Yolanda Troiano v Just Donna Pty Limited
[2024] FWC 1033
•19 APRIL 2024
| [2024] FWC 1033 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Yolanda Troiano
v
Just Donna Pty Limited
(C2024/1098)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 19 APRIL 2024 |
Application to deal with contraventions involving dismissal
An application has been filed by Ms. Yolanda Troiano (Applicant) under s.365 of the Fair Work Act 2009 (Act) in which she alleges that her employment was terminated by her former employer Just Donna Pty Ltd (Respondent) in contravention of the General Protections provisions contained in Part 3-1 of the Act.
The Respondent objected to the application on the basis that the Applicant was not dismissed but resigned her employment voluntarily.
The Commission is unable to deal with an application of this kind under s.368 of the Act unless it has been established that an applicant has been dismissed within the meaning of s.365 of the Act[1].
Section 386 of the Act defines the circumstances in which a person is taken to have been dismissed for the purposes of s.365.[2] Section 368 provides, relevantly, as follows:
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.
The Applicant contends that her employment was terminated on the Respondent’s initiative on 13 February 2024 and that s.386(1)(a) applies in the present circumstances. For the reasons which follow, I have concluded that the Applicant was dismissed within the meaning of s.386(1)(a) and that the application under s.365 is therefore able to proceed.
Background and Evidence
The Applicant commenced employment on a casual basis in the Respondent’s fashion retail business in September 2023. Ordinarily she worked 5 days a week, including shifts on Saturdays and Sundays.
In early January 2024 an incident occurred in which the Applicant was asked by the Respondent to have her hair cut. The Applicant says she was told by the Respondent’s area manager that there had been complaints about the Applicant’s appearance by customers and that her employer wanted her hair to be cut in response to the complaint. The Applicant said she felt she had no option but to comply and felt humiliated by the request but ultimately complied. She said after her hair had been cut and coloured, she was photographed by the area manager in front of other staff members and the photos were sent to her employer.
The Respondent’s owner/director, Ms. Livingstone, said she only wanted to assist the Applicant and that she arranged and paid for the haircut. She said the Applicant appeared happy and confident after it had occurred and she was surprised that the Applicant was now complaining about what had happened.
On 21 January 2024 the Applicant had the colour of her hair changed back to its original colour.
It was not in issue that there was also some personal conflict between the Applicant and one of her co-workers in the store during the Applicant’s employment. The Applicant said she believed that the co-worker had been at least partly responsible for the customer complaint. The Respondent said that the animosity between the employees had affected the workplace, that the Applicant and the other employee would ignore each other and create an ill-feeling in the store and that ultimately it was decided that the two employees would have to be rostered so that they did not work together. One consequence of the roster changes was that the Applicant’s hours of work were reduced by half.
The Applicant’s evidence was that shortly after her hours were reduced, the Respondent began advertising for other workers. The Respondent said that since the hours of both the Applicant and her co-worker had been reduced, there was a need for additional employees so that there could be two staff members on the premises at all times.
On 13 February 2024 the Respondent’s area manager visited the store where the Applicant was working. The area manager spoke with the Applicant outside the store. According to the Applicant, she was told that the area manager and Ms. Livingstone had decided that they no longer wanted the Applicant to work for the Respondent. She said that the area manager said “((Ms. Livingstone) and I have decided we don’t want you with us. We are going to have to sack you” and when the Applicant asked why, the response was “you are not suited to the position.” The Applicant said she went back into the store and handed over her keys and told her co-worker that she had been dismissed. She then left the store.
An employee who worked with the Applicant, Ms. Hunt, gave evidence for the Applicant. She was not privy to the conversation outside the store on 13 February but was inside the store when the Applicant returned. She said the Applicant was extremely upset. Her evidence was that the area manager said to her “It’s never nice to do this” and when Ms. Hunt asked her why this had happened the area manager said, “She wouldn’t learn.”
The area manager for the Respondent did not give evidence. Ms. Livingstone said she had been told by the manager that the Applicant had become inconsolable during the meeting and said that she was going to lose her house and could not survive on the hours of work that the Respondent was providing her with. She said the manager told her that after the conversation the Applicant simply went into the store, put her keys on the counter and walked out.
Ms. Livingstone also said that the Applicant left the group-chat app that the Respondent and its staff used to communicate. Her evidence was that this occurred sometime shortly before the meeting on 13 February. The Applicant denied leaving the group-chat. She said the app had frozen a couple of days before the meeting and that she had messaged the area manager to advise her of the problem and was then re-added to the app.
Findings
I accept the account of the Applicant as to the events that transpired on 13 February 2024. She appeared to me to be a credible and truthful witness. Her version of events was corroborated to some extent by the evidence of Ms. Hunt. The Respondent did not provide a first-hand account of what had occurred. Although it was not in issue that the Applicant was extremely upset by what had occurred, I do not think that she left her employment voluntarily. I also accept the Applicant’s explanation about the group-chat app. I do not think this supports a conclusion that the Applicant left her employment of her own accord.
I conclude that the Applicant was dismissed by the Respondent on 13 February 2024 because her employment was terminated on the Respondent’s initiative within the meaning of s.386(1)(a)[3] on that day.
Outcome
The Respondent’s jurisdictional objection is dismissed. The matter will be re-listed for a further conference under s.368 of the Act on a date to be determined.
DEPUTY PRESIDENT
Appearances:
Ms Troiano for the Applicant.
Ms Livingstone for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEST on Monday, 8 April 2024.
[1] See s.12 Fair Work Act 2009.
[3] See Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162
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