Renee Royall v Aussie Kids Pty Ltd - [2022] FWC 2301

[2022] FWC 2301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Renee Royall
v

Aussie Kids Pty Ltd

(U2022/5812)

DEPUTY PRESIDENT MASSON

MELBOURNE, 31 AUGUST 2022

Application for an unfair dismissal remedy – jurisdictional objections raised – whether Applicant dismissed – whether minimum employment period met – jurisdictional objections dismissed – dismissal found to be unfair – reinstatement not appropriate - compensation ordered.

Introduction

On 27 May 2022, Renee Royall (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Aussie Kids Pty Ltd (the Respondent) on 23 May 2022 was unfair. The Applicant seeks an order for compensation.

On 15 June 2022, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised two jurisdictional objections to the application, those being that the Applicant was not dismissed withing the meaning of s.386(1) of the Act and had not served the minimum employment period (the MEP).

Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 26 August 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act having regard to the number of witnesses called to give evidence.

The Applicant was self-represented and gave evidence herself at the conference. The Respondent was represented by Amanda Both of DJMIR Advisory Services Pty Ltd
who was granted permission to appear pursuant to s.596(2) of the Act. Ms Both called the following witnesses for the Respondent;

Melissa Perera – Centre Director
Davina Russell – Assistant Director
Gregory Nelson – Owner (Approved Provider)

Background and evidence

The Applicant commenced employment with the Respondent at its Mildura childcare centre (the Centre) on a casual basis as an ‘Early Childhood Educator’ in August 2020[1]. At the time of the Applicant’s alleged dismissal, the Respondent employed thirty-three staff[2], the Applicant was covered by the Children’s Services Award 2010[3] (the Award) and was in receipt of a casual hourly base rate of pay of $33.33[4].

The Applicant states that when she commenced employment with the Respondent she initially agreed to work between 10.00am and 3.00pm on weekdays during periods when her partner was at home and not rostered to work at a mine site at which he was employed. She says that the hours arrangements initially agreed became untenable for the Respondent who told her that she would need to “lock in” set shifts and hours which were agreed as Monday to Thursday from 10.00am and 3.00pm each week. These more regular arrangements were implemented from February 2021. The Applicant’s fortnightly hours of work for the period from 24 August 2020 to 23 May 2022, as disclosed by the Applicant timesheet records[5] (the Timesheet Records), were as follows;

24 August – 6 September 2020 39.75

7 September – 20 September 2020 35.5

5 October – 18 October 2020 24.5

19 October –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2301
Decision Date: 31 AUGUST 2022

CaseChat Overview and Summary

Renee Royall (the Applicant) lodged an application with the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Aussie Kids Pty Ltd (the Respondent) filed a response to the application in which it raised two jurisdictional objections, namely that the Applicant was not dismissed and had not served the minimum employment period (MEP). The Deputy President dismissed the jurisdictional objections and found that the dismissal was unfair. The Applicant was awarded compensation in lieu of reinstatement.

The Applicant commenced employment with the Respondent in August 2020 as an Early Childhood Educator on a casual basis. The Applicant was covered by the Children’s Services Award 2010 (the Award). In February 2021, the Applicant agreed to lock in her days and hours of availability to work shifts for the Respondent. The Applicant took a period of unpaid parental leave from 13 January 2022. On 20 May 2022, Melissa Perera, the Centre Director, sent an email to all staff expressing disappointment at the number of staff absent on 20 May 2022. The Applicant responded to the email by posting a comment on the ‘live’ rostering application called Tanda. The Respondent considered the post to be inappropriate. On the morning of 23 May 2022, Ms Perera called the Applicant into her office, informed her that she was unhappy with the post, and told her to go home early. The Applicant returned to Ms Perera’s office to ask if she would be rostered for the rest of the week and was told that she would be contacted if there were any shifts. The Applicant then left the premises at 10:04 am. During the afternoon of 23 May 2022, Ms Perera and Davina Russell, the Assistant Director, balanced the roster for the rest of the week and cancelled the Applicant’s shifts for the week of 23 May 2022. The Applicant checked the Tanda app on 25 May 2022 and saw that her shifts had been removed. The Applicant telephoned Ms Perera to ask why her shifts had been removed to which Ms Perera replied, “pretty much”. The Applicant was not notified of the cancellation of her shifts and access to Tanda. The Applicant viewed the withdrawal of her Tanda access and cancellation of her shifts without explanation as constituting the termination of her employment. The Respondent denies those actions were intended to bring the employment relationship to an end.

The Deputy President found that the conduct of the Respondent in cancelling the Applicant’s shifts and withdrawing her access to the rostering app, Tanda, had the probable result of bringing the employment relationship to an end, even if it was not the intention of the Respondent to do so. The Deputy President found that the Applicant was dismissed at the initiative of the Respondent and that her date of dismissal was 23 May 2022. The Deputy President further found that the Applicant had met the MEP as she had been employed by the Respondent for a period in excess of 6 months. The Deputy President was satisfied that the Applicant was regularly and systematically engaged on a casual basis and had a reasonable expectation of continuing employment on a regular and systematic basis.

The Deputy President found that the dismissal was unjust, unreasonable, and thereby unfair. The Deputy President found that the dismissal was not supported by a valid reason and that the Applicant was not notified of the valid reason. The Deputy President also found that the Applicant was not given an opportunity to respond to the reason relied on by the Respondent for her dismissal. The Deputy President found that reinstatement would be inappropriate and that an award of compensation is appropriate. The Deputy President ordered that the Respondent pay $2,521.75 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

Orders