Sara Maree Ferrini v The Cut & Colour Room - [2022] FWC 2735

[2022] FWC 2735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sara Maree Ferrini
v

The Cut & Colour Room

(C2022/1190)

COMMISSIONER MATHESON

SYDNEY, 13 OCTOBER 2022

Application to deal with contraventions involving dismissal – jurisdictional objection – Respondent contends Applicant not dismissed – jurisdictional objection upheld – application dismissed.

On 16 February 2022, Ms Sara Maree Ferrini (Applicant) filed an application for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (Act). The respondent is The Cut & Colour Room (Respondent).

Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a)a person has been dismissed; and

(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

The Respondent has raised a jurisdictional objection to the application, alleging that the Applicant was not dismissed. This decision deals with the jurisdictional question as to whether the Applicant was dismissed.

The Respondent filed submissions addressing its jurisdictional objection on 9 May 2022 and the Applicant filed submissions on 31 May 2022. Final submissions were filed by the Respondent on 6 June 2022.

Having heard from the parties, I decided that a hearing was the most appropriate way to determine the matter and the matter was listed for hearing on 17 June 2022. As the hearing did not conclude on that date, a further date was set for hearing, being 1 July 2022.

Both parties sought to be represented by a lawyer and I granted permission for them to be represented pursuant to s.596(2)(a) of the Act as I was satisfied there is a degree of complexity both in the factual matrix and the matters concerning the jurisdictional objection and, taking into account that complexity, I was satisfied that the proceedings would proceed more efficiently if representation was granted. Accordingly, at the hearing, the Applicant was represented by Mr Mossman, initial C, and the Respondent was represented by Mr Rawlings, initial M.

Background

The Applicant commenced employment with the Respondent on 11 May 2021 as a hairdresser on a casual basis.[1] The Applicant had previously worked with the director of the Respondent, Ms Kimberley Washington, as a beauty therapist in another business that is no longer in operation.

From 22 December 2021, the Applicant was absent from work as a result of being diagnosed with complications arising from a COVID-19 vaccination.

The Applicant alleges she was dismissed by the Respondent on 27 January 2022.

The Respondent denies that the Applicant was dismissed.

Submissions

Summary of the Applicant’s position

The Applicant submitted that she was dismissed by the Respondent within the meaning of s.386 of the Act. In particular, the Applicant submitted that:[2]

· whilst engaged as a casual employee, she would work up to 12 hours a day, with the number of hours worked correlating to the number of customers seen in a day;

· after experiencing complications as a result of her COVID-19 vaccination she requested to be allowed to return to work on reduced hours, gradually building up to full time hours per day when her medical condition allowed it and this request was rejected by the Respondent;

· Ms Kira McLennan, Salon Manager of the Respondent, imposed a requirement that the Applicant be “100% fit” in order to allow her to return to work;

· any employee would reasonably view Ms McLennan’s statement as meaning they would not be provided with any work unless they were 100% fit and able to work full time hours and on some days up to 12 hours;

· the Respondent would not accommodate a reasonable, temporary reduction in hours;

· the imposition of a requirement that the Applicant be “100% fit” is both unreasonable and discriminatory, as found in Brunsch v Venture Mould and Engineering Australia Pty Ltd (Anti-Discrimination) [2008] VCAT 920;

· there was no commitment by Ms McLennan that, if the Applicant reached the level of being 100% fit, she would be re-engaged; and

· in those circumstances and viewing the conduct of the Respondent on an objective basis, the Respondent terminated the Applicant’s employment.

The Applicant submitted that, while it may be that some action on the part of the employer is intended to bring the employment to an end:

· it is not necessary to show that the employer held that intention;[3] and

· it is sufficient that the employer’s conduct would, on any reasonable view, be likely to bring the employment relationship to an end.[4]

In the alternative, the Applicant submits she was forced to resign in circumstances within the meaning of s.386(1)(b) of the Act,[5] i.e. she was forced to do so because of conduct, or a course of conduct, engaged in by her employer. In particular, the Applicant submitted that the imposition of a term which breached the anti-discrimination legislation would be conduct forcing the Applicant to leave her employment.[6]

Summary of the Respondent’s position

The Respondent disputes that the Applicant was dismissed, submitting:[7]

· the Applicant’s employment did not come to an end at the initiative of the Respondent as she was a casual employee and the employment ended at the conclusion of her last shift on 22 December 2021;

· the Respondent did not possess the necessary intention to terminate the Applicant, as the Respondent is required to have acted with the motivation to end employment and there is no evidence to support such a finding on either a subjective or objective assessment; and

· in all of the circumstances, the evidence the Applicant seeks to rely upon does not establish that she was ‘dismissed’ from her employment.

Legislation

The term ‘dismissed’ is defined in s.386(1) of the Act as a situation where:

(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.

However, s.386(2) of the Act provides that a person has not been dismissed if:

(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or the end of the season; or

(b)the person was an employee:

(i)to whom a training arrangement applied; and

(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)the person was demoted in employment but:

(i)the demotion does not involve significant reduction in his or her remuneration or duties; and

(ii)he or she remains employed with the employer that effected the demotion.

It is not disputed and I find that none of the circumstances referred to in s.386(2) of the Act are relevant to the present case.

Evidence

The facts in this matter are in dispute. I have had regard to the evidence of the parties in order to make findings of fact about what happened in the lead up to, and on the day of, 27 January 2022, being the date on which the Applicant says she was dismissed.

Witness statements were filed for:

· the Applicant;

· the Applicant’s mother, Ms Sandra Ferrini;

· Ms Kira McLennan, Salon Manager of the Respondent; and

· Ms Kimberley Washington, owner and director of the Respondent,

who all gave evidence at the hearing.

A Statutory Declaration of Ms McLennan was also filed with Respondent’s ‘Form F8A – Response to general protections application’. Text messages have been filed by the parties as evidence of communications between the Applicant, Ms McLennan and Ms Washington.

The roles of Ms McLennan and Ms Washington

Ms McLennan gave evidence that, in her role as Salon Manager:[8]

· she is responsible for rostering employees and is the first point of contact for employees for day-to-day matters and the appropriate person for employees to communicate with if they are sick or unable to attend work; and

· she does not have the authority, and never held out as having the authority, to terminate employees of the Respondent and that authority sits with the Respondent’s owner, Ms Washington.

The Applicant gave evidence that Ms McLennan was the manager of the Respondent, responsible for staff and salon management.[9]

Ms Washington is the owner of the Respondent and gave evidence that:[10]

· she has known the Applicant since around July 2019 when she employed the Applicant as a beauty therapist in a business no longer in operation;

· in around May 2021, the Applicant contacted her regarding an advertised position in the Respondent’s business;

· the Applicant was engaged verbally on a casual basis following a successful interview with Ms McLennan and commenced casual employment on or about 11 May 2021;

· as the owner and director of the Respondent, she is the decision maker and responsible for all major business operation decisions, including the hiring or termination of staff;

· Ms McLennan is responsible for the day-to-day management of the salon and decisions about Ms McLennan’s authority are referred to Ms Washington;

· Ms Washington was responsible for hiring the Applicant and, in the event she was ever to be terminated, is the only person who would hold authority to make this decision; and

· Ms McLennan does not hold authority to hire or dismiss staff.

During cross-examination, Ms McLennan’s evidence was that:[11]

· she interviewed the Applicant for the role;

· “everything has to be run by [Ms Washington]” so, after the interview, she contacted Ms Washington and said she was happy to put the Applicant on as a casual employee; and

· she then called the Applicant to offer her the role.

Ms Washington’s account of how the Applicant came to be hired varied from that of Ms McLennan. During cross-examination, Ms Washington’s evidence was that:[12]

· Ms McLennan did not interview the Applicant for the role; and

· Ms McLennan had a “conversation” with the Applicant about hours, responsibilities, protocols and procedures.

Based on the evidence before me, I am satisfied that Ms McLennan has a say in staffing matters but does not have the unfettered discretion to hire and dismiss employees, with such decisions requiring approval of the owner of the business, Ms Washington. I am, however, satisfied that Ms McLennan is responsible for, and makes decisions in relation to, day-to-day rostering of employees for work.

The Respondent’s operational environment

Ms McLennan is responsible for the operational management of the salon. During the course of giving her evidence, Ms McLennan was asked questions and gave evidence about the Respondent’s operations. By way of summary, Ms McLennan’s evidence was that:[13]

· casual employees need to have clients to be able to get rostered hours;

· however, the Respondent is short staffed so there is plenty of work for employees all the time;

· on average, the Applicant was working around 38 hours per week most weeks. This included a shift of about 11 hours on Tuesdays and shifts on other days ranging between six and nine hours;

· the Respondent is booked up at least three weeks in advance;

· December is the busiest month for the Respondent because of demand for services for Christmas;

· the Respondent is closed between Christmas and New Year, opening around 4 January, after which there is strong demand for services;

· she permits some flexibility in rostering employees depending on employee preference or “what they’ve got going on” but tries to “book them up anyway” and they are “always there a minimum of five to six hours” because of the nature of the work;

· there are times during a rostered shift where employees are performing work that is not directly servicing a client, such as cleaning up, washing or helping others with their clients;

· the Respondent uses an online booking system called ‘Timely’, which links to a staff list and which Ms McLennan controls;

· the Respondent uses Xero for payroll, which Ms Washington controls;

· the salon has a high turnover in relation to clients seeking colour services and, to do a minimum of two clients having colour services, an employee would need to work for at least five to six hours. The time for each client depends on the colour service and an employee could service one colour client (who was not having foils) within two and a half to three ours depending on how fast they work;

· a client having a full head of foils would take a minimum of three and a half to four hours;

· one stylist will work on foiling or colouring a single client; and

· there are other processes that take in excess of three and a half to four hours, including chemical straightening and keratin, which can take up to between five and seven hours, and the Applicant was involved in these processes.

The Applicant also gave evidence during cross-examination about her role as a hairdresser, indicating:[14]

· she would have a consultation about what a client wants that the beginning of an appointment;

· from that consultation phase, she would mix the colour, cut hair, et cetera, and how long that took would depend on what was agreed during the consultation phase; and

· stylists and hairdressers had a profile within the Respondent’s booking system, ‘Timely’, and those with active appointments would appear on a staff list.

The Applicant’s COVID-19 vaccination and associated medical condition

The Applicant gave evidence that:[15]

· Ms McLennan told the Applicant to have a COVID-19 vaccination, advising that all other staff members were fully vaccinated and Ms McLennan and another senior stylist were diagnosed asthmatics so having all team members double vaccinated would ensure the safety of the salon and customers;

· she was pressured into being vaccinated with statements being made to her such as:

o“Holly Smith’s mum is a nurse and she knows best”; and

oMs McLennan saying to her “if the government didn’t want to create a vaccine to save lives, then they wouldn’t have made one”;

· Ms McLennan “pulled [her] aside on one occasion to discuss the vaccine hubs around [the Applicant’s] home”, told her that the Boondall hub was the closest clinic to her home and told her to go on a Saturday afternoon after work to make a convenient time to obtain the vaccination; and

· the Applicant became very ill following vaccination and was diagnosed with post COVID-19 vaccination medical complications.

Among the text messages filed by the parties are:

· A text message from the Applicant to Ms Washington on 1 December 2021, in which the Applicant says:

“For a ‘free vaccination’ that I felt like I wanted to get for the salon and for my team as well as to protect our clients, I had the ‘Director Consultant Dr’ on duty last night at the hospital tell me that he believes I’m one of the unlucky people to get extremely sick after the second vaccination.
This is now day 10 after my second jab and I haven’t been the same since.

I 100% regret getting it since it has cost me my job, my income and my parents income.

I’ve
Never
Been
So
Sick”.

· A text message in reply from Ms Washington to the Applicant on 1 December 2021, in which Ms Washington says:

“Oh sweetie! I’m sorry. You should have talked to me. I had no mandate and there was no way I was making anyone have it. I can research what you can do about adverse reactions.”

· A text message in reply from the Applicant to Ms Washington on 2 December 2021, in which the Applicant says:

“It’s not your fault.
I should have spoken to you and asked if it was a mandate.

I was under the impression that it was going to be with the borders opening this month.

I was the last one in the salon to get vaccinated.
I was holding off because my Brother in the UK who has been living there for 4 years told me to hold off as I’m on long term medication - and he has HAD covid, and his experience was that he was fine, but I wanted to take on board his advice until further research.

With Holly and Kira being asthmatics, I thought I should do the right thing for the team.

I got my first jab 31st Oct (Sun) to recover if I was to have a reaction, and I got the 2nd jab smack bang at the 3rd week mark being 21st Nov (Sun).
I tried to plan them both on Sunday mornings so that I had the most time to recover if I was to get any side effects.

Ever since the jab I haven’t been well, and I’ve gotten significantly worse.

Body rashes, fever, sweating, head ‘pains’ that turn into a migraine, body aches, eye pain, nausea, dizziness as well as being scared and scarred by this whole experience with only having good intentions as it was beginning to get uncomfortable when clients found out I wasn’t vaccinated yet.

I’ve been to:
- 3 different GP’s
- 2 emergency hospital visits
- 3 physio appts
- Hypnotherapy (because Mum was trying to think outside the box)
- Acupuncture
I have all the documentation for you as I want to keep my job
I found out it was definitely the Pfizer effects because:
- Bloods were investigated
- MRI conducted
- Heart assessment test
They all came back clear

If I wasn’t attempting to come into the salon, I was glued to my bed or the couch.
I’ve even spent a night at Mum and Dad’s because I was up all night nauseous with migraines.

I just want to let you know that myself and my Mum are doing everything in our power to get myself better so I can work and focus on my clientele.
I cannot be crying, dying in the back room hovering over the sink or have a fear of being sick on the salon floor.

I cannot be my professional self at the moment, but I’m doing everything I possibly can to get my body back.”

While the Applicant suggests she was pressured to get vaccinated by Ms McLennan, I am not persuaded that this was the case. During cross-examination, the Applicant confirmed that the Respondent did not impose a vaccination mandate but that it was “persuaded”.[16] When asked what she meant by that, the Applicant said:

“That Kira kept talking about it, that the apprentice kept talking about it, that Holly kept talking about it, and clients kept talking about it. Everyone was pro-vax.”[17]

While it seems likely that Ms McLennan encouraged vaccination, the text messages sent to Ms Washington suggest that the Applicant formed her own view about whether vaccination was mandated and was motivated to become vaccinated in the interests of her team, to protect clients and because she was worried about how she would be perceived by clients if she was not vaccinated.

However, it is not in contention that the Applicant became unwell following her second COVID-19 vaccination on 21 November 2021 and that she notified the Respondent of this between 1 and 2 December 2021 via text messages. The text messages sent by the Applicant suggest that the medical condition impacted her ability to perform her role, as evident from statements in her text messages such as:

“I cannot be crying, dying in the back room hovering over the sink or have a fear of being sick on the salon floor.”

and

“I cannot be my professional self at the moment, but I’m doing everything I possibly can to get my body back.”

The Applicant’s ability to work and Ms Washington’s concerns regarding business impact

I am satisfied that the Christmas period is a busy one for the Respondent and it is apparent that Ms Washington had some concerns about the impact of the Applicant’s absence on client appointments.

While the Applicant sent a lengthy text message to Ms Washington on 2 December 2021 about her symptoms and the medical treatments she was receiving, it was unclear from that text message what this meant in terms of the Applicant’s ability to attend work.

In a text message in reply from Ms Washington to the Applicant on 2 December 2021, Ms Washington said:

“I will send you some information

But are you walking away from the salon, Sara? No pressure but we will need to sort the appointments out for the clients’ sake. They will never forgive us for not doing their hair for Xmas.”

In a text message in reply from the Applicant to Ms Washington on 2 December 2021 the Applicant said:

“DEFINITELY NOT walking away from the salon I love working there – I’m just upset for letting the team down momentarily”.

The Applicant sent a further text message in reply to Ms Washington on 2 December 2021, in which she said:

“Why would you think I’m walking away from the salon?
I’m doing everything I can to get back to the salon ASAP

I’m scared of loosing (sic) my job because I’m sick”.

Ms Washington sent a text message in reply to the Applicant on 2 December 2021, in which Ms Washington said:

“It is a very tricky situation for you I get it. But if you are not coming back tomorrow, I have to reassign the appointments. We can’t leave the clients hanging. You get that right? Get in touch when you feel like you are strong enough to work.”

A text message in reply was sent by the Applicant to Ms Washington on 2 December 2021, which said:

“This is what Kira said yesterday:

I’ve marked you out for tomorrow and Friday too. Can you please let me know about Saturday? Thank you

I will tell her now to keep the Saturday because I want/feel I will be strong enough to be there.

I was just explaining to you what I have been doing to get better to continue on with Xmas bookings!”

This text message suggests that the Applicant considered she was able to work through the Christmas bookings.

Ms Washington sent a text message in reply to the Applicant on 2 December 2021, in which Ms Washington said:

“Oh perfect. Maybe talk to doctor about taking Fish oils and CoQ10”.

At 11:42am on 17 December 2021, Ms Washington sent the Applicant a text message requesting that the Applicant call her. At 3:36pm on 17 December 2021, the Applicant sent a text message to Ms Washington stating:

“I’ve just left the hospital.
Mum is driving me home now.

After doing further tests they believe I had adverse reactions from the migraine medication.

I had Botox in the head, neck and shoulders up at the hospital before the start of my shift yesterday.
Botox isn’t an instant result and takes 7 days to kick in so I took medication this morning to try and get me through today.

Im (sic) doing everything I can to reverse these ‘permanent’ symptoms that I have had since the vaccine.”

Despite her illness, it is apparent that the Applicant continued to work in some capacity after the text message exchange on 1 and 2 December 2021 and this is consistent with Ms Washington’s evidence that, between 7 December 2021 to 22 December 2021, the Applicant was rostered on and completed numerous shifts before the salon was then closed over the Christmas break.[18]

Changes in the Applicant’s communicated ability to work from January 2022

On 1 January 2022, the Applicant sent an update about her medical condition to Ms Washington and Ms McLennan in a text message that said:

“This is a message that I dread having to send to you both,
But I’m unfit to start work on Tuesday the 4th due to the ongoing complications from the Pfizer.
No matter with me trying everything, my condition has not changed.
I went back to my GP which has put me on new medication that I’m currently trailing (sic), yet the next day was back at the Mater Emergency requesting a second MRI where they use dye in the brain as part of the reading.
The test was unable to be completed on site, so a request has been sent to my GP to conduct a referral for yet another Neurologist and for that test to be done.
He apparently returns to work next week.

This has been an on going (sic) hellish experience day in and day out. My mental health had declined as you can imagine.

I’m scared.

I know this effects you both greatly as well, but all Drs agree that the Pfizer has contributed to this - but no one seems to be able to give me clear answers when I can expect some relief and when I’ll be my normal self again.

This is not how I expected to start 2022.
I have been informed that under no circumstances should I be getting the booster vaccine.”

In the above text message, the Applicant clearly communicates she is “unfit to start work” on 4 January 2022 and suggests she is very unwell with impacts on her mental health. However, the Applicant does not give an indication as to when she will be available for shifts.

On 3 January 2022, Ms McLennan replied to the Applicant via text stating:

“Ok I have marked you out for the next two weeks for now.”

On 4 January 2022, Ms Washington replied to the Applicant via text as follows:

“Sorry to read this Sara. Sorry for you that you are experiencing this, sorry for Kira for the stress it will cause her in rescheduling, and sorry for the customers who were wanting you to do their hair. You haven’t given an indication of the time you need off to recover. In order for us to maintain a consistent and professional service for CCR clients, I think we will have to employ another stylist to help carry the workload and reassess your hours when you are feeling better.
Thank you for letting us know.
As I explained, the vaccines were a personal choice and there was no expectation from the business for you to have them. A booster shot would also be a personal decision. Please take care. Xxx”.

On 5 January 2022, the Applicant replied to Ms McLennan via text message as follows:

“Thank You

I will keep you informed with any new information or results as I found (sic) out myself.

Today: Drs appt to discuss next plan…”.

It is apparent from the above that the Applicant was unsure as to when she would be able to return to work and it is understandable that the Respondent would need to consider alternative staffing arrangements as a consequence.

On 13 January 2022, the Applicant sent a further update about her medical condition to Ms Washington and Ms McLennan in a text message that said:

“Kira & Kimberley

Unfortunately I am still dealing with the side effects of the vaccine with no change.

Tests have all come back clear.

Just received a referral for second Neurologist for a second opinion.

I’ve attended the Wesley Hospital Pain Management Clinic twice for counselling and will be referred onto a Dr specialising in Pain Management.

I’m currently trailing (sic) 2 new medications in the hope that they ‘break the cycle’ that this vaccine has on me.

Unfortunately I will need a bit more time off work to see if they help at all.

Side Note: Still having weekly acupuncture sessions also.

I hope you can both see that I’m trying my absolute best in doing everything to get my health back so I can return to work – I miss my routine and miss what I do.

I’m sorry I can’t be any clearer with a return date but I promise to keep you both informed.”

On 19 January 2022, the Applicant sent a further update about her medical condition to Ms Washington in a text message that said:

“Hi Kimberley,

So a bit of an update - I’ve been seeing a Chinese DR of traditional medicine recommended by my older sister.
She saw him 10 years ago for a tumour she had on her ovaries while pregnant with my nephew. He has put me on very strong herbs (45 pills morning and night) and believes that in 10 days I’ll be better.
It’s day 3 and I’ve seen some great changes!

I would like to return to work February 1^st

I’m ready to come back to doing what I love to do.

I understand it may not be full time hours at first - which is fine by me since I’m still going to acupuncture appointments and still on my journey of getting myself back to where I was. I just want to get back to clients & the team”.

On 20 January 2022, Ms Washington replied to the Applicant via text message as follows:

“So happy you are feeling better. The acupuncture and natural therapies are just wonderful.”

On 20 January 2022, the Applicant sent a text message to Ms McLennan which stated:

“Hi Kira,

I have messaged Kimberley letting her know that I want to come back to work - I just didn’t want to bother you on your holidays that’s all…

I’m not expecting a reply I just thought I’d let you know I’d like to return to the tools”.

It is apparent from the above that the Applicant was seeking to return to work on 1 February 2022 but suggested she did not expect full time hours. The text messages do not, however, indicate that the Applicant’s illness was such that she needed to return to work on restricted duties. The Applicant appears to leave the decision regarding rostering in the hands of the Respondent.

During cross-examination, Ms McLennan gave evidence that she had a phone conversation with Ms Washington who advised her that the Applicant wanted to return to work on 1 February 2022.[19] Ms McLennan’s evidence was that she rescheduled the Applicant’s clients for appointments from 1 February 2022 and was excited about her return because the Respondent was busy and clients wanted the Applicant to do their hair.[20]

While the communication between the parties was poor and it is regrettable that so much of it proceeded via text message, which can be open to interpretation, the Applicant did acknowledge that her manager was on leave and that she did not expect her to reply. Following the Applicant’s texts on 19 and 20 January 2022, it is apparent that the Respondent proceeded to roster the Applicant to work certain shifts from 1 February 2022, acting on her statements that she wanted to “come back to work” and “return to the tools”.

On 23 January 2022, and after the Applicant became aware of her rostered hours from 1 February 2022, the Applicant sent a text message to Ms McLennan and Ms Washington which said:

“Kimberley & Kira

Even though I haven’t heard from you both regarding Feb 1st, I did notice on the appt book app that you’ve booked me in starting the 1st of Feb with reduced hours. While I truely (sic) appreciate your help with this, unfortunately due to a bit of a set back with my recovery and not improving as fast as what I was expecting to with the Chinese alternative medicine - I believe at this stage I’m unable to complete a full day of work. E.g Friday & Saturday seems to be full days

I know I’m asking for a lot - but I do believe 4 hours per shift is all I can cope with at the moment until my health returns.

I’m still doing everything in my power for this to happen”.

Ms McLennan’s evidence under cross-examination was that, at this stage, she pre-booked the Applicant’s clients from 1 February 2022, however had not rostered the Applicant to work only four hours as she had not had a conversation with the Applicant and didn’t know exactly what hours the Applicant wanted to work at that point.[21]

While the relationship between the Respondent and Applicant appeared to have been a good one up until this point, it is apparent that Ms Washington started to become frustrated and replied to the Applicant via text message on as follows:

“Sara, they are existing appointments. I haven’t had an opportunity to talk (sic) Kira yet because she is on annual leave (which she dearly needed) and I haven’t wanted to disrupt her healing. Obviously I want you to return but Kira as manager needs someone reliable because I judge HER on results. I deeply care about the team’s stress levels - because the salon is more than one person. You need to ask yourself, “Can I own this?”

During cross-examination, Ms Washington was asked:

“Is it the case that you had formed the view that [the Applicant] was unreliable?”,

to which she responded:

“The case was that Sara had left the salon on a few occasions prior to this without notifying Kira and leaving clients with colour on their hair. So I knew that there was a conversation between Sara and Kira about the appropriateness of such an action and the duty of care that comes with leaving colour on clients’ hair. So the conversation was not as easy as saying, ‘You can come back on February 1’. We needed to have a sit-down. It needed to be, ‘We need to talk and see if you’re well’. That has been the threat (sic) of the conversation since January 1. So it’s been nursing her through not being well.”[22]

Ms Washington was then asked:

“When you talk about these incidences where you allege that she left without notification or whilst the client’s got colour on their hair, how do you know that? Is that something you observed yourself or was that something that’s been said to you by Kira?”,
to which she responded:

“No, the other staff called me concerned because they had been left there in the salon without any assistance and they needed assistance in getting the colour off clients’ hair. They were short-staffed and they needed help, so they reached out to me and I had to get them some assistance.”[23]

Likely sensing the change in the tone of the text message from Ms Washington, on 27 January 2022, the Applicant sent a further text message to Ms Washington, which said:

“I haven’t heard from Kira at all. Nothing.

Kira is my Manager and her lack of response, reply or acknowledgement - speaks volumes.

CCR is the best salon I’ve ever worked for.
I don’t want to leave - but unfortunately I’m still unwell (not unreliable) and it would be unrealistic of me to think I could handle wearing a mask, working with chemicals, inhaling bleach and masking a Poker Face whilst trying to treat, create and style my clients for a FULL day at the MOMENT.

I have medical documentation stating that I’m unfit for work until the end of Feb. I tried to negotiate an earlier return to help in assisting not only my work colleagues and my clients but I now feel this is unrealistic as I’ve received no encouragement from either of you and seems destined to fail as I’m still struggling.

I deeply care about the teams stress & mental health as the girls know I’m a huge advocate for it - I have always been apologising to the girls for something unfortunately I cannot control at the moment.
There is nothing more that I want then (sic) to be able to work, create, make money & return to training and living independently as I have been relying on my parents to find answers for me and send me to every kind of professional that you could think of.
… I also thought that I was part of the team too?”

I have earlier made the observation about the regrettable nature of the communications between the Applicant and Respondent, being in the form of text messages. Given the Applicant was impacted by medical complications that she indicates are very serious and that had an impact on her ability to perform her role, it is perplexing as to why she was not clear in her communication to the Respondent about the precise nature of her limitations, what work she could and could not do and for what period of time and that she did not produce the medical documentation she said she had in her text messages.

While the communication of matters regarding fitness for work via text message leaves open the possibility of miscommunication, the text message from the Applicant to Ms Washington on 27 January 2022 suggests that:

· the Applicant wanted to keep her job;

· on her own assessment, she was unable to “handle wearing a mask, working with chemicals, inhaling bleach and masking a Poker Face whilst trying to treat, create and style [her] clients for a FULL day”;

· she had medical documentation stating she was “unfit for work until the end of Feb”; and

· despite being unfit to work until the end of February, she attempted to negotiate an earlier return to work to assist her colleagues and clients but formed the view this was unrealistic because she had not been encouraged to return from either Ms McLennan or Ms Washington and, in any case, felt this plan was “destined to fail” as she was “still struggling”.

While it is apparent that the Applicant was worried about losing her job and seemed willing to come back in some capacity to help out, based on the Applicant’s representation that medical documentation rendered her unfit to work until the end of February and her concerns about working with certain products, it was reasonable for Ms Washington to be concerned about her capacity to work. The Applicant’s communications indicate there were serious complications with her health that would give any reasonable employer cause for concern. However, at no stage had the Applicant produced any evidence of her fitness for work. To the contrary, her communication to Ms Washington suggested she was “unfit” for work.

During cross-examination, the Applicant was asked about her statement in her text message of 27 January 2022 that it would be “unrealistic” for her to work with chemicals, to which she responded:

“…Well, I hadn’t tried it yet. Like I just wanted to give it a go, and I might have been fine, but I just wanted to cover all bases.”[24]

It is apparent that the Applicant’s own assessment about her ability to carry out aspects of her work was uncertain.

During cross-examination, Ms McLennan was asked about her attitude in relation to the following statement in the Applicant’s text message on 23 January 2022:

“I know I’m asking for a lot - but I do believe 4 hours per shift is all I can cope with at the moment until my health returns”,

and whether allowing the Applicant to work four hours per shift is something she would have agreed to.[25] Ms McLennan responded:

“Four hours, it’s a hard one, and definitely I would have been happy for her to return for four hours, but it is hard to complete a colour client in four hours. We do a lot of foiling (indistinct) clients’ foil work. When you roster in clients in a time-base, it sometimes can go over that four hours. I suppose I would say, so it’s very hard to just say ‘You’re going to be working just four hours.’ I’m happy, have always been happy, for her to do the four hours, but referring to my statement, I asked her if she could complete one client in four hours and her response was ‘No’.”[26]

This evidence does not appear in Ms McLennan’s witness statement or Statutory Declaration and is somewhat confusing. However, during cross-examination, Ms McLennan was asked:

“Your evidence, as I understand, is four hours would be doable but it would create a level of inconvenience for the salon?”,
to which Ms McLennan replied:

“Yes, it would be very hard.”[27]

Ms McLennan conceded that she did not say ask the Applicant if she could complete one client in four hours “in that way”.[28]

During cross-examination, Ms McLennan was also taken to the statement in her Statutory Declaration where she said:

“So do you think we delay your start date until you are back at 100% because if you come in and have to leave after dong one client it puts pressure on yourself and the other girls.”[29]

Ms McLennan clarified that she wouldn’t ever book only one client in and stated, in relation to the Applicant:

“…if I booked two clients in and she only does one client and then has to leave, that’s a problem for me, and then I’ve got another client there, what do I do with that client? That’s what I was referring to.”[30]

Ms McLennan was asked the following question:

“What would be the problem - I understand your point that there’s a problem if two clients are booked in and Sara has to leave after completion of one, that you then have an issue of who looks after the secondary customer, or second customer, more correctly, but given Sara’s notice that, for a short period of time at least, she wanted to only do four hours, or thereabouts, wouldn’t it be just as simple as ensuring on Timely that you didn’t book two customers in for her back to back on that day?”,

to which she responded:

“Yes, yes, you could do that.”[31]

Ms McLennan was also asked:

“So that problem could only ever arise, could it not, you being left in the lurch with a secondary customer, if Sara or you had booked in with Timely back to back customers on the same day and she told you at the end of completing one customer that she had to go home, that she wasn’t feeling well?”,
to which she responded:

“Yes.”[32]

I am satisfied based on the evidence before me that, while rostering an employee for four hours was possible, the Respondent has a usual practice of booking stylists to attend to at least two customers. While it would be possible to book in one client only, in the case of a client with foils, there is no guarantee that the services could conclude within the four hour time frame and other colour services are delivered within two and a half to three hours. In the circumstances, I accept that rostering an employee for four hours would create a practical inconvenience for the Respondent.

The conversation on 27 January 2022

The Applicant submits she was dismissed from her employment on 27 January 2022 and critical to this submission is a conversation she had with Ms McLennan on that date.

The Applicant gave evidence that Ms McLennan phoned her on 27 January 2022, that she put the phone on loudspeaker so her mother could hear what was being said and during that phone call:

· the Applicant said she was not at 100% fitness and was still on the road to recovery but wanted to return to work and perform shorter shifts and not work her usual hours, including a 12 hour shift on Tuesday, until she “built up to being 100%”;

· Ms McLennan said she was still concerned and questioned whether the Applicant would be able to work with a facemask and chemicals;[33]

· before the Applicant had a chance to answer, Ms McLennan said that the Applicant needed to be 100% fit and that she would not allow the Applicant to return to work on shorter shifts; and

· Ms McLennan said word words to the effect “only when you are 100% fit again can you make contact and we will see how the salon stands”.[34]

The Applicant’s mother, Ms Sandra Ferrini, gave evidence of the phone call that she overhead while the Applicant placed the phone on loudspeaker, including that during the discussion:

· the Applicant told Ms McLennan she wished to return to work on reduced hours with reduced customers and gradually build back up to full time hours when her health allowed it; and

· Ms McLennan told the Applicant reducing her hours would not work and, if she was not 100% well, it would be too difficult for her and the others to deal with and said “if you want to contact us when you’re 100% fit and well again, we can maybe see how things stand then.[35]

Ms McLennan gave evidence that:[36]

· on or around 27 January 2022, she phoned the Applicant to discuss her return to work as the Applicant had previously inform her that she would be fit to return to work on 1 February 2022;

· during the phone call on 27 January 2022:

oshe asked how the Applicant was, to which the Applicant responded by saying she was still unwell and not feeling 100%;

oshe replied with words to the effect that “was not good to hear” and asked how the Applicant felt about coming back to work;

othe Applicant responded with words to the effect “I am not sure to be honest as I really don’t think I can because of the idea of wearing a mask and using bleach I just do not think I can”;

oshe then said words to the effect “Kimberley and I’s main concerned (sic) is your health and we do not want you to be stressed and worry about work and your health be compromised and cannot get well. So do you think we delay your start date until you are back at 100% because if you come in and have to leave after doing one client it puts pressure on yourself and the other girls. So when are back (sic) at 100% and feel you can return get in touch and we can see where the salon is and re-evaluate you’re your (sic) position then. Are you happy with that?”

othe Applicant confirmed she agreed with that approach stating words to the effect “Yes I think that is probably best”;

oshe then told the Applicant to come and collect her personal equipment as she knew from other employees at the salon that the Applicant had scissors worth around $1,000 there and did not want anything to happen to the Applicant’s property given it was not covered under the Respondent’s insurance policy and the salon had flooded four times within the past two years; and

· at no point during her phone conversation with the Applicant on 27 January 2022 did she dismiss the Applicant or imply that her employment was terminated.

The matters declared by Ms McLennan in her Statutory Declaration are broadly consistent with her witness statement. In her Statutory Declaration, Ms McLennan gave the following account of the conversation between herself and the Applicant on 27 January 2022:

· she phoned the Applicant to speak to her about her return to work on 1 February 2022;

· when the Applicant answered, she asked the Applicant how she was and the Applicant continued the conversation by saying she was still unwell and not feeling 100%;

· Ms McLennan replied “Thats (sic) no good how do you feel about coming back?”;

· the Applicant responded with “I am not sure to be honest as I really don’t think I can because of the idea of wearing a mask and using bleach, I just do not think I can”;

· Ms McLennan then stated “Kimberley and I main concern is your health, we do not want you to be stressed and worry about work and your health be compromised and cannot get well. So do you think we delay your start date until you are back at 100% because if you come in and have to leave after doing one client it puts pressure on yourself and the other girls. So when you are back at 100% and you feel you can return get in touch and we can see were (sic) the salon is at and re evaluate your position then. Are you happy with that?”;

· the Applicant replied “Yes I think that is probably best”;

· Ms McLennan then told the Applicant she thought it was best that she come and get her equipment as she didn’t want anything to happen to it and that the Applicant was more than welcome to return to the salon at any time to “pop in and see the girls and pick up her equipment”;

· the Applicant thanked her and Ms McLennan replied “no worries and all the best with your health and getting back to 100% fit and healthy and I look forward to hearing from you soon”; and

· the Applicant replied “Thank you Bye Bye”.

While there are differences in the accounts of the conversation between the Applicant and Ms McLennan, I am satisfied that Ms McLennan asked the Applicant how she was, that the Applicant indicated she wasn’t feeling “100%” and that Ms McLennan indicated that she had concerns about the Applicant’s health and suggested that she get in touch when she was back at 100%.

During cross-examination, Ms McLennan was asked:

“Is it fair to say that, given the circumstances you found yourself in, you weren’t prepared to accommodate that request, that request for work with a shorter shift?”,
to which she responded:

“I’m always happy to accommodate, but I was also concerned for her health and when she told me she wasn’t well on that day of the 27th, still not well, I was then concerned at how she would go in the salon in four hours, so that’s when I suggested we delay the start time.”[37]

Ms McLennan was then asked:

“When you said, ‘I was concerned about how she would go in the salon for four hours’, what do you mean by that? What was your concern?”,

to which she responded:

“…Well, what if she can’t finish a client because she has told me she couldn’t wear a mask and work with chemicals?”[38]

Ms McLennan was asked when the Applicant told her she couldn’t work with masks or work with chemicals, to which Ms McLennan responded “On the phone”.[39] I understand this to be a reference to the phone conversation between the Applicant and Ms McLennan on 27 January 2022.

Ms McLennan clarified:

“…when I asked about coming back to work, I asked her and the Applicant – she responded to me that she didn’t know, to be honest, because she didn’t really think she could wear a mask and be working with bleach and, at that time, it was a mandate, we had to wear masks in the salon.”[40]

Ms McLennan was then asked:

“So this concern about masks and bleach for you and her ability to complete even a reduced shift arises during this telephone conversation?”,
to which she responded:

“Yes, that’s correct.”[41]

Ms McLennan did not receive the text message that the Applicant sent Ms Washington on 27 January 2022 in which she said “it would be unrealistic of [the Applicant] to think [she] could handle wearing a mask, working with chemicals, inhaling bleach and masking a Poker Face whilst trying to treat, create and style my clients for a FULL day at the MOMENT” and that she had medical documentation stating that she was unfit for work until the end of February. However, I accept Ms McLennan’s evidence that, in the conversation of 27 January 2022, the Applicant raised concerns about working with bleach and wearing a mask, which is broadly consistent with what the Applicant had earlier communicated to Ms Washington via text message.

Ms McLennan was taken to the statement in her witness statement that she said to the Applicant during the conversation on 27 January 2022:

“So do you think we delay your start date until you are back at a hundred per cent because if you come in and have to leave after doing one client, it puts pressure on yourself and the other girls”,

and was asked what pressure it would put on the Applicant to complete one client and leave for the day, to which she responded:

“Well, if you’re not feeling well, it’s a lot of pressure to sit for even an hour. It’s a mentally and physically draining job, so it puts a lot of pressure on a stylist all the time. So, it was another concern of mine, if you’re not feeling well, the last thing you need to worry about is a client is telling you all their life worries and everything, and I really wanted her to feel better and I didn’t think that her coming in and dealing with clients all the time was going to help with her healing and feeling better. That was a genuine concern of mine as well.”[42]

Ms McLennan was asked:

“So is it fair to say that whatever stress, anxiety or detriment to Sara’s physical healing, to take your words, they were just assumptions that you had formed yourself?”,
to which she replied:

“I had seen them due to her being unwell for a few months now. So, it wasn’t an assumption at all, I had seen that happening in the salon over time.”[43]

Ms McLennan was asked what she meant when she said “until you are back at a hundred percent”, to which she responded:

“So she is feeling better. She stated to me at the start of the conversation that she wasn’t feeling at a hundred per cent, so I just repeated how she was feeling and said, ‘Well, maybe we delay your start time until you are feeling at a hundred per cent’.”[44]

It was put to Ms McLennan that what she really meant by “back at a hundred per cent” was the ability to do a full day’s work or a full day shift, to which she replied “No, not a full day”.[45]

It was also put to Ms McLennan that the Applicant told her that she wished to do shorter shifts until “she feels up again to being a hundred percent”.[46] Ms McLennan denied that the Applicant said this.[47]

Ms McLennan was also asked:

“It is the case, isn’t it, that, even at a point in the future where Sara was able to be back at a hundred per cent, you still weren’t going to offer her hours until you had satisfied yourself as to where the salon was at until you had re-evaluated the position at that point in time?”,

to which she responded:

“Well, I always maintained that I was delaying her start time until she felt she could come back to work, and maybe that was with wearing a mask at that time, so we knew where we were at”.[48]

Ms McLennan was pressed on her response, with the Applicant’s representative asking:

“It is the case, isn’t it, that even if Sara obtained that hundred per cent feeling well, for want of a better term, even if she reached that hundred per cent and she made contact with you, as you say with your request, to inform you that she was at a hundred per cent, it is the case, isn’t it, that you wouldn’t even offer her hours of work at that point in time until two things happened. The first is you satisfying yourself, to use your words, where the salon was at, and the second is after your re-evaluation of the position?”,

to which she responded:

“Well, she always had a casual position there, but I always have to evaluate to see - anything could happen at any time. Maybe the salon wasn’t open, I don’t know, there’s lots of things that can happen. Maybe I don’t have enough hours, any hours for her, maybe I’ve got no - yes, it depends on where we were at at that time”.[49]

Ms McLennan was then asked:

“So, it’s not the case that Sara says, ‘I’m a hundred per cent’ and she goes back to where you left off?”,
to which she responded:

“Well, that’s what I was hoping for because I’d already delayed her start time before that, so that’s what I was hoping for.”[50]

Removal of the Applicant from ‘Timely’

The evidence establishes that the Applicant was removed from the Respondent’s booking system ‘Timely’. During cross-examination, Ms McLennan was asked about the reason for this, to which she responded:

“She’s removed from that part as it is a very expensive outlay to have - all it is is a column and that just is stating that she doesn’t have a column active. So, we archive her out and then we just press a button to put her back in when she has hours and she has clients…”[51]

During re-examination, Ms McLennan confirmed that other employees who were not on the booking system were an employee on parental leave and an apprentice who didn’t have clients.[52]

The fact that employees do not appear in the booking system does not mean they are no longer employees. I understand from the evidence that there is a fee associated with each active employee in the booking system ‘Timely’ and that there is an ability to archive and reactivate employees when they are to be rostered. I am not satisfied that this amounts to evidence of dismissal but rather suggests that the Applicant was removed in order to manage the costs associated with the booking system and that she could simply be re-added when she was to return to work.

Communications after the date of the alleged dismissal

The parties filed copies of various text messages between the parties after the alleged date of dismissal.

On 11 February 2022, the Applicant sent a text message to Ms Washington which said:

“I’m still seeing Drs, in fact I saw a new neurologist today which I start a new treatment plan tonight.
Very heartbroken Kira decided to let me go and said to collect my things.
My boyfriend Paul came to collect my things - I got told from him the salon was empty and not one person asked how I was going.
He wanted to talk to Kira and she said absolutely nothing to him. Just placed the xmas basket at the front and sent Taylah out for my key.”

Ms Washington replied to the Applicant via text on 13 February 2022 as follows:

“Sara, I am not sure about those other issues as I wasn’t there. Kira has left the door open for you to return once you are better and able to work full shifts. Just get better.”

The Applicant replied to Ms Washington via text message on 13 February 2022 as follows:

“I can only comment on what was said to me via a phone call from Kira which was to come and collect my belongings and to reassess later.

I was denied when I explained my working abilities at the moment due to going through with the vaccination process for your business.
You never informed me of conducted a meeting within the salon on your expectations regarding the vaccine.
You were not there during those conversations which lead (sic) me to get it.

Another observation is that my job is on seek.”

The question I need to determine was whether the Applicant was dismissed on 27 January 2022, as alleged by the Applicant. While the text exchange above occurred after this date, it suggests that Ms Washington had the understanding that the Applicant would be able to return to the workplace once she was “better and able to work full shifts”.

Peculiarly, on 7 June 2022, Ms McLennan sent the Applicant a text message which stated:

“Sara – having regard that you are still on our books as casually employed, would you please confirm whether you are available for any shifts.

Thanks, Kira.”

The Applicant replied via text message as follows:

“Kira,

As you know you dismissed me from my employment in January. Is this an offer of reemployment? Previously you said that I had to be 100% fit but you have made no reference to this in your text. Is it still the case that this offer of reemployment is not subject to a condition that I be 100% ?
Sara”.

I have not placed reliance on this text exchange. It seems likely that Ms McLennan sent the text as she was aware of the legal proceedings and all the exchange does is highlight the discrepancy in views between the parties as to whether the Applicant was dismissed.

Consideration

Section 386(1) of the Act defines “dismissed” as follows:

“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.

It is not in contention that the Applicant was a casual employee and, while she may have been working 38 hours a week prior to her illness, this does not change her status. The Respondent has submitted that the Applicant’s employment did not come to an end at the initiative of the Respondent as she was a casual employee and the employment ended at the conclusion of her last shift on 22 December 2021. However, it is not the case that a casual employee cannot be dismissed by virtue of their status. The Full Bench in Khayam v Navitas English Pty Ltd T/A Navitas English[53] (Navitas) observed:

“…Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 386(2)(a).”[54]

The Full Bench then went on to summarise the principles applicable to the question of whether a person has been dismissed, including the principle that whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.[55] In the case of an employment relationship made up of a sequence of time-limited contracts of employment, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship.[56]

In Varichak v COG Regional Team Pty Ltd,[57] the Full Bench upheld the principles outlined in Navitas and further considered casual engagements stating:

“The reference to the termination of the employment relationship in Navitas must now be considered in light of the subsequent Full Bench decision in NSW Trains v James[2022] FWCFB 55 which held, in effect, that s.386(1)(a) of the Act means termination of the employment relationship and/or the contract of employment, depending in part upon the factual and statutory context. That is, at least in the context of demotion matters, Navitas should be understood as meaning that the termination of a contract will not necessarily lead to a dismissal where the persisting employment relationship remains on foot and largely unchanged, not that contract termination is irrelevant.”[58]

“Termination at the initiative of the employer” refers to a termination brought about by an employer which is not agreed to by the employee.[59] In Navitas, the Full Bench adopted the principles from Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 645 and said:

“The correct position remained as stated in Mohazab, namely that a termination of employment at the initiative of the employer occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”[60]

In support of the Applicant’s contention that she was dismissed on 27 January 2022, much reliance is placed by the Applicant on Ms McLennan’s statement that she be “100% fit” as a condition of her returning to work and that her request to work shorter shifts of four hours was not accommodated.

I have considered the conduct of the Respondent in this matter. The response of Ms McLennan needs to be understood in the context of the Applicant’s previous communications and concerns about her health. In particular, the Applicant sent lengthy text messages detailing her struggles, symptoms, treatments and describing how unwell she felt as a result of having her second COVID-19 vaccination. The Applicant’s evidence during cross examination was that Ms McLennan had seen her adverse reaction to the vaccination “first-hand”.[61] While the Applicant’s text messages indicated she liked her job and was worried about losing it, which likely motivated her desire to return to work in some capacity, she also said in those text messages that she had documentation indicating she was unfit to return until the end of February and indicated she had ongoing issues. While the Respondent is not a medical practitioner, the Applicant’s communications were in themselves enough to alert the Respondent to the risk of further injury or illness and further disruption to clients and the business if the Applicant was unable to carry out her role when rostered.

While the Respondent could have asked to sight the Applicant’s medical documentation it had, up until that point, taken the Applicant on her word about her condition.

The Applicant was asked during cross-examination whether she provided any medical documentation to the Respondent and responded that she did.[62] The Applicant was asked what this documentation was, to which she replied:

“It was a list of - there was like multiple - like there was a list of - when I had to hand over the key, there was a list of things that I’d been to, seen, the dates, and also when I was in hospital, I gave them like a medical certificate saying that I was - like I went to hospital after work or - like I gave them that.”[63]

When asked whether this documentation was provided to the Respondent by her boyfriend some time after 27 January 2022, the Applicant said:

“No. They had that documentation ages ago. I sent that documentation again as a refresher.”[64]

The Applicant was asked what documentation she sent with her boyfriend at the time he came to collect her items, to which she responded:

“A whole list of dates and things that I’ve done out of my pocket from a vaccine injury. I supplied the dates and everything that I’ve done.”[65]

The Applicant’s evidence was that she did this because she wanted to keep her job.[66]

It was put to the Applicant that the documentation she provided didn’t say that she was fit for work at the time it was handed over, to which she responded:

“But it didn’t need to say I’m fit for work. They never required I’m fit for work.”[67]

While I am satisfied that the Applicant wanted to keep her job and expressed a desire to come back to work on short shifts, her text messages had also indicated that she had medical documentation that stated she was unfit until the end of February and at no stage did the Applicant communicate or produce evidence to suggest otherwise.

While the Applicant may have wanted to come back to working shorter shifts and a shift of four hours would have created some practical inconvenience, given the detailed concerns the Applicant had raised about her health, wearing masks and working with chemicals, it is understandable that Ms McLennan held concerns and was cautious about rostering the Applicant on to work unless she was feeling better and able to and I am satisfied that this is why Ms McLennan suggested a delay in the Applicant’s return to work. While Ms McLennan used the term “100%” in the conversation on 27 January 2022, this was a term the Applicant herself used in that conversation that Ms McLennan simply adopted and I am satisfied that what Ms McLennan meant is that she wanted to hear from the Applicant when she was feeling better and able to work.

While Ms McLennan requested that the Applicant collect her belongings from the salon, there was a logical and understandable basis for this based on concerns about the risk of Applicant’s personal effects being damaged or used by other people and it does not follow from this request that the Applicant was dismissed. Rather, I accept the evidence of Ms McLennan that she was hoping the Applicant would return.[68]

In all the circumstances, I am not satisfied that the conduct of the Respondent brought the employment relationship to an end and I am not satisfied that the Applicant was dismissed at the initiative of the Respondent. Rather, the Applicant’s job remained open to her and I am satisfied that, unless there was some unforeseen change in circumstances, the Applicant would have been rostered to work again when she communicated she was feeling better and fit to work.

Further, there is no evidence of resignation by the Applicant and I am not satisfied that the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the Respondent.

Having found that the Applicant was not dismissed within the meaning of s.386(1) of the Act, the jurisdictional objection is upheld and the application is dismissed.

COMMISSIONER

Appearances:

Mr C Mossman of Wotton Kearney for the Applicant.
Mr M Rawlings of Counsel, instructed by Ms S Snape of Gadens Lawyers, for the Respondent.

Hearing details:

2022.
Sydney (by Video using Microsoft Teams).
17 June 2022, 1 July 2022.

[1] Applicant, ‘Form F8 – General protections application involving dismissal’, filed 16 February 2022, 1.1; Respondent, ‘Submissions on Behalf of the Respondent’, filed 9 May 2022, [6].

[2] Applicant, ‘Submissions of the Applicant on Jurisdictional Hearing’, filed 31 May 2022, [8]-[9], [11]-[14], [16].

[3] Ibid, [5] with reference to Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154), O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 and Mohazab v Dick Smith Electronics (No. 2) [1995] IRCA 625.

[4] Ibid, [5] with reference to Bruce v Fingle Glen Pty Ltd[2017] FWCFB 5279, Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154) and Bupa Aged Care Australia Py Ltd t/a Bupa Aged Care Mosman v Shain Tavassoli [2017] FWCFB 3941.

[5] Ibid, [15].

[6] Ibid, [16].

[7] Respondent, ‘Submissions in Reply on Behalf of the Respondent’, filed 6 June 2022, [4].

[8] Respondent, ‘Witness Statement of Kira McLennan’, dated 9 May 2022, [3]-[4].

[9] Applicant, ‘Witness Statement of Sara Ferrini’, dated 26 May 2022, [2].

[10] Respondent, ‘Witness Statement of Kimberley Washington’, dated 9 May 2022, [3]-[9].

[11] Transcript of proceedings, 17 June 2022, PN109-PN112.

[12] Ibid, PN537-PN539.

[13] Ibid, PN115-PN132, PN159-PN162, PN187-PN190, PN488-PN491.

[14] Transcript of proceedings, 1 July 2022, PN1075-PN1078, PN1091-PN1092.

[15] Applicant, ‘Witness Statement of Sara Ferrini’, dated 26 May 2022, [4], [6].

[16] Transcript of proceedings, 1 July 2022, PN1123.

[17] Ibid, PN1124.

[18] Respondent, ‘Witness Statement of Kimberley Washington’, dated 9 May 2022, [15].

[19] Transcript of proceedings, 17 June 2022, PN140.

[20] Ibid, PN141.

[21] Ibid, PN240-PN243.

[22] Ibid, PN662.

[23] Ibid, PN663.

[24] Transcript of proceedings, 1 July 2022, PN1250.

[25] Transcript of proceedings, 17 June 2022, PN191-PN193.

[26] Ibid, PN193.

[27] Ibid, PN198.

[28] Ibid, PN216.

[29] Ibid, PN202-PN203.

[30] Ibid, PN205.

[31] Ibid, PN217.

[32] Ibid, PN220.

[33] Applicant, ‘Witness Statement of Sara Ferrini’, dated 26 May 2022, [13].

[34] Ibid, [11]-[14].

[35] Applicant, ‘Witness Statement of Sandra Ferrini’, dated 26 May 2022, [3]-[5], [7].

[36] Respondent, ‘Witness Statement of Kira McLennan’, dated 9 May 2022, [7]-[14].

[37] Transcript of proceedings, 17 June 2022, PN250.

[38] Ibid, PN251-PN252.

[39] Ibid, PN253.

[40] Ibid, PN254.

[41] Ibid, PN255.

[42] Ibid, PN281-PN282.

[43] Ibid, PN284.

[44] Ibid, PN286.

[45] Ibid, PN288.

[46] Ibid, PN311-PN313.

[47] Ibid, PN316.

[48] Ibid, PN330.

[49] Ibid, PN334.

[50] Ibid, PN335.

[51] Ibid, PN426.

[52] Ibid, PN485.

[53] [2017] FWCFB 5162.

[54] Ibid, [71].

[55] Ibid, [75].

[56] Ibid.

[57] [2022] FWCFB 37.

[58] Ibid, [33].

[59] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162, [75].

[60] Ibid, [50].

[61] Transcript of proceedings, 1 July 2022, PN1143.

[62] Ibid, PN1161.

[63] Ibid, PN1164.

[64] Ibid, PN1167.

[65] Ibid, PN1169.

[66] Ibid, PN1170.

[67] Ibid, PN1173.

[68] Transcript of proceedings, 17 June 2022, PN335.

Printed by authority of the Commonwealth Government Printer