Sharyn Flaherty v Calvary Cafe

[2021] FWC 6320

[2021] FWC 6320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharyn Flaherty
v
Calvary Cafe
(U2021/7075)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 12 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 11 August 2021, the Fair Work Commission (the Commission) received an application from Ms Sharyn Flaherty (the Applicant) for remedy for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act) in respect of her employment with Kristina Lucie Ralph trading as Kristina Ralph Consulting (the Respondent).

[2] On 7 September 2021, I issued directions to the parties to file written submissions and supporting material. At all times directions and letters were served on Ms Flaherty herself. She was therefore aware of my direction on 7 September 2021 to provide submissions in reply to employer submissions asking that the matter be dismissed because of lack of the required 12 months service (ss.382, 384). She was also aware of my advice on 21 and 22 October that she had breached this direction and that I might therefore dismiss her application. Unfortunately, she did not advise me that she had received this correspondence in response to my questions, although she had received the court books and notice of listing and was able to arrange her appearance. She appeared to advise me through a friend who spoke for her that she had not seen this correspondence.¹ I had to check the listings individually to ascertain that she had been served with each of the relevant documents. I therefore find it difficult, with respect, to place weight on her evidence and prefer the evidence and submissions of the respondent.

[3] The Applicant was directed to submit her materials by no later than noon on 20 October 2021. The Applicant did not comply with this direction to provide written submissions and evidence.

[4] On 11 October 2021 Employee Dismissals filed a Form F54 notifying the Commission they had ceased to Act for the Applicant. On 18 October a subsequent email was received from Employee Dismissals confirming appearances for both the Applicant and Employee Dismissals for the mention listed Monday, 25 October 2021. On Friday, 22 October at 5:13pm a further email was received from Employee Dismissals:

“Dear Isobelle

The above matter and more specifically your email of even date refers.

Please be advised that we have ceased acting for the Applicant and an email enclosing Form F54 was forwarded to Chambers- Hamilton DP as well as the Respondent’s representative on Monday, 11 October 2021. For ease of reference, we once again attach a copy of the Form F54.

This email serves to reaffirm that we no longer act for the Applicant and will not be participating in the further proceedings of the matter.

We trust you find this in order. 

Regards
Employee Dismissals”

[5] My Chambers advised the Applicant on 21 October 2021 that directions were breached, a letter that was sent to Ms Flaherty personally. The Applicant was directed to provide an explanation for this breach of directions by no later than close of business on Thursday, 21 October 2021. No response was received by the time as directed.

[6] On 22 October 2021, the Applicant was advised that if no response was received by noon on 22 October 2021 the matter was at risk of being dismissed for want of prosecution without any further advice being sent to the Applicant. Again, Ms Flaherty was sent this letter personally and she was aware of it. No response was received by the time as directed.

[7] The matter proceeded to Mention on Monday, 25 October 2021 in the absence of a response from the Applicant. The Applicant joined the teleconference and indicated her lawyer Mr Mark Doyle was appearing. After discussion it was established that the Applicant did not have representation for the Mention. An email was provided by the Applicant from Mr Mark Doyle during the Mention confirming she did not have representation:

“Hi Sharyn,

I note your matter is listed for mention, by telephone at 10 am on Monday the 25^th October 2021.

To join you will need to dial [phone] Conference ID 211395121#

You should ensure you dial in and attend.

As I have indicated in my previous correspondence in order to take your instructions as to the matters raised in the Respondents material and in particular as to their assertions as to the status of your employment and jurisdictional matter we would require 400-500 dollars.

This may be a non economic option for you.

As we have not received your instructions to do anything further, we would suggest you attend and handle the matter on Monday.

If afterwards, you wish us to review materials we can – but as I say, there is a real chance the costs will outweigh any benefit.

Regards,

Mark.”

[8] The Mention proceeded with the Applicant unrepresented.

Mainly Agreed facts

[9] The respondent applied for the matter to be dismissed on the ground that the applicant did not meet the minimum employment period in s.382 of the Act.²

[10] The respondent provided submissions as directed which sought to substantiate its submission that the applicant did not meet the minimum employment period.

[11] I accordingly asked the applicant if the following clauses of the witness statement provided by the respondent were correct. The first witness statement of Kristina Lucie Ralph provides:

“ 1. I make this statement in support of the jurisdictional objection raised in the F3 – Employer’s response to unfair dismissal application in response to an application by Sharyn Flaherty (Sharyn). The information in this statement of evidence is true to the best of my knowledge, information and belief.

2. I am a sole trader. I operate two café businesses which are respectively located within two private hospital campuses, St Luke’s and St Vincent’s, both operated by Calvary Health Care.³

3. I am a small business. Across the two cafes, I employed four employees including Sharyn at the time of the Sharyn’s dismissal.⁴

4. Sharyn was dismissed with immediate effect on 9 August 2021.⁵

5. I initially employed Sharyn as a casual from 16 August 2019 until 21 March 2020. On 21 March 2020 Sharyn notified me that she was leaving her casual employment because of concerns about Covid-19. A copy of the text of a message from Sharyn to me dated 21 March 2020 is attached and marked A. I accepted that, although it made staffing difficult at the time, and Sharyn did not work any shifts for me for the period between 22 March 2020 and 28 June 2020.⁶

6. In or around later June 2020 I approached Sharyn to see whether she wanted to have a try at some further casual employment. I explained to Sharyn that it would be a ‘try and see’ situation for both of us, to see if she was going to be comfortable back at work in the hospital environment given her concerns about the pandemic, and for me to see whether I could be confident in her. I stated that it would be a trial, with no commitment, to see how it went. Sharyn agreed to giving it a go on those terms.⁷

7. Initially, I purposely rostered Sharyn to work only occasionally and irregularly, just when my regular employee, Tracie, wanted to have a day off. When Tracie was available, which was most of the time, I did not roster Sharyn to work. I wanted to test the waters with Sharyn slowly without any ongoing commitment, because I did not know how she would manage.⁸

8. Annexed and marked B are copies of rosters for the period 29 June 2020 to 30 October 2020. Until the week commencing 12 October 2020 the rosters evidence irregular and unpredictable casual shifts. There was no particular reason for Sharyn having no shifts for the five and a half weeks from 20 July 2020 to 25 August 2020. I just did not need her to work during that period, because Tracie was available. The rosters show that Sharyn worked as follows⁹:

Week commencing	Days worked
29 June 2020	Monday, Wednesday
6 July 2020	Friday
13 July 2020	Wednesday
20 July 2020	No shifts
27 July 2020	No shifts
3 August 2020	No shifts
10 August 2020	No shifts
17 August 2020	No shifts
24 August 2020	Wednesday, Thursday, Friday
31 August 2020	Friday
7 September 2020	Monday, Thursday
14 September 2020	Monday, Thursday, Friday
21 September 2020	Monday, Tuesday, Wednesday
28 September 2020	Monday, Thursday, Friday
5 October 2020	Wednesday, Thursday, Friday

9. I have checked the rosters against my payroll system and the timesheets submitted by Sharyn during this period. Those records show that Sharyn worked only the shifts which are stated in the rosters and set out above.

10. From the week beginning 12 October 2020, as business picked up following the initial period of Covid-19 restrictions, I extended the café hours slightly. My son, who usually works at a gym but had been working for me while his gym was closed due to the pandemic, was able to return to his normal job. I thought that Sharyn had coped okay with the casual work she had been given so far, so I began to roster Sharyn on a more regular casual basis. Sharyn was still required to have reference to the roster to find out her shifts from week to week. She received the loaded casual rate of pay under the fast Food Industry Award 2010 (as has been the case throughout all her periods of employment).”

[12] As noted above in the footnotes, the Applicant agreed or largely agreed with paragraphs 2 to 8 of the Respondent’s witness statement.¹⁰

[13] The Applicant was directed to provide any corrections to the Annexed rosters in the Respondent’s witness statement by close of business on Tuesday, 26 October 2021. The applicant did so and made submissions which included the following comments:

•  “Yes I did give notice for work on March 2020 due to the Covid lockdown which I knew was imminent at the time, but as Kris stated she was sure things would settle down soon and that she hoped I would return asap which did happen as Kris appreciated my work ethic and commitment to good service for her business as mentioned in text.

•  Section 6 on or around late June etc false statement as only Tracy and I worked at St Lukes

•  Statement incorrect cont due to my request under a casual employee status noting unavailability due to family commitments.

•  Point 9 sections 2.2 incorrect due to pay slips proving a whole different story re working at least 2 yrs.

•  Section 6 totally false statement

•  7a. Totally false claims

•  7 b. Rachel goldfinch statement never happened totally false claim

•  Section 8 Kris statement re leaving hospital see response re my unfair dismissal claim stating that in fact I was concerned for Emily and did not want to go home due to Emily being heavily pregnant, I also stressed this with Kris on phone call Monday re when Kris dismissed me over the phone

•  Section 8 false claim or distorted Re Ed Van Galen re meeting . Kris only told me this on Monday that she met with Ed Monday afternoon not Friday /

•  Section 9 False no breach – no non compliance clearly agreed Saturday, Yes I was anxious about wearing a mask and felt completely unnecessary due to no cases in Tasmania refer Bio security act .

•  Statement re I told her to leave false statement”

[14] This response is with respect difficult to follow and appears not to be consistent with the submissions provided by the applicant on 25 October 2021, which were largely consistent with the respondent’s submissions. To the extent that there are differences I prefer the evidence of the respondent and the earlier evidence of the applicant. In any case I have already found that I prefer the evidence of the respondent, given the lack of transparency on the part of the applicant about whether she received relevant directions and correspondence, which she did receive on the material before me. I would have come to the same view on the evidence and submissions before me in any event.

[15] The Respondent was directed to provide a response to the corrections (if any) by close of business of Wednesday, 27 October 2021. In reply the respondent Ms Ralph gave evidence that:

“4. I rely on paragraph 6 of my previous witness statement dated 29 September 2021 and note that Sharyn does not appear to dispute the terms on which I offered her a commitment-free ‘trial’ of some further casual work.

5. The documents served by Sharyn entitled Wages re timesheets 28-9-2019-25-8-2021.dox and Transactions (1).xlsx confirm that Sharyn received wage payments up to 24 March 2020, before payments ceased by reason of her resignation. There were then payments on 14 July 2020 and 29 July 2020 (for fortnightly periods ending 10 July 2021 and 24 July 2020), followed by a break until 9 September 2020. That is consistent with the position stated in my previous witness statement dated 29 September 2021, and my review of the time and wages records for my business. Annexed and marked “A” are timesheets submitted by Sharyn for the period 29 June 2020 to 19 September 2020. There are no timesheets for the period between 17 July 2020 and 26 August 2020.

6. I have now identified from the timesheets that Sharyn worked one additional shift, on 17 July 2020, which was not rostered. I recall that around that time I discovered that my other employee, Tracie, had given a shift up to Sharyn of her own accord, to ‘share’ the work. I recall that I directed Tracie not to offer up any other shifts to Sharyn if she did not actually need the time off, because I was still trialing how Sharyn would manage working in the ‘post-Covid’ environment and I did not want her to have any expectation of a commitment on my part. With that additional shift included (in bold in the table below), I confirm that Sharyn worked as follows during the relevant period:

Week commencing	Days worked
29 June 2020	Monday, Wednesday
6 July 2020	Friday
13 July 2020	Wednesday, Friday
20 July 2020	No shifts
27 July 2020	No shifts
3 August 2020	No shifts
10 August 2020	No shifts
17 August 2020	No shifts
24 August 2020	Wednesday, Thursday, Friday
31 August 2020	Friday
7 September 2020	Monday, Thursday

7. In relation to the documents served by Sharyn entitled Response to Respondent’s Statement of Evidence 2.pdf, I maintain that the reason Sharyn did not work any shifts for the period of approximately five weeks between 17 July 2020 and 28 July 2020 was primarily because of a deliberate decision on my part to proceed with caution and ensure that Sharyn did not have an expectation about regular or ongoing work. I did know that Sharyn would be unavailable for two weeks in July when her mother had an operation. After that, I did not rush to offer Sharyn work again because I did not want her to think she could walk back in and have whatever she wanted. My other employee, Tracie, was able to work during that period without needing any days off, so I did not need Sharyn. I did offer Sharyn one last-minute shift on the morning of 14 August 2020 to cover me when I was not feeling well. Sharyn did not receive my message in time to take up the offer to work that day. That is evidenced in the chain of text messages served by Sharyn entitled Work communication texts Kris, Tracie and Sharyn.zip.”

[16] It was agreed that I would write a decision in relation to the respondent’s application to dismiss on the basis of the evidence before me together with any additional material provided by the applicant and respondent following the mention, and that the conference scheduled for the following day would be cancelled.¹¹

[17] Section 384 of the Act provides:

“Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Conclusion in relation to service – service requirement not met as required by s.382

[18] Putting aside the applicant’s later submissions I find and it was agreed that the business is a small business employer (paragraph 3 of the witness statement). It was agreed that the employment commenced in June 2020 (paragraphs 4-6 of the witness statement), and that previous employment did not count given the break in employment.

[19] It was agreed that the applicant was dismissed with immediate effect on 9 August 2021.

[20] The initial contract in June 2020 was agreed to be irregular with no expectation of continuing employment (paragraphs 6-7 of the first witness statement of Ms.Ralph, which were agreed except for later submissions, which I have already found difficult to give any weight to).

[21] I have examined the rosters corrected in Ms.Ralph’s second witness statement. The rosters were irregular until 12 October 2020, for the reasons given by the Respondent and agreed or largely agreed by the Applicant. Even if service after that time counted as service, this regular service was less than 12 months as required for a small business employer by s.384 of the Act.

[22] Therefore, the service requirements in s.384 of the Act, which are one year for a small business, were not met. They were not met because the requirements of s.384(2)(a)(ii) were not met. I am therefore required to dismiss the application because Ms Flaherty has not met the minimum employment period set out in s.382.

Breach of directions

[23] The Respondent also sought that the application before the Commission be dismissed under ss 399A(1)(b) and 587(1)(c) of the Act. The requirement in s.399A(2) that the employer apply for dismissal of the matter is met in this case.

[24] Section 399A(1)(b) of the Act provides:

“Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; 

(c) failed to discontinue the application after a settlement agreement has been concluded.”

[25] Section 587(1)(c) of the Act provides:

“Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[26] In the alternative I will dismiss the matter pursuant to ss. 399A(1)(b) and 587(1)(c) of the Act. For the reasons given above the applicant breached directions of the Commission and the application has no reasonable prospects of success. The applicant appeared to mislead me or allowed me to be misled in advising me about whether or not she received the relevant directions and warning letters of 21 and 22 October regarding her breach of directions, and that is a relevant factor that counts against her.¹² It compounds the breach of directions and failure to rectify the breach. In any event, any discretion I have is exercised to dismiss the matter, given the circumstances of the matter.

Order

[27] An order to this effect is contained in PR735696.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735695>

1 Audio Recording of Mention, 25 October 2021, at 10:23 Mr Eamonn Connaire a friend of Ms Flaherty joins the Mention and states ‘There does not seem to be anything from you, there was the stuff on the 21st, I can’t see where the direction comes from. There was one here on the 22nd of October, there is nothing in regard to directions.’

2 Form F3 Employer Response at 5.

3 Audio Recording of Mention, 25 October 2021, 52:00-52:10, Ms Flaherty states ‘yes, that’s right’ in relation to paragraph 2.

4 Audio Recording of Mention, 25 October 2021, 50:56-51:51, Ms Flaherty states ‘yes, there was Tracey, myself, Kayla and Emily’ in relation to paragraph 3.

5 Audio Recording of Mention, 25 October 2021, 50:41-50:48, Ms Flaherty states ‘yes, with nothing in writing’ confirming she was dismissed on 9 August 2021.

6 Audio Recording of Mention, 25 October 2021, 49:49-50:38, Ms Flaherty states ‘yes that is fine’ in relation to paragraph 5.

7 Audio Recording of Mention, 25 October 2021, 46:50-46:55, Ms Flaherty states ‘yes that is correct’ in relation to paragraph 6.

8 Audio Recording of Mention, 25 October 2021, 47:00-49:10, Ms Flaherty states ‘yes part of paragraph 7 is correct’ states ‘because she did not know how she would manage is objected to’ in relation to paragraph 7.

9 Audio Recording of Mention, 25 October 2021, 42:12-46:00, Ms Flaherty states that ‘yes I agree with the summary of the rosters.’ Ms Flaherty states that ‘I have discrepancies during July as I took time off.’

10 Audio Recording of Mention, 25 October 2021, 52:15-52:45, I confirm during the Mention that Ms Flaherty agrees with paragraphs 2, 3, 4, 5, 6, 7 except for the words ‘because I did not know how she would manage’ and 8, the only disagreement is about rosters in July. Ms Flaherty states ‘yes, that’s correct’ confirming this. There are also individual statements of agreement from Ms.Flaherty in relation to each paragraph of the witness statement, in addition to this general agreement.

11 Audio Recording of Mention, 25 October 2021, 53:15-57:35, The parties agree that a decision is to be written on the basis of evidence currently before the Commission and additional corrections (if any) provided by the parties after the Mention. Ms Flaherty states ‘yes that sounds fair ‘in agreement.

12 Audio Recording of Mention, 25 October 2021, at 10:23 Mr Eamonn Connaire a friend of Ms Flaherty joins the Mention and states ‘There does not seem to be anything from you, there was the stuff on the 21st, I can’t see where the direction comes from. There was one here on the 22nd of October, there is nothing in regard to directions.’ Ms Flaherty makes a number of statements when asked if she has received the relevant directions, none of the statements answer the question: at 05:31 ‘to which email?’, at 06:09 ‘where’s the 21st? I’ve got here I write to you further to the 21st’, at 06:52 ‘I’m just enquiring as to what the email was about’.