in dispute.

1. On 19 September 2023, Ms Attard applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The application alleges that TBT Greenway contravened the general protections (section 351) by discriminating against her because of her sexual orientation.

1. There is a dispute about whether Ms Attard was dismissed. Arising from Ms Attard’s provision of a letter of resignation in the meeting that brought the employment relationship to an end. Ms Attard denies that she resigned. She says she was told she was being let go and that it was only after this advice that she placed her resignation letter on the table. TBT Greenway relies on Ms Attard’s resignation letter and denies that she was dismissed.

1. An application under section 365 of the Act can only be made by, or on behalf of, a person who has been ‘dismissed’. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of the employer’s conduct.[1] The allegation of dismissal in this case relies on section 386(1)(a) of the Act on the basis that there was a termination at the initiative of the employer.

1. The question is whether Ms Attard was dismissed.

1. On the facts, I find that Ms Attard was dismissed. She can apply to the Commission under section 365 of the Act. These are my reasons for decision.

Was Ms Attard dismissed?

1. As noted above, at the time of dismissal Ms Attard was acting in the role of Manager while her manager was away. This was a first for Ms Attard and she did so, she says, without any guidance and to the best of her ability. During a very busy week that included Father’s Day, Ms Attard says she was treated poorly by some of the customers. She expressed this to the business in her end of week report.

1. On 4 September 2023, Mr Chris Dennis, Managing Director, sent an email to Ms Attard about her end of week report:

“Rachel,

This report is concerning to say the least.

As the Manager on duty, it is your responsibility to manage the day to ensure customers receive good service. However, rather than doing that it appears you have provided such poor service that customers became abusive....and then rather than taking responsibility for that, you have blamed it on "extremely rude" customers with "the worst attitude" and commenting that "shitty people are always around"

If you have a staff member no show a shift, or you are under-rosterd [sic] due to a large influx of customers, it is your responsibility to manage the day by simply not accepting walk ins.  It can be a little confronting at the start, to tell people you can’t serve them -·but it greatly reduces the potential for severe harm to be done to your staff and our brand as appears to have occurred at Greenway over the weekend.

A little more concerning is that the wages overall were just under budget - not hugely under budget as the level of service would indicate. To me that indicates some poor staff performance, or perhaps just poor organisation on the busy days.

Finally, I'm not sure why your report included a variety of comments on your staff being complemented and you attached a 5 star review, but you didn't include the one and two star reviews I've copied from Google and Open Table below. We need to take poor reviews seriously as they are generally the tip of the iceberg as most people generally won't leave a review, they just won't come back.

It might be worth chatting through some of these issues after Managers' Meeting tomorrow afternoon.

Apart from those management and reporting issues, the overall store performance was good, with all numbers on budget.

WRT your milk fridge....I'm not sure why you need to store the milk upstairs - I presume it's for weekend trade....in which case, you could leave Saturday's milk out of the fridge (as it gets used up in a matter of hours) and put Sunday's in the fridge downstairs? Alternatively, perhaps staff could carry smaller amounts of milk up the stairs in each trip - it would mean more trips, but will save peoples' backs. Perhaps chat to Jen or Elise about the issue as they have better knowledge of your store.

Kind regards
Chris”

1. The Managers Meeting referred to in the email from Mr Dennis was scheduled for 4.00pm to 5.00pm on Wednesday, 6 September 2023. Ms Attard was expecting to meet with Mr Dennis after the meeting. Unbeknownst to either Ms Attard and Mr Dennis, on the morning of 6 September 2023, a staff member had approached Ms Jennifer Cunnington, Operations Manager, and told her that Ms Attard was upset about the response from Mr Dennis and had sent it to others for comment. Ms Cunnington was concerned about the report and tried to login to the Greenway email account to see if it was true. This required her to change the password. Her review of the emails found nothing of concern, and she left the matter at that.

1. At 2.00pm on 6 September 2023, Mr Dennis and Ms Cunnington arrived at the café and asked Ms Attard to “take a seat”. This took Ms Attard by surprise, as she was expecting to meet three hours later. She resisted the request, saying “not without a support person”. When Mr Dennis asked why she wanted someone with her, Ms Attard said that she had a mental illness. According to Ms Attard, Mr Dennis then rolled his eyes, stood up, and told her that she did not have to go to the Managers Meeting and that they would talk after. He then walked out.

1. At 3.00pm, Ms Attard noticed she could not access the work email system as the password did not work. This, together with the advice from Mr Dennis that she did not need to attend the Managers Meeting, made her think she was going to be fired that afternoon. She decided to resign instead, and prepared a letter of resignation in the following terms:

“Dear Chris,

I am extremely disappointed with your response to my weekly report and have not taken it well at all.

I was asked to step up to the Manager role without any training or compensation for doing so, however as I was working in your best interest, I'm very hurt by your comments.

As an employee of your business, you have a duty of care to me and I should be supported by you when abused by customers. Yes, I am able to defuse these situations when they occur and was just expressing to you what happened. As I pointed out, the abuse was due to a lack of staff which impacts on service. If we have capacity for walk-ins, then the staff should reflect the capacity to serve our clients.

Your attitude towards “being hugely under budget” is what is hurting: the brand, it states that wages are to be under 35% of weekly total, it is.

The team worked extremely hard all week, and yesterday even harder with a $12K day so yes, as Interim Manager, I felt it important to recognise the teams efforts in my report.

Unfortunately, our values do not align as employer to employee as I would like to work in an environment where I feel supported.

Therefore, I officially provide my notice for the 13 of September 2023.”

1. At 5.00pm, Mr Dennis and Ms Attard met in the presence of Ms Cunnington and Ms Attard’s support person, Ms Laura Southwick. Going into the meeting, Mr Dennis had not yet decided to dismiss Ms Attard. He was however alive to the possibility, which depended in his mind on how Ms Attard responded in the meeting.

1. Mr Dennis brought up the two complaints that had been received about service at the café in the previous week. Ms Attard was aware of one but not the other, and Mr Dennis did not have copies. Ms Attard asked to see the other bad review and Mr Dennis responded to the effect that it was an “Instagram direct message”, and he would need to depersonalise before showing it to Ms Attard. They then discussed the events of the previous weekend. Mr Dennis asked questions of Ms Attard that she did not know how to answer. Mr Dennis felt they were going around in circles and concluded that the situation was not redeemable. He said to Ms Attard, in words to the effect:

“I think where we are at is that you don’t have the skills to do the job and you should not have been put in this position. We are letting you go.”

1. Mr Dennis does not recall saying that he was letting Ms Attard go, and Ms Cunnington does not remember these words being said. In contrast, Ms Attard’s evidence was clear on this point and was corroborated by the unchallenged evidence of Ms Southwick. Their evidence is also consistent with the evidence of Mr Dennis that at this point in the conversation, Ms Attard became upset. I find that Mr Dennis told Ms Attard she was being let go.

1. Ms Southwick then asked, in words to the effect:

“So no training – just being let go?”

1. Mr Dennis nodded and confirmed, in words to the effect:

“Yes, Rachel is being let go.”

1. As Ms Attard got up to leave, she placed her letter of resignation on the table and said, in words to the effect:

“I beat you to it.”

1. Only Ms Cunnington recalls Ms Attard saying these words. Ms Attard denies it and Mr Dennis does not recall. I find that the words “I beat you to it” were said. They help explain why Ms Attard placed her resignation down on the table despite having already been told she was being let go. Her alternative explanation, that she wanted to be heard about her efforts, includes evidence about the letter saying things it does not say, in relation to stopping her university degree to be able to put her energy into the company by working mornings and late into the night. More likely, these are things Ms Attard thought about after the meeting that she wanted TBT Greenway to know. This is consistent with her evidence to the effect that she “felt like I didn’t get to say any of that during the meeting”.

1. Ms Southwick then made some suggestions to TBT Greenway about how they could have done this better, and she and Ms Attard walked away. There was then subsequent correspondence between them about what had occurred and related documentation – none of which is relevant to the jurisdictional question of whether Ms Attard was dismissed.

Consideration

1. Section 386 of the Act deals with the meaning of “dismissed”. Under section 386(1)(a), a person has been dismissed if the person’s employment with their employer has been terminated on the employer’s initiative.

1. In Mohazab v Dick Smith Electronics Pty Ltd[2] (Mohazab), the Industrial Court of Australia considered the concept of termination at the initiative of the employer and made the following observation:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

1. The decision in Mohazab informs how section 386 of the Act is to be applied. In this case, the critical action that constituted a termination of the employment at the initiative of TBT Greenway was Mr Dennis’s advice to Ms Attard that she was being let go – words confirmed again in response to a question from Ms Southwick about whether there was an alternative (in the form of training) to dismissal.[3]

1. It is not necessary to consider the effect on the employment relationship of Ms Attard placing her resignation down on the table, because by this time she had already been dismissed. Although it is likely that she would have done so at some later point in time, Ms Attard did not voluntarily leave the employment relationship at the time that it came to an end. Indeed, she could not have done so, because there was no employment relationship to leave. In other words, the provision of the resignation letter came too late for it to be relied upon by TBT Greenway as to how the employment relationship came to an end.

1. For these reasons, Ms Attard was dismissed by TBT Greenway on 6 September 2023. Her employment came to an end with immediate effect, accompanied by the payment of one week’s wages in lieu of notice.

Order

1. The jurisdictional objection is dismissed. The matter will now be listed for conference.

COMMISSIONER

Appearances:

R Attard on her own behalf.
C Dennis for the respondent.

Hearing details:

2023.
Sydney (video):
November 22.

[1] Fair Work Act 2009 (Cth), ss 12 and 386.

[2] Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625; 62 IR 200.

[3] (1995) 62 IR 200.

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