Taneisha Larkin v Ashley Freeman - [2022] FWC 2526

[2022] FWC 2526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Taneisha Larkin
v

Ashley Freeman

(C2022/3723)

DEPUTY PRESIDENT LAKE

BRISBANE, 20 SEPTEMBER 2022

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – Applicant was dismissed.

Ms Taneisha Larkin (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute in relation to the termination of her employment by Ms Ashley Freeman (the Respondent).

Directions were set for the filing of material and the matter was dealt with by way of hearing on 12 September 2022, which took place via telephone.

The Applicant appeared and gave evidence on her own behalf with Ms Samantha Larkin, her mother, acting as her support person. The Respondent had her father-in-law, Mr John Freeman acting as her representative.

Chronology

On 18 December 2021, the Applicant participated in a trial at the Respondent’s salon.

On 22 December 2021, the Applicant accepted a full-time apprenticeship position.

On 23 May 2022, the Applicant gave notice to the Respondent that her last day of work would be 7 July 2022.

On 3 June 2022, the Applicant called the Respondent alleging that Ms Vanessa Marshall – a senior stylist with the Respondent and the Applicant’s direct supervisor – was bullying and harassing the Applicant. That evening, the Respondent called a meeting between herself, the Applicant, and Ms Marshall for the next morning.

On 4 June 2022, the meeting was held. Following the meeting, the Applicant sent a text message to the Respondent stating, “Hey I can’t come to work today, I’m sorry but I need air” and proceeded to not attend work.

From 4 June 2022 to 24 June 2022, the Applicant and Respondent corresponded via text message.

The Applicant asserts she was dismissed via the text conversation. The Respondent asserts that the Applicant was not dismissed, and that the Applicant decided to resign from her position via the text conversation.

Was the Applicant dismissed?

Section 386(1) of the Act relevantly provides that 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.

The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s employment to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2526
Decision Date: 20 SEPTEMBER 2022

CaseChat Overview and Summary

Taneisha Larkin brought an application to the Fair Work Commission against Ashley Freeman, seeking to have her dismissal from employment recognised. Larkin alleged that she was dismissed by Freeman on 4 June 2022. Freeman contended that Larkin had resigned and was not dismissed. The Commission had to determine whether the Applicant was dismissed within the meaning of section 386(1) of the Fair Work Act 2009.

The legal issue before the Commission was whether Larkin was dismissed by Freeman or whether she resigned. The Commission needed to conduct an objective analysis of Freeman's conduct to determine if it was such a nature that resignation was the probable result or that Larkin had no effective or real choice but to resign. The Commission had to examine all the circumstances, including the conduct of both parties, to determine if Larkin did not voluntarily leave her employment and if Freeman's conduct forced her to resign.

After considering the evidence and submissions, the Commission found that Freeman did dismiss Larkin via text message on 4 June 2022. Although Freeman later sought to walk back from the dismissal with a conditional offer to continue working, Larkin rebuffed this offer. Freeman then requested a resignation letter to expedite the termination of Larkin's apprenticeship. Therefore, the Commission found that Larkin was dismissed within the meaning of the Act and that Freeman's jurisdictional objection was dismissed. The Applicant's application will be progressed by way of a conference at a time and date to be advised.

The Commission orders that the Respondent's jurisdictional objection is dismissed and the Applicant's application will proceed to a conference.

Orders