Sharon Lee Jones v Stroaming Pty Ltd
[2023] FWC 2289
•8 SEPTEMBER 2023
| [2023] FWC 2289 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sharon Lee Jones
v
Stroaming Pty Ltd
(C2023/3362)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 8 SEPTEMBER 2023 |
Jurisdictional Objection – employee not dismissed within the meaning of the Fair Work Act – objection dismissed - employee dismissed at the employer’s initiative – matter to proceed to conciliation.
Sharon Lee Jones (the Applicant) made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she had been dismissed from her employment with Stroaming Pty Ltd (the Respondent) in breach of the General Protections provisions of the FW Act.
The Respondent has objected to the application on the grounds that the Applicant was a casual who was advised she was not required to work due to a need to reduce spending on wages and was thus not dismissed within the meaning of the FW Act.
As stated recently by the Full Bench in Lipa Pharmaceuticals v Mariam Jarouche:
“Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.”[1]
As such, the matter was set down for hearing on 1 September 2023 to determine the jurisdictional issue.
Permission to appear
The Respondent sought leave to be represented. The Applicant did not file any submissions opposing such representation. In its submissions, the Respondent contended that efficient conduct of the hearing would be assisted by having counsel to ensure only relevant matters were traversed as part of proceedings. The Respondent also submitted that as its primary witness would also be required to run the matter, practical difficulties would arise regarding the conduct of the case. I accepted that both of those submissions were relevant and exercised my discretion to allow the Respondent to be represented.
Witnesses
The Applicant gave evidence on her own behalf.
Ms Vanessa Morgan, Ms Kristy Hutton and Mr John Russell Pelusey gave evidence on behalf of the Respondent.
Submissions
Submissions for the Respondent were due to be filed on 4 August 2023. However, on 3 August 2023 the Respondent sought an extension of time for filing submissions. An extension to 11 August 2023 was granted and the Respondent filed its submissions on this date. The Applicant’s submissions were initially due by 11 August 2023, but this was extended to 18 August 2023 by virtue of the extension granted to the Respondent. On 15 August 2023 the Applicant sought and was granted an extension until 25 August 2023 to file submissions, and she subsequently filed her submissions on this date.
The Respondent filed submissions in reply on 30 August 2023.
Background
The Applicant was engaged by the Respondent as a casual hairdresser, with a commencement date of 17 March 2023. On 25 March 2023 the Applicant raised the issue of her diabetes with the Respondent in the context of needing to take a lunch break, which the Applicant claimed had not previously been permitted. The Respondent replied to this request advising that the Applicant should take 30-minute lunch breaks.
During the Applicant’s employment with the Respondent she was requested to work additional hours on a number of occasions but had declined to work these additional hours.
On 8 May 2023 the parties had a discussion that related to the availability of the Applicant to work. The parties differ as to their evidence regarding this discussion, but it is apparent that there was some discussion of a reduction in the Applicant’s availability, at least in the short term, due to her needing to sit University exams. On 21 May 2023 the Respondent sent the Applicant a text advising that following receipt of financial information provided by its accountant it needed to reduce its wages expense and as such there would be no hours provided to her, albeit with the caveat that the Respondent would contact her in the future if it had hours available.
The Applicant subsequently lodged an application with the FWC on 9 June 2023.
Submissions and Evidence
The Applicant submitted that she was not simply removed from the roster due to a need to reduce wage costs but was terminated because she had exercised workplace rights and supported a fellow employee who she believed was being treated unfairly by the Respondent’s management. In support of this contention, she submitted that a new employee, a Ms Barbara Knowles had commenced employment at the salon where she had been working on the day following her removal from the roster. Further, she submitted that having zero hours allocated to her was not consistent with genuine employment, notwithstanding her casual status.
The Respondent submitted that, as a result of the financial data provided by its accountant, a decision was made to reduce the number of hours offered to staff. As the Applicant was a casual with the least number of hours, and was unable to work any additional hours, the Respondent had decided to cut her hours until such time as it was financially feasible for the Respondent to offer any further work. However, the Applicant had responded to the advice that her hours were being cut by stating “please do not contact me in future”.
In her written witness statement, Ms Vanessa Morgan submitted that although the employment arrangements with the Applicant had only been verbal, the Applicant had been engaged as a casual. Her further evidence was that she had been advised, via an email dated 19 May 2023 from her accountant Mr John Russell Pelusey, that the business had lost money in the nine months to end of March 2023 and during that time had increased its expenditure on wages by twenty three percent. I note that this email was in evidence and its contents were confirmed by Mr Pelusey when he gave evidence. Ms Morgan stated that as a result of this email, she had held a meeting with the manager of the salon where the Applicant was employed, Ms Kristy Hutton. Arising from this discussion, a decision was made that due to the Applicant being casual and having the least number of hours per week, her hours would be cut. Ms Morgan’s evidence was that this cut was due to the business imperative to reduce expenditure and avoid further losses.
It was the further evidence of Ms Morgan under cross examination that the reduction of hours was in fact temporary and that the Respondent had intended to provide some hours to the Applicant in the week following her week of zero hours. This evidence was not challenged by the Applicant. Ms Morgan also conceded that she had employed Ms Knowles, as alleged by the Applicant, but was not questioned further on Ms Knowles’ employment or the implications of that employment.
The witness statement of Ms Kristy Hutton confirmed that in response to the email from Mr Pelusey, she had discussed reducing wages spend with Ms Morgan and that they had decided to cut the Applicant’s hours as she was a casual and worked the least number of hours. Appended to Ms Hutton’s statement was a copy of the text message she sent to the Applicant advising that due to a need to cut wages the Respondent did not:
“…have hours available for you at this time. We will contact you in the future if we have availability.”
The appended message showed the Applicant responding, in part as follows:
“PS Please do not contact me in the future.”
I note that the Applicant chose not to cross-examine Ms Hutton on any of her evidence, nor did she cross-examine Mr Pelusey.
In her own evidence that was relevant to the issue of whether she had been terminated, the Applicant expressed a belief that the advice given by Mr Pelusey had in effect been procured by Ms Morgan to give her an excuse to reduce the Applicant’s hours. She did not provide any evidence to corroborate this belief nor did she seek to provide any counter-narrative wherein the financial issues of the business did not exist. In his own unchallenged evidence, Mr Pelusey stated that the information provided had not been specifically requested by Ms Morgan and was simply part of the usual updates provided to his client.
Under cross-examination the Applicant conceded that she was a casual employee and also conceded that she had sent the request not to be contacted. She explained that the request not to be contacted arose out of a sense of agitation and as a result of the stress she was experiencing but conceded that it may have been a rash decision to have made that request.
Consideration
The central question to be answered in this matter is not the reasons why the Respondent may have chosen to terminate the Applicant, but rather whether or not it actually did. Certainly, there are elements of the Applicant’s case that suggest to me there may have been some angst between the parties and there may well have been a desire on the part of the Respondent to part ways with the Applicant. However, those considerations would be relevant only if it is decided that the Applicant was dismissed by the Respondent. In making that decision, I have confined myself to an analysis of the behaviour of both parties and the implications of that behaviour for the Applicant’s ongoing employment.
In the first instance, I should note that a casual employee who has their hours reduced to zero may indeed have been dismissed. Support for this notion is to be found in the decision of Commissioner Wilson in Cody Jackson v The Trustee for the L & L Chua Trust, where the Commissioner stated as follows:
“The Respondent’s submission that there was no dismissal is plainly misconceived and allied to the proposition that a casual employee may simply be dispensed with by reducing their hours to zero without the employee having recourse either to the Fair Work Act’s unfair dismissal or general protections provision. That analysis is not correct.”[2]
Permanently reducing a casual employee’s hours to zero of course has the exact same effect as termination and it is not open to an employer to seek to disguise its real intention behind a mask of simply not offering any hours. However, in this instance the matter is somewhat more complex. The wording of the text to the Applicant did offer up the possibility of future hours, albeit only in circumstances where the Respondent’s finances supported such hours. The unchallenged evidence of Ms Morgan was that there would have been hours offered to the Applicant within a week of the text message. However, the Applicant had declared herself unavailable for any such future hours by virtue of insisting that the Respondent have no future contact with her. Had she not done so, but perhaps either waited a week or so to see if any hours eventuated or engaged with the Respondent about the probability of future hours, the outcome may have been different.
That is not to say that the Respondent has handled this matter well. Receiving a text that advised that her income for the following week, and possibly for some time after that, would be reduced to zero would have been quite a shock for the Applicant. The Respondent may well have the right to not offer hours to a casual but to remove all of the Applicant’s hours with no warning and via a text message is very poor practice indeed. I also find it somewhat disappointing that it appears there was no attempt to “cushion the fall” for the Applicant by reducing some hours from other employees and perhaps allowing the Applicant to retain one or two shifts. Further, I am not necessarily persuaded that the Respondent’s motivations were solely about saving money and nothing to do with any desire to remove an employee regarded as somewhat problematic.
However, when I confine the matter to the question of whether or not the Applicant was dismissed in the first instance by the text message, I find that she was not. Clearly, at some point in time a casual employee whose hours are reduced to zero is entitled to regard themselves as dismissed. For the purposes of this application, I do not need to delve into what that length of time might be and it may well vary in each instance. In this matter the Applicant, having been advised that her hours were reduced to zero, chose to immediately declare herself unavailable for any future hours that may have been offered. Whether the hours foreshadowed by Ms Morgan in her evidence would have actually been offered I cannot say, but neither can the Applicant.
However, there is a further element to this situation that needs to be considered. It appears to me that, in practical effect, the Applicant in declaring herself uncontactable resigned her employment. This does raise the question of whether her resignation might be said to be a termination at the initiative of the employer. The principles on forced resignations for the purposes of s386 of the FW Act, which are also relevant to dismissals under s365 are set out in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa) where the Full Bench stated as follows:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1)There may be a dismissal within the first limb of the definition in s.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 s.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 probably [sic] 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.”[3]
In terms of the concept of “heat of the moment” resignations as per the commentary on s.386(1)(a) above, I put to Mr Ko, for the Respondent, that the Applicant’s unchallenged evidence was that she was distressed and agitated when she sent the text, some 22 minutes after receiving the initial text from Ms Hutton, advising the Respondent not to contact her. I suggested that perhaps it might have been proper for the Respondent to take this distress into account in determining how it dealt with the Applicant’s effective resignation. Mr Ko responded that the Respondent had been unaware of this distress and I accept that is almost certainly the case. However, the reason the Respondent was unaware was because the Respondent did not seek to engage in a proper and meaningful way with the Applicant but instead simply sent her a text. I am uncertain as to what impact the Respondent might have envisaged the text was going to have on the Applicant, but I find it difficult to conclude that the Applicant’s feelings or the practical difficulties created for her played any part in the Respondent’s thinking.
If it is indeed the case that the Respondent was very much open to the Applicant working future shifts, as was its evidence, then its actions in simply accepting the Applicant’s text are passing strange. The Respondent either knew, or certainly ought to have known, that the text would provoke some shock and distress. Rather than advising the Applicant, albeit contrary to her wishes not to be contacted, that this was not the end of her employment and that it was considering offering her work in the near future, the Respondent simply accepted what the Applicant had said and moved on. I do not accept that the Applicant would have been upset to receive a message clarifying the situation as outlined above, even in light of her instruction not to be contacted. Again, the Respondent either knew or ought to have known that the Applicant had in effect resigned: if it is the case that the Respondent’s thinking was that it was open to the Applicant working future shifts, then in the face of the Applicant’s text it ought to have attempted to clarify the situation with the Applicant. The fact that it did not do so appears to me to fall foul of the proper handling of a “heat of the moment” resignation set out in Bupa as follows:
“…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.”
Conclusion
For the reasons set out above, I find that the Applicant was dismissed at the initiative of the employer. Although I do not find that in these particular circumstances the Respondent’s actions in reducing the Applicant’s hours to zero could be said to amount to a termination, the Applicant’s subsequent action in asking not to be contacted I find to be a resignation. This resignation was given in the heat of the moment and the Respondent, whose evidence was that it did not regard the Applicant as terminated by its action in removing her hours, did not take proper steps to confirm her intentions but simply accepted the resignation. The jurisdictional objection is dismissed and the matter will be listed for conciliation.
DEPUTY PRESIDENT
Appearances:
S Jones, Applicant.
S Ko of Counsel for the Respondent.
Hearing details:
2023.
Perth (via Microsoft Teams)
September 1.
[1] Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].
[2] Cody Jackson v The Trustee for the L & L Chua Trust No. 17 T/A Brisbane Quarters[2023] FWC 268 [24].
[3] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47].
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