Roxana Balgowan v City of Sydney RSL and Community Club Ltd

[2018] FWC 1798

[2018] FWC 1798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roxana Balgowan
v
City of Sydney RSL & Community Club Ltd
(U2017/4635)

COMMISSIONER SAUNDERS NEWCASTLE, 27 MARCH 2018

Application for an unfair dismissal remedy – whether the applicant was dismissed – application dismissed..

[1] Ms Balgowan was employed by the City of Sydney RSL & Community Club Ltd (Club) as a casual employee from 26 October 2015 until April 2017. There is a dispute between Ms Balgowan and the Club in relation to whether she was dismissed and whether any such dismissal was harsh, unjust or unreasonable.

[2] In an earlier hearing, Commissioner Cambridge found that Ms Balgowan had been dismissed and that her dismissal was harsh, unjust and unreasonable. 1 A Full Bench of the Fair Work Commission (Commission) upheld an appeal against Commissioner Cambridge’s decision that Ms Balgowan had been dismissed within the meaning of s.386(1)(b) of the Fair Work Act 2009 (Cth) (Act).2 The Full Bench found that there was not a constructive dismissal because Ms Balgowan, as a casual employee, had no contractual right to work particular hours or shifts, and as a result, any alteration to the number of hours or shifts that Ms Balgowan would be offered by the Club was not a repudiation of Ms Balgowan’s employment contract.3 The Full Bench also concluded that Commissioner Cambridge did not consider whether there had been a dismissal within the meaning of s.386(1)(a) of the Act.4 As a result, the matter was remitted to me to determine whether Ms Balgowan was dismissed within the meaning of s.386(1)(a) of the Act.5

[3] Pursuant to the remitter from the Full Bench, I conducted a hearing in relation to the matter on 19 March 2018. At that hearing Ms Balgowan gave evidence, 6 as did Ms Elenoa Faaui,7 Human Resources Manager for the Club. In determining this matter, I have had regard to the evidence adduced on 19 March 2018, together with the evidence adduced at the original hearing before Commissioner Cambridge.

Meaning of dismissal

[4] Section 386 of the Act governs when an employee has been dismissed:

“386 Meaning of dismissed

(1) [When a person has been dismissed]

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.”

The alleged dismissal

[5] Ms Balgowan contends that the Club dismissed her within the meaning of s.386(1)(a) of the Act. Whether Ms Balgowan was so dismissed depends on whether her contention that the Club “ended my employment by telling myself that the Club was not offering myself any shifts at the Club” is accepted. 8 The Club denies that allegation and contends that Ms Balgowan verbally resigned at the meeting on 10 April 2017.

[6] The following background facts provide context to the meeting which took place between Ms Balgowan and Ms Faaui on 10 April 2017:

(a) during her employment as a casual employee at the Club, Ms Balgowan worked in various parts of the Club’s business and her duties included working in the Club’s café and working as a bar attendant and gaming attendant;

(b) Ms Balgowan worked on average about 30 hours per week, across about four to six shifts per week, at the Club;

(c) about three or four months prior to her alleged dismissal in April 2017, Ms Balgowan commenced working in the change box (sometimes referred to as “cash box”) areas of the Club, where she was required to undertake cash handling duties;

(d) the club alleges that Ms Balgowan had a cash handling variance of $188.75 while she was working in the change box at the Club on 20 December 2016 and it offered Ms Balgowan additional training in the change box duties and responsibilities in an attempt to prevent a cash handling variance from happening again;

(e) Ms Balgowan had a cash handling variance of $100 while she was working in the change box at the Club on 5 April 2017; and

(f) On 7 April 2017, Ms Faaui contacted Ms Balgowan by telephone and arranged for her to attend a cash handling meeting on 10 April 2017. Ms Faaui also informed Ms Balgowan that she was not required to attend her change box shift on 8 April 2017.

[7] Ms Balgowan’s witness statement dated 24 June 2017 includes the following in relation to her meeting with Ms Faaui on 7 April 2017:

“8. This was the first time that I have had a shift cancelled.

9. On 10 April 2017 I attended work early and met with Elenoa, in the meeting she stated that due to the $100 that went missing that I won’t be offered anymore shifts by the club. I offered to replace the $100 which she declined and said that it wasn’t an option, I told her that I needed to keep my job but she said ‘I am sorry, there is nothing I can do’. Elenoa said - that she will see if they can still give myself a shift on Anzac day but that would be it, I said it was unfair and then I said I was going home, Elenoa then asked myself to answer some questions about the workplace which I agreed.

10. At no point in the meeting did I state that I resign nor was the word ‘Resign’ ever mentioned by myself or Elenoa.

11. Elenoa never said that I will be retrained for money handling and she did not say that I will be able to continue shifts in other areas of the workplace.

12. Elenoa showed remorse for the decision to effectively end my employment and asked if I was going to be ok financially.

13. I emailed Elenoa later that night on 10 April 2017 asking for a termination letter. I have attached a copy of this email marked Annexure A.

14. On 12 April 2017 I received an email from Elenoa which included an attachment which stated that the RSL club has accepted my resignation, I called Elenoa shortly after reading this and explained to her that I did not resign and that the RSL had ended my employment. Elenoa said she didn’t know what I meant and said that I did resign, I once again told her that it was definitely not the case and that I was unfairly dismissed and I will need a termination letter as I will be taking it further, Elenoa laughed and the call ended. I have attached a copy of this email marked Annexure B.

…

18. I had no intentions or reasoning to end my employment with the club before my proposed date of 31 July 2017 as I needed the money for my pregnancy, during the early stages of my pregnancy while I was employed at the RSL club my health was good and I did not have any sickness that affected my ability to do my job.

19. This has caused financial hardship on my family”

[8] Ms Balgowan gave evidence to a similar effect in her supplementary statement dated 13 March 2018. 9

[9] Ms Faaui gave the following evidence in her witness statement dated 30 May 2017 in relation to her meeting with Ms Balgowan on 10 April 2017:

“24. On Monday, 10 April 2017, I prepared my notes which include a standard list of questions which I ask all employees who have cash handling variances in anticipation for the cash handling meeting. As it was clear that Ms Balgowan had a second large variance within the space of six months, I had pre-populated a document outlining what I anticipated the outcome of the meeting to be. This document was in the form of a written warning, advising Ms Balgowan that this was her second large variance in a short period of time and she would be required to undergo further training. A copy of the warning that was drafted, but not provided to Ms Balgowan is attached and marked Annexure D.

25. On 10 April 2017 at approximately 2:50pm, Ms Balgowan attended the Club ready for the 3:00pm meeting. I telephoned Ms Yang and advised her that Ms Balgowan was early and asked her to attend the meeting now as we would commence it now. Ms Yang advised that she had a member’s badger draw to run and wouldn’t be able to attend until after 3:00pm. I advised her that was fine, given that it was only a cash handling meeting. I could start it myself and Ms Yang could attend when she was ready.

26. I was not concerned that Ms Yang was not going to be present for the commencement of the meeting, as it was only a performance -related meeting and it was not going to result in the termination of Ms Balgowan’s employment. By making this statement to Ms Yang, I meant that I didn’t believe the meeting was going to result in serious disciplinary action, and that it was not necessary for her to be there. While cash variances are a serious matter, I suspected that the result of the meeting would be me insisting that Ms Balgowan should undergo training before she could recommence cash box shifts. Had I intended to terminate Ms Balgowan’s employment, I would have insisted that Ms Yang, or another witness be present.

27. I then invited Ms Balgowan into the Boardroom, located within the administration office area to commence the meeting. I asked Ms Balgowan if she would like a witness present and she declined. As Ms Balgowan entered the Boardroom and before she took a seat, she stated words to the effect ‘can I just pay it back? I’ll just pay it back.’ I advised Ms Balgowan that it was against Club policy and the Club’s Handbook to pay it back and as such, this was not an option.

28. I advised Ms Balgowan that she had a variance of $100.00 during her shift on 5 April 2017. I asked her if she knew how this had occurred to which she responded with ‘no’. I asked Ms Balgowan if she had completed a float check before the commencement of her shift to which she responded with, ‘yes’. I asked Ms Balgowan if her float was accurate when she commenced to which she responded with, ‘yes’. I asked Ms Balgowan if she completed a float check during her shift, she responded with, ‘no’. I asked Ms Balgowan why she did not and she advised me that she wasn’t sure, she usually did, but on this occasion, she didn’t. I asked Ms Balgowan when she first noticed the variance in her float and she advised me that she noticed it at the conclusion of her shift.

29. I reminded Ms Balgowan of her previous variance in December 2016 of $188.75 and advised her that due to two significant variances within six months, she would be temporarily removed from areas that involved high cash handling whilst she underwent retraining. I also reminded her of the previous meeting on 28 December 2016 where Ms Balgowan had advised that there was no need for retraining as a large variance would not happen again.

30. I advised Ms Balgowan that in order to provide adequate retraining, I would have to remove her from her current change box shifts until I could organise rostered training. The rosters had already been completed for the next two weeks, so I advised Ms Balgowan that I would try to organise training as soon as possible, but it was a process as I needed to coordinate other staff to cover her shifts, as well as cover the shifts of the person who would be training her. I advised Ms Balgowan that her removal from change box shifts until she could be retrained meant that her remaining shift on the current roster was Anzac Day on 25 April 2017. Removal from the change box shift while an employee was waiting to be retrained is common practice at the Club, and Ms Balgowan was not the first person to be taken off the roster in order to facilitate retraining. Retraining is essential to ensure that employees are provided with adequate training and skills in an attempt to reduce the likelihood of future cash handling variances.

31. Ms Balgowan responded to my comment with words to the effect ‘no, I’ll just go’. I didn’t understand what Ms Balgowan meant by that, so I asked her, ‘Roxy, what do you mean I’ll just go?’ I also reminded her that she would still be able to perform general bar shifts. Ms Balgowan shook her head and said ‘no, it’s ok’ and then explained that due to the nature of the Club, there are minimal ‘just bar shifts’ available. I was still confused and completely shocked, so I asked Ms Balgowan again to clarify what she meant that she stated, ‘I’ll just leave’.

32. I advised Ms Balgowan that I was surprised and I was not prepared for this outcome. I asked Ms Balgowan if she was sure that this was the route she wished to take and she replied with words to the effect of, ‘yes, it’s ok, I’ll resign. It’s fine’. I was shocked by Ms Balgowan’s response and resignation as I had not prepared for this outcome. I had only prepared for a cash handling meeting and not considered the possibility of Ms Balgowan’s employment ending as that was not my intention.

33. I had not yet completed the questions on the cash handling interview sheet, which I had prepared to ask Ms Balgowan as well as a brief agenda, I was completely taken by surprise at Ms Balgowan’s response, so I quickly turned over my questions and agenda which I hadn’t had the chance to ask Ms Balgowan and noted her responses. I advised Ms Balgowan that it was a shame that she had decided to leave, however I accepted her verbal resignation and thanked her for her time. At this time, I had to scramble to try and remember the things I needed to take care of with Ms Balgowan before she left, such as collecting her uniform and the covering of her shift later that afternoon.

34. I was still surprised by Ms Balgowan’s response and advised her that I would pay her for a shift today, as she had come into the Club. I also asked her to return her uniforms and noted this, where Ms Balgowan agreed. Ms Balgowan provided a shirt and an apron to me, which were part of her Club uniform.

35. I then advised Ms Balgowan that when employees resign, I asked them to participate in a short exit interview for the purpose of gaining feedback. I asked Ms Balgowan if she was willing to participate in the exit interview as she had resigned. Ms Balgowan agreed to participate.

36. As part of the exit interview, I asked Ms Balgowan the following questions:

What did you like about working here? Ms Balgowan responded in words to the effect, ‘everyone is nice, everyone works well together.’

What did you dislike about working here? Ms Balgowan responded in words to the effect, ‘the staff who smoke take a lot of smoking breaks.’

What do you think of the management team? Ms Balgowan responded in words to the effect, ‘managers are good, some are more strict than others.’

37. I then thanked Ms Balgowan and I wished her the best for the future. I confirmed Ms Balgowan’s address so that I could send her a Group Certificate at the end of financial year and also advised her that I would send her a separation certificate. Ms Balgowan left the Club premises.

…

39. During the meeting with Ms Balgowan I took notes in relation to her responses, and following the meeting I typed up my contemporaneous notes. A copy of my notes are attached and marked Annexure E.

40. Following the meeting with Ms Balgowan, I sent an email to the management team, advising them that Ms Balgowan had resigned and that I had asked Ms Yang to replace her shifts on the roster.

41. On 11 April 2017, I commenced work and discovered an email from Ms Balgowan which had been sent on 10 April 2017 at approximately 10:00pm. The contents of the email were as follows:

Hi, can you please send me my termination notice. Thanks Roxy.

A copy of this email is attached and marked Annexure F.

42. I was confused after reading Ms Balgowan’s email, as I knew that she had resigned and was not terminated. I thought Ms Balgowan may have been referring to a separation certificate when she stated ‘termination notice’ as it was clear to me that she had never been terminated.

43. I provided Ms Balgowan with a confirmation of resignation document on 12 April 2017 via email to confirm that she resigned her employment on 10 April 2017 during the cash handling meeting. A copy of this correspondence is attached and marked Annexure G.

44. I received a telephone call on 12 April 2017 at approximately 9:20am from Ms Balgowan. During the course of this conversation, Ms Balgowan advised me that she didn’t actually resign, she was terminated. I advised Ms Balgowan that was most certainly not the case, as she was advised in the meeting that she was still on the roster for 25 April 2017.

45. I then reminded Ms Balgowan of our meeting on 10 April 2017 where I had advised her that she would still be able to perform general bar shifts until I had arranged appropriate training for her, where her next rostered shift would be 25 April 2017.

46 Ms Balgowan then advised me that she knew this, but one shift every week was not enough because she usually works at least four shifts. I advised Ms Balgowan that she was unable to perform the change box shifts at this stage, due to the area being a high cash handling area which is why she was left with only one shift until a new roster was completed. Ms Balgowan and then advised me that she knew everything I stated to be the case, but that she had spoken to people who advised her that it appeared that she had been terminated. I advised Ms Balgowan that this decision to resign was solely made by her. Ms Balgowan acknowledged this and ended the call.

47. I did not hear from Ms Balgowan from 12 April until the 21 April when I opened my emails to find that I received an email from her on the afternoon of 20 April 2017…”

[10] In her witness statement in reply, dated 10 July 2017, Ms Faaui:

● denied saying to Ms Balgowan that she “won’t be offered any more shifts by the Club” or any words to that effect;

● denied that she said “[she] will see if they can still give [myself] a shift on Anzac Day, but that would be it” or any words to that effect; and

● stated that Ms Balgowan was already rostered to perform a shift on Anzac Day in the illusions/functions bar and annexed a copy of the roster showing Ms Balgowan’s shift on that day to her statement in reply.

[11] Ms Faaui gave evidence to a similar effect in her supplementary witness statement dated 27 February 2018. 10

[12] I prefer Ms Faaui’s evidence over Ms Balgowan’s evidence in relation to the disputed parts of their conversation on 10 April 2017, including Ms Faaui’s denial that she told Ms Balgowan that the Club was not offering her any more shifts at the Club, for the following reasons:

(a) First, Ms Balgowan’s evidence that Ms Faaui told her on 10 April 2017 that the Club was not offering her any more shifts is inconsistent with the email Ms Balgowan sent to Ms Faaui on 20 April 2017, in which Ms Balgowan stated “… you informed me that I would no longer receive my regular shifts except for the odd shift here and there and that you could provide me with a shift on Anzac Day moving forward…” [emphasis added];

(b) Secondly, Ms Balgowan’s evidence that Ms Faaui told her on 10 April 2017 that the Club was not offering her any more shifts is inconsistent with the email Ms Balgowan sent to Ms Faaui on 28 April 2017, in which Ms Balgowan again stated “… you informed me that I would no longer receive my regular shifts except for the odd shift here and there and that you could provide me with a shift on Anzac Day moving forward…” [emphasis added];

(c) Thirdly, in her initial witness statement and the early part of her oral evidence on 13 July 2017, Ms Balgowan asserted that Ms Faaui told her on 10 April 2017 that the Club would see if they could still give her a shift on Anzac Day. 11 Later in her cross examination, Ms Balgowan conceded that on 10 April 2017 Ms Faaui did offer her a shift on Anzac Day but said that is “all she could do”.12 Ms Balgowan rejected the offer of a shift on Anzac Day;13

(d) Fourthly, Ms Faaui’s evidence is supported by the following documentary evidence:

(i) prior to attending the meeting with Ms Balgowan on 10 April 2017, Ms Faaui prepared a draft written warning, which she anticipated giving to Ms Balgowan after the meeting on 10 April 2017. The draft warning, which was not given to Ms Balgowan because of the way in which the discussion at the meeting progressed, included the following final paragraph: 14

“The Club expects that you will show an immediate and sustained improvement in the areas for which you have been warned (Cash handling). Should this not occur, further disciplinary action may result up to and possibly including the termination of your employment.”

(ii) Ms Faaui took notes during her discussion with Ms Balgowan on 10 April 2017. Ms Faaui’s contemporaneous notes include the following: 15

● “Roxy resigned stating that she would not have enough shifts” 16

● “Remove from high cash handling areas as of 10/04/17 – until re-training in the change box can be scheduled (up to 3 months)”

● “Bar shifts only – until re-training complete – and competent”

● “Elenoa advised Roxy that because this is her 2^nd large variance in a space of six months, I would be removing her from high cash handling areas (change box) shifts until I was able to organise some further training for her”

● “Elenoa then advised Roxy that in removing her from change box shifts, her next rostered shift would be a bar/floor shift on Anzac Day, due to the rosters already posted up to and including 25/04/17”

● “Roxy then said ‘no, I’ll just go’”

● “I then advised Roxy that she could still perform general bar shifts, but she acknowledged that due to the nature of the club, we do not have many ‘just bar shifts’ available”

● “Roxy then shook her head and said ‘no, it’s ok’”

● “I then asked Roxy what she meant and she stated ‘I’ll just leave’”

● “I advised Roxy that I was surprised at her response and was not prepared for this outcome. I asked her if she was sure that this is the route she wished to take and she replied ‘yes, it’s ok, I’ll resign. It’s fine.’”

[13] In light of my findings, on the balance of probabilities, that Ms Faaui did not tell Ms Balgowan that the Club was not offering her any more shifts after 10 April 2017 and the Club did offer Ms Balgowan a bar shift on 25 April 2017, together with other bar shifts (as they became available) while she was undergoing re-training in cash handling, there was no action by the Club which directly and consequentially resulted in the termination of Ms Balgowan’s employment, nor was there any action on the part of the Club which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end. 17 Accordingly, I am satisfied that Ms Balgowan’s casual employment with the Club was not terminated on the Club’s initiative within the meaning of s.386(1)(a) of the Act.

Conclusion

[14] For the reasons set out above, I am satisfied that Ms Balgowan was not dismissed within the meaning of s.386 of the Act. As a result, Ms Balgowan’s application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Balgowan, R appearing on her own behalf.

Pike, L, Senior Workplace Relations Advocate, Clubs NSW, on behalf of the Respondent

Hearing details:

2018

Newcastle:

March 19.

<PR601523>

 1   [2017] FWC 3798

 2   [2018] FWCFB 5 at [13]

 3   [2018] FWCFB 5 at [29]

 4   [2018] FWCFB 5 at [30]

 5   [2018] FWCFB 5 at [30]

 6   Ex AR1, together with the oral evidence given by Ms Balgowan on 19 March 2018

 7   Ex RR1

 8   [2018] FWCFB 5 at [14] and [30]

 9   Ex AR1

 10   Ex RR1

 11   Ms Balgowan’s witness statement dated 24 June 2017 (Ex 1) at [9]; PN177

 12   PN193-194, PN200-208, & PN221-223

 13   PN208

 14   Ms Faaui’s witness statement dated 30 May 2017 (Ex 4) at annexure D

 15   Ms Faaui’s witness statement dated 30 May 2017 (Ex 4) at annexure E

 16   Ms Faaui made this handwritten note during the meeting on 10 April 2017 (PN349-351)

 17   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769; O'Meara v Stanley Works Pty Ltd PR973462; Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)]

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