Shana Fernando v Just Brewing Pty Ltd
[2024] FWC 1965
•25 JULY 2024
| [2024] FWC 1965 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Shana Fernando
v
Just Brewing Pty Ltd
(C2024/2977)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 25 JULY 2024 |
Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed –jurisdictional objection upheld – found that Applicant was not dismissed within the meaning of s 386(1) of Act – application dismissed.
On the 7 May 2024, Ms Shana Fernando (the Applicant) lodged an application pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 8 April 2024 by Just Brewing Pty Ltd (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that being the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386 of the Act.
Following allocation of the matter to my Chambers, Directions were issued on 12 June 2024 for the filing of material in relation to the jurisdictional objection. The Respondent filed its material in accordance with the Directions, but the Applicant failed to file any material in reply. The hearing to deal with the jurisdictional objection was listed for 25 July 2024. At the hearing, Geoff Manson (Director) appeared on behalf of and gave evidence for the Respondent. The Applicant appeared on her own behalf.
Background and evidence
The Respondent is the employing entity for employees engaged across four separate businesses in the Latrobe Valley, Victoria including Coffee Lane Warragul, Coffee Corner Traralgon, Good Brew Sale and Good Brew Newborough. The Respondent employs 8 full-time employees and has a casual workforce of approximately 32 employees. The Applicant commenced employment with the Respondent on 19 February 2024 as a casual ‘kitchen and coffee all-rounder’. Under her contract of employment, the Applicant was engaged to work at the Coffee Lane Warragul outlet, was paid at the Fast Food Employee Level 1 classification under the Fast Food Industry Award 2020[3] (the Award) and was paid an hourly rate (for Monday to Friday) of $30.91[4]. The Applicant estimated that prior to 1 April 2024 she had regularly worked up to 20 hours per week. The Applicant was also offered shifts at the Good Brew Newborough café on occasions according to Mr Manson, a claim the Applicant rejected. She stated that she had not worked any shifts at the Good Brew Newborough café.
Mr Manson states that on or about 1 April 2024, the Applicant changed her availability such that she was unavailable on Tuesdays and Wednesdays, could only work 2 x 4 hour shifts per week or 1 x 7 hour shift per week and would only be available every second week. While agreeing that her availability was reduced, she rejected that she was only available every second week. Mr Manson states that the Applicant’s altered availability limited the shifts that the Respondent was able to offer her at the Coffee Lane Warragul café due to other permanent and casual staff having been rostered to work at the outlet at the times the Applicant was available. In any case Mr Manson further states that the Applicant had access to its ‘Deputy’ App such that she could pick and place her name against shifts that matched her availability. Mr Manson also explained that the Deputy app was linked to payroll and that in order for an employee to paid correctly, their rostered/worked shifts needed to be put into Deputy.
The Applicant acknowledged that the Deputy App was the means by which employees placed their names against available shifts. She also stated that while she was aware of the Deputy App, she did not use it. Rather, she worked shifts as instructed by her sister who was a manager at the Coffee Lane Warragul outlet up until 5 May 2024. Neither party led evidence as to how the Applicant’s shifts were input into the Deputy App prior to 8 April 2024 although both parties accepted that it was possible the Applicant’s sister had input the Applicant’s shifts into the Deputy App on the Applicant’s behalf. The Applicant stated that her sister ceased to roster her after her availability changed in early April 2024 and that she also lost access to the Deputy App and to the Group Messenger Chat maintained for the Coffee Lane Warragul café employees in early April 2024, points disputed by Mr Manson. The date of the alleged loss of access to the Deputy App was unclear. For his part, Mr Manson stated that he was unaware of how the Applicant had input her shifts into the Deputy App and assumed she had accessed and managed it herself.
Following the Applicant filing her general protections application, telephone discussions and text message exchanges were initiated by Mr Manson with the Applicant between 17 & 24 June 2024 in which Mr Manson sought to understand the Applicant’s concerns and also attempted to accommodate her limited availability. Despite requests by Mr Manson to the Applicant for confirmation of her availability to work at the Coffee Lane Warragul café including her availability to work on 24 June 2024, the Applicant advised via text on 24 June 2024 that she would not be returning to the Coffee Lane Warragul café and requested that she be rostered for work at the Good Brew Newborough café. Mr Manson states that there are currently no shifts available at the Good Brew Newborough café that suit the Applicant’s availability. Mr Manson also states that the Respondent has at no stage dismissed the Applicant and that she remains a casual employee of the Respondent.
The Applicant agreed that Mr Manson had sought to arrange further shifts for her at the Coffee Lane Warragul café in their communication in the period between 17-24 June 2024. She also agreed that she had advised Mr Manson that she would no longer work at the Coffee Lane Warragul café. She explained her reasons for this as being due to the Good Brew Newborough café being closer to her home and that her relationship with her sister who also worked at the Coffee Lane Warragul café was poor and she felt other staff at that café took her sister’s side. The Applicant also claimed that despite Mr Manson’s evidence, there were available shifts at the Good Brew Newborough café as evidenced she said by advertisements on Facebook.
Mr Manson gave evidence that he was unaware of any issues or difficulties between the Applicant and her sister until his conversation with the Applicant on 17 June 2024. Nor had the Applicant raised any complaints or concerns prior to 17 June 2024 regarding the Coffee Lane Warragul café working environment that she referred to. Mr Manson also explained that the Respondent has certain processes in place dealing with termination of employment including; resignation letters, pay out of any entitlements, termination of the employee in the payroll software, advice to the ATO that the employee has ceased employment with the Respondent and archiving of the employee in the Deputy App. According to Mr Manson none of these steps had been taken in the case of the Applicant and she remains in the casual pool of employees.
Has the Applicant been dismissed?
The threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. I discern from the Applicant’s case as articulated in the proceedings that she claims to have been dismissed within the meaning of the first limb of s. 386(1), that being she was dismissed at the Respondent’s initiative. It is to that I now turn.
The Respondent used the Deputy App for the rostering and payroll purposes, which the Applicant acknowledged she was aware of but claimed not to have used herself, a point Mr Manson was unaware of. The Applicant claims not to have had access to the Deputy App from early April 2024 a point disputed by Mr Manson. No relevant evidence was led from either party that would confirm the alleged loss of access although it may be accepted that up until early April 2024, the Applicant did not input her own shifts into the Deputy App which suggests her sister may have done it on her behalf although a definitive conclusion on that point is not possible.
That the Applicant did not work following 8 April 2024 may be explained by the lack of available shifts that accommodated her limited availability. It may also be explained by the Applicant’s sister ceasing to input the Applicant’s shifts into the Deputy App. If the latter explanation is correct, that may reflect the Applicant’s difficult relationship with her sister who I note was not called to give evidence by either party. In any case the Applicant bore the personal responsibility of inputting her name into the Deputy App for shifts she was available to work. What is clear on the limited evidence before me is that the Applicant did not work any shifts after 8 April 2024 and took no steps to either input sought shifts into the Deputy App or seek restoration of her access to the app if she had in fact loss access. That no apparent action was taken causes me to doubt the accuracy of the Applicant’s version of events following her last shift on 8 April 2024. To the extent there was any doubt about the Applicant’s willingness or availability to work shifts at the Coffee Lane Warragul café, those doubts were removed on 24 June 2024 when the Applicant confirmed to Mr Manson that she would not work any shifts at the Coffee Lane Warragul café.
Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. In the present case, I am not satisfied that there was a formal notice of dismissal, or any other action taken by the Respondent that would indicate that it had made a decision to no longer offer the Applicant casual work. Rather, the Applicant initially altered her shift availability in April 2024 and then subsequently advised in June 2024 that she would not work at the Coffee Lane Warragul café which she had been engaged to undertake work at. I am not satisfied in the circumstances of this matter that there has in fact been a dismissal. The Applicant was employed as a casual employee and there is insufficient evidence for me to conclude that at the date of the alleged dismissal the Respondent had made clear to the Applicant that it would no longer offer her casual engagements.
If it were accepted in the alternative that the employment relationship has been terminated, for the Applicant to succeed it would require a finding that the action of the employer was the principal contributing factor that led to the termination of the employment relationship. I am unable to conclude in the circumstances of this case that the principal contributing factor to the dismissal of the Applicant was the conduct of the Respondent. Rather, the principal contributing factor to the termination of employment, if it has occurred, was the Applicant’s decision communicated on 24 June 2024 to not make herself available for shifts at the Coffee Lane Warragul café which she had been employed to perform work at. I am consequently not satisfied that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act.
It was not contended by the Applicant that she was forced to resign because of conduct, or a course of conduct engaged in by the Respondent. As such it is unnecessary for me to consider whether the Applicant was dismissed within the meaning of s 386(1)(b) of the Act.
Conclusion
I have found that the Applicant was not dismissed within the meaning of s 386(1)(a) of the Act and s 386(1)(b) is not relevant. Accordingly, at the time the Applicant made her application on 7 May 2024, she was not a person who had been dismissed for the purposes of s 365 of the Act. The respondent’s jurisdictional objection is therefore upheld, and the application must be dismissed.
The application is therefore dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
S Fernando, Applicant.
G Manson for the Respondent.
Hearing details:
2024.
Melbourne:
July 25.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] MA000003
[4] Exhibit R1, Witness Statement of Geoff Manson, Attachment A, Contract Of Employment dated 20 February 2024
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