Shani Glauch v Bacchus Australia Pty Ltd T/A Your Shout Liquor
[2021] FWC 2652
•16 JUNE 2021
| [2021] FWC 2652 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shani Glauch
v
Bacchus Australia Pty Ltd T/A Your Shout Liquor
(U2021/1067)
DEPUTY PRESIDENT BINET | PERTH, 16 JUNE 2021 |
Application for an unfair dismissal remedy – jurisdictional objection – resignation – jurisdictional objection upheld - application dismissed.
[1] On 9 February 2021, Ms Shani Glauch (Ms Glauch) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Bacchus Australia T/A Your Shout Liquor (Bacchus).
[2] On 18 February 2021, Bacchus filed a Form F3 - Employer Response to an unfair dismissal application asserting that Ms Glauch resigned and was not dismissed from her employment (Jurisdictional Objection).
[3] On 23 March 2021 the parties participated in a conciliation, but the issues in dispute could not be resolved.
[4] Taking into account the parties wishes and circumstances, it was determined that a Determinative Conference rather than a Hearing would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Determinative Conference in Perth on 13 May 2021 (Conference).
[5] Directions for the filing of materials in advance of the Conference were issued to the parties on 12 April 2021 (Directions).
[6] At the Conference Ms Glauch represented herself. She gave written and oral evidence on her own behalf.
[7] At the Conference Bacchus was represented by Mr Glauch. Mr Glauch provided written and oral evidence on behalf of Bacchus.
[8] A Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as the only exhibit.
[9] As neither party were legally represented, at the outset of the Conference I outlined to the parties the process for presenting their respective cases.
[10] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
Background
[11] Bacchus operate a liquor store in Mt Lawley in Western Australia. The business is jointly owned by Mr Glauch, Ms Glauch, Mr Harald Lyche (Mr Lyche) and Mr Arne Dahle (Mr Dahle). Mr Lyche and Mr Dahle live overseas and take no part in the day to day running of the business. The business was purchased in 2001. Mr and Ms Glauch were previously married but divorced in 2006. 1
[12] Mr Neil Wodcke (Mr Wodcke) is the manager of the store and the business also employs two part time employees. Typically only one employee is rostered to work at any one time.
[13] Ms Glauch says that from 2013 she was employed by Bacchus as a permanent casual sales cashier with weekly set hours. 2
[14] Ms Glauch says that Mr Wodcke constantly found fault with her work and told her that she was hopeless. Ms Glauch says that on numerous occasions she reported to Mr Glauch that Mr Wodcke was bullying her and that despite her request for him to do so he took no action against Mr Wodcke. 3 Mr Glauch denies that Ms Glauch was bullied at work. He says that she frequently declined to follow reasonable and lawful directions of the Mr Wodcke and could do so with immunity because she was a co-owner of the business and Mr Wodcke only an employee.4
[15] Ms Glauch says that on 11 December 2020 she attended the workplace for a three hour shift to undertake training with Mr Wodcke and Mr Glauch to increase her wine knowledge. Ms Glauch says that Mr Glauch brought with him a bottle of wine to sample and poured himself, Ms Glauch and Mr Wodcke a glass of wine each. Mr Wodcke temporarily stopped training to assist his mother who had arrived at the store. Ms Glauch says that Mr Wodcke then shouted at her abruptly and aggressively “you are here to work”. Ms Glauch asserts that she was rostered to train not work and that she was humiliated by Mr Wodcke’s conduct in front of Mr Wodcke’s mother and Mr Glauch. 5
[16] At the Conference Mr Glauch’s recollection of the incident was that Ms Glauch was rostered to work. Mr Wodcke gave Ms Glauch a reasonable and lawful instruction to perform a task in an appropriate tone. Ms Glauch unreasonably refused to perform the task. When Ms Glauch complained to him that Ms Wodcke was bullying her Mr Glauch told her that the instruction was reasonable and lawful.
[17] Ms Glauch says that on 14 December 2020 she informed Mr Wodcke that another employee (Graham) had made several procedural errors such as not filling the fridges, washing used wine glasses or locking the front door correctly when he departed. According to Ms Glauch, Mr Wodcke became agitated and asked how dare she complain about others and told her that she was useless and that he would have sacked her ten years ago if it was up to him. 6
[18] On 15 December 2020 Mr Wodcke sent a text to Mr Glauch, Mr Harald Lyche and Ms Glauch. The content of the text exchange is set out below:
“MR WODCKE: Graham just resigned said he would not be told he hadn't done stuff by Shani (indirectly I said what she had said to me to him ) The job is now untenable I cannot go back to do everything and will not be held over a barrel with Shanis will or won't work threats . I think we need to get our books in order for the last 2 years and then on our own terms sell the business as in reality it 's probably a good time to make the most out of it . I cannot bear to be told everyone knew I was a piss head for 10 years (not denied) and the store "ran itself" bullshit!!! I was asked to help with direct contact training of Shani and in truth she has probably done more work in the past 7 weeks than in the whole 7 months prior but now she thinks it is her right to point out any indiscretion or mistake made by anyone else and says I give no praise and only point out the bad!!! Well there has been so much bad for so many years it ' s hard for me to change my outlook. Truth be told I fired Shani many years ago with everyone's acceptance and she only came back to the business because of Sunday trading which offered her an avenue to get good money and me the freedom to not work Sunday. I have always
tolerated the bad work ethic and complaints from customers because It gave me freedom to have time off but I have always felt like I have one arm tied behind my back ...I love the store, my customers, not being told what to do but I am getting older and ongoing doing all the physical work is not an option especially as my paperwork,texting and direct to customer sales which now propels the business keeps growing. Given all of the above selling seems the best option. I'm sure I could have placated Graham but given his minimal time working at the Buisness negotiating a truce with his issues with Shanis issues with him would have just made my head implode. I have just spent 90 minutes of my day off thinking this through this message is going to all involved parties .I will await everyone's feedback but please think on it for 24 hours as I just have . Neil
MS GLAUCH: Hilarious Graham does no filling up, no facing up, no stacking the dishwasher, no locking the front door properly and won’t be told by me what he should and shouldn’t do. That says a lot.
MR WODCKE: No it's past funny you did fuck all for years he's only been there a short time and he has been hired to be an emergency staff cover he has had almost no training. Don't come in on Thursday I will not be doing ongoing training
MS GLAUCH: I had no intention of coming on Thursday. You are an extremely immature individuals. You can’t have an adult conversation and take everything personally. Examine your own behaviour including your ego. And please feel free to forward my last comment.
MR WODCKE: It takes an ego to be the front person for a business for 20 years why don’t you just go away Shani let Grahem have your job then everyone I know except you will be happy.”
[19] Ms Glauch denies that she had been sacked in the past or that customers had complained about her. Ms Glauch says that the text was cruel and harsh and that it was clear from the text that Mr Wodcke wanted her to leave the business. 7
[20] On 20 January 2020 8 Ms Glauch called Mr Glauch and told him that she was upset by Mr Wodcke’s text message. She says that Mr Glauch refused to discuss the text and told her:
“I am not married to you, I don’t need to listen to this, Neil refuses to work with you, if you don’t like it leave and sell your share.”
[21] At the Conference Mr Glauch’s recollection is that Ms Glauch was emotional and abusive when she rang him. He says that she raised a number of non work related matters with him. Given her tone he says that he told her that while he was prepared to discuss business matters with her, he was no longer married to her and would not discuss the other matters until she calmed down. He says that he told Ms Glauch that she could leave the business if she wanted to. Mr Glauch says that Ms Glauch told him that she quit. 9
[22] Ms Glauch asserts that that she had no other choice but to treat Mr Wodcke’s text on 15 December 2020 and the Mr Glauch’s comments in their telephone conversation on 20 January 2021 as a dismissal. 10 She says that therefore she went to the workplace at 9am on 21 January 2021 and wrote herself a cheque for her outstanding wages. She then locked the shop and left it unattended during normal trading hours. Mr Wodcke was at that time on annual leave. Mr Glauch says that Ms Glauch also crossed her name off the roster for future shifts.11
[23] On 5 February 2021 Ms Glauch sent a letter to Mr Glauch and Mr Lyche. In that letter she refers to Mr Wodcke’s text message of 15 December 2020 and her conversation with Mr Glauch on 20 December 2020 and asserts that Mr Wodcke and Mr Glauch had told her that they no longer wished her to continue in her role. Notwithstanding this she goes on to state in the letter that: 12
“Nevertheless I am ready willing and able to continue with my work as per my usual roster.”
[24] She concludes the letter by saying: 13
“Alternatively, if I am to understand that above developments to mean that I am no longer employed at Your Shout then please inform me immediately.”
[25] These statements are inconsistent with both her assertion that she had been dismissed by Bacchus and her assertion that she had no other option but to resign. Clearly from the correspondence there is doubt in her mind as to whether or not she had been dismissed. If she had been dismissed then it would be unnecessary for her to clarify this. Her assertion that she had no other option but to resign is inconsistent with her offer to continue to work her normal rosters.
[26] On 5 February 2021 Mr Glauch sent a text message to Ms Glauch stating that she was not fired but had quit during a period in which Mr Wodcke was on annual leave leaving the shop unattended. the content of the text exchange is set out below: 14
“Just read your email. You quit. No one fired you. It was your choice. You left in the middle of the Neil's holiday leaving the shop unattended. Harald is not doing the roster. Everyone saw you quitting when you went in and wrote a cheque for yourself. You alone created this.”
[27] On 7 February 2021 Mr Glauch and Ms Glauch exchanged the following text messages: 15
Mr Glauch: “You quit. You even called Lucas that you quit. As you have quit you won't be required tomorrow. All shifts are sorted after you quit. All I saw was Neil asking you to work and you refusing. I don't want to be bullied by you any more. You made your choice. No one else did.”
Ms Glauch: I have not quit, you can't just make this up. It's completely false. I have never sent you a letter of resignation, a text or an email saying have quit. On the 20th January You told me I had to leave and sell my share. Also I have never said I quit to Lucas, this is further evidence of the bullying culture I have
been subject to.
[28] In her submissions Ms Glauch says that she was “fired on 20 Feb and did not undertake her shift on the next day (21 Feb) because she was no longer employed.”
[29] Ms Glauch submits that her dismissal was unfair and seeks an order for reinstatement or alternatively an order for compensation.16
Is Ms Glauch protected from unfair dismissal?
[30] An order for reinstatement or compensation may only be issued if Ms Glauch was unfairly dismissed and Ms Glauch was protected from unfair dismissal at the time of his dismissal.
[31] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
• a modern award covers the person;
• an enterprise agreement applies to the person in relation to the employment;
• the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.
[32] There is no dispute, and I am satisfied, that Ms Glauch has completed the minimum employment period and that the sum of her annual rate of earnings, and such other amounts worked out in relation to her in accordance with the FW Regulations is less than the high income threshold.
[33] Consequently, I am satisfied that Ms Glauch was protected from unfair dismissal.
Was Ms Glauch unfairly dismissed?
[34] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
Was Ms Glauch’s dismissal a case of genuine redundancy?
[35] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[36] It was not in dispute, and I find, that Ms Glauch’s dismissal was not due to Bacchas no longer requiring her job to be performed by anyone because of changes in Bacchus’ operational requirements.
[37] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Ms Glauch dismissed?
[38] The term ‘dismissed’ is defined in section 386 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.”
[39] Section 386(2) contains some exceptions which are not applicable to this Application.
[40] According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[41] In her witness statement Ms Glauch asserts that she was dismissed and did not resign from her employment. 17 For example at page 1 of the Court Book she says: “… the manager, Neil Wodcke’s, conduct forced me to resign”. Yet elsewhere in the same witness statement Ms Glauch concedes that she resigned from her employment but says that she was forced to do so by a course of conduct engaged in by her employer.
[42] In relation to her assertion that she was dismissed Ms Glauch says that this occurred by way of the text sent by Mr Wodcke on 15 December 2020. Elsewhere in her witness statement she asserts that she was dismissed by Mr Glauch during his telephone conversation with her on 20 January 2021. 18
[43] It is unclear how Mr Wodcke might have the authority to dismiss her given that she was an owner of the business and Mr Wodcke only an employee. Furthermore, on Ms Glauch’s own evidence she was still employed at least until 21 January 2021 when according to her evidence she “went to the bottleshop at 9am to pay herself for the last five days.”
[44] It is unclear on the evidence before me whether even Mr Glauch had the unilateral authority to dismiss Ms Glauch from her employment given that both he and Ms Glauch were joint owners of the business. In any event I accept the evidence of Mr Glauch that he did not dismiss Ms Glauch during his conversation with her on 20 January 2021 but rather pointed out to her that she could resign from her position and sell her shares in the business if she wished to do so.
[45] That Ms Glauch was not dismissed by either Mr Wodcke on 15 December 2020 or by Mr Glauch on 20 January 2021 is evidenced by her own letter of 5 February 2021 in which she states “Alternatively if I am to understand that above developments to mean that I am no longer employed at Your Shout then please inform me immediately.” 19 If she had been dismissed by Mr Wodcke or Mr Glauch earlier then it would be unnecessary for her to clarify that she had been dismissed.
[46] In any event Ms Glauch concedes in her submissions and witness statement that she resigned from her employment. Mr Glauch’s clear and consistent evidence is that this occurred during his conversation with her on 20 January 2021 when she told him she quit. Ms Glauch says in her witness statement and submissions that she had no other option but to resign. However it is unclear when Ms Glauch says her resignation occurred. Her reluctance to identify when she did in fact resign gives weight to Mr Glauch’s assertion that she did so during their conversation on 20 January 2021.
[47] The legal principles governing the application of section 386(1) of the FW Act in the context of cases where the employee is said to have resigned rather than been dismissed are well established. Together with an analysis of its legislative history, they were set out by a Full Bench of the FWC in Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWC 3200 as follows:
“(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
[48] The onus is on the employee who asserts that they were forced to resign to prove that they did not resign voluntarily. 20 The employee must prove that the employer forced the employee’s resignation by identifying action on the part of the employer to bring the relationship to an end or action that has that probable result.21
[49] Ms Glauch identifies the conduct which she says forced her to resign as follows: 22
“… the manager, Neil Wodcke’s, conduct forced me to resign as he told me in writing “why don’t you just go away Shani let Graham have your job then everyone I know except you will be happy”
…
b. Further, upon contacting the owner, Ulrich Glauch, in an attempt to resolve the dispute, he failed to counsel me and said over the phone, “I’m not married to you anymore, I don’t have to listen to this, Neil refuses to work with you, if you don’t like it, leave and sell your shares.”
[50] The line distinguishing conduct that leaves an employee no effective or real choice but to resign from an employee resigning at their own initiative is a narrow one. The requisite employer conduct is an essential element. 23
[51] Ms Glauch submits that the use of the words ‘leave’ and ‘go away’ by her superiors in the business left her with no other choice than to resign and that but for their words she would have remained in the employment relationship.
[52] The evidence is that neither Mr Wodcke or Mr Glauch are in fact her ‘superiors’. Mr Wodcke is an employee of a business in which Mr and Ms Glauch are joint owners.
[53] That the use of these words left her with no option but to resign is inconsistent with her letter of 5 February 2021 in which she says:
“Nevertheless I am ready willing and able to continue with my work as per my usual roster.”
[54] On the evidence before me I believe it is most probable that Ms Glauch did in fact tell Mr Glauch that she quit during her conversation on 20 January 2021 and consistent with this the following day she paid herself her outstanding wages and failed to complete her rostered shift.
[55] In the circumstances the business was entitled to accept her resignation. Resignations do not need to be in writing to be effective. 24 Once notice is given an employer is entitled to rely on it. If Ms Glauch resignation during her conversation with Mr Glauch was made “in the heat of the moment” she had adequate opportunity to withdraw it before she went to the shop the following day and withdrew her wages.
[56] I therefore find that the termination of Ms Glauch’s employment was at her own initiative and not at the initiative of her employer. I also find that she was not forced to resign because of conduct, or a course of conduct, engaged in by her employer.
[57] Ms Glauch therefore was not “dismissed’ for the purposes of section 385 of the FW Act and is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act. In these circumstances the FWC is unable to consider the merits of her application for a remedy from unfair dismissal. Ms Glauch’s Application is dismissed.
[58] An order 25 dismissing the Application will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms S Glauch for the Applicant.
Mr U Glauch for the Respondent.
Hearing details:
2021
Perth
13 May 2021
Printed by authority of the Commonwealth Government Printer
<PR729710>
1 Digital Court Book (DCB) at page 73-74.
2 Ibid page 4.
3 Ibid.
4 Ibid page 73.
5 Ibid page 5.
6 Ibid page 5.
7 Ibid page 6.
8 In her witness statement at page 6 of the Digital Court Book Ms Glauch says this conversation occurred on 20 December 2020 however else in her witness statement she says this conversation occurred on 20 January 2021. I have accepted that the conversation occurred on 20 January 2021.
9 DCB page 73.
10 Ibid page 7.
11 Ibid page 73.
12 Ibid page 20.
13 Ibid.
14 Ibid page 21.
15 Ibid page 18.
16 Ibid page 26.
17 Ibid page 7.
18 Ibid. She also states in her submissions that she was dismissed on 20 February 2021 but this appears to be a typographical error and the date intended to be 20 January 2021.
19 DCB page 20.
20 Australian Hearing v Peary (2009) 185 IR 359.
21 O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) (2006) 58 AILR 100, [23].
22 DCB page 2.
23 Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
24 Birrell v Australian National Airlines Commission (1984) 5 FCR 447.
25 Print PR729712
0
5
0