Stewart Andrew Haven v CJH Group (WA) Pty Ltd
[2023] FWC 2730
•14 NOVEMBER 2023
| [2023] FWC 2730 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Stewart Andrew Haven
v
CJH Group (WA) Pty Ltd
(C2023/4565)
Yupaporn Haven
v
CJH Group (WA) Pty Ltd
(C2023/4563)
| COMMISSIONER LIM | PERTH, 14 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – applicants not dismissed – jurisdictional objection dismissed.
Introduction
Mr Stewart Haven and Ms Yupaporn Haven have both applied pursuant to s 365 of the Fair Work Act (Cth), alleging that CJH Group (WA) Pty Ltd (the Respondent or CJH Group) contravened Part 3-1 of the Act by dismissing them from their employment.
The Respondent has raised a jurisdictional objection alleging that Mr and Ms Haven were not dismissed as they resigned from their employment.
Mr and Ms Haven are husband and wife. They were employed by the Respondent and their applications arise from the same series of events. In the interests of efficiency, both matters were listed and heard together. However, each application must be determined on its own merits.
It is uncontroversial that for the matter to proceed, the Respondent must have dismissed Mr and Ms Haven. In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the Commission must determine that issue before exercising its powers under s 368 of the Act.[2]
The matters were allocated to my Chambers and a mention was held on 22 August 2023 for Mr Haven and on 29 August 2023 for Ms Haven. At Ms Haven’s mention on 29 August 2023, I confirmed that the parties consented to have both matters jointly heard. I issued Directions to the parties for the filing of material in relation to the jurisdictional objection.
I conducted a hearing on 19 October 2023.
Having considered the evidence and submissions of the parties, I am satisfied that the Respondent terminated both Mr and Ms Haven’s employment.
My detailed reasons for my decision follow.
Observations on the evidence
The Applications and disputed events arise from three interactions over a period of just over 24 hours. The witnesses gave similar evidence as to what happened and what was said. There are some differences in evidence across the witnesses.
At the hearing, Mr and Ms Haven represented themselves and were witnesses for both their own and each other’s cases. During Ms Haven’s cross-examination, Mr Holland took issue with inconsistencies in Ms Haven’s evidence. I consider those inconsistencies to be minor and do not affect Ms Haven’s credibility. I note that Ms Haven is not a native English speaker and have taken that into account in assessing her evidence.
The Respondent was represented by Mr Chris Holland, who is owner and manager of the Respondent. In addition to Mr Holland, Ms Lita Bromwich and Ms Terri Hawera gave evidence for the Respondent. Ms Bromwich and Ms Hawera are both employees of CC West, one of the other companies under the CJH Group umbrella.
Ms Bromwich and Ms Hawera gave very brief evidence. The probative value of their evidence was reduced by the fact that their understanding of conversations came through Mr Holland.
There was clear animosity between Mr Haven and Mr Holland. It is understandable that when an employment relationship ends unexpectedly that there will be bad feelings. However, Mr Holland was notably disrespectful and belligerent towards Mr Haven and the Commission throughout the entire proceeding. This diminished the credibility of his evidence.
Where witnesses provided opinions on matters that are for the Commission to determine, I have treated those opinions as submissions.
What are the events that led to the Applications?
The Respondent operates Belluci Hair and Beauty, which is a hair salon in Forrestfield, Western Australia (Belluci).
Mr Haven previously owned and operated Belluci for approximately 21 years. Mr and Ms Haven worked as hairdressers in Belluci during this time. At the start of May 2023, Mr Haven sold Belluci to the Respondent. Mr and Ms Haven continued as employees at Belluci after the sale of the business. It was a condition of the sale of contact that Mr Haven continue to work at Belluci as an employee of the Respondent for a minimum term of 12 months.[3]
Mr Holland is a carpenter by trade. He is the owner and operator of CJH Group. Mr Holland operates approximately six other companies under the CJH Group.
Around the end of May 2023, the Havens asked for their employment to be converted from full-time to casual. The Respondent granted this. Mr Haven’s hourly rate went from $34.50 per hour to $38 per hour.[4] Ms Haven’s hourly rate changed from $34.50 to $36 per hour.
At approximately 12:20pm on 10 July 2023, Mr Haven had a conversation with Mr Holland. The parties agree that Mr Haven asked for a pay increase for himself and Ms Haven.
Mr Haven’s evidence was that during this phone call:
He said that another Belluci employee was being paid $33 per hour as a full-time employee, and so he and his wife’s casual rates should be higher.
Mr Holland made a comment to him to the effect that Mr Haven did not know how to run a business.
Mr Holland said he would think about Mr Haven’s request.
Mr Haven’s evidence is that this phone call went for approximately five minutes, and that Ms Haven was not involved in the phone call.
Mr Holland’s evidence was that prior to Mr Haven’s phone call, another staff member had informed him that Mr Haven had asked her what her rate of pay was. Mr Holland felt that Mr Haven had pressured this other staff member and considered Mr Haven asking other staff about their pay rates “bad conduct”.[5]
Mr Holland viewed the Havens move from full-time to casual in May as a pay increase. It was clear that Mr Holland strongly begrudged Mr Haven asking for a pay rise during this first phone call.
Mr Holland’s evidence of the phone call is that:
He was in his office at Bibra Lake. He was conducting a regular team meeting for one of his other businesses, CC West. Ms Bromwich, Ms Hawera and Mr Walters were in the meeting.
He answered the call on speaker mode. After approximately 10 seconds he turned the speaker mode off.
Mr Haven asked for a pay rise for himself and Ms Haven. Mr Haven justified his ask by referring to the other staff member’s rate of pay.
He told Mr Haven that he had received a pay rise a month ago.
He told Mr Haven he would think about his request.
The phone call was brief and lasted a few minutes.
Ms Bromwich’s evidence of the phone call was that Mr Holland initially picked up on speakerphone, but this was only for the first 10 or so seconds of the phone call. Once the call was taken off speakerphone, she could not hear what Mr Haven said. Further, that part way through the call she went into another room to make a phone call. Most of Ms Bromwich’s knowledge of what was said in this phone call was through Mr Holland. As such, her evidence of this phone call has little probative value.
Ms Hawera’s evidence was similar to Ms Bromwich’s. Ms Hawera’s evidence was that she could hear what Mr Haven said, but not ‘word for word’. Her recollection of the phone call was that it was a conversation about a pay rise, and that the call was short.
After the phone call, Mr Holland resumed the CC West team meeting. Mr Holland’s evidence was that he discussed Mr Haven’s request with the other CC West staff, but that he’d made his mind up immediately to deny the request.
Later that day at approximately 5:15pm, Mr Holland called Mr Haven back, but did not get through. Mr and Ms Haven were at a petrol station when this call came through, and so they called back shortly after pulling over on the side of the road. Mr Haven and Ms Haven were in the car when Mr Holland picked up Mr Haven’s call back at approximately 5:35pm.
Mr Haven’s evidence was that during this phone call:
Mr Holland said words to the effect, “I’ve had a think about what you said today”, and “I’m letting you go, letting you and Leng both go. I want you to go and pick up your stuff tomorrow”; and
He was shocked and did not respond beyond saying, “yeah okay”, before hanging up the phone.
Mr Holland’s evidence is that when he spoke to Mr Haven the second time, he was still in his office in Bibra Lake. During oral evidence, Mr Holland conceded that his recollection of the phone conversation was poor, as several months had passed.
However, Mr Holland’s evidence of the second phone call is:
He opened with telling Mr Haven that he would not accept his request and he would not pay Mr Haven more.
He asked Mr Haven what he wanted to do.
Mr Haven made a comment that he was not going to work for the same amount of money as people less qualified as him.
He made the comment to Mr Haven to “collect your things”.
Mr Haven was shocked, said “okay”, and ended the phone call.
The phone call was brief and only lasted a few minutes.
Ms Bromwich’s evidence is that she was present in the office with Mr Holland during the second phone call. The call was not on speakerphone, so she could not clearly hear what Mr Haven said. Ms Bromwich’s evidence is that Mr Holland told Mr Haven that it was cheeky to be asking for another pay rise after receiving a pay rise so soon, and that he would not be giving him a pay rise. Ms Bromwich heard Mr Holland tell Mr Haven to collect his belongings from the salon the next morning. Again, Ms Bromwich’s knowledge of what Mr Haven said during this phone call was from Mr Holland telling her after the call ended.
Ms Hawera’s evidence of the second phone call is that she could hear what Mr Haven said, and that she could tell he was not happy about Mr Holland’s rejection of his request. Her evidence was that Mr Haven said he was not willing to work at the same rate and that Mr Holland responded by telling him to come into the salon to grab his stuff.
The next day on 11 July 2023, Mr and Ms Haven went to Belluci’s to collect their belongings. As they were leaving, Mr Holland arrived. Mr Holland approached Ms Haven to give her a hug.
The parties agree that the following exchange occurred:
Mr Haven asked Ms Haven, “why are you hugging him for, he’s just sacked us”.
Ms Haven asked Mr Holland words to the effect, “why are you letting us go?”.
Mr Holland’s evidence is that he answered Ms Haven’s question with, “because I don’t agree with Stewart’s request”.
The Havens lodged their applications on 31 July 2023.
Legislation
The Application was made pursuant to s 365 of the Act, which provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“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.
In Mohazab v Dick Smith Electronics Pty Ltd,[6]a decision made prior to the passage of the Fair Work Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court noted that “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”.
Submissions and consideration
I make the following findings as to the facts of the matter:
On 10 July 2023, there were two phone calls between Mr Haven and Mr Holland.
The parties agree that during the first phone call, Mr Haven asked Mr Holland for a pay rise for himself and Ms Haven. This was in the context that a full-time employee at Belluci was earning $33 per hour.
Mr Holland told Mr Haven he would think about it.
During the second phone call, Mr Holland spoke first and told Mr Haven he would not be granting the pay increase. Mr Holland’s evidence is that he was speaking about Mr Haven, but I find this was in reference to both Mr Haven and Ms Haven.
I found Mr Haven’s account of the conversation to be more credible than Mr Holland’s or Ms Hawera’s.
I also find that Mr Holland told Mr Haven to pick up their belongings from the salon the next day.
With regards to the interaction at Belluci’s, I find that Ms Haven asked Mr Holland why he was letting them go. I also find that Mr Holland told Ms Haven, “Because I don’t agree with Stewart’s request”.
The Havens submit that they were dismissed. Mr Haven’s specific submission is that he knew he was bound by the obligation in the contract of sale to work at Bellucci’s for the next 12 months. I accept this submission.
The Havens further contend that they knew that if Mr Holland rejected the request for the pay rise there was little they could do about it and they would have just carried on working. I also accept this submission.
Mr Holland’s submission is that he considered Mr Haven’s words during this phone call to be a resignation. He submits that when he rejected Mr Haven’s request for a pay rise, Mr Haven should have said “Okay, I’ll stay” or “okay, I’ll continue”.[7] As Mr Haven was unhappy about not receiving a pay rise, he was effectively communicating that he did not want to continue the employment relationship.
During the hearing, I asked Mr Holland several times to clarify his position. During oral evidence, Mr Holland said the following: [8]
THE COMMISSIONER: Yes, but I don't think it's controversial, Mr Holland, that many workers around the country may ask for a pay rise at any given time and when their boss says 'No', obviously they're going to be unhappy about it because they hoped for a pay rise, but that doesn't automatically constitute a resignation?
MR HOLLAND: I guess in the industries I'm used to, that's what happens, but, again, I've purchased a business.
And during closing submissions: [9]
THE COMMISSIONER: Yes. As I understand the respondent's position, by saying 'No', that constituted a resignation?
MR HOLLAND: Only because prior to that, they asked - you know, like the thing that Stewart said prior, he only wanted to be on what the other girls were on, he was on a full-time contract the same as the other girls. He then asked to be casual. I don't know what he wants. I gave him that - I gave him that. He's asked again, I said 'No'. Yes, I would take that as a resignation. That's all.
With respect to Mr Holland, this is an absurd position. It is hard to understand Mr Holland’s repeated argument that his denial of Mr Haven’s request for a pay rise for himself and Ms Haven constituted Mr Haven resigning.
I find that Mr Holland dismissed Mr Haven and Ms Haven when he told Mr Haven during the second phone call to collect their belongings. I find that Mr Holland confirmed this dismissal when Ms Haven asked him the next day why he had dismissed them.
The Havens’ applications are within jurisdiction. Both matters will be listed for a conference pursuant to s 368 of the Act.
COMMISSIONER
Appearances:
Mr Haven, Applicant
Ms Haven, Applicant
Mr Holland for the Respondent
Hearing details:
2023.
20 October
Perth
[1] [2022] FCAFC 152.
[2] Ibid at [51].
[3] Digital Court Book, p. 24.
[4] Ibid, p. 100-101.
[5] Transcript, 19 October 2023, PN242.
[6] [1995] IRCA 625.
[7] Transcript, 19 October 2023, PN297.
[8] Ibid, PN306.
[9] Ibid, PN787-PN790.
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