Tyarna Hearne v The Trustee for B J Lily Trust Trading as Maces Hot Bread and Coffee Shop
[2025] FWC 1127
•30 APRIL 2025
| [2025] FWC 1127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tyarna Hearne
v
The Trustee For B J Lily Trust Trading AS Maces Hot Bread And Coffee Shop
(C2024/9135)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 APRIL 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – factual dispute – jurisdictional objection dismissed – application to proceed.
Ms Tyarna Hearne (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 16 December 2024. The Applicant claims that adverse action was taken against her by the Trustee For B J Lily Trust Trading as Maces Hot Bread And Coffee Shop (the Respondent) under s.351 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised the jurisdictional objection that there was no dismissal under s.386 of the Act as the Applicant resigned from her employment. The Applicant contests the objection and alleges that the Respondent dismissed her.
I conducted a determinative conference on 13 March 2025. Both parties were self-represented. Ms Jessica Gorry appeared for the Respondent.
Background
The parties have provided significant amounts of material related to their history of dealings with each other. Not all of it is relevant. I note there is some animosity between the Applicant and Ms Gorry.
The essential fact is that on 1 December 2024 at 7:29pm there was a 29-second phone call between the Applicant and Ms Gorry. The Applicant alleges that Ms Gorry dismissed her in this phone call. The Respondent says that the Applicant voluntarily resigned following this phone call.
It is interesting to me that the parties could have such different views of what the outcome of a very short phone call was. And yet, it was not obvious to me that either party was lying – they may just simply not remember what was said in the heat of the moment. It appears neither party made a contemporaneous record of exactly what was said during the phone call.
Ms Gorry sent out the roster for the following week on the Sunday, 1 December 2024. The Applicant then had the following text message conversation with Ms Gorry:
Applicant at 7:24 pm: Just an fyi. I have dance rehearsal tomorrow afternoon and will have to leave by 2:30 pm
Ms Gorry at 7:25 pm: Unfortunately that’s not my problem. You will have to be late for it.
Applicant at 7:26 pm: My kids come first. Period sorry.
It is not contested that by leaving at 2:30pm, the Applicant would have been leaving work early. There was some debate about what the Applicant’s scheduled hours were, but the Applicant admits that she had left work 30 minutes early in the weeks leading up to 1 December 2024 due to commitments with her children.
The Applicant is referring to her daughter’s dance rehearsal during the text message. During the determinative conference, Ms Gorry advised that her daughter is in the same dance school, but not in the same classes. Ms Gorry said that she usually accommodated the Applicant’s requests for flexibility around her child’s commitments, but only when the Applicant advised her of those commitments in advance. Ms Gorry’s evidence is that she was not advised in advance this time, and did not know what the Applicant’s daughter’s dance rehearsal schedule was. The Applicant states that she had previously given Ms Gorry a schedule of her daughter’s dance rehearsals.
The Applicant states that during the 29-second phone call at 7:29pm on 1 December 2024, Ms Gorry said something along the lines of:
That’s fine. If you need to be with your kids, go and be with your kids and if those are the games you want to play, you need to hand your shirts in
The Applicant interpreted this as a dismissal.
Ms Gorry denies that she said anything about handing in shirts. She states that the Respondent is short staffed and she would not have let an employee go for leaving 30 minutes early. Ms Gorry’s recollection of the phone call is that she said something like this:
You've turned around and you're just telling me that you're having this time off?
That's unfair on all the other staff members at work. If you're going to go and leave early, then that's your choice.
I note Ms Gorry gave a summary of what was said in the phone call in her witness statement:
I called Tyarna, and the conversation was brief. During the call, I reminded her that
she had not given adequate notice about leaving early, and that changing her shift on
short notice would not be fair to other staff members.
Immediately following the phone conversation, the Applicant texted Ms Gorry as follows:
Applicant at 7:31 pm: I’ll also need a dismissal letter in writing along with the exact reasoning for being fired. Thank you
Ms Gorry did not respond to this request, as she states that she did not dismiss the Applicant.
The following day, on the Monday, the Applicant arrived at the workplace between approximately 9:30 to 10:15am and handed in her work shirts. Ms Gorry was not there at the time. The Applicant spoke to another staff member. Evidently the other staff member did not know why the Applicant had not arrived for her shift that morning. The Applicant told the other staff member that she was just dropping off her shirts. The staff member then called Ms Gorry thirty minutes later and informed her that the Applicant had handed in her shirts. Ms Gorry interpreted this as the Applicant’s resignation.
It is important to note here that both parties evidently struggled to communicate effectively with one another. It is quite critical for both an employee and employer to be in no doubt about whether the employee was dismissed or not. Both of them could have sought further clarity on this point rather than simply assuming that there was either a dismissal or a resignation. It is better to have an awkward conversation at the time rather than ending up in the Commission later because of a miscommunication.
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 Applicant has not argued that she was forced to resign. She has argued that she was dismissed by Ms Gorry’s words during the phone call, that is, dismissal under s.386(1)(a). In any case, it would be hard for the Applicant to establish that the employer asking her to work until the end of her shift is unreasonable and forced her to resign.
It is likely that both parties were frustrated during the phone call. Detail was given during the determination conference of tension in the days leading up to the phone call, including an argument on the Tuesday before the phone call. That provides context but is not strictly relevant to the question at hand. I am concerned with making a factual determination as to what was said and, legally, whether what was said would give rise to a view that the Applicant was dismissed.
Ms Gorry has said that she does not know where the Applicant got the idea about returning the shirts from. This would seem to be a strange detail for the Applicant to come up with if nothing about shirts or uniforms was actually said. I think it is more plausible that Ms Gorry did mention the Applicant returning her shirts or uniforms rather than that nothing was said about this, and the Applicant invented this detail and consistently maintained it. I would also note that while I do not believe Ms Gorry to be a dishonest witness, the Applicant has provided a greater level of detail about what exactly was said. The evidence from the Applicant about what was said during the phone call is generally consistent, without being exactly the same each time, in her application form, her written submissions, and in her testimony under oath. For these reasons, the Applicant’s version of what was said should be preferred.
The question of whether the Respondent intended to dismiss the Applicant during the conversation is besides the point. The question is whether a reasonable person would interpret the conversation as meaning that the Applicant had been dismissed. I note Deputy President Anderson made the following comments in Kershaw v Stewarts Welding and Fabrication Pty Ltd[2023] FWC 2619 when determining whether there was a dismissal following an argument between the Applicant and employer:
[55] It is relevant to note that the fact of dismissal is to be determined objectively by reference to all relevant circumstances. It is not determined subjectively based on whether an employer intended or did not intend to dismiss or whether an employee believed they had or had not been dismissed.
I make the following findings on balance. I find that the Applicant said that her children come first. Ms Gorry then called the Applicant and told her that if that was her decision, that’s fine, she can leave, but that she should hand her shirts or uniform in. I find that a reasonable person would interpret the request for the Applicant to hand in her uniform or her shirts as meaning that the Applicant would no longer be required to work there and is therefore dismissed.
Conclusion
The Applicant was therefore dismissed at the initiative of the employer in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
T Hearne for herself as the Applicant
J Gorry for the Respondent
Hearing details:
13 March 2025
Brisbane.
Hearing via Microsoft Teams
Printed by authority of the Commonwealth Government Printer
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