Whirisky v DivaT Home Care

[2021] FWC 650

[2021] FWC 650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Miss Karen Whirisky
v
DivaT Home Care
(C2020/7127)

COMMISSIONER HUNT BRISBANE, 9 FEBRUARY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal.

[1] On 19 September 2020, Ms Karen Whirisky made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act), to deal with a general protections dispute involving dismissal. Ms Whirisky stated that she had been dismissed from her employment with Ms Teina Attard (nee) Hickson on 9 September 2020. It is uncontested that her employment commenced a short time earlier on 22 August 2020.

[2] In its Form F8A – Response to general protections application, the Respondent stated that the correct Respondent entity is ‘DivaT Home Care’, and raised a jurisdictional objection to the application on the grounds that Ms Whirisky was not terminated on the employer’s initiative pursuant to s.386(1)(a) of the Act.

[3] Following the recent Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford, 1 of 11 September 2020, the Commission must determine whether Ms Whirisky was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Whirisky was dismissed in contravention of the general protections provisions.  

[4] The matter was therefore listed for jurisdiction hearing by telephone on 16 December 2020. Ms Whirisky appeared and gave evidence on her own behalf. Mr Guteridge of NB Lawyers was granted leave to appear on behalf of the Respondent in light of the complexity of the matter and the jurisdictional objection to be determined in accordance with the recent Milford decision. Ms Teina Attard gave evidence on behalf of the Respondent.

[5] This decision deals only with the jurisdictional objection to be determined.

Legislation

[6] Section 365 of the Act provides as follows:

“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.”

[7] The meaning of ‘dismissed’ is provided at 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.

(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.”

Ms Whirisky’s evidence and submissions

[8] Ms Whirisky filed a bundle of documents which constituted her evidence. At the hearing, Ms Whirisky stated that she had intended to file further evidence in support of her application, but an error regarding filing dates had impacted her ability to properly file. She was unable to point to correspondence which constituted the error of filing dates. I clarified that she had filed her materials early, and on 19 November 2020 she had filed payslips as further evidence. I confirmed to Ms Whirisky that the Respondent then filed its materials as directed, and while she had been allowed an opportunity to file any material in reply, she had not filed any reply material as directed.

[9] Ms Whirisky had also sought to file as part of her evidence an audio recording made by her housemate and a witness statement sworn by him. I informed the parties that I would have no regard to those materials as they hold no relevance to the jurisdictional matter to be determined.

[10] Regarding the bundle of documents admitted as Ms Whirisky’s evidence, her covering letter or statement summarised her evidence as follows:

“Photo evidence 1:

Print screen displays up coming shifts as of the 31st August- 6th September.

Photo evidence 2:

Here the photo shows that I was scheduled for the second half of a split shift, with the duration of 2 hours and attempted to pay me for 1.5 hrs and this occurred frequently in the short time I was employed.

Photo evidence 3:

This shows that ten days after Teina removed all my shifts and deleted me from the business app, DEPUTY. There still has been no changes to my removal on the app, Also I have had no communication from Teina in regards to why I was deleted from the work app and no explanation for the removal of all of my shifts.

Photo evidence 4-8:

The photos from 4-8 show my upcoming shifts a day prior to me being terminated. The photos details a estimated income of 43 hours per week, on average I was working between 42 & 52 hours per week.

This proves Teina had a full rostered week of work for me on the 07/09/2020-13/09/2020. On the 09/09/2020 I proceeded to do a meet, greet & training with a new elderly client on the gold coast as requested by Teina ( as shown in photo evidence 9) that afternoon the rest of my shifts for that afternoon & the rest of the week were removed and I was deleted from the work app DEPUTY.

Photo evidence 9:

Photo shows text messages between Teina and I on the 07/09/2020.

She was very kind and friendly to me, as shown in the photo. Two days later I was deleted from the work app and all of my shifts were removed. I waited for contact and an explanation for over a week from Teina and due too having no income and facing homelessness, I decided to gain legal advice and contact Fair work commission Australia.”

[11] The voice recording as referred to above has not been considered as part of Ms Whirisky’s evidence.

[12] Regarding the two payslips filed, Ms Whirisky stated:

“Evidence shows Teina has payed (sic) me out due being terminated.

Three weeks work, and yet only two payslips. The last two weeks I worked were compiled together into one payslip. I was expecting my third payslip and my third work pay yet it never came due to being paid out and unfairly terminated.”

[13] At the hearing in this matter, Ms Whirisky’s opening statements were that she believed there was favouritism in the Respondent’s workplace, noting that all other employees were younger than her. Ms Whirisky said that she felt alienated. Ms Whirisky stated that the Respondent had intended to “get rid” of her due to losing a client on 9 September 2020.

[14] Ms Whirisky stated that despite having worked for less than three weeks, she thought she would have been employed with the Respondent for years to come. She stated that the clients loved her, and she loved them and the work. She said that it was not at all her fault that she had been dismissed.

[15] Before the commencement of cross-examination, I asked Ms Whirisky some clarifying questions regarding the purported termination date of 9 September 2020. Her evidence was that the text message of 9 September 2020 cancelling her shifts constituted her dismissal, and when she found that she had been deleted from the Respondent’s ‘Deputy’ app which recorded her shifts, this confirmed the dismissal.

[16] I consider it helpful to detail all relevant text messages between Ms Whirisky and Ms Attard:

24 August 2020

Ms Whirisky: I’m trying to call you?

Hi Teina, it’s Karen, I’m trying to get back to you on this number, it is not working

26 August 2020

Ms Attard: Karen can you do [name] today

2 September 2020

Ms Whirisky: I’m sorry I can’t do [name] this afternoon Teina I’m sorry my brother had a seizure and his wife at work

3 September 2020

Ms Attard: Are you doing your shift today at [name] today?

Ms Whirisky: I don’t have a shift today. I’m at Bridgestone?

I have [name] tomorrow.

Ms Attard: Oh your right I’m so sorry.

Ms Whirisky: That’s fine, you try have yourself a good day x

4 September 2020

Ms Whirisky: Hey where’s my pay? I need fuel too get too work. You said pay is Thursday or Friday and it’s Friday and I need my pay!

I can’t go to work without my pay! Sorry I don’t work like that T.

Unknown date but earlier than 8 September 2020

Ms Attard: All done

Ms Whirisky: Also Saturday and Sunday you have me down as 2.5 instead of 3 hours?

Ms Attard: I would of pick it up when I went to pay you

Ms Whirisky: No worries than

Ms Attard: I won’t rip you off trust me

Ms Whirisky: Just think it should be accounted for in the timesheet, so there’s no confusion. Thanks.

9 September 2020

Ms Attard: The following shifts have been cancelled. 4-6pm Thursday & Friday 8-11 Saturday & Sunday 8-11

10 September 2020

Ms Whirisky: Thanks for that Teina? Any reason? Who do You think you are taking those shifts away from me. [name] was looking forward to seeing me this afternoon. Very spiteful act. You really look after your workers! And you really care about your clients! I have rights as well.

[17] During cross-examination of Ms Whirisky, the following evidence was given. Ms Whirisky confirmed that she had entered into a contract of employment with DivaT Home Care on 22 August 2020, and that she had signed the contract. Her evidence however was that while she signed the contract, she did not fully understand the terms contained therein, and Ms Attard had said she would explain a number of the terms, but this did not occur. While Ms Whirisky confirmed her understanding that she had a duty to comply with the terms of her contract of employment, she felt that the contract was ‘one-sided’ in favour of the Respondent.

[18] Ms Whirisky was taken to clause 6.1 of the employment contract, concerning the fact that she was a casual employee with no guaranteed or fixed hours of work, with work allocated based on the operational requirements of the business. Ms Whirisky agreed that she was aware of this term, however she stated that what was put into the contract did not reflect what she and Ms Attard had previously discussed, including that she would have permanent hours. Ms Whirisky stated that the Respondent had ‘plenty’ of hours for her, with over 40 hours a week having been available for her.

[19] Ms Whirisky was cross-examined regarding the cancellation of shifts on 9 September 2020 and asked whether she accepted that the Respondent had complied with the contract of employment in cancelling those shifts. Mr Guteridge made reference here to clauses 6.1 and 6.2 of the employment contract. Ms Whirisky responded she did not believe the Respondent had complied with the contract and considered that the Respondent had terminated her employment. Ms Whirisky said that the shifts had been given to her in advance and were then taken away, and she did not agree that the Respondent had a right to cancel her shifts this way.

[20] Ms Whirisky repeatedly stated during cross-examination that while she had signed the contract of employment, she did not understand the contract and Ms Attard had never properly explained it to her.

[21] It was put to Ms Whirisky that regarding cancellation of shifts, there may be various reasons for this, and Ms Whirisky agreed. Ms Whirisky agreed that in general terms the cancellation of a shift would not constitute a termination of employment, however she stated that in this instance it was. She further stated that if there had been some sort of explanation it may be different, but in this instance there was no explanation and she had no idea why the shifts had been cancelled.

[22] Ms Whirisky agreed that as a support worker she worked with vulnerable persons, and that any threat or potential threat to a client, whether or not it actually exists, should be addressed straight away. It was put to Ms Whirisky that regarding allegations made against her, it was understandable that Ms Attard would not have had her work those particular shifts that were cancelled on 9 September 2020, and while Ms Whirisky accepted that, she stated that the Respondent did not act reasonably as she was never informed about the complaints or allegations against her. Further she stated that “all clients love her”, and she loves them.

[23] As to Ms Whirisky’s removal from the Deputy application, it was put to Ms Whirisky that her removal could purely have been a matter of the Respondent changing to a new application. Ms Whirisky responded that the Deputy application was important for her shifts and she was deleted from it. She said she wouldn’t know any other way of obtaining her shifts. She denied that this was a matter of the Respondent changing applications, and said she would have been informed if that had been the case. Ms Whirisky was taken to attachment 7 to Ms Attard’s statement, demonstrating Ms Whirisky’s details are recorded in the new Sanwai application.

[24] Relative to Ms Whirisky’s details being present on the Sanwai application, Ms Whirisky said she had never been informed that there was a new application and that her details were recorded on it. She said she would have expected to have been told if she was still an employee.

[25] As to whether there had been any formal notification of termination of her employment, Ms Whirisky confirmed that she had not received any formal notification. She stated however that she knows there has been a termination of her employment.

[26] Ms Whirisky was taken to clause 19 of her contract of employment, which provides that the Employer may terminate her employment by providing written notice at any time. While Ms Whirisky confirmed that she had not received anything in writing, it is her understanding that the Respondent could terminate her ‘however it wished’.

[27] Ms Whirisky said that she should have been given some sort of warning if one of the clients had been making complaints about her.

[28] Ms Whirisky was taken to the text message that she sent to Ms Attard on 10 September 2020, in response to the cancelled shifts. As to the tone used by Ms Whirisky in this message, her evidence is that she had just woken up and was frustrated. She said that the work environment was toxic, and the words she used “who do you think you are” had nothing to do with the matter. She said that she did nothing wrong.

[29] Ms Whirisky gave evidence that Ms Attard had asked her to lie to clients during her employment, including to lie about the fact that she did not have a Certificate III as required.

Final submissions

[30] In final submissions at the hearing, Ms Whirisky relied on her earlier submissions. She submitted that the Respondent had made no further contact with her following the text exchanges of 9 and 10 September 2020, and had provided no explanation regarding the cancellation of shifts or any allegations against her.

[31] Ms Whirisky submitted that she had never received a warning from the Respondent, and the Respondent had never asked for the police check or other credentials from her. She said that there were other employees of the Respondent who also had not provided these credentials. She believed she was therefore being singled out.

[32] Ms Whirisky reiterated that Ms Attard had asked her to lie to clients, and stated that it was a toxic workplace. She submitted that the Respondent had withheld information from her, including clients’ names, which had made her look ‘stupid’. She said she felt humiliated and had been injured, including injury to her finances.

[33] As to any conduct regarding her clients, Ms Whirisky maintained that she had never done anything wrong, or been informed of anything she had done to upset clients. She said that she should have been given some notification of what steps were to occur next, however further to the cancellation of her shifts she received no further contact and therefore maintained that there had been a clear termination of her employment.

[34] Ms Whirisky stated that she had now acquired some part time work.

Respondent’s evidence and submissions

[35] Ms Attard, sole owner of the Respondent, DivaT Home Care, filed a witness statement in these proceedings and appeared and gave evidence for the Respondent at the hearing.

[36] Ms Attard stated that on behalf of DivaT Home Care, she entered into a contract of employment with Ms Whirisky on 22 August 2020.

[37] Ms Attard said that between 22 August 2020 and 9 September 2020, she engaged in several text message exchanges with Ms Whirisky regarding rostering arrangements and payment information. Ms Attard said during this period, she also made a number of verbal requests to Ms Whirisky that she provide a copy of her national police check as required under her contract of employment, and on each occasion Ms Whirisky stated she possessed a police check and would send it to her. At the date of filing her witness statement in these proceedings, Ms Attard stated she had not received the police check from Ms Whirisky.

[38] Ms Attard noted that Ms Whirisky worked several shifts for the Respondent between 24 August 2020 and 9 September 2020, performing home visits to a number of the Respondent’s clients.

[39] On 9 September 2020, Ms Attard received a phone call from one of the Respondent’s clients, saying that Ms Whirisky had been behaving inappropriately and had made threats towards the client during one of her home visits.

[40] Ms Attard said that on receipt of this complaint, and in light of Ms Whirisky’s failure to provide her police check, Ms Attard made the immediate decision to cancel Ms Whirisky’s shifts for the remainder of the week. Given the work performed by Ms Whirisky, Ms Attard said that she felt it unacceptable to risk allowing her to work with the client or clients in a similar circumstance, and therefore it was necessary to cancel those shifts to protect the wellbeing of the Respondent’s client and the business itself.

[41] The text message and response between Ms Attard and Ms Whirisky is detailed in paragraph [16].

[42] On 10 September 2020, Ms Attard received a further complaint about Ms Whirisky from another client, with this complaint being of a similar nature to the first complaint received. This second complaint was that Ms Whirisky had behaved inappropriately towards the client during her home visit.

[43] Ms Attard’s evidence is that this second complaint reinforced her view that there was a potential risk both to clients and the viability of the business if she were to assign Ms Whirisky shifts without citing her police check. Ms Attard said she determined not to assign Ms Whirisky any further shifts, until she was able to assign ‘appropriate’ shifts.

[44] Ms Attard stated that prior to 9 September 2020, she had made an operational decision to change the Respondent’s ‘time and attendance’ application from an application called ‘Deputy’ to another application called ‘Sandwai’. She said that on 10 September 2020 she removed Ms Whirisky’s data from the Deputy application as she had no further shifts that week and she was therefore able to facilitate the transfer of information to avoid payment and rostering errors arising from ‘cross-contamination’ between the two applications. Ms Attard attached a screenshot showing that Ms Whirisky’s details were now contained in the Sandwai system as at 12 November 2020.

[45] Ms Attard said that between 10 September and 19 September 2020, she attempted to identify appropriate shifts to assign to Ms Whirisky, however given the serious nature of the complaints and the potential risk both to clients and the Respondent business, she was unable to find an appropriate shift to assign her.

[46] At the hearing, Ms Whirisky questioned Ms Attard about her failure to contact her beyond the text exchange of 9 and 10 September 2020. Ms Attard stated that she did not have clients for Ms Whirisky.

[47] Ms Whirisky put to Ms Attard that at a client’s premises she had asked her to lie about having Certificate III qualifications. Ms Attard denied that she asked her to lie. She stated that she thought Ms Whirisky was studying for her Certificate III. Ms Whirisky stated she had not been studying her Certificate III for at least 15 years.

[48] Ms Attard stated that the employment agreement required a Certificate III and a police check. Ms Whirisky put to Ms Attard that she still hired her knowing she did not have a Certificate III nor a current police check.

[49] Ms Attard stated that she called Ms Whirisky numerous times chasing her for her police check. Ms Whirisky denied this occurred.

[50] I asked Ms Attard her view once Ms Whirisky had made this application. Ms Attard stated that the Respondent is a very small organisation and she could not give her the earlier clients. She stated that she needed to find her a fresh client, plus she required her police check.

[51] Ms Whirisky asked Ms Attard why the shifts were taken from her without any explanation. During this questioning, I also took Ms Attard to her statement, and asked why work had not been offered to Ms Whirisky following the filing of her application. Ms Attard’s evidence was that she required citing of a police check, and new clients that Ms Whirisky had not previously worked with, to assign her to. She said that the Respondent had not acquired new clients.

[52] I asked her how it is Ms Whirisky was allowed to work her shifts without producing a police check? Ms Attard’s evidence was that when Ms Whirisky started with the Respondent, she had said she did not have the money to acquire a police check and that it would be provided in a weeks’ time. Ms Attard said she accepted that at the time, but the police check was never provided despite her continuing to ask for it.

[53] It was put to Ms Attard that the Respondent would have some responsibilities regarding ensuring that employees had provided current police checks, and it was Ms Attard’s evidence that the Respondent had three months from an employee’s starting date to ensure that police checks, blue cards and other clearances were provided. She said that this was provided for on the NDIS website.

[54] Ms Whirisky put to Ms Attard that regarding one of the Respondent’s clients, Ms Attard had threatened to take her to court. Ms Attard said that she never threatened Ms Whirisky, and did not recall the matter referred to.

Respondent’s submissions

[55] The Respondent submitted that Ms Whirisky failed to provide an outline of submissions addressing the Respondent’s jurisdictional objection. It submitted that Ms Whirisky has the onus of proving that her employment was terminated at the initiative of the Respondent, and she has provided no legal submissions in this respect. The Respondent submitted that the Commission therefore cannot accept the claim that her employment was terminated.

[56] The Respondent submitted that while Ms Whirisky has provided some evidence regarding her employment with the Respondent, the evidence provides little insight into the question of whether her employment was terminated at the initiative of the Respondent. It submitted that Ms Whirisky’s materials address matters that are largely not in dispute, and she has relied entirely on inferences drawn from the actions of the Respondent. The Respondent submitted that these inferences are not reasonably held, nor are they sufficient to discharge the onus of proving there was a termination at the initiative of the Respondent.

Termination at the initiative of the Respondent

[57] The Respondent submitted that in order for Ms Whirisky to establish that a dismissal has occurred for the purposes of the Act, she would need to demonstrate first that the employment relationship was terminated, and then demonstrate that it was at the initiative of the Respondent.

[58] The Respondent submitted that no formal notification of termination, either written or oral, was ever provided to Ms Whirisky. Further, there was no discussion between the parties regarding termination, nor written notice as required under the contract of employment and the NES.

[59] The Respondent submitted that Ms Whirisky’s claim is based on inferences drawn from operational decisions of the Respondent, and she has not provided any evidence which is ‘unequivocally consistent’ with a termination of her employment with the Respondent. It said that Ms Whirisky has relied on two operational decisions of the Respondent as the basis for the claim that her employment was terminated, being:

•  Removal of her details from the Deputy time and attendance application; and

•  Cancellation of three of her shifts.

[60] The Respondent submitted that an operational decision was made to transfer all employees from Deputy to a new time and attendance application, Sandwai. It submitted that after Ms Whirisky’s shifts were cancelled on 9 September 2020, the Respondent took that opportunity to transfer her details across to the Sandwai application so as to avoid payment and rostering errors arising from cross-contamination between the two applications. The Respondent submitted that Ms Whirisky’s details are still contained in the Respondent’s Sandwai account; and noted that other employees have also been transferred to the Sandwai application. The Respondent submitted that Ms Whirisky’s details were placed in the Sandwai application, and it cannot be said that the employer’s conduct is indicative of a termination of employment.

[61] As to the cancellation of the three shifts, the Respondent submitted this is not sufficient to demonstrate a termination at the initiative of the employer. It submitted that Ms Whirisky was engaged on a casual basis, with no pre-determined or set hours of work, and shifts being assigned on an ‘as required’ basis. Ms Whirisky had only been engaged for two weeks, and it therefore could not be said there was an expectation of ongoing or consistent hours.

[62] The Respondent submitted that cancellation of appointments is common in the disability services sector, and the Respondent has often been required to cancel shifts for a variety of reasons. It said that it is common for employees to have shifts swapped or cancelled based on the operational requirements of the business, and the mere fact that these things occurred does not suggest a termination at the initiative of the employer. The Respondent submitted that to find that a cancellation of shifts constitutes a termination of employment would place a strict limit on the operational requirements of the Respondent’s business and other businesses in similar circumstances.

[63] As to the decision to cancel Ms Whirisky’s shifts on 9 September 2020, the Respondent submitted that this occurred due to complaints received with respect to her conduct. Having received such complaints, together with Ms Whirisky’s failure to provide a police check, the Respondent made the decision to cancel the rostered shifts. It submitted that this was an operational decision, based on concerns for the wellbeing of the Respondent’s clients, and did not amount to a termination of employment.

[64] The Respondent submitted that there is nothing in that text message to suggest a termination of employment occurred. The Respondent submitted that it is clear from the language of the text message that Ms Whirisky’s shifts were merely cancelled, and it could not be inferred that a termination of the employment relationship had taken place.

Repudiation of the employment agreement

[65] The Respondent submitted that Ms Whirisky has failed to demonstrate her employment was terminated at the initiative of the Respondent, and the only other basis for claiming the employment relationship was terminated would be through repudiation of the employment contract. It submitted a repudiation of the contract would occur where the conduct of the employer demonstrated an intention to no longer be bound by the contract of employment. The Respondent submitted that Ms Whirisky has provided no evidence or submissions in this regard. The Respondent cited the decision of Shevill v Builders Licensing Board, 2where it was held “Repudiation of a contract is a serious matter and is not to be lightly found or inferred”.

[66] The Respondent submitted there is no evidence before the Commission to indicate that the Respondent expressed an intention to no longer be bound by the contract of employment with Ms Whirisky. It said therefore, a repudiation could only be inferred from the conduct of the Respondent. The Respondent submitted that Ms Whirisky was engaged on a casual contract of employment, and under such a contract the employer had a right to assign and cancel shifts based on operational requirements. As the Respondent acted consistently with the contract of employment in cancelling these shifts, the Respondent submitted that Ms Whirisky cannot draw an inference that this decision was inconsistent with the continuation of the contract of employment.

[67] The Respondent further submitted that removal of Ms Whirisky’s details from the Deputy application would not be sufficient to indicate a repudiation of the contract of employment. It noted that Ms Whirisky asserted that her details were removed because her employment was terminated, however it submitted that this assertion failed to recognise that there may be a variety of reasons why a person’s details are removed from a time and attendance application. The Respondent confirmed that the decision to remove Ms Whirisky’s details was in order to facilitate a transfer to a new time and attendance application, and to avoid cross-contamination between the shift details and hours worked under both applications. The Respondent submitted that the high threshold for establishing a repudiation of the contract of employment has not been met by Ms Whirisky, as such, it cannot be found that a repudiation of the employment contract has taken place.

Final submissions

[68] In closing submissions at the hearing, the Respondent restated its position that the documentation and evidence provided by Ms Whirisky cannot satisfy the Commission that her employment was terminated. It submitted that Ms Whirisky has drawn unreasonable inferences from the Respondent’s actions. It submitted further that Ms Whirisky has made a number of statements, including in cross-examination, regarding conduct of the Respondent during the employment relationship, however it considers many of these matters to be “part and parcel” with the employment relationship and does not go to whether there was a termination of Ms Whirisky’s employment.

[69] The Respondent submitted that it is not in dispute that there was no resignation, and therefore this cannot be a case of constructive dismissal due to the behaviour of the Respondent.

[70] The Respondent submitted that any matters as to ‘lying’ would go to the substantive general protections application and does not go to the question of whether or not there was a termination of the employment.

[71] The Respondent submitted that Ms Whirisky has relied largely on the text message of 9 September 2020, and has agreed that there were no further text messages or exchanges between the parties since her reply text of 10 September 2020, and therefore the evidence before the Commission is insufficient to show there was a termination at law.

[72] As to any other employees of the Respondent not providing police checks, the Respondent submitted there has been no evidence provided in support of this submission. It submitted further, as to any other employees, no complaints have been received as in Ms Whirisky’s case.

[73] The Respondent submitted that it was required to ensure the safety of its clients, while also providing Ms Whirisky with procedural fairness. It submitted that no decision to terminate Ms Whirisky’s employment had been made, and it was the case that the Respondent was in the process of considering its options regarding Ms Whirisky, including whether there were any further shifts that could be allocated to her.

Consideration

[74] The decision in Milford demonstrates that the issue as to whether a person has been dismissed must be considered. The Full Court of the Federal Court said the following: 3

“It is not difficult to conceive of cases where the parties may be in “dispute” as to whether or not a person has been dismissed. Most often that will occur in cases where the applicant alleges (and the respondent contests) that he or she has been constructively dismissed. But that dispute is not to be confused with the dispute forming the subject matter of the FWC’s conciliation powers as just described. A dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes.

The question of whether or not a person has been dismissed is an objective condition appearing elsewhere in the FW Act in the same objective terms. By way of example, s 725 of the FW Act provides that “a person who has been dismissed” is precluded from making applications or complaints of certain kinds. Whether or not a person has been dismissed also determines whether the person may apply under Subdiv A or Subdiv B of Pt 3-1. In the latter case, the employer may be compelled to participate in a conference but the person conducting the conference has no power to direct that it be conducted in public: s 374(2). If the construction advanced by Mr Milford were to be accepted, the authority of the FWC to proceed under Subdiv A or B (and hence its powers to direct that the conference be conducted in public) would depend upon whether the applicant alleged (falsely or otherwise) that a dismissal had occurred. I am unable to comprehend how such a construction would advance the objects of the FW Act.

To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”

[75] In accordance with Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab), 4 a termination is at the employer’s initiative when:

•  the employer’s action ‘directly and consequentially’ results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed.

[76] In O’Meara v Stanley Works Pty Ltd 5 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[77] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, all of the circumstances must be examined including the conduct of both the employer and employee. 6

[78] Considering all of the evidence and submissions before the Commission, I am not satisfied that Ms Whirisky’s employment was terminated by the culmination of the two acts of cancelling her three casual shifts and her removal from the Deputy application.

[79] This is so because Ms Whirisky had been a casual employee for a very short period of time; less than three weeks. She had worked a relatively small number of shifts across a small number of the Respondent’s clients. Despite her insistence that she loved the clients and they all loved her, I consider that this is dramatically overstated on the number of shifts worked by her.

[80] As is clear from the text messages exchanged between Ms Whirisky and Ms Attard, shifts were given and taken and cancelled according to the circumstances as they arose. Ms Attard would ask if Ms Whirisky could do a shift with a certain client, and Ms Whirisky would let her know if she was available, or if she needed to be unavailable for a shift due to family circumstances.

[81] Objectively, it was a very casual and very new working relationship.

[82] I do not consider that Ms Attard’s notification by text message on 9 September 2020 to Ms Whirisky of the cancellation of three specific shifts meets the threshold in Mohazab or O’Meara. It was simply the cancellation of those specific three shifts. Ms Attard did not inform Ms Whirisky that she would not receive any further shifts; it was simply those three shifts that were cancelled. I do not consider the cancellation of those three shifts alone was some action on the part of the Respondent which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.

[83] That being said, it is not necessary for the Respondent to have communicated in writing a termination of employment to satisfy a termination at law. Conduct of the Respondent will be enough to constitute a termination.

[84] Ms Whirisky’s fierce text message the next day, sent, she said, after she woke up and was frustrated was not pleasant. It is a known fact that Ms Attard did not respond to the text message and has not rostered Ms Whirisky for any further shifts. She stated that is because Ms Whirisky has not provided Ms Attard with her police clearance, and she did not have any new clients that could be cared for by Ms Whirisky.

[85] Where there is a contest between Ms Attard and Ms Whirisky relevant to Ms Attard’s request for a police check, I prefer Ms Attard’s evidence on this issue. I consider it is something that would have been sought, and I am satisfied that Ms Whirisky initially responded that she would obtain a police check after having been paid. It correlates with her later issue regarding not having sufficient money to pay for fuel to travel to and from work. I accept that a grace period was afforded by Ms Attard to Ms Whirisky to produce her police check.

[86] It appears that Ms Whirisky did not make any effort to provide to Ms Attard her police clearance to test whether her casual employment was still on foot, with the capacity to be rostered for shifts with clients that had not made complaints about her.

[87] On other issues of credibility between the parties relevant to whether Ms Whirisky was asked to lie about having Certificate III qualifications, I have some doubts as to the evidence given by Ms Attard on this issue. It does not, however, have any bearing on the decision presently before the Commission and that issue need not be definitively determined.

[88] Relevant to the Deputy application, I accept the Respondent’s evidence that it moved from one time and attendance application to another, providing an objectively satisfactory reason as to why Ms Whirisky could no longer access the Deputy application. I do not consider Ms Whirisky’s removal from the Deputy application to constitute an action on the part of the Respondent which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. On the evidence before the Commission, all other employees have moved to the new application.

[89] For the above reasons I am not satisfied that Ms Whirisky has been dismissed pursuant to s.386 of the Act.

Conclusion

[90] As Ms Whirisky had not been “dismissed”, a jurisdictional pre-requisite required for a general protections application under section 365 of the Act does not exist. The Commission is thus unable to further proceed with the application or exercise any powers conferred by s.368.

[91] That being so, the application is dismissed. An order giving effect to this decision is issued in conjunction with its publication.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1 [2020] FCAFC 152.

 2 (1982) 149 CLR 620.

 3 [2020] FCAFC 152.

 4 [1995] IRCA 645.

 5   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 6   Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).