Taylor Lawler v Grand Cinemas

[2020] FWC 4953

[2020] FWC 4953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Lawler
v
Grand Cinemas
(U2020/5869)

COMMISSIONER WILLIAMS PERTH, 30 SEPTEMBER 2020

Termination of employment.

[1] This decision concerns an application made by Ms Taylor Lawler (Ms Lawler or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Grand Cinemas (the Respondent).

[2] The Respondent objects to the application because it says the Applicant has not been dismissed.

[3] The matter was originally set down for Hearing however upon both parties complying with the Commission’s directions the Respondent advised it would not be leading any witness evidence and it did not seek to challenge the Applicant’s evidence through cross examination. On that basis I advised the parties I would determine the application on the papers and the Hearing was vacated.

Factual Findings

[4] The remedy the Applicant seeks, specified in the application, is:

“2. Remedy

2.1 What outcome are you seeking by lodging this application?

1. Reinstatement – inclusion as an eligible employee in JobKeeper program by the respondent, compensation for any missed JobKeeper payments.

2. The purported resignation of the Applicant in January 2020 is recognized as invalid and was a constructive dismissal at the behest of the employer.

3. The period of ‘regular and systematic’ employment is not be impacted by purported resignation highlighted in ‘2’.

4. Confirmation that the Applicant was employed on a regular and systematic basis for at least 12 months as at 1 March 2020."

[5] I accept the uncontested evidence of the Applicant which relevantly is set out below.

[6] On 16 December 2013, the Applicant commenced work as a casual cinema attendant.

[7] As a casual employee her hours varied from week to week and her rate of pay as of 17 July 2019 was $28.11 per hour.

[8] In early February 2015, the Applicant requested time off to focus on her State League netball commitments. She was advised by the managers that if she is taking more than 3 weeks off she would need to resign from her position and then reapply.

[9] The Applicant submitted this resignation on her final shift, 11 February 2015.

[10] On 14 June 2015 the Applicant emailed the managers at the Warwick complex stating that her State League netball had finished and that she had spoken to Mrs Julie-Anne Pedulla (Mrs Pedulla) about returning to her position at the Respondent.

[11] The Applicant was reengaged on the 18 July 2015 and undertook the same work, in the same location she had been doing prior to her resignation.

[12] On 12 April 2016, the Applicant submitted another resignation to the Respondent so she could concentrate on her Year 12 studies and State League netball commitments.

[13] On 26 October 2016, just prior to Year 12 exams, the Applicant was approached by Mr. Russell, via a phone call, who asked how her studies were going and if she wanted her position back once they were done. At the end of the phone call Mr Russell asked if the Applicant could email her intentions, so the Respondent had it on record.

[14] The Applicant was reengaged on 16 December 2016 and undertook the same work, in the same location she had been doing prior to her resignation.

[15] On 2 March 2018, the Applicant submitted a leave application, via the Deputy platform, for a 5-week holiday commencing the 25 June 2018.

[16] This leave request was declined by Miss Heidi Davidson who stated that due to this request being over 21 days (3 weeks) the Applicant needed to talk with the Senior Manager, Mr Russell.

[17] Following this response, the Applicant had a discussion with Mr Russell regarding the approval of her leave request. Mr Russell indicated the Applicant could take this leave, however, as it was over 3 weeks, she would need to resign from her position.

[18] On 16 June 2018 the Applicant submitted her resignation to the Respondent. This resignation stated that due to her holiday being over 3 weeks she has had to resign her position and that if given the opportunity would love to return after her trip.

[19] The Applicant’s final shift was on 21 June 2018.

[20] Throughout the time she was away, the Applicant continued to receive work related notifications through the Deputy application.

[21] On 25 July 2018, whilst she was on her way home from Europe, she contacted Mr Russell via the Deputy platform and asked if it was possible for her to return to work and that, if it was, she would send through her availability.

[22] On 28 July 2018, Mr Russell responded to this message with “Thanks Lord, will look at next roster”.

[23] The Applicant was reengaged on 2 August 2018 and undertook the same work, in the same location she had been doing prior to going on holidays.

[24] In May 2019, the Applicant had a discussion with Mr Russell regarding a 4-week overseas holiday she wanted to take some time between December 2019 and February 2020. Mr Russell suggested that the best time to take this leave would be after the Christmas & New Year period when the Respondent wasn’t as busy.

[25] On 6 June 2019, the Applicant submitted her leave application, via the Deputy platform. This leave was between the 9 January 2020 and 5 February 2020 (4 weeks).

[26] The leave request was approved by Mr Russell, however, the response stated that despite the leave being approved the Applicant would be required to resign.

[27] In the weeks prior to her holiday, the Applicant had multiple discussions with a number of different head office staff, that were also based at Warwick. These staff members wished her a good trip and stated that they will see her when she gets back.

[28] On the day before her final shift, 7 January 2020, Mr Russell approached the Applicant whilst she was at work and stated that she needed to complete the Respondent’s resignation form prior to the end of her shift.

[29] As she did not want to sign the resignation form, she avoided Mr Russell for the remainder of the shift.

[30] On the day of her final shift, 8 January 2020, the Applicant was working in the Gold Lounge. During this shift, she had a discussion with the manager of that area, Mr Richard Paul (Mr Paul), regarding how she was glad she had avoided signing the resignation form the previous day and that she wanted to avoid Mr Russell that night for the same reason.

[31] With only about 30 minutes left in her final shift, Mr Paul asked if she could clean one of the Gold Lounge cinemas. When she returned, Mr Paul informed her that Mr Russell had just contacted him in regard to sending her to his office so that she could sign the Respondent’s resignation form.

[32] When she went to the Manager’s office, she was met by Mr Russell who was there with the resignation form on the desk. This resignation form was already partially filled, with the Manager’s signature and the previous day’s date filled in on the employer section. The date field on the employee section was also completed with the previous day’s date.

[33] The Applicant was angry and upset about the situation as she felt as if she had been cornered with just 30 minutes left of her final shift. She did not want to sign the resignation form as she was concerned that she would not be reemployed once she had returned from her holiday due to her age. She was also concerned that if she didn’t sign the form she wouldn’t receive any shifts on her return as she didn’t follow the Respondent’s policy. She felt she had no choice but to sign the form

[34] As the Applicant completed the employee section of the resignation form Mr Russell apologised for the process and stated that it was company policy to do so. He also stated that she was a good worker and that he will see her once she returns from her trip.

[35] The Applicant commenced her holiday on 9 January 2020.

[36] Whilst she was on her holiday, the Applicant continued to receive work related message, via the Deputy platform, including at least one message that required her to confirm that she had read it.

[37] On 3 February 2020, the Applicant contacted Mr Russell, via email, regarding continuing her employment at the Respondent.

[38] The Applicant returned to Australia on 7 February 2020.

[39] On 10 February 2020, the Applicant received an email reply from Mr Russell who asked if she was still interested in returning and if she could come in one day to have a chat.

[40] On 14 February 2020 she attended a meeting with M Russell. During this meeting they had a short discussion about some employees that had left and her availability. They then discussed her holiday and went through some of the photos.

[41] The Applicant was reengaged on 16 February 2020 and undertook the same work, in the same location she had been doing prior to going on holidays.

[42] On 22 March 2020, the Applicant was working in the Gold Lounge when she was advised that there was a government direction indicating the cinemas were required to be closed due to COVID-19 restrictions.

[43] The next day, 23 March 2020, the Applicant received a letter from Mrs Pedulla indicating she had been stood down from her position due to the government closure of all cinemas. The letter reads as follows:

“23rd March 2020

Dear Taylor Lawler,

This letter is to inform you that you have been stood down from your employment with Grand Cinemas without pay as per section 524 of the Fair Work Act due to the Covid-19 pandemic. This will be for a period of six months or until further notice from the Australian Government.

We wish you good luck and good health throughout this difficult time.

Regards
Julie-Anne Pedulla
Financial Controller”

[44] On 30 March 2020, Mrs Pedulla posted an announcement to all staff, from all locations, on the Deputy platform. This message indicated that the Respondent were reviewing the recently announced JobKeeper program and that, during this time, staff should not phone or email in as the Respondent would provide an announcement when more information was available.

[45] On 9 April 2020, Mrs Pedulla posted another announcement to all staff, from all locations, on the Deputy platform. This message indicated that the Respondent was still trying to ascertain who would be eligible for the JobKeeper program and that she will provide an announcement when more information was available.

[46] On 22 April 2020, the Applicant received a letter, via the Deputy platform, tilted “Letter to our Staff”. This letter indicated that due to financial constraints the Respondent was scaling down and that they were only retaining some staff; full timers and some casual managers. This letter is set out below:

“22 April 2020

LETTER TO OUR STAFF

We hope that you are all coping with these very trying times and staying well.

Our executive management team have been working very hard to review Grand Cinema's options for the future and cashflow. This includes seeking to understand the JobKeeper Payment Scheme and commercial leasing code of conduct legislation, and to formulate plans for the survival of our Company.

As we have previously indicated, Grand Cinemas has been significantly impacted by the COVID-19 virus and this health and economic crisis. It has now become very clear that our financial resources are not sufficient to carry us through this significant closure period. This is due to our inability to cover the significant payments that would be required to pay employee wages in advance whilst we wait to be reimbursed with JobKeeper Payments from the Government.

We have given serious consideration to the core skills required for the closure period and the future re-opening of Grand Cinemas. We have considered how we might use all our available resources and measures being offered by the Government in order to retain staff and ensure our survival. Unfortunately, we have come to the conclusion that we must scale down.

At this time we only have the resources to retain full-time staff and some casual managers. As a result, some employees will not be eligible for the Job Keeper Payment. We will keep you informed if our financial position changes, but our bank may not provide the finance which would be required for us to retain staff and to place everyone on JobKeeper.

We know this will disappoint many of you. However, we wish you to know we value the relationships we have built up with you and that these decisions do not reflect on any individual but are guided by financial necessity.

Please keep well whilst we work through these difficult times.

Colin J Stiles
(Chairman)

Allan G Stiles
(Managing Director)”

[47] In response to this letter, three staff members, from different sites, questioned what the announcement meant in regard to their employment at Grand Cinemas through the comment section of the announcement.

[48] Mrs Pedulla responded to these messages by stating that any questions about the notice should be sent by email to her.

[49] The Applicant was also concerned about what the “Letter to our Staff” meant in regard to her employment and potential for being eligible for the JobKeeper program.

[50] The next day, 23 April 2020, the Applicant emailed Mrs Pedulla and queried her employment status. Mrs Pedulla advised her that all the employees that were being retained had already been notified and that if she hadn’t received such an email, then she was not being retained.

[51] The Applicant then further queried why it appeared that the Respondent was not correctly applying the JobKeeper rules, to which Mrs Pedulla advised that due to financial constraints only some employees were being retained at that time and that this may change in the future.

[52] The Applicant was then told by Mrs Pedulla that even if the Respondent was able to obtain funding and expand their participation in the JobKeeper program, she would not be eligible as she resigned in January 2020.

[53] Mrs Pedulla then indicated she was very busy handling other queries and the Applicant should be respectful of her time and just wait for further updates.

[54] Over the next few days the Applicant sought advice from the ATO, the Fair Work Ombudsman and the Commission on her status of not being retained, eligibility for JobKeeper and being forced to resign when taking leave.

[55] The ATO advised that a 4 week period of approved unpaid leave would not impact her ability to qualify for JobKeeper, but a forced resignation might. They referred the Applicant to the Commission.

[56] The Applicant submitted this unfair dismissal application on the 29 April 2020.

[57] On 14 May 2020, Mrs Pedulla made an announcement, via the Deputy platform, indicating that Grand Cinemas were expanding the JobKeeper program to include other casual employees. On this announcement, Mrs Pedulla also indicated that all employees who had resigned within the last 12 months and had then been reemployed were not eligible.

[58] On 29 May 2020, Mrs Pedulla asked, via the Deputy platform, for casual employees to confirm their availability for a potential reopening, however, employees not eligible for JobKeeper were excluded.

[59] On 18 June 2020, Mrs Pedulla made an announcement, via the Deputy platform, confirming the opening dates for some cinemas and indicating that employees on JobKeeper would be working from the cinema closest to their home.

[60] Since the Applicant’s alleged dismissal, she has attempted to find alternate employment, however, has been hampered by the impact of COVID-19, with many employers retaining their own staff as they can benefit from the government wage subsidy.

[61] The Applicant has been able to secure some casual hours as an Occupation Therapist Aide. These hours are variable and depends on the requirements of the family she is working with.

[62] The Applicant is part of a Facebook messenger chatgroup called ‘GC Family’. This is an employee managed chatgroup, therefore, allowing employees the opportunity to discuss matters in an informal way without management scrutiny.

[63] Following the Deputy announcement that contained the “Letter to our Staff” document, the Applicant noticed a series of comments occurred on the GC Family chatgroup. These comments discussed the “Letter to our Staff” document and queried if their employment status had changed as a result of the letter. There were also comments from some employees expressing their frustration at the lack of clear response from the Respondent.

[64] Following the Deputy announcement that contained the “Letter to our Staff” document, the Applicant also had a series of personal messages with Ms Kerry Majid (Mr Majid). Ms Majid is another employee that had been asked to resign when taking more than 3 weeks leave, within the last year, and had subsequently been reemployed. Ms Majid advised her she was not entitled to JobKeeper.

[65] On 30 April 2020 Ms Majid advised the Applicant that she submitted an unfair dismissal application at the Commission and requested a fee waiver.

[66] On 20 June 2020, Ms Majid advised her she had chosen not to proceed with her unfair

dismissal application as her fee waiver was declined and she was entitled to receive the JobSeeker payment.

[67] On 29 April 2020, the Applicant had a series of personal messages with Ms Emma McQuade (Ms McQuade). Ms McQuade was another employee that had been required to resign when taking more than 3 weeks leave, within the last year, and had subsequently been reemployed. Ms McQuade advised her she was not entitled to JobKeeper, however, was receiving JobSeeker, therefore, was not inclined to pursue further action.

[68] The Applicant doesn’t recall ever receiving a termination certificate from the Respondent.

[69] Throughout the last 3 weeks the Applicant has noticed that, on the Deputy platform, managers at the Warwick site, as well as, casual employees in the Gold Lounge have been rostered for work

Submissions

The Respondent

[70] The Respondent has raised a jurisdictional objection on the grounds that the Applicant was not dismissed.

[71] In accordance with the provisions of s.386 of the Act the meaning of dismissed is:

“s.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.”

[72] In discussing the operation of s.386 of the Act, the Full Bench in Mohammed Ayub v NSW Trains 1 (Ayub) stated (footnotes omitted):

“[16] Section 386(1) is subject to certain exceptions set out in s.386(2) as qualified by s.386(3). This case does not concern a resignation, so the focus of attention is necessarily upon when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a).

[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473at [99]).”

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.”

[73] The Respondent submits that in accordance with the Full Bench’s discussion on the

construction of s.386 of the Act in Ayub, when an employer terminates an employee the employer must “communicate to the employee by plain or unambiguous words or conduct that the contract is terminated”.

[74] There has been no communication in writing or orally by the Respondent stating that the Applicant’s contract of employment had been terminated from a particular date.

[75] The Applicant has stated that she was terminated on 22 April 2020 and relies on an email from the Chairman and the Managing Director of the same date, in which the email states the company “must scale down”.

[76] The email of 22 April 2020 does not terminate any employee employed at the Respondent but rather it was an advice to all employees (it is headed “Letter to our Staff”) setting out the financial issues that the Respondent was experiencing due to the forced closure of cinemas due to government restrictions on mass gatherings due to the COVID – 19 pandemic and at that time whether the Respondent would be in a financial position to participate in the JobKeeper program and whether employees would be able to be placed on the JobKeeper program.

[77] On the plain reading of the 22 April 2020 email, there is no language used to indicate that employees would be terminated (the word is not used in the email) nor would, in the Respondent’s opinion, a reasonable person deduce from the words used in the email that any employee would be terminated as a result of the closure of the cinemas.

[78] The majority of employees employed by the Respondent are casual employees. In the Respondent’s form F3 – Employer’s Response at 1.7 there were 280 employees employed by the Respondent comprising 28 full time staff and 252 casual employees.

[79] The email dated 22 April 2020 was sent to all employees of the Respondent. Out of the 280 employees who received the email dated 22 April 2020, there has been only one application for unfair dismissal and that has been from the Applicant in this matter. Indeed, apart from the Applicant, there have been no applications for unfair dismissal from any employees of the Respondent from the day the cinemas were forced to close to the present day. In addition, no employee at the Respondent has been terminated by the Respondent since the closure of the cinemas in March 2020.

[80] The Applicant has not provided any evidence of a “written notice” of termination addressed to the Applicant which states that the Applicant has been terminated on a particular date as required by s.117(1) of the Act.

[81] In accordance with the provisions of s.117(1) of the Act, where an employer terminates an employee’s employment, the employer is required to do the following:

“117(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of termination (which cannot be before the day the notice is given).”

[82] As the Full Bench noted in paragraph [24] in Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc) 2:

“In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.”

[83] Having regard to the above, it is the Respondent’s submission that the Applicant was not dismissed by the Respondent on 22 April 2020 as provided by the provisions of s.386(1)(a) of the Act.

[84] The only correspondence sent to employees of the Respondent’s on an individual basis at the time of the closure of the cinemas, was a letter dated 23 March 2020, which notified employees that they were “stood down” in accordance with the provisions of s.524 of the Act for a period of 6 months or until further notice. All employees received the same letter.

The Applicant

[85] The Applicant highlights s.386 of the Act:

“s.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.”

[86] It is submitted the Applicant can be seen as dismissed on three basis. On each basis the action by the Respondent had the intention to bring the employment relationship to an end or had the probable result of bringing the employment relationship to an end.

[87] On the first basis, the Respondent’s correspondence of 22 April 2020, “Letter to our Staff”, communicates a cessation of employment as it was prior to that time. It states “Unfortunately we have come to the conclusion we must scale down” and “At this time we only have the resources to retain full-time staff and some casual managers.”

[88] When the Applicant emailed Mrs Pedulla to clarify her employment status on 23 April 2020, the response reiterated the information from the previous day and then added “If our bank provides us finance we will, otherwise we cannot retain all staff and must scale down. The staff who will be retained have been informed and we will inform you if our financial position changes and we can place everyone on JobKeeper”. This email further reinforced that the Respondent was ‘scaling down’ and the Applicant was not one of the employees ‘who will be

retained’.

[89] When viewed objectively, the Applicant’s submits, there was no reliable indication that there would be future employment available to the Applicant; at best only the promise of a possibility of future employment.

[90] That is, the sourcing of additional funding for the Respondent, was not the only precondition to a return to being ‘retained’ or ‘engaged’. Rather, the letter advised, there was also going to be a decision made by management about whether there was to be any future employment having regard to the future needs of the Respondent. In the context of the very regular and systematic casual arrangement; including where the Applicant had to apply for “leave”, and advise of changes in availability, this communication was an indication of the cessation of that employment.

[91] To further highlight the relevance of these recent decisions to the Applicant, the WA State Government communicated the relaxation to COVID-19 Phase 3 restrictions in place from 6 June 2020. Phase 3 allowed for cinemas to reopen with the 100 people per space, 300 per venue. On 27 June 2020, Phase 4 restrictions further relaxed the restrictions on the number patrons permitted in a venue to the 2sqm rule. Despite the conditions that supported the stand down no longer being present, some casual employees remain stood down whilst other casual employees have been asked to confirm availability and return to scheduled work.

[92] In the context of the economic conditions that exist at the time, the actions of the Respondent may appear reasonable. However, the Applicant submits, in determining the jurisdiction question, the Full Bench in Searle v Moly Mines 3 highlighted at paragraph [38]:

“The respondent’s conduct may have been reasonable, but that is not a matter which was relevant at that stage of the proceedings. The question is whether the respondent initiated the termination.”

[93] The second basis that supports the position the Applicant was dismissed, is the Respondent’s selective application of JobKeeper rules repudiated the contract of employment.

[94] In the “Letter to our Staff” dated 22 April 2020 and repeated in the email from Mrs Pedulla dated 23 April 2020, the Respondent advises that only some JobKeeper eligible employees are being retained at that time: “The staff who will be retained have been informed and we will inform you if our financial position changes”.

[95] The Applicant’s submission is, due to financial constraints the Respondent excluded some eligible employees (which by the definition included casual stood down employees) from

participation in JobKeeper. Consequently, the Respondent failed to follow a key rule of the scheme “one in, all in”. The situation remained that way at least until 15 May 2020 when the Respondent announced that they had secured additional funding and were able to expand the JobKeeper scheme to “all our eligible employees.”

[96] The Respondent consciously did not follow the scheme rules committed to when the

Respondent nominated for the JobKeeper subsidy. This action resulted in some employees not being paid for periods they would normally have been eligible. This action by the Respondent repudiated the contract of employment and the Applicant accepted the repudiation when she applied for unfair dismissal.

[97] On the third basis, if the piecemeal implementation of JobKeeper is seen as legitimate then, the Applicant submits, the Respondent repudiated the contract of employment when it relied on as a dubious resignation to justify that the Applicant was not eligible for JobKeeper as she had not been employed on a regular and systematic basis for at least 12 months at 1 March 2020.

[98] Much of the proposition put forward by the Respondent in its’ submission is underwritten by the expectation that the Respondent was required to issue a written termination notice to the Applicant by virtue of s.117(1) of the Act. However as a casual employee, the operation of s.123(1)(c) of the Act excludes the Applicant from all parts of Division 11 including s.117(1) of the Act.

[99] The Applicant has provided screenshots of an employee chat group where a number of employees query their employment status in the days following the “Letter to our Staff”. There is commentary about the ‘vagueness’ of the responses the employees were receiving from the Respondent when seeking further clarification on their employment. There is obvious confusion

amongst the group if they have been dismissed, need to be reemployed to receive JobKeeper, or may not ever be reemployed going forward.

[100] The Applicant’s submission is, when viewed objectively the actions of the Respondent had the probable result of bringing the employment relationship to an end. A reasonable person in place of the Applicant would have interpreted the actions of the Respondent and the events

the same way she did.

Consideration

[101] The question for the Commission to determine in this matter is whether the Applicant was dismissed by the Respondent.

[102] Section 386 of the Act, set out below, states that a person has been dismissed if their employment has been terminated on the employer’s initiative.

“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) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[103] The Respondent submits that there was no communication either in writing or orally to the Applicant that her contract of employment had been terminated.

[104] The Applicant submits that the Respondent’s letter to staff on 22 April 2020 indicated that the Applicant’s employment had ceased.

[105] The evidence is that there were two written communications from the Respondent received by the Applicant. The first was individually addressed to her and sent on 23 March 2020. This letter stated that,

“This letter is to inform you that you have been stood down from your employment with Grand Cinemas without pay as per section 524 of the Fair Work Act due to the Covid-19 pandemic.”

[106] The letter was personally directed to the Applicant. This letter was couched in language that spoke about her individually and was unambiguous as to the impact on her employment.

[107] Following this on 22 April 2020 the Applicant received a letter addressed as follows,

“22 April 2020

LETTER TO OUR STAFF

We hope that you are all coping with these very trying times and staying well.

…

At this time we only have the resources to retain full-time staff and some casual managers. As a result, some employees will not be eligible for the Job Keeper Payment. We will keep you informed if our financial position changes, but our bank may not provide the finance which would be required for us to retain staff and to place everyone on JobKeeper.

We know this will disappoint many of you. However, we wish you to know we value the relationships we have built up with you and that these decisions do not reflect on any individual but are guided by financial necessity.

Please keep well whilst we work through these difficult times.”

[108] Notably this letter was not personally addressed to the Applicant.

[109] Self-evidently the letter was addressed to all staff.

[110] The letter was directed to the Respondent’s staff at large attempting to explain the Respondent’s situation and the potential impact this will have on staff.

[111] The letter opens by hoping “you are all coping” and towards the close states “... this will disappoint many of you.”

[112] The third last paragraph explains clearly that the Respondent’s bank’s decision on providing finance may change the Respondent’s financial position and will affect the Respondent’s ability to retain staff.

[113] The Applicant’s evidence was that in response to this letter three staff members questioned what it meant in regard to their employment.

[114] The Applicant’s evidence was that her concern was about what the letter meant in regard to her employment and the potential for being eligible for the JobKeeper program.

[115] Considered objectively what, if anything, this letter meant for the Applicant’s employment at that time was uncertain. The reaction of the Applicant herself and other staff members is consistent with this conclusion.

[116] It is not the case that this letter communicated by plain or unambiguous words that the Applicant’s employment was terminated.

[117] I do not accept the Applicant’s argument that this letter amounts to a termination of the Applicant’s employment at the Respondent’s initiative.

[118] In the alternative the Applicant argues that in a number of ways the Respondent repudiated the Applicant’s contract, and this demonstrates an intention by the Respondent to bring her employment relationship to an end.

[119] I do not accept the argument that the Respondent’s statement to the Applicant that she was not entitled to JobKeeper amounted to a repudiation of the contract of employment at all.

[120] Even if the Respondent was incorrect in this assessment this does not amount to repudiation.

[121] I am not satisfied that there has been a termination of the Applicant’s employment on the Respondent’s initiative. The Applicant has not been dismissed.

[122] Consequently this application will be dismissed and an order [PR722798] to that effect will now be issued.

Final written submissions:

Applicant, 29 June 2020 and 22 July 2020.
Respondent, 6 July 2020.

Printed by authority of the Commonwealth Government Printer

<PR722797>

 1   [2016] FWCFB 5500.

 2   Print T3496.

 3   [2008] AIRCFB 1088.