Trieste Campbell v Legend Linen Australia Pty Ltd
[2023] FWC 3344
•22 DECEMBER 2023
| [2023] FWC 3344 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Trieste Campbell
v
Legend Linen Australia Pty Ltd
(C2023/6382)
| COMMISSIONER WILSON | MELBOURNE, 22 DECEMBER 2023 |
Application for the Commission to deal with a dismissal dispute under s.365 of the Act –jurisdictional objection that there was no dismissal – jurisdictional objection upheld – substantive application dismissed.
This decision deals with the question of whether Ms Trieste Campbell (the Applicant) was “dismissed” within the meaning of the Fair Work Act 2009 (the Act) from her employment with Legend Linen Australia Pty Ltd (Legend Linen, or the Respondent) and thus eligible to make a general protections application involving dismissal to the Fair Work Commission (the Commission).
Legend Linen objects to Ms Campbell’s application on the basis that there was no dismissal as defined. With such objection having been made the Commission is required to determine whether the applicant was dismissed before the application can proceed any further.
For the reasons set out below, I find Ms Campbell was not “dismissed” within the meaning of the Act.
PRELIMINARIES
The objection was the subject of a hearing before me on Wednesday, 13 December 2023 at which Ms Campbell gave evidence and made submissions on her own behalf and Ms Broughton-Foster a former colleague also gave evidence on her behalf. Legend Linen was represented by Ms Ikonomou, Lawyer from Employsure Law, with the matter of permission being dealt with by me shortly. Evidence was received from Mr Manoj Gupta, Chief Financial Officer of the Respondent and Ms Laura Edgcumbe, General Manager of the Respondent. Mr Kosta Pajic, a previous Warehouse Manager of the Respondent, gave evidence under an Order for Attendance issued by me.
Respondent’s request to be represented
I am persuaded that it is appropriate for me to grant permission for Legend Linen to be represented by lawyers with me reaching this conclusion having regard to the criteria within s.596 of the Act as well as the particular facts of the matter and the submissions made by each party to me about representation.
Determination of the question of representation requires consideration of s.596 of the Act, which is in the following terms:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[1]:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[2]
It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[3] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[4] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[5] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[6]
In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[7] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[8] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[9]
I was satisfied that representation of Legend Linen by lawyers had the likelihood of enabling the matter to be dealt with more efficiently taking into account the complexity of the matter. The relevant complexity in the matter is the uncertainties I hold about each party’s case as well as the differing accounts of the event said to lead to whether or not the Applicant was dismissed.
As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[10]
Having determined that the only ground enlivened is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I considered that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.
It follows from a grant of permission for legal representation to the Respondent that some measure of unfairness flows to the Applicant, however the need for Legend Linen’s case to be presented in an orderly and competent manner likely outweighs the disadvantage to the Applicant, whether actual or perceived. On balance, I considered that the matter of potential efficiency to be gained through the grant of representation outweigh the potential for imbalance for the Applicant in the hearing. The Respondent was therefore granted permission to be legally represented in the hearing.
RELEVANT LEGISLATION
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal:
“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.”
The term “dismissed” is defined in s.12 of the Act by reference to s.386, which provides this definition:
“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.”
Section 365 states that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1, he or she may apply to the Commission to ‘deal with the dispute’.
The Commission’s usual process with general protections matters is to deal with the dispute by conducting a conciliation conference by a staff conciliator. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the applicant to commence proceedings in a court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369). However, in an application where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed.[11]
Consistent with the Commission’s usual practice on these matters[12], this matter has been allocated to me to determine whether or not there was a dismissal. A person must have been dismissed to be entitled to make a general protections dispute application and before the Commission can exercise powers under s.368 to deal with a dispute.[13]
BACKGROUND
Ms Campbell made a general protections application involving dismissal to the Commission pursuant to s.365 of the Act on Tuesday, 17 October 2023. Ms Campbell commenced employment with Legend Linen on Thursday, 6 July 2023 as a Warehouse Worker and ceased employment on Thursday, 5 October 2023. Legend Linen is engaged in supplying linen and manchester.
Ms Campbell’s case is that her employment was terminated on 5 October 2023.
Legend Linen argues that the Commission has no jurisdiction to deal with Ms Campbell’s claim because no dismissal occurred.
CONSIDERATION
The matter for determination in this decision is whether Ms Campbell has been “dismissed” within the meaning given to that word by s.386 of the Act. The enquiry to be made in that regard is whether Ms Campbell’s employment with Legend Linen was “terminated on the employer’s initiative” (s.386(1)(a)), or whether she resigned from her employment “but was forced to do so because of conduct, or a course of conduct, engaged in by” Legend Linen (s.386(1)(b)).
In Mohazab v Dick Smith Electronics Pty Ltd (No 2)[14] it was recognised that a termination will be at the initiative of the employer where the act of the employer results directly or consequentially in the termination of employment – that is had the employer not taken the action, the employee would have remained in employment; and the employment is not voluntarily left by the employee. However:
“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.”[15]
After an extensive analysis of the law surrounding s.386(1) the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[16] held that the Commission needed to distinguish whether it was argued the dismissal was not legally effective, such as for reason of a “heat of the moment” communication or incapacity of some kind or whether it had been “forced” through conduct or a course of conduct by the employer with an intentional purpose of procuring a resignation. There is no submission to me in these proceedings that Ms Campbell left through “heat of the moment” actions. If there were, the Commission generally accepts that in special circumstances an employer may be required to allow a reasonable period of time to pass and may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[17]
The actions of an employer in relation to a termination of employment are not the only points of consideration. It is also necessary to consider the circumstances giving rise to the termination; the seriousness of the issues involved; and the respective conduct of the employer and employee.[18]
Assessment of Legend Linen’s objection is assisted by the summary of the general principles enunciated recently by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd (Tao Yang):
“• The question as to whether there was a dismissal within the meaning of the FW Act is a jurisdictional fact that must be established by the Applicant;
· A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
· The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· Conduct includes an omission;
· Resignations that are clear and unambiguous may be treated on face value unless special circumstances are present which warrant the employer confirming the intention of the employee;
· Considerable caution should be exercised in treating a resignation as other than voluntary (forced) where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the parties’ conduct is required.”[19]
Shortly stated, the following is a distillation of the submissions of both parties.
The Applicant’s case
Following an incident involving her son who also worked at Legend Linen Ms Campbell submits that she enquired if she could take Friday, 6 October 2023 as a day off of work in order to assist her son. Ms Campbell says in relation to her son that on Thursday, 5 October 2023, that he left the warehouse after an incident with another employee, and in the course of doing so resigned from his employment.[20] During Ms Campbell’s lunch break on 5 October 2023 she spoke to Mr Pajic, the Warehouse Manager, who advised her there was nothing that he could do about her son’s situation as he had resigned when he left the warehouse. Ms Campbell then states that she advised Mr Pajic that she would be taking the following day off to help her son as she viewed that as her duty of care as his mother.[21]
Ms Campbell says that in response to her request she was “rudely informed that should she not show up to work on this day then she should not come back to work.”[22] She further says that she raised complaints that she had regarding her role and responsibilities as well as a mistake in her wages and annual leave.
Ms Campbell submits that as a result of this interaction her employment was terminated on 5 October 2023 and there was no attempted contact from the Respondent following that date. Her position is that she did not take annual leave, nor did she say that she was resigning. Rather she said to Mr Pajic “I would be taking the following day off”.[23]
Whilst Ms Campbell was performing her duties in the afternoon of 5 October 2023, Mr Pajic approached her at approximately 3.45PM and advised her that he needed her to attend for work the following day.[24] Ms Campbell responded to Mr Pajic that her son needed assistance processing what had happened to him that day to which she says that Mr Pajic responded “If you don’t come in tomorrow then don’t bother coming back”.[25] Ms Campbell says that she asked Mr Pajic if he was “sacking her on the spot” and he replied “If you don’t come in tomorrow then don’t come back”.[26]
Ms Campbell says that she believed she had been dismissed during this conversation with Mr Pajic. She then did not attend for work the following day, a Friday, or the Monday following, believing she had been dismissed. On Tuesday, 10 October 2023 she called Legend Linen’s General Manager, Laura Edgcumbe to ask about her termination pay.
The Respondent’s case
Legend Linen’s case is that Ms Campbell verbally resigned on Thursday, 5 October 2023, putting forward that Ms Campbell requested to take annual leave on Friday, 6 October 2023 to drive her son around so that he could search for new employment.[27] The Respondent further argues that after being told by Mr Pajic that she could not have the following day off, Ms Campbell responded by saying that she would resign. Mr Pajic’s written witness statement records the following interaction between the two:
“8. Tess didn’t give me enough notice to take annual leave. If she said it was a week away, it would have been fine, but it was a last minute request that I couldn’t approve due to business needs.
9. Tess said: “Family comes first, if that’s the case, I quit.”
10. I said: “Please don’t do something that you don’t want to do. I’m begging you to stay. I need you. I can’t afford for you to leave.”
11. She had experience with us. I couldn’t afford to lose anyone else with experience. I had already lost her son. I spent around 10-15 minutes of begging her to stay.
12. Tess then said: “My son is already looking for a job.”
13. I replied with: “Well then, he doesn’t need your help to do that. Please don’t go.”
14. I pleaded with Tess almost 10 times saying: “Please don’t go.”
15. Tess finally said: “Family comes first. I quit. I’m sorry, this is the way it has to be.” She then left the warehouse.
16. Tess was a good worker. I liked her. I begged and begged her not to leave. I needed her experience because she had a forklift licence and order picker licence. She was also trained in picking and packing. No one else had that training except me. She was versatile and had more skills than anyone else here.”[28]
Consideration of the evidence
Other than the matters of evidence referred to above it is to be noted that there is a discrepancy in the evidence of the two principal witnesses, Ms Campbell and Mr Pajic, about how many discussions the two had on the afternoon of 5 October 2023. Ms Campbell’s witness statement unambiguously records there were two conversations, one immediately after her lunch break and another at around 3:45PM. Ms Campbell says that in the first conversation she told Mr Pajic that she would be taking off the following day. She says that in the second conversation she was approached by Mr Pajic:
“Mr Pajic came up to me while I was performing my duties to tell me he needed me to come in the following day, I told him my son needed help processing what had happened to which he replied "If you don't come in tomorrow then don't bother coming back". I asked Mr Pajic if he was sacking me on the spot, to which he replied again "if you don't come in tomorrow then don't come".
I said thank you then calmly walked to the clock out machine and clocked out. The time was 3.58pm. There should be records held by payroll which can confirm my time of exit. I believed Mr Pajic had just sacked me.”[29]
Mr Pajic’s evidence was that there was just the one conversation with Ms Campbell.[30]
He also says that Ms Campbell sought time off the next day, which he characterises as a request for annual leave. Ms Campbell denies she requested annual leave. In my opinion the characterisation of the leave is unimportant: whatever it was, it was refused by Mr Pajic.
Another employee and family friend of Ms Campbell, Candice Broughton-Foster overheard part of a conversation between Ms Campbell and Mr Pajic and was told by Ms Campbell that there had been a second conversation. Ms Broughton-Foster gave this evidence about the conversation she heard:
“A few hours later Kosta comes up to Tess where I was working close by to discuss what had happened. Tess mentioned to Kosta that she was going to take the following day off (Friday the 6th) Kosta retaliated with "You were hired to do a job, You need to be here to do it" Tess assured him she was going to still have the day off as her son had just walked out of his job from being abused and humiliated by [name]. Kosta proceeded to say "if you don't come in tomorrow don't bother coming back at all" and he walked away.”[31]
Ms Campbell is adamant in her evidence that she did not say to Mr Pajic that she “quit” and is equally adamant that Mr Pajic used words to the effect of “If you don’t come in tomorrow then don’t bother coming back”. While Mr Pajic denies saying those words his recollection of matters is weak in parts and is not strong enough for acceptance, whereas Ms Campbell’s overall evidence to the Commission was not only resolute with firm recall of things said, but meticulously researched, as evidenced by her provision of phone records challenging Ms Edgcumbe about her evidence of the date of the phone call. I prefer Ms Campbell’s evidence to that of Mr Pajic to the extent of any inconsistency, including on the number of conversations he had with Ms Campbell on 5 October 2023.
I therefore accept Mr Pajic spoke the words to Ms Campbell to the effect that “If you don’t come in tomorrow then don’t bother coming back”. However those words of themselves do not communicate a dismissal. They may well be a threat of dismissal, dependent on a future action by Ms Campbell to absent herself from the workplace, however the words of themselves do not communicate notice of a dismissal.
I also do not find that Ms Campbell said in response to Mr Pajic when he requested him for time-off the following day words to the effect that she “quit”. Beyond my impressions of Mr Pajic’s direct evidence, he did nothing within Legend Linen to communicate that Ms Campbell had just resigned, which adds to the implausibility of his claim that Ms Campbell had said “I quit”. A manager faced with an employee’s unequivocal statement that they “quit” would reasonably accept the stated termination and then take steps to cement the decision, which may include informing others, such as a payroll or human resources officer, or by documenting what had just been said to them. Mr Pajic took no such steps. In fact his oral evidence was that he was expecting and hoping Ms Campbell would “call up sick” the following day, with him not initiating any contact with her on the Friday. [32] When he did not hear from Ms Campbell he spoke with one of the Respondent’s Directors, Hitesh, probably on the following Monday or Tuesday, with him assuming at that time “that, yes, she's going to leave, that she's left and she wasn't coming back”.[33]
Ms Edgcumbe’s written witness statement says that Ms Campbell called her on Saturday, 7 October 2023, however conceded in oral evidence, supported by the Applicant’s phone records, that the conversation did not take place until Tuesday, 10 October 2023. She says that prior to the conversation she had been told by Hitesh that Ms Campbell was leaving.[34]
Mr Manoj Gupta also gave evidence on behalf of Legend Linen, in his capacity as Chief Financial Officer, with his evidence largely going to the fact that Ms Campbell’s penultimate pay was processed on Monday, 9 October 2023, with an adjustment being processed on Wednesday, 11 October 2023 which included payment of accrued entitlements. This came about because an executive assistant within the business sent him an email that both Ms Campbell and her son had “both left the warehouse last week. Can you please pay out any outstanding annual and sick leave payments”.[35] Mr Gupta contends that Ms Campbell cannot have been dismissed “otherwise I would have also paid out her notice.”[36]
It is apparent therefore that by the end of Thursday, 5 October 2023 neither side had terminated the contract of employment.
There was also no termination of employment when Ms Campbell did not attend for work on either Friday, 6 October; Monday, 9 October; or Tuesday, 10 October 2023.
Ms Campbell had heard the words spoken by Mr Pajic to the effect that “If you don’t come in tomorrow then don’t bother coming back” and took them to heart by not returning to work after 5 October 2023. However she did not have to do so; she could well have returned to work on the Monday and tested the mood of the employer: perhaps in view of Mr Pajic’s evidence about workload he may have allowed her to work.
The statutorily defined term “dismissed” includes the two events as stated in s.386(1) and sets out several exclusions as stated in ss.386(2) and (3). Neither of the two latter subsections are relevant to the matters in dispute in this case. As a result, the two considerations in this matter are the events stated in s.386(1), that is, whether Ms Campbell:
had her employment terminated by Legend Linen on its initiative; or
she resigned from her employment but was forced to do so because of conduct, or a course of conduct, engaged in by Legend Linen.
Relevant to the consideration of s.386(1)(a), whether the Applicant’s employment was terminated on her employer’s initiative, I am guided by the findings of the Full Bench in Khayam v Navitas English Pty Ltd[37] which held so far as is relevant to this matter:
“(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.”[38]
After taking these matters into account and pertinent to the consideration in s.386(1)(a) I am not satisfied from the evidence that Ms Campbell had her employment terminated by Legend Linen on its initiative. Mr Pajic’s words of “don’t bother coming back” did not terminate the contract of employment. At best they communicated how he would treat any future unauthorised absence. At the time of her phone call with Ms Edgcumbe on 10 October 2023 the employment relationship was continuing. Nothing said by Ms Edgcumbe to Ms Campbell in their phone call would reasonably lead to the conclusion that Ms Edgcumbe initiated a termination of employment.
Neither can it be found for the purposes of s.386(1)(b) that Ms Campbell resigned her employment or was forced to do so because of conduct, or a course of conduct, engaged in by Legend Linen. There are no apparent actions of Legend Linen which might result “directly or consequentially in the termination of the employment”. Mr Pajic’s words of “don’t bother coming back” could not reasonably on their own be actions that might force a resignation and in any event Ms Campbell denies responding to him that she would “quit”.
Instead, what faced both Ms Campbell and Ms Edgcumbe when they spoke on 10 October 2023 was a situation in which Ms Campbell had not performed the obligations of her employment contract since the time she left the employer’s premises on Thursday 5 October 2023. She was at that time in breach of her employment contract. The two then discussed Ms Campbell’s request for payment of her accrued entitlements with Ms Edgecumbe, with Ms Campbell giving this evidence in response to questions from me:
“All right. What did you and Ms Edgcumbe discuss then?---I was enquiring why I had not received my annual leave.
Why was that a concern for you?---My son and I had both been paid on the 9th and he had received all his entitlements, his annual leave, everything. I have submitted his payslip.
Right?---And I had not received my annual leave and nor had I received my – we had - footy day public holiday, they had only paid me for the hours that had been worked, but I hadn't received my public holiday payment and I had not received my annual leave, and that was my query to her, as my son had resigned voluntarily and he had received all of his accrued leaves and that, so I was wondering why I hadn't.
What response did you get from Ms Edgcumbe?---She said that she would call the payroll officer and get it sorted out. That's what she told me.
Did you have to tell her that you had left the organisation?---No, she told me that she had learnt that morning, that morning. She had only learnt that morning that I had left the organisation.
Did she say who told her that information?---No, she didn't. That's all she said, was she had learnt that morning that I had left the organisation. She also said she was very sad to hear that.”[39]
Ms Campbell’s statement that Ms Edgecumbe had only learned that morning that she had left the organisation could be argued as standing for verification of a resignation at some earlier time, however I do not find it to be so as there is no other evidence from Ms Campbell that would suggest she had communicated that intention.
Instead and relevant to the consideration of both ss.386(1)(a) and (b), what springs from the overall evidence is that by Tuesday, 10 October 2023 Ms Campbell held the view that her employment was over and so she called Ms Edgcumbe and requested payment to her of her accrued entitlements.
At the time of the conversation Ms Campbell was absent from her employment for unauthorised purposes. Absent a step taken from one side or the other to end a person’s employment it continues. In respect of unauthorised absences from work a Full Bench has said that “it is not the unauthorised absence of the employee which causes employment to terminate, nor is it the deeming of the unauthorised absence to be an abandonment. Rather, it is the act of the employer that brings about the termination of the employee’s employment”.[40] There is nothing within Ms Edgcumbe’s evidence, or that of any other person, that would suggest either she or someone else said to Ms Campbell that a consequence of her unauthorised absence was that she was dismissed.
However by asking for payment of her accrued entitlements Ms Campbell disclosed that she regarded the employment contract to be at an end and she was the first person to do that. Such conduct could logically be regarded as her giving notice of the termination of her employment.
In finality the evidence does not lead to a finding that Ms Campbell was forced to this situation either because her employment was terminated on the initiative of Legend Linen or because she resigned for reason of conduct, or a course of conduct, engaged in by Legend Linen with the intention of bringing about an end to the employment contract.
On the material before me, I am satisfied that the Respondent’s jurisdictional objection has been made out. I find the Applicant was not dismissed within the meaning of that term as set out in s.386.
CONCLUSION
Having determined Ms Campbell was not dismissed, she is not entitled to apply under s.365 of the Act for the Commission to deal with her dismissal dispute.
The jurisdictional objection is upheld. The application is dismissed.
COMMISSIONER
Appearances:
Ms T. Campbell for herself
Ms E. Ikonomou for the Respondent
Hearing details:
2023.
Melbourne (via video conference);
13 December.
[1] [2013] FCA 291.
[2] Accepted by a Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[3] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, [5].
[4] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[5] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618, [19].
[6] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[7] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, [15].
[8] Ibid, [17].
[9] Singh v Metro Trains Melbourne[2015] FWCFB 3502, [16].
[10] Warrell v Fair Work Australia [2013] FCA 291, [26].
[11] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [67]; Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101, [23].
[12] Following the decision in Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101 the Commission changed its case management practices from 1 June 2023 for General Protections cases involving dismissal where certain jurisdictional issues arise.
[13] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].
[14] (1995) 62 IR 200, 205.
[15] Ibid.
[16] [2017] FWCFB 3941.
[17] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999), [12].
[18] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000).
[19] [2023] FWC 1325, [53].
[20] Applicant Submissions, 27 November 2023, appearing at Digital Court Book p.25.
[21] Ibid, appearing at Digital Court Book p.27.
[22] Form F8, General Protections Application Involving Dismissal Application, 17 October 2023 item 3.3, appearing at Digital Court Book p.11.
[23] Applicant Submissions, 27 November 2023, appearing at Digital Court Book p.28.
[24] Ibid, appearing at Digital Court Book p.28 – 29.
[25] Ibid, appearing at Digital Court Book p.29.
[26] Ibid.
[27] Form F8A, Employer Response, 10 November 2023, item 5.1, appearing at Digital Court Book p.50.
[28] Witness Statement Kosta Pajic, 23 November 2023, appearing at Digital Court Book, p.72.
[29] Applicant Submissions, 27 November 2023, appearing at Digital Court Book pp.28 – 29.
[30] Transcript, PN 357 – 358.
[31] Witness Statement Candice Broughton-Foster, 27 November 2023, appearing at Digital Court Book p.34.
[32] Transcript, PN 383 – 386.
[33] Ibid, PN 388.
[34] Ibid, PN 462 – 466.
[35] Witness Statement Laura Edgcumbe, 23 November 2023, appearing at Digital Court Book p.67.
[36] Witness Statement Manoj Gupta, 23 November 2023, appearing at Digital Court Book p.64.
[37] [2017] FWCFB 5162.
[38] Ibid, [75].
[39] Transcript, PN 76 – 81.
[40] Bienias v Iplex Pipelines[2017] FWCFB 38, [43].
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