Stephanie Drew v Vanilla Slice Pty Ltd ATF Sorrento Family Trust T/A Just Fine Food

[2016] FWC 3935

[2016] FWC 3935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephanie Drew
v
Vanilla Slice Pty Ltd ATF Sorrento Family Trust T/A Just Fine Food
(U2015/14189)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 17 JUNE 2016

Application for relief from unfair dismissal – jurisdiction objection – applicant not dismissed; jurisdictional objection upheld, application dismissed.

[1] Ms Stephanie Drew (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) on 12 November 2015 alleging that the termination of her employment by Vanilla Slice Pty Ltd as the Trustee for Sorrento Family Trust T/A Just Fine Food (JFF – the Respondent) was unfair. In her application Ms Drew contended that she had been dismissed on 22 October 2015.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application JFF raised two jurisdictional objections, the first that Ms Drew’s application had been lodged outside the 21 day timeframe specified in s.394(2) of the Act and the second that Ms Drew had not been dismissed. Commissioner Wilson considered the first jurisdictional objection in February 2016 and in his decision 1 determined, among other things, that the date of termination of Ms Drew’s employment was 9 August 2015 which was the last date on which she performed work for JFF. The Commissioner also determined that there were exceptional circumstances warranting the Fair Work Commission (the Commission) granting a further period for Ms Drew to make her application and extended the period until 12 November 2015. Importantly, the Commissioner made no finding as to whether or not the termination of Ms Drew’s employment was at the initiative of the employer.

[3] The issue of whether Ms Drew had been dismissed at the initiative of JFF, together with the merits of the application, was heard by the Commission as currently constituted on 3 May 2016. With the agreement of the parties, the hearing was conducted as a determinative conference. At the hearing, Ms Drew appeared on her own behalf, while Mr Richard Guarnuccio, JFF’s Director, and Mrs Ida Arnold, JFF’s Business Manager, both appeared for the Respondent.

[4] For the reasons outlined below, I have found that Ms Drew was not dismissed at the initiative of JFF. Accordingly, JFF’s jurisdictional objection is upheld and Ms Drew’s application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[5] Ms Drew had worked for JFF as a casual employee for a period of some four and a half years, though the period was broken in 2013 when Ms Drew worked elsewhere for several months. Vanilla Slice Pty Ltd as the Trustee for Sorrento Family Trust purchased JFF in late May 2015 and continued to employ Ms Drew.

[6] On 23 April 2015 Ms Drew took on another casual job with the Sorrento Golf Club and on 21 July 2015 commenced a further job with Merricks General Store. Ms Drew continued to work at JFF, though her availability to work at JFF was affected by the Merricks General Store job, e.g. she could not work Saturdays.

[7] On 9 August 2015 Ms Drew advised JFF that she was pregnant. Ms Drew was subsequently not rostered for any further shifts. Over the period late May to 9 August 2015, Ms Drew’s weekly hours ranged from zero to 27.75 hours, averaging just over 13 hours per week. Also in August 2015, Ms Drew indicated her unavailability to work on 7 (Friday), 8 (Saturday), 10 (Monday), 14 (Friday), 16 (Sunday), 22 (Saturday) and 23 (Sunday) August 2015.

[8] On 10 September 2015 Ms Drew sent an SMS message to Ms Karen Arnold, another employee at JFF and Mrs Ida Arnold’s daughter, asking whether she had any shifts coming up in the next couple of weeks. Ms Karen Arnold responded that she would ask her mother who developed the rosters for JFF. No further messages regarding Ms Drew’s inquiry were put before the Commission. By way of background, Ms Drew and Ms Karen Arnold were friends.

[9] On 22 October 2015 Ms Drew received an SMS message from Ms Karen Arnold enquiring about her availability to work that weekend and the forthcoming Melbourne Cup long weekend. Ms Drew contends that she was subsequently advised by Ms Karen Arnold that Mr Guarnuccio had indicated that her services were no longer required or needed. Copies of those SMS messages were not put before the Commission.

[10] As previously noted, Ms Drew filed her unfair dismissal application with the Commission on 12 November 2015.

The Applicant’s case

[11] In short, Ms Drew contended that she was dismissed as a result of her pregnancy. In particular, Ms Drew pointed to the fact that she was not offered any shifts after 9 August 2015 which is the day she advised JFF of her pregnancy.

[12] At the hearing, Ms Drew stated, inter alia, that:

• she took the jobs at the Sorrento Golf Club and Merricks General Store to supplement her income, adding that in the week commencing 9 July 2015 she was only rostered for 5.75 hours at JFF;
• she spoke to Mrs Ida Arnold prior to taking the job at Merricks General Store;
• the Merricks General Store job required her to work Friday, Saturday and Monday each week;
• her position at JFF remained her priority;
• she could not explain why she was unavailable to work at JFF on Sunday 16 and 23 August 2015;
• she contacted JFF on a weekly basis over the period 9 August to mid-September 2015, adding that she left messages with staff for Mrs Ida Arnold to call her back;

• on 22 October 2015 she received the abovementioned SMS messages (see paragraph [9] above) from Ms Karen Arnold, adding that this was the day she found out that she had been dismissed;
• when she advised Mrs Ida Arnold that she was pregnant, Mrs Arnold appeared upset;
• at the end of the day she went upstairs and met with Mr and Mrs Guarnuccio, adding that she gave them assurances regarding her continued availability to work at JFF;
• after 9 August 2015 she never came into JFF;
• over the period 9 August to 22 October 2015 she spoke consistently with Ms Karen Arnold, adding that Ms Arnold told her that there were no shifts available;
• she had not indicated to JFF that she no longer wanted to work there, adding that JFF had not told her that she had been dismissed; and
• her name remained on the roster at JFF for several weeks after 9 August 2015, adding that she understood that her name only came off the roster in mid-September 2015.

[13] As to remedy, Ms Drew did not seek reinstatement as she had secured alternative employment but rather sought compensation in lieu of reinstatement.

The Respondent’s case

[14] JFF submitted that Ms Drew was not dismissed but that she pursued alternate employment and made herself unavailable for shifts, adding that Ms Drew’s alternate employment at Merricks General Store ceased in September 2015 and at the Sorrento Golf Club in November 2015. JFF also submitted that in the winter period it employs four front of house staff during the week and about seven on weekends, with shifts apportioned and prioritised for those staff that rely solely on JFF for employment.

[15] At the hearing, JFF stated among other things that:

• around August 2015 it could only offer Ms Drew weekend shifts;
• disputed that Ms Drew had been dismissed as a result of her pregnancy;
• disputed that Ms Drew had left messages for Mrs Ida Arnold to contact her, adding that there was no evidence that Ms Drew had left any messages;
• disputed that Ms Drew had given assurances on 9 August 2015 regarding her continued availability;
• Ms Drew’s name had not been removed from the roster after 9 August 2015 because she had not been dismissed;
• in the absence of advice from Ms Drew, it had no idea that her availability had changed in late August and that as a result it had assumed that Ms Drew had chosen to go down a different path;
• Ms Karen Arnold had no authority to offer shifts to Ms Drew, adding that Ms Arnold had contacted Ms Drew on a personal basis to check her availability for work not to offer her work;

• when Ms Karen Arnold contacted Mr Guarnuccio on 22 October 2015 she insisted that JFF should re-employ Ms Drew; and
• Mr Guarnuccio did not agree with Ms Karen Arnold nor did he ask her to relay any information to Ms Drew.

[16] Mr Guarnuccio stated that after 23 August 2015 Ms Drew never contacted him or set out in the “book” her availability, also acknowledging that he did not try and contact Ms Drew. Mr Guarnuccio further stated that Ms Drew was never dismissed, that she was not available to work weekends and that Ms Drew never advised him of a change in her availability/circumstances.

[17] Mrs Ida Arnold stated that:

• Ms Drew rang her on three occasions after 9 August 2015 asking for shifts, though Mrs Arnold also conceded that the calls could have been made before 9 August 2015;
• on each occasion she advised Ms Drew that she could only offer her weekend shifts;
• Ms Drew had advised her that she was rostered to work at Merricks General Store Friday to Sunday;
• had Ms Drew advised her that she could work Sundays at JFF she would have been rostered to work Sundays;
• she did not contemplate contacting Ms Drew after 9 August 2015; and
• she congratulated Ms Drew when she told her that she was pregnant.

The statutory framework

[18] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Drew is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 386 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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.

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.

(2) …”

[19] The threshold issue to be determined in this case is whether or not Ms Drew’s employment was terminated at the initiative of JFF.

Was Ms Drew dismissed at the initiative of the employer?

[20] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 2 (Mohazab). The Full Court stated in its decision that:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option'. His Honour described those circumstances as:

‘. . . a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” 3 (Underlining added)

[21] At the hearing Ms Drew stated that she had not been advised that she no longer worked at JFF, nor had she advised JFF that she no longer wished to work there. As previously noted, JFF contended that Ms Drew had not been dismissed.

[22] As to the text messages of 22 October 2015 from Ms Karen Arnold, Ms Drew stated it was only then she realised that she had been dismissed by JFF. On the other hand, JFF contended that Ms Karen Arnold had no authority to contact Ms Drew regarding her availability for work and that she did so in a personal capacity. Mr Guarnuccio further stated that did he not ask Ms Arnold to relay any information to Ms Drew. In the absence of seeing the text messages and hearing from Ms Karen Arnold, I accept JFF’s contention that Ms Karen Arnold contacted Ms Drew without any authority from JFF to do so, particularly as it was not disputed that Ms Drew and Ms Arnold were friends.
[23] Drawing on the above and the language in Mohazab, and based on the material before the Commission there is no critical action by JFF which constitutes a termination of employment. This does not support a finding that Ms Drew’s employment was terminated at the initiative of JFF.

[24] Finally, I would observe that there is no material before the Commission which supports a finding that Ms Drew was not offered shifts after 9 August 2015 as a result of advising JFF of her pregnancy. In my view, the connection between those two events is purely coincidental.

Conclusion

[25] For all the above reasons, I find that Ms Drew’s employment was not terminated at the initiative of JFF. Consistent with s.386(a) of the Act, the Commission is therefore not satisfied that Ms Drew was dismissed and, as such, JFF’s jurisdictional objection is upheld. Accordingly, Ms Drew’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Drew on her own behalf
R. Guarnuccio and I. Arnold for the Respondent

Hearing details:

Melbourne.

2016:

May 3.

 1   [2016] FWC 972

 2 (1995) 62 IR 200

 3   Ibid at 205-206

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