Sharon Hall v Michael Bordignon T/A Northern Myotherapy
[2018] FWC 6703
•31 OCTOBER 2018
| [2018] FWC 6703 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sharon Hall
v
Michael Bordignon T/A Northern Myotherapy
(U2018/5566)
DEPUTY PRESIDENT GOSTENCNIK | SYDNEY, 31 OCTOBER 2018 |
Application for an unfair dismissal remedy; whether the applicant was dismissed within the meaning of s.386; termination of employment was not on the employer’s initiative; application dismissed.
[1] Ms Sharon Hall (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). In her application lodged on 29 May 2018, the Applicant said that she had commenced part-time employment with Mr Michael Bordignon T/A Northern Myotherapy (the Respondent) as a receptionist in October 2016 and that she was dismissed on 8 May 2018. 1 The Respondent denies that the Applicant was dismissed.2 The Respondent is not incorporated, and does not appear to conduct his business through an incorporated vehicle. The employment relationship appears therefore to be directly between he and the Applicant.3
[2] The central issue for determination is whether the Applicant was dismissed. That is, whether the Applicant’s employment with the Respondent was terminated on the Respondent’s initiative during a telephone conversation on 8 May 2018. The Applicant contends that during this telephone conversation the Respondent told her “not to come back to work” 4 and she understood this to be her termination. The Respondent contends that on 9 May 2018 he was “shocked” to read a note that the Applicant had addressed to all colleagues, advising that she would “no longer be working… at [Northern Myotherapy]” and she never returned to work.
[3] There is some contention between the parties as to the date on which the Applicant commenced employment with the Respondent. The Applicant contends that she commenced employment with the Respondent in October 2016. 5 The Respondent contends that the Applicant commenced employment on 3 April 2017.6 For the purposes of determining whether there has been a dismissal within the meaning of the Act, the dispute over the commencement date need not be resolved. In any event, there can be no dispute that on either of the contended dates, the Applicant served the 12 month minimum employment period entitling her to protection from unfair dismissal.7
[4] The parties agree they had a positive working relationship and friendship prior to the events of the Applicant’s alleged dismissal. The Applicant was the only employee of the Respondent at the time of the alleged dismissal. 8 She performed reception duties for the Respondent and for a number of subcontractors who worked in the clinic that the Respondent owned and managed.
[5] The Applicant was initially employed jointly by the Respondent and his former business partner, Ms Felicity Allen. However, in September 2017 that partnership dissolved. 9 The Respondent said that following this dissolution, he “asked one thing of [his] employees and that was loyalty”.10 The Applicant contends that issues arose between her and the Respondent because she remained in contact with Ms Allen and that on her personal Facebook page, outside of business hours, she had congratulated Ms Allen on her new business endeavours.11
[6] The parties agree that on or about 4 May 2018, the Applicant and the Respondent had a discussion about the comments the Applicant had made on her Facebook page in support of Ms Allen. The Applicant’s understanding of that conversation was that “they would agree to disagree” about the situation. 12 The Respondent’s understanding of that conversation was that he asked the Applicant to refrain from publicly posting messages on Ms Allen’s Facebook page.13 The Respondent said that he told the Applicant and another colleague who was making similar posts “I didn't care what [you] posted privately but could [you] please refrain from doing this publicly”.14
[7] The Respondent submitted that on 6 and 7 May 2018 the Applicant did not attend work because she was unwell. 15 On 8 May 2018, the Respondent’s wife, Mrs Irene Bordignon, said she saw another Facebook post made by the Applicant in support of Ms Allen, accompanied with a comment stating “I don't care who screen shots this and sends it...Congrats beautiful. Lol!!” The Respondent later said he understood the Applicant to be mocking him by making this comment16 and that he had previously “warned the [Applicant] against making public comments” of this nature. Mrs Bordignon sought to contact the Applicant to discuss her comments.
[8] At 6.52pm, Mrs Bordignon sent the Applicant a text message, attaching a screenshot of her comments on Ms Allen’s Facebook page, stating that she was disappointed by the Applicant’s comments. She finished the message by stating “I’d like to call you to discuss and will be showing Michael when he gets home. It is obvious you don’t want to be there anymore Sharon”. 17
[9] At 7.26pm the Applicant responded to Mrs Bordignon’s text message. The Applicant said she was surprised by her reaction and would discuss it further with the Respondent. The Applicant continued by stating “I was and am encouraging a friend” and “whatever happened between you and [Ms Allen] has nothing to do with me”. Further, the Applicant said:
“If supporting [Ms Allen] is a sackable offence then so be it… If you both feel that you don’t trust me or want me there due to my connection to [Ms Allen] then Michael can fire me if that is your choice. I don’t want to be working somewhere where I am judged not on my work … but my personal business… Please feel free to discuss with Michael then he can let me know his decision before I head in to work in the morning…
I am too upset to speak to you or I’ll end up saying something I can’t take back. Please ask Michael to give me a call after he has spoken to you.” 18
[10] The Respondent contends that the Applicant refused to take his wife’s calls following this exchange. 19 At the hearing, Mrs Bordignon said that she did not mention “sacking” the Applicant in her message at 7.26pm but rather she said “It is obvious you don’t want to be there” because she assumed the Applicant was looking to leave the business. However, she conceded that the Applicant’s reply, and the words “If supporting [Ms Allen] is a sackable offence then so be it”, may have been in response to her comment that the Applicant did not “want to be there”. Despite this, she reiterated that it was not her intention.20 In any event, apart from being married to the Respondent, Mrs Bordignon does not have any legal authority to dismiss the Applicant. That this is so appears to have been understood by the Applicant in her text message to Mrs Bordignon reproduced at [9] above.
[11] The Applicant submitted she then received “abusive” text message from the Respondent regarding her support of Ms Allen. At 8.26pm the Respondent sent the Applicant a text message that read:
“What the fuck Sharon we spoke about this the other day yet you still wanna post not on her private page her business page!!!!! I’m not calling you tonight coz I would regret what I feel like saying please don’t come in tmrw I will call you. I’ve never done any-thing but try to help the 2 of you for so many years and all I ask for was some loyalty not just to me but my business. If you think writing on her wall words of encouragement and you go girl after knowing everything she’s done is loyal then we’re on different wavelegnths Sharon” 21 [sic]
[12] The Applicant responded to the Respondent’s text message at 8.39pm stating:
“So I will take that message as being sacked due to a comment on a wall. After all the years we have known each other this is how I get treated. I have worked so hard for you and I don’t deserved this at all. It is way out of proportion. I need it to be settled tonight as I received a message from Irene at 7.30pm. [It] is unfair to make me wait... This is so wrong.” 22
[13] The Applicant submitted that she then contacted the Respondent by telephone to discuss. 23 The Applicant contends that at approximately 9.00pm24 she had a telephone discussion with the Respondent who claimed that she had not been “loyal” to him. The Applicant contends that during that call the Respondent terminated her employment effective immediately25 by stating at the conclusion of the call “not to come back to work”.26
[14] The Respondent denies that he told the Applicant not to return to work. 27 At the hearing, the Respondent gave evidence that his wife was in the room with him for this telephone call and that she had heard the conversation.28 Mrs Bordignon supported this and gave evidence that during the telephone call the phone was on loud speaker29 and that the Respondent did not say to the Applicant “don’t come back to work”. She said however that the Respondent could “possibly” have said do not come in tomorrow.30
[15] Following the telephone call on 8 May 2018, the Applicant did not return to work. 31
[16] The Applicant submitted that she understood from the events that transpired on 8 May 2018 that she had been dismissed by the Respondent. The Applicant said she had sought to clarify the issues with the Respondent and this prompted her to contact him by telephone that evening. 32 The Applicant gave evidence that she believed she had been dismissed because at the end of the phone call the Respondent told her “not to come back to work”33 and also because of his text message at 8.26pm stating “please don’t come in [tomorrow]”.34 However, the Applicant conceded at the hearing that the text message was ambiguous.35 The Applicant said that it was at this time that she posted a note on the internal workplace dashboard (Cliniko) advising her colleagues that she would not be returning.36 The note said:
“Hi Everyone. Just letting you know I will no longer be working with you at [Northern Myotherapy]. I have enjoyed my time with you all and wish you the best of everything. Sharon xx” 37
[17] On the morning of 9 May 2018, the Applicant sent the Respondent a text message at 8.43am requesting a dismissal letter by text or email. The Respondent replied at 8.45am stating:
“I don’t wanna leave it like this wanna come down Monday for a coffee if not I understand. Haven’t thought about dismissal letter yet…” [sic] 38
[18] The Respondent submitted at the hearing that he did not correct the Applicant by stating that he did not terminate her employment because he was still quite upset at the time as he didn’t expect this to happen and he through that both he and the Applicant “needed some time to cool down”. He says this is why he asked the Applicant to have a coffee with him the following Monday. 39 He said that his text message was an indication that he had not terminated the Applicant’s employment in the telephone conversation on 8 May 2018 as he would not have attempted to resolve the issues between the parties by inviting the Applicant to have a coffee with him if he did not intend for her to return to work.40 The Applicant stated she believed this to be the Respondent’s usual practice for resolving disputes, however she denied that he had not dismissed her.41
[19] The Respondent said that following this text message conversation he was shocked to read the note posted by the Applicant on the internal workplace dashboard. He said he understood the note to be notice of the Applicant’s resignation and that it was unexpected and subsequently left his business without a receptionist. 42 The Respondent gave evidence at the hearing that he believed the Applicant’s note to be an indication that she had resigned because she stated “I will no longer be working with you at [Northern Myotherapy]”.43 The Applicant stated that she did not specifically state that she had been dismissed in the note because she did not want to “cause any trouble”.44 The Respondent contends that he spent the next week attempting to fill the position and it was several weeks before he was able to find a replacement. The Respondent said this supports his contention that he did not terminate the Applicant’s employment as had he planned to terminate her employment, he would not have been so unprepared.45
[20] On 10 May 2018, the Applicant sent the Respondent a text message at 3.39pm again requesting a termination or dismissal letter and stating it was for Centrelink purposes. The parties began to engage in a text message conversation spanning approximately two hours. The Respondent replied to the Applicant’s request by stating “When I’m ready… I will get back to you when I feel like it”. 46 The Respondent also informed the Applicant that she had left her Facebook account logged into the work computer and that it was “very interesting reading”. The Respondent advised in a further text message that he had read some “chats” between the Applicant and others relating to his business and concluded the message by saying “back to the dole que for you luv” [sic]. The Applicant sent a reply message to the Respondent stating that accessing her Facebook account was “a huge invasion of privacy” and finished this message by stating “No que for me. Already have work”[sic]. 47
[21] The Applicant gave evidence at the hearing that she had not commenced new employment at the time she sent this message but she made this comment because she “didn't want [the Respondent] to have the satisfaction of knowing that [she] was out of work”. 48 She said “I was upset by that [dole] comment and I didn’t want him to have the pleasure of thinking I wasn’t working”.49 The Applicant later gave evidence that she commenced her new employment on 23 July 2018.50
[22] Further, the Applicant gave evidence that she understood these text messages on 10 May 2018 between her and the Respondent to have reinforced her view that she had been dismissed as she said “if [the Respondent] had not fired me why didn’t he say it was a misunderstanding, I didn’t sack you”. 51 In contrast the Respondent highlighted at the hearing that the Applicant was “the only person in any text message that mentions sacking”.52
[23] On 18 May 2018, the Respondent sent the Applicant an email that read:
“Dear Sharon,
I will accept the below Cliniko post dated 9 May,
‘Hi Everyone. Just letting you know I will no longer be working with you at [Nothern Myotherapy].
I have enjoyed my time with you all and wish you all the best of everything.
Sharon xx’
and your test message dated 10 May at 3.39pm,
‘already have work’
as confirmation you have resigned and will not be returning to work at Northern Myotherapy.
Rick, the book keeper is currently working on figures to determine if there are any monies due and will be in touch in the next week.
Regards
Michael” 53
[24] The Applicant responded to this email:
“That was posted after you sacked me. To say goodbye to all the clients I had made friends with and then I deleted it.. It is not a resignation it was a sacking. You and I both know that.
I have spoken to Rick and he assured me he would get back to me asap.
Thanks
Sharon.” 54
[25] On 29 May 2018, the Applicant lodged her application seeking an unfair dismissal remedy. 55
[26] On 20 June 2018, the Respondent gave notice to the Commission of his jurisdictional objection to the application that the Applicant had not been dismissed. 56
[27] An unfair dismissal is set out relevantly in s.385 of the Act as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[28] Dismissed is defined in s.386 of the Act 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.
(1) However, 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 at 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
(a) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(1) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part”.
[29] The Applicant contended in her final submission that she was terminated at the Respondent’s initiative during the telephone call on 8 May 2018. She further submitted that she made many attempts to clarify with the Respondent that she understood her employment had been terminated and at no point did the Respondent argue that he had not dismissed her, nor did he request that she return to work. The Applicant submitted that the Respondent’s comments on 10 May 2018 in response to her request for a termination letter, “I will get back to you when I feel like it” and “back to the dole que for you luv”, are evidence that she had been dismissed from her employment. 57
[30] In contrast, the Respondent said in his final submissions, that the “Applicant’s statement that she was dismissed on 8 May 2018 is false”. The Respondent said that at no point was there any reference to dismissing the Applicant and further, there is no evidence in the text message exchange that the Applicant was dismissed. The Respondent further submitted that his offer to the Applicant on 9 May 2018 to have a coffee went unanswered and that this was after the date which the Applicant claims she was dismissed. The Respondent further reiterated that the Applicant’s role was “critical to the daily operations of the clinic” and it “is therefore imperative to have a presence at [r]eception at all times”. The Respondent submitted that if he had intended to dismiss the Applicant, he would have had a plan for covering the reception duties immediately. The Respondent submitted that the Applicant “resigned of her own accord, the role of [r]eceptionist continued to remain unfilled until 21 July 2018” causing significant detriment to the Respondent’s business. 58
[31] The word “dismissed” is defined in s.386 of the Act. It includes a person’s employment with his or her employer being “terminated on the employer’s initiative”. 59 The expression “termination on the employer’s initiative” is concerned with the termination of the employment relationship, not the employment contract.60 The employment contract and the employment relationship are related but distinct.61
[32] The termination of employment on the employer’s initiative may occur by clear words or conduct by an employer directed to an employee that the employee’s employment is to end or has ended. A termination of employment will also be on the employer’s initiative if an act of an employer was the principal contributing factor which led to the termination of the employment relationship and that act resulted directly or consequentially in the termination of the employment. Put another way but for the employer’s act, would the employment relationship have remained on foot? 62
[33] I do not accept on the evidence that the Respondent dismissed the Applicant during a telephone conversation on 8 May 2018. That the Applicant believes that that was the case is beside the point. It was the Applicant who first raised the issue of dismissal in response to a text message sent to her by Mrs Bordignon in the early evening of 8 May 2018. In that text message the Applicant said, inter alia, “if you both feel that you don’t trust me or want me there… then Michael can fire me if that is your choice”.
[34] Although this was responsive to Mrs Bordignon’s earlier statement which was to the effect that, on the basis of the Facebook post it was obvious to Mrs Bordignon that the Applicant did not wish to be there, it seems clear enough that the Applicant had in mind that the employment relationship might end.
[35] Later that evening the Respondent sent the Applicant a text message expressing, to put it mildly, anger at the Facebook post. The text message also said “I’m not calling you tonight coz I feel like saying please don’t come in tmrw I will call you.” The Applicant responded very shortly thereafter in which she said, inter alia, “so I will take that message as being sacked…”. It is plain that well before the telephone conversation the Applicant had in mind that she had been dismissed. No such conclusion could reasonably be drawn from either the earlier message from Mrs Bordignon or the text message from the Respondent. It is clear that the Respondent was angry about the Facebook post and that he indicated why it is that he would not call, but he did not indicate in the text message that he was dismissing the Applicant, and she had no basis from the text message to conclude that he had.
[36] It is of no small moment that the Applicant alleges the Respondent said to her during the subsequent telephone conversation words which were the same words or words to that effect as are contained in the text message but without the conditional introductory words “I feel like saying”. It is also noteworthy that the Respondent made clear in his text message that he would not be calling her that evening. Despite this, the Applicant called the Respondent. It is during this conversation that she says the Respondent said the words to the effect that she should not come back to work. The Respondent denied that he said those words and his denial was to some extent corroborated by Mrs Bordignon who listened in on the telephone conversation which occurred on loudspeaker. Even allowing for the fact that Mrs Bordignon may not be an impartial witness given her relationship with the Respondent, it seems to me that it is more likely the case of the Applicant had already decided that she had been dismissed. This seems clear from her earlier text message. Her recollection of the subsequent telephone conversation has, in my view, been affected by her view of the effect of the earlier text messages. I do not accept that during the telephone conversation or some time beforehand, that the Respondent dismissed the Applicant. Put another way, I do not accept that either the text messages or anything that occurred during the telephone conversation between the Respondent and the Applicant on 8 May 2018 was action by the Respondent which resulted directly or consequentially in the termination of the employment. The employment ended because the Applicant did not return to work and advised others that her employment had ended. That she did so in the erroneous belief that the Respondent had dismissed her does not result in the termination of the employment having occurred on the Respondent’s initiative.
[37] The interaction between the parties after that time to which earlier reference has been made is at best equivocal and certainly does not provide a basis for concluding that there was a termination of employment at the Respondent’s initiative. However childlike the Respondent’s responses appear, they did not have the effect of retrospectively transforming that which was not at the time a termination of employment on the Respondent’s initiative to one that was so.
[38] For these reasons, I am not persuaded that the Applicant’s employment with the Respondent was terminated on the Respondent’s initiative on 8 May 2018 or at any time thereafter. It follows that the Applicant was not dismissed within the meaning of the Act. The Applicant cannot have been unfairly dismissed as she was not a person who has been dismissed within the meaning of ss.385(a) and 386(1).
[39] The application must therefore be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms S Hall on her own behalf.
Mr M Bordignon on his own behalf.
Hearing details:
2018.
Melbourne:
10 September.
Final written submissions:
Applicant, 23 September 2018
Respondent, 10 October 2018
1 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018.
2 Respondent’s Form F3 – Employer Response to Unfair Dismissal Application dated 20 June 2018.
3 See also attachment to Exhibit 4, email to Ms Allen dated 12 June 2018.
4 Applicant’s Outline of Argument: Merits, undated, filed 30 July 2018 at question 4f.
5 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018 at 2.
6 Respondent’s Outline of Argument: Merits, undated, filed 1 August 2018 at question 1a; Respondent’s Form F3 – Employer Response to Unfair Dismissal Application dated 20 June 2018 at 2.
7 Section 383 of the Act.
8 Respondent’s Form F3 – Employer Response to Unfair Dismissal Application dated 20 June 2018 at 3.
9 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018 at 4.
10 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
11 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018 at 4.
12 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018 at 4-5.
13 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
14 Respondent’s Outline of Argument: Objections, undated, filed 1 August 2018 at question 5d.
15 Respondent’s Outline of Argument: Objections, undated, filed 1 August 2018 at question 5c.
16 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
17 Exhibit 4.
18 Exhibit 6.
19 Respondent’s Outline of Argument: Objections, undated, filed 1 August 2018 at question 5c.
20 Transcript of Proceedings dated 10 September 2018 at PN440-443.
21 Exhibit 4.
22 Ibid.
23 Applicant’s Outline of Argument: Merits, undated, filed 30 July 2018 at question 4f.
24 Applicant’s Outline of Argument: Objections, undated, filed 30 July 2018 at question 1a.
25 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018 at 5.
26 Transcript of Proceedings dated 10 September 2018 at PN139.
27 Ibid at PN360-PN362.
28 Ibid at PN261.
29 Ibid at PN448.
30 Ibid at PN450-PN456.
31 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
32 Transcript of Proceedings dated 10 September 2018 at PN132-PN134.
33 Ibid at PN139.
34 Ibid at PN118-PN132.
35 Ibid at PN130.
36 Ibid at PN140.
37 Exhibit 4.
38 Exhibit 4.
39 Transcript of Proceedings dated 10 September 2018 at PN359.
40 Ibid at PN222-PN230.
41 Ibid.
42 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
43 Transcript of Proceedings dated 10 September 2018 at PN231-PN237.
44 Ibid at PN140.
45 Respondent’s Statement of Evidence – Witness statement of Michael Bordignon, undated, filed 1 August 2018.
46 Exhibit 4.
47 Ibid.
48 Transcript of Proceedings dated 10 September 2018 at PN144-PN148.
49 Ibid at PN148.
50 Ibid at PN194.
51 Ibid at PN160.
52 Ibid at PN240.
53 Exhibit 4.
54 Ibid.
55 Applicant’s Form F2 – Unfair Dismissal Application dated 29 May 2018.
56 Respondent’s Form F3 – Employer Response to Unfair Dismissal Application dated 20 June 2018.
57 Applicant’s Final Submissions dated 21 September 2018.
58 Respondent’s Final Submissions dated 10 October 2018.
59 Section 386(1)(a) of the Act.
60 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205; Explanatory Memorandum to the Fair Work Bill 2009 at clause [1528]; Siagian v Sanel (1994) 122 ALR 333 at 350-1; Mahoney v White [2016] FCAFC 160 at [23]; Searle v Moly Mines Ltd (2008) 174 IR 21 at [22]-[23]; Ayub v NSW Trains [2016] FWCFB 5500 at [24].
61 Visscher v Giudice (2009) 239 CLR 361 at [53].
62 See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205.
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