Sabrina Collins v Pacific Language School Pty Ltd
[2024] FWC 138
•5 MARCH 2024
| [2024] FWC 138 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sabrina Collins
v
Pacific Language School Pty Ltd
(U2023/10005)
| COMMISSIONER LIM | PERTH, 5 MARCH 2024 |
Application for an unfair dismissal remedy – whether applicant is a person protected from unfair dismissal – whether applicant was dismissed – application dismissed
Introduction
On 12 October 2023, Ms Sabrina Collins applied to the Fair Work Commission alleging that she was unfairly dismissed from her employment with Pacific Language School Pty Ltd (Respondent). Ms Collins’ application was made pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
The Respondent is based in Queensland and delivers English educational courses for people who do not speak English as their first language.
The parties do not agree when the employment relationship ended and in what circumstances.
The Respondent contests Ms Collins’ unfair dismissal application on the following grounds:
(a)Ms Collins does not meet the minimum employment period in s 382 of the Act;
(b)Ms Collins was not dismissed, she resigned her employment; and
(c)If Ms Collins did meet the minimum employment period and was dismissed, the dismissal was not harsh, unjust or unreasonable.
I conducted a case management conference on 25 November 2023. Directions for the filing of material were subsequently issued.
A hearing was conducted to determine Ms Collins’ application on 17 January 2024. Pursuant to s 596 of the Act, I granted permission for Ms Annalise Thompson of O’Reilly Workplace Law to represent the Respondent.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Having considered the relevant evidence and submissions of the parties, I find that the employment relationship between Ms Collins and the Respondent ended on 3 October 2023. I also find that the employment relationship ended by way of Ms Collins’ resignation. Accordingly, Ms Collins does not meet the minimum employment period required to be protected from unfair dismissal and she was not dismissed.
My detailed reasons follow.
Evidence
2.1 The witnesses
Ms Collins provided two witness statements with several attachments. She also provided oral evidence at the hearing. I did not find Ms Collins to be a credible witness. She was evasive during cross-examination, and at times refused to answer direct questions from Ms Thompson and from me.
Ms Vickie Pollock is the Director of Studies for the Respondent. She has held this position since approximately March 2019, and prior to that was a teacher from March 2019.[1] Ms Pollock was also at times evasive when I asked her questions, which impacted her credibility. However, where Ms Collins’ and Ms Pollock’s evidence differed, I have found Ms Pollock to be the more credible witness.
Ms Jessie-Claire Smith works in an administrative support role for the Respondent. I found Ms Smith to be an open and credible witness. Her evidence is a good foundation for fact-finding.
Both parties submitted a breadth of evidence in this matter. I appreciate that much of the evidence had significance to Ms Collins in particular. However, I only refer to the evidence that is relevant to the matters that I need to determine.
2.2 The events that led up to Ms Collins’s application
Ms Collins interviewed with Ms Pollock on 3 May 2023. Ms Pollock offered Ms Collins the role of ESL Teacher during the interview, which Ms Collins accepted.[2] After the interview, Ms Pollock provided Ms Collins with her employment contract, which relevantly provides that:
(a)Ms Collins was employed on a casual basis;[3]
(b)Ms Collins’ employment was covered by the Educational Services (Post-Secondary Education) Award 2020;[4]
(c)as a casual, Ms Collins had no guaranteed or fixed hours of work – the Respondent would offer her work based on its operational requirements;[5] and
(d)the Respondent did not make or give any advanced commitment as to ongoing or regular hours of work.[6]
During her cross-examination, Ms Collins gave evidence that during her interview for the role Ms Pollock assured her that she would be offered 20 hours a week. Further, that after six months, her employment would be converted to a permanent role.[7] Ms Pollock denied that she said this during the meeting. Ms Pollock’s evidence is that during the interview she told Ms Collins that there was a class available that would run four days a week, for a total of 20 hours a week. Ms Pollock says that she did not say anything about permanency or make any commitments about ongoing work.[8] I found Ms Pollock’s evidence on this point to be more credible.
During Ms Collins’ employment, she taught the evening intermediate language class, 4:30pm to 9:30pm, Monday to Thursday.
Ms Pollock’s evidence is that between approximately 26 September and 28 September 2023, she was notified by the Respondent’s Academic Support team that five students in Ms Collins’s class had raised complaints. These students requested that they be moved to a different class and made complaints about Ms Collins effectively not controlling the class in accordance with the Respondent’s policies.[9]
Ms Pollock made the decision to remove Ms Collins from the intermediate class with a view to place her with a less advanced class.[10] Both Ms Collins and Ms Pollock agree that:
(a)On 3 October 2023 at 10:30am, Ms Pollock called Ms Collins.
(b)Ms Pollock explained to Ms Collins that several students had complained about how she conducted her classes.
(c)Ms Pollock told Ms Collins that she would be removed from teaching the intermediate class.[11]
Ms Collins and Ms Pollock seemed to disagree to an extent the level of commitment that Ms Pollock gave to finding Ms Collins a new class. Ms Collins says that Ms Pollock simply said that that Ms Collins would be allocated another class if one became available.[12] Ms Pollock says that she told Ms Collins that she would find an alternative class for her as soon as possible and would get back to her as it required some reorganisation amongst the teachers.[13] I find that Ms Pollock did tell Ms Collins that she would find another class for her.
At 10:42am, Ms Pollock sent to a Whatsapp group chat with Erik Sorenson (Teacher), Jessica Lewis (Reception), Goanna Gao (CEO) and Ms Smith, “I have told Sabrina C that she is not teaching int evening going forward…can she take the elementary that Erik was going to cover for Kathy…”[14]
At 10:53am, Ms Collins sent to a different Whatsapp group chat with Ms Pollock and Mr Sorenson, “Hi Vickie, I understand the students are not happy about some using their own language to translate. However, I’m also concerned that I have only been given a few hours notice. Can you ask a member of staff to prepare a certificate of separation for Centrelink? Just in case you can’t find another class for me? Thank you.”[15]
After this Whatsapp message, Ms Collins called Ms Pollock several times throughout the day. Ms Pollock’s evidence is that Ms Collins said words to the effect that she did not want to be moved from the intermediate class; the students loved her; that she had the right to allow students to use their native language; and that she did not want to be put on the relief teacher register. Ms Pollock says that during each call she explained to Ms Collins that it was against the Respondent’s policy to encourage or allow students to use their native language in class and explained the reasons why she was being moved to a different class.[16]
Ms Collins’ evidence is that during one of these phone calls she asked Ms Pollock if she could say goodbye to the students in the intermediate class and hand out a student certificate.[17] Ms Pollock agreed to this.[18]
At 1:33pm, Ms Collins sent to a Whatsapp group chat for all staff of the Respondent, “English International Schools are very competitive these days. Well done for getting so many students through your doors. You have been an amazing team to have worked with”.[19]
At approximately 1:40pm, Ms Smith called Ms Collins. Ms Smith says that she asked how Ms Collins was and assured her that the Respondent would be finding her a new class, and in the meantime would be offering her any available relief work. Ms Smith says that Ms Collins said to her, “I have spoken to my friends about this. I am submitting an application to Fair Work. I need a letter of separation from you today”.[20]
At 1:42pm, after reading Ms Collins’ Whatsapp message, Ms Pollock sent to Ms Smith, “Hi Jessie, please ring Sabrina C and tell her we will try and find something for her asap…she has posted a farewell message on pacific team”.[21]
At approximately 4:00pm, Ms Smith was informed that Ms Collins was at the Respondent’s reception. Ms Smith spoke with Ms Collins. Ms Collins asked where her separation certificate was. Ms Smith explained that she did not have the authority to issue a separation certificate. After a short exchange, Ms Collins stated to Ms Smith that she needed her separation certificate within the next three days.[22]
At some point during the afternoon, Ms Collins went into one of the Respondent’s classrooms. Ms Collins’ usual class wasn’t on, so she went into another colleagues’ class. Ms Collins’ evidence is that she was in this colleagues’ class for approximately 5-10 minutes, and she spoke to them about contract law. Ms Collins wrote on the class whiteboard, “Fair Work 21 days”.[23]
During her cross-examination, Ms Collins would not properly answer what led to her writing “Fair Work 21 days” on the whiteboard.[24] I found this had an adverse impact on her credibility.
At approximately 4:35pm, Ms Smith was informed that Ms Collins was at Campus 2 and was causing a scene. When Ms Smith arrived at Campus 2, she saw Ms Collins standing at the bottom of the elevator speaking to students who were entering the campus. Ms Smith’s observation was that Ms Collins was agitated.[25]
When Ms Smith went up to the classrooms on level 5, she found that the whiteboard in classroom 1 had “Fair Work 21 days” written across it. There were five students in the classroom.[26]
From 4:11pm to 4:44pm, Ms Smith sent the following Whatsapp messages to Ms Pollock:[27]
“Sabrina is here asking for the letter of release. She says it’s government requirement, and that we must have it. Do you know where I would be able to access this from?”
A picture of a classroom whiteboard with the words, “Fair Work 21 days” written on it.
“Are you back in Brisbane? Sabrina is standing at ground floor [campus] 2 speaking to everyone walking past”.
Ms Collins left the Respondent’s premises shortly after.[28]
At 5:18pm, Ms Pollock sent a message to Ms Smith asking if there was any relief work that Ms Collins could take over the next few days.[29]
On 4 October 2023, between approximately 4:34am and 5:36am, Ms Collins sent several Whatsapp messages to Ms Pollock requesting that the Respondent issue an Employment Separation Certificate, as Centrelink could not process her claim without it.[30] At 8:09am, Ms Pollock forwarded Ms Collins’ request to Ms Gao, asking her to prepare a separation certificate for Ms Collins.[31]
The parties agree that Ms Collins did not perform any work for the Respondent after 3 October 2023. Ms Collins final payslip was issued on 4 October 2023, and she was removed from all of the Respondent’s Whatsapp groups across 3 October 2023 to 6 October 2023.[32]
Ms Collins lodged her unfair dismissal application with the Fair Work Commission on 12 October 2023. On 6 November 2023, she also lodged a workers’ compensation application with WorkCover Queensland. In a letter to Ms Collins dated 4 December 2023, WorkCover Queensland summarised Ms Collins’ statement to them as:
“On 10 November 2023 you stated that you were employed on a week to week casual basis with Pacific Language School. You advised that on 03 October 2023 you were told by your employer you could no longer teach your class. You advised you were given a 0 hour contract and this was your unofficial dismissal. You advised you requested a letter of separation and your employer did not agree. You advised your class was taken from you as you had received multiple complaints from students as you believed they had seen you name associated in a negative light on community pages.”[33]
The Respondent emailed an Employment Separation Certificate to Ms Collins on 8 December 2023 following a conciliation conference with the Commission. The Employment Separation Certificate states that Ms Collins’s employment commenced on 3 May 2023 and concluded on 3 October 2023 due to Ms Collins’ resignation.[34]
Relevant legislation
Section 385 of the Act provides that:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.”
Section 396 of the Act requires the Commission to decide the following matters before considering the merits of an unfair dismissal application:
(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d)whether the dismissal was a case of genuine redundancy.
Under s 382, a person is protected from unfair dismissal if at the time of dismissal:
(a)they have completed the minimum employment period; and
(b)one of the following applies:
(i)they are covered by a modern award;
(ii)an enterprise agreement applied to them; or
(iii)the sum of their annual rate of earnings is less than the high income threshold.
Section 383 of the Act provides that the minimum employment period is six months if the employer is not a small business employer. If the employer is a small business employer, the minimum employment period is one year.
Section 386(1) of the Act provides:
“386 Meaning of Dismissed
(1)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.”
Submissions and consideration
4.1 Ms Collins
During her closing submissions, Ms Collins submitted that the employment relationship ended on 8 December 2023.[35] Ms Collins submits that she did not resign, and that the Respondent’s position that she resigned is a result of Ms Pollock trying to avoid accountability for breaking the Respondent’s verbal contract with her.[36]
Ms Collins also relies on discussions that were conducted between the parties during the Commission conciliation process.[37] However, Ms Collins also acknowledges that those discussions were held on a without prejudice basis and that the discussions cannot be relied upon at hearing.[38]
Ms Collins submits that her dismissal was unfair for the following reasons:[39]
(a)There was no valid reason for her dismissal.
(b)Other teachers were breaking school rules.
(c)She was not given the opportunity to respond or to have a support person.
(d)The Respondent withheld her Employment Separation Certificate from her.
(e)She was discriminated against as she was the only British trained and qualified teacher.
4.2 The Respondent
The Respondent submits that the employment relationship with Ms Collins came to an end on 3 October 2023. In support of this, the Respondent submits that the Commission should have regard to the following:
(a)Ms Collins repeatedly requested an Employment Separation Certificate from the Respondent after Ms Pollock informed Ms Collins that she would be teaching a different class after complaints were received.
(b)Despite Ms Collins’ requests for an Employment Separation Certificate, the Respondent continued to attempt to find a different class for Ms Collins.
(c)Ms Collins posted a good-bye message to one of the Respondent’s Whatsapp groups.
(d)Ms Collins said to Ms Smith that she would be submitting an application to ‘Fair Work’ and wrote ‘Fair Work 21 Days’ on a whiteboard in front of students.
(e)Ms Collins did not continue to attend work for the Respondent beyond 3 October 2023.
The Respondent submits that there is a breadth of precedent where the Commission has found in similar circumstances that the applicant resigned their employment.[40]
The Respondent further submits that it should not be inferred from Employment Separation Certificate being issued on 4 December 2023 that the employment relationship remained on foot post 3 October 2023.
Ms Collins’ contention that her employment remained on foot until either 24 November or 4 December is not supported by any evidence. Further, they are contradictory to her own evidence that she felt forced to resign after a conversation with Ms Pollock on 3 October 2023.
The Respondent further submits that if the Commission does have jurisdiction, there was a valid reason to dismiss Ms Collins that outweighs any procedural deficiencies that may have existed at the time. This is because Ms Collins breached the Respondent’s policy by allowing students to talk in their native language during classes, which resulted in several student complaints. Ms Collins then engaged in inappropriate conduct on 3 October 2023.
4.3 Consideration
Section 396 of the Act requires me to first determine whether Ms Collins’ application was made within time; whether she was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. There is no contest, and I accept, that the Respondent was not a small business employer and that the employment relationship between Ms Collins and the Respondent did not end by way of redundancy.
Whether Ms Collins’ application was made within time specified in s 394(2) and whether she was protected from unfair dismissal depends on my finding of when the employment relationship ended. In this matter, the question of when the employment relationship ended is tied up in how the employment relationship ended.
It is useful to summarise the different positions Ms Collins has taken with respect to when her employment commenced and ended:
(a)In Ms Collins’ unfair dismissal application lodged on 12 October 2023, it states that she commenced employment on 2 March 2023 and her employment ended on 4 October 2023.[41]
(b)In Ms Collins’ submissions filed on 7 December 2023, she states that she commenced employment on 3 May 2023; she was notified of her dismissal on 3 October 2023; and the dismissal took effect on 4 December 2023.[42]
(c)In Ms Collins’ WorkCover Queensland claim, she stated that she was dismissed on 3 October 2023.[43]
(d)In responsive submissions filed on 11 January 2024, Ms Collins states that her “resignation date is unclear”, and that when she received her Employment Separation Certificate on 8 December 2023, she took it as “confirmation of [her] separation of employment.[44]
(e)At the hearing on 17 January 2024, Ms Collins gave evidence that she commenced her employment on 3 May 2023[45] and submitted that she was dismissed on 8 December 2023.
These inconsistencies were put to Ms Collins during cross-examination. However, Ms Collins position is that there were no inconsistencies, she had just amended her position as further information had come in.[46]
I find that Ms Collins commenced her employment with the Respondent on 3 May 2023. That is when Ms Pollock interviewed Ms Collins and offered her the role of casual ESL teacher, which Ms Collins accepted.
I find that the employment relationship between Ms Collins and the Respondent ended on 3 October 2023, and that it ended by way of Ms Collins resigning. I rely on the following in reaching this finding:
(a)Ms Collins’ employment contract made it clear that she was not guaranteed hours of work from week to week.
(b)When Ms Pollock informed Ms Collins on 3 October 2023 that she was being taken off the intermediate class, she told Ms Collins that she would try and find her other work. This is supported by Ms Pollock’s Whatsapp messages on 3 October 2023.
(c)Ms Collins responded by repeatedly asking for an Employment Separation Certificate so that she could apply for Centrelink payments. During her cross-examination, Ms Collins acknowledged that she understood that an Employment Separation Certificate was effectively proof that there is no longer an employment relationship, as “[she] didn’t think that she could get Centrelink and be employed at the same time”.[47]
(d)Ms Collins was removed from the Respondent’s Whatsapp groups from 3 October – 6 October 2023.
Though the Respondent did not issue the Employment Separation Certificate until 8 December 2023, that does not change the objective facts that Ms Collins requested an Employment Separation Certificate on 3 October 2023 knowing the significance of an Employment Separation Certificate and did not perform any work for the Respondent after this date.
Even if I am incorrect in my finding that Ms Collins was not dismissed from her employment, it is clear on the evidence that the employment relationship ended on 3 October 2023. Accordingly, Ms Collins was employed by the Respondent for a period of five months. Ms Collins does not meet the minimum employment period in s 382 of the Act. Ms Collins is therefore not a person protected from unfair dismissal and her application must be dismissed.
An order to this effect will be issued separately.[48]
COMMISSIONER
Appearances:
S Collins, Applicant
A Thompson for the Respondent
Hearing details:
2024
Perth (Via Microsoft Teams):
January 17.
[1] Digital Court Book (DCB), page 109, [3].
[2] Ibid, page 109 – 110, [6] – [8].
[3] Ibid, page 37.
[4] Ibid, page 38 at clause 4.1.
[5] Ibid, page 39 at clause 6.1.
[6] Ibid, page 39 at clause 6.2.
[7] Transcript, 17 January 2024, PN50.
[8] Ibid, PN520 – PN524.
[9] DCB, page 110, [13].
[10] Ibid, page 110, [14].
[11] Transcript, 17 January 2024, PN58-PN59.
[12] Ibid, PN106-PN107.
[13] DCB, page 111, [17].
[14] Ibid, page 133.
[15] Ibid, page 134.
[16] Ibid, page 112, [21].
[17] Ibid, page 51.
[18] Transcript, 17 January 2024, PN164, PN433.
[19] DCB, page 135.
[20] Ibid, page 84.
[21] Ibid, page 136.
[22] Ibid, page 84.
[23] Transcript, 17 January 2024, PN198 – PN200.
[24] Ibid, PN178 – PN211.
[25] DCB, page 84.
[26] Ibid.
[27] Ibid, page 137.
[28] Ibid.
[29] Ibid, page 138.
[30] Ibid, pages 139 – 141.
[31] Ibid, page 142.
[32] Ibid, page 114, [31] – [33].
[33] Ibid, page 56.
[34] Ibid, page 145.
[35] Transcript, 17 January 2024, PN164.
[36] DCB, page 51.
[37] Ibid, page 52.
[38] Transcript, 17 January 2024, PN255 – PN266.
[39] DCB, pages 26 – 27.
[40] Tammy Cooper v Eastcoaster Tasmania[2019] FWC 8592; Pickering v Multiquip Pty Ltd[2014] FWC 499; Crowther v Ray Marshall Transport Pty Ltd[2014] FWC 2119 (upheld on appeal); Appeal by Il Migliore Pty Ltd [2013] FWCFB 5759.
[41] DCB, page 6.
[42] Ibid, page 17.
[43] Ibid, page 56; Transcript, 17 January 2024, PN247.
[44] Ibid, page 53.
[45] Transcript, 17 January 2024, PN47.
[46] Ibid, PN295.
[47] Ibid, PN318 – PN325.
[48] PR772069
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