Zarina Abdul Rahim v Murdoch University Child Care Association t/as Murdoch University Child Care Centre

[2016] FWC 2191

[2016] FWC 2191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Zarina Abdul Rahim
v
Murdoch University Child Care Association t/as Murdoch University Child Care Centre
(U2015/11869)

DEPUTY PRESIDENT SAMS SYDNEY, 7 APRIL 2016

Application for an unfair dismissal remedy – Child Care Assistant – jurisdictional objections - whether employee ‘voided’ her contract of employment – three periods of employment – whether casual employment counts towards minimum employment period – whether employee dismissed – taken off roster for unreliability – termination of employment by SMS text message – offer of further casual engagements – regular and systematic casual employment – expectation of future casual employment – jurisdictional objections dismissed – further proceedings.

BACKGROUND AND ISSUES

[1] On 31 August 2015, Ms Zarina Abdul Rahim, a Child Care Assistant at the Murdoch University Child Care Centre (the ‘Centre’) sent a seemingly innocuous text message to the Centre Manager, Ms Jacqueline Cannon. The message read:

‘Hello, good morning Jacqui, as [sic] wondering if I can finish half day tomorrow as I have an urgent hospital appointment?’

Ms Cannon responded:

‘That’s fine. Don’t worry about coming in tomorrow. I have taken you off the roster as you have become too unreliable. All the best.’

[2] Perhaps unsurprisingly, Ms Rahim believed that this message constituted a termination of her employment at the initiative of the Centre. As such, she has challenged her dismissal as ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Fair Work Act 2009 (the ‘Act’). She claims that in the four years she had been employed at the Centre, no issues of poor performance were ever raised with her. She seeks a remedy of monetary compensation, pursuant to s 392 of the Act.

[3] At this juncture, it is useful to set out the somewhat confusing nature of Ms Rahim’s employment over these four years. Ms Rahim had commenced work as a casual employee on 10 June 2011. On 18 November 2013, she converted to permanent part time employment working a minimum of 7.5 hours per week, without specific work days. At the same time, Ms Rahim was enrolled at the University studying for a degree in psychology. 2015 was her final year of study. From the commencement of her employment on 10 June 2011 to early 2015, it is not disputed that Ms Rahim’s work was good and she was reliable.

[4] As the Centre was closed over Christmas/New Year 2014/2015, Ms Rahim did not work from 7 December 2014 to 18 January 2015. On 12 January 2015, while on approved leave at home in Malaysia, Ms Rahim underwent unexpected abdominal surgery. She received a medical certificate indicating she was unfit for work from 19 January 2015 to 6 March 2015. When she returned to Perth on 10 March 2015, she became aware of difficulties with her Temporary Student Visa, which required her to leave the country on 12 March 2015. She returned shortly thereafter. Ms Cannon considered that Ms Rahim had ‘voided’ her contract of employment between 6 March and 16 April 2015, as there had been no contact or explanation for her absence. Ms Cannon claimed that she had told Ms Rahim, in a text of 11 March 2015, that she had ‘voided her [part time] contract’ due to her non-attendance at work. I shall say more about this claim later.

[5] Ultimately, after an absence of some months, Ms Rahim returned to work on 28 April 2015, as a casual employee. There is a disagreement as to whether Ms Cannon told Ms Rahim she could only offer her work as a casual employee on an ad hoc basis, or if the change to casual employment was at Ms Rahim’s request. In any event, Ms Rahim accepts that from that date until the date of her dismissal on 31 August 2015, ‘it may be implied that I was a casual employee’ working between 7.5 and 22.5 hours a week. Ms Cannon claims that during the four month period (from 25 April to 31 August 2015), Ms Rahim’s attendance in the workplace was unreliable, characterised by ‘attempts to shorten her shifts, swap days and shifts with colleagues and a consistent ignoring of the procedures for changing shifts’. It may be assumed that Ms Rahim’s text message on 31 August 2015 was the ‘straw that broke the camel’s back’ (see para [1]).

[6] The next day, Ms Rahim sent a letter of grievance to the Centre’s Committee of Management, complaining about Ms Cannon’s text message and requesting a thorough investigation of the allegation that she was unreliable. She described being unfairly treated and having her employment status altered from permanent to casual, on 28 April 2015, without proper notification and justification.

[7] On 17 September 2015, Ms Rahim (the ‘applicant’) filed an application with the Commission, pursuant to s 394 of the Act, for a remedy from her alleged unfair dismissal on 31 August 2015. The Centre replied to the application (Form F3), objecting to Ms Rahim’s claim on a number of grounds as follows:

1. Ms Rahim was not dismissed on 31 August 2015 in the SMS message. She was merely removed from the Centre’s roster. The text was roster-related in accordance with the Centre’s usual processes for communicating with staff.
2. Ms Rahim had abandoned her employment sometime between 6 March 2015 and 16 April 2015 or had ‘voided her contract’ and commenced a new casual contract of employment, at her request, on 28 April 2015.
3. Even if Ms Rahim was dismissed on 31 August 2015, and given that Ms Rahim’s last casual employment contract lasted only four months, she had not been engaged for the minimum employment period of six months, pursuant to ss 383 and 384 of the Act. This meant she was not a person protected from unfair dismissal, within the meaning of ss 396(b) and 382 of the Act.
4. Ms Rahim’s casual employment was not regular or systematic and she was therefore not a person protected from unfair dismissal, pursuant to ss 382 and 384(2)(a)(i) of the Act.
5. Ms Rahim commenced alternative employment (babysitting) before she ceased working for the Centre.

[8] Section 396 of the Act, requires the Commission to determine the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.

[9] The crux of this case is whether Ms Rahim was a person protected from unfair dismissal and, if so, whether she had been dismissed at the initiative of the employer.

[10] This matter has been the subject of a number of attempts to conciliate a settlement, including by a Commission Conciliator, by myself and by the Centre’s Management Committee, notably, including the President and the University’s HR Department. Curiously, during the Committee of Management’s investigation, the Centre’s Treasurer resigned because of a conflict of interest, in that Ms Rahim was working for her as a babysitter of her children. Relevantly, I note that the Centre had responded on 23 October 2015 to Ms Rahim’s grievance arising from her dismissal as follows:

‘Dear Zarina and all,

I acknowledge receipt of your decision which was communicated to me via brief phone conversation in the past hour. As President of the Management Committee, I continue to express the Centre’s willingness to resolve the matter and to hear a counter offer to the settlement proposal.

The Committee acknowledges that the circumstances leading up to the cessation of your employment at MUCCC has resulted in personal distress to you and we deeply regret this. The Committee recognises that your time working with MUCCC has largely been characterised by reliability and commitment to the operations of the service. We also recognise that a different process of handling your case may have reduced this distress. In consultation with Murdoch University HR Department and the Centre Auditor, MUCCC has already taken steps to prevent situations like this happening in the future.

We continue open to communicate with you regarding this matter.

Kind Regards,

Deborah Pino-Pasternak (PhD)
Lecturer – School of Education
Murdoch University

ARC – DECRA Research Fellow’

[11] As no settlement of the claim was able to be achieved, the matter proceeded to a hearing on 22 February 2016 in Perth. Notwithstanding the standard Directions issued by the Commission, much of the material filed by both unrepresented parties was either of obscure relevance, repetitive, disjointed or difficult to differentiate between submission and evidence. Doing the best that I can with that material and despite the ‘free-flowing’ hearing on 22 February 2016, I am satisfied that I have a sufficient basis to make definitive conclusions on the jurisdictional objections raised by the Centre by reference to the relevant statutory provisions.

THE EVIDENCE

[12] Ms Rahim said that she submitted her Malaysian medical certificate to the Centre by email and Facebook on 15 January 2015. She claimed that Ms Cannon acknowledged this communication.

[13] Ms Rahim maintained that she had further contact with the Centre on 4 and 11 March 2015 concerning her immigration status and issues surrounding her visa. She had sought and was provided with a copy of her employment contract by Ms Cannon. Ms Rahim said she was unaware of Australian laws requiring an employer to keep a job open for a person having difficulties with their visa.

[14] While Ms Rahim agreed that the staff at the Centre used Facebook to view their rosters, she said that the master roster was pinned up on a board in the staff room. Ms Rahim said that there was no meeting with Ms Cannon to discuss her contract of employment. When she returned to work on 28 April 2015, Ms Cannon told her she had changed her employment status and that it had been a ‘mistake’ to have employed her on a permanent part time basis. Ms Rahim could not recall her response when Ms Cannon told her she had ‘voided her contract’. Ms Rahim claimed she was ‘under duress’ at the time her employment reverted to casual employment and had accepted it because she feared not getting any more work. Ms Rahim conceded she had not complained or raised any concerns about her new casual employment status at the time.

[15] Ms Rahim agreed she had commenced employment as a babysitter for the Centre’s then Treasurer, Ms Bronwyn Wyatt, on 13 May 2015.

[16] In oral evidence, Ms Cannon described the applicant’s history of employment with the Centre. She considered Ms Rahim had abandoned her employment on or after 6 March 2015 and stressed that there was a five month gap in Ms Rahim’s employment, as disclosed in the Centre’s time sheets. Ms Rahim claimed the majority of this time included the Centre’s closure and approved personal leave. However, Ms Cannon said that there was 5-6 week long period of unexplained absence.

[17] Ms Cannon said that text messages were normal communications between the Centre Director and the staff. She could not recall any email communications from Ms Rahim after 6 March 2015.

CONSIDERATION

[18] It should not be lost sight of that the present matter involves a number of alternative jurisdictional objections taken by the Centre as to Ms Rahim’s application for an unfair dismissal remedy being determined by the Commission (see para [7]).

[19] All of the objections are self-evidently contradictory. On the one hand, it is said that because Ms Rahim ‘voided her contract’ on 28 April 2015 by her non-attendance from 6 March 2015 to that date, her unfair dismissal application was ‘out of time’, pursuant to the 21 day statutory time limit for filing the application required by s 394 of the Act. The application was filed on 17 September 2015.

[20] Alternatively, the Centre argued that Ms Rahim’s new casual employment contract commenced on 28 April 2015 and presumably ended on 31 August 2015, when she was taken off the roster. Accordingly, she only had a four month employment period, two months short of the minimum employment period required to be protected from unfair dismissal (s 382).

[21] Further, it is said that Ms Rahim’s last period of service as a casual employee was not regular or systematic and she had no reasonable expectation of continuing employment (s 384).

[22] Finally, in any event, Ms Cannon said that Ms Rahim was never dismissed. The text message of 31 August 2015 was not a dismissal; it merely related to rostering arrangements and was the means of communication usually used to advise employees of their rosters.

[23] From the later material filed by the Centre, I apprehend that the ‘out of time’ objection is no longer pressed. In addition, I would dismiss, as irrelevant, the ‘objection’ that Ms Rahim had been working as a babysitter at the same time as she was working for the Centre. It was no secret that Ms Rahim was working as a babysitter at times she was not required to work at the Centre. Objection 5 is dismissed.

[24] On their face, a positive finding on any one of the other objections would prevent the Commission from determining Ms Rahim’s unfair dismissal matter as to its merits, as each objection is predicated either on Ms Rahim not being a person protected from unfair dismissal within the meaning of s 385 of the Act or on the basis that she was not dismissed at the initiative of the employer (s 386).

[25] That said, much of the material filed by both parties dealt with the merits of the matter. Given they were both unrepresented, this was perfectly understandable. However, it must be stressed that if this application survives the jurisdictional challenges, further proceedings will be necessary to determine whether the applicant's dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act and, if so, what, if any, remedy should be ordered by the Commission. I note that Ms Rahim does not seek reinstatement (s 390 of the Act) and seeks the maximum compensation under s 392 of the Act.

[26] These considerations can be put aside for the present. I now propose to consider and determine the Centre’s other objections.

[27] Section 385 of the Act defines what is an unfair dismissal:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[28] Section 385 is to be read in conjunction with s 382 of the Act, which defines when a person is protected from unfair dismissal as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[29] Section 386 of the Act is expressed in these terms:

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.

[30] There is no dispute that a Modern Award (the Children’s Services Award 2010 [MA000120]) covered Ms Rahim’s employment (s 382(b)(i)). As earlier noted, the Centre claims that Ms Rahim had not completed the minimum employment period, because she had commenced a new casual employment contract on 28 April 2015 and her employment ‘came to an end’ (to use a neutral phrase for present purposes) on 31 August 2015.

[31] Section 383 sets out the definition of minimum employment period and provides that for an employer, who is not a small business employer (the Centre is not such a business as it employed 19 employees at the relevant time), the period is six months ending at the time the person was given notice of dismissal or immediately before the dismissal (whichever is the earlier). As no notice was given that Ms Rahim was to be taken off the roster, as per the text message on 31 August 2015, it may be assumed that the Centre regards that date as the date of the termination of Ms Rahim’s employment. Ms Rahim certainly believes this date was the date of her unfair dismissal.

[32] At this point, it is necessary to dispel the Centre’s argument that Ms Rahim was not really dismissed and the 31 August text message was a roster related communication, which was the usual means of communicating between the Centre and Staff. I do not see how it could seriously be suggested, that taking an employee off the roster for unreliability, did not constitute a dismissal. It would be objectively clear to the ordinary bystander that Ms Rahim’s services were no longer required and she had been ‘sent away’.

[33] The truth of it was that Ms Cannon had an alleged reason (unreliability) for not offering Ms Rahim any more work and the reality was that is exactly what happened. In other words, Ms Rahim had lost her job and had been dismissed at the employer’s initiative (s 386 of the Act). Concluding the text message somewhat disingenuously with ‘All the best’ (see para [1]) was not only in bad taste, but is illustrative of the employer severing the employment relationship and not expecting to have Ms Rahim back. I find Ms Cannon’s characterisation of the SMS to be patent nonsense. She had absolutely no intention of offering Ms Rahim any future shifts; nor was there any offer by her to discuss Ms Rahim’s ongoing employment (which did not occur either). In my view, there can be no room to doubt that the text message of 31 August 2015 constituted Ms Rahim’s dismissal. Objection 1 is dismissed.

[34] Putting this aside, I am appalled that Ms Rahim was dismissed by text message. It was at best, inappropriate and, at worst, a gutless abrogation of an employer’s obligation to act reasonably and decently when ending an employee’s employment. While there may be circumstances where a face to face meeting or confidential letter of dismissal might be inappropriate (e.g. where the employee cannot be contacted at all or in some cases of serious misconduct), these cases are rare and constitute exceptions, rather than the rule. I respectfully agree with Commissioner Cambridge, who said in Sokolovic v Modestie Fashion Australia Pty Ltd (ABN: 671444920838)[2011] FWA 3063, at paras [56]-[57]:

‘[56] In this instance the notification of the reasons for dismissal was made by text message. I believe that this is an inappropriate means for notification of dismissal or reason(s) for dismissal. The employer suggested that text messaging was the most commonly used form of communication between the applicant and Ms Sarkis. There is of course no comparison that can be made between day to day communication about a variety of work and non-work-related matters, and advice of termination of employment.

[57] Mr Barwick said that it was “pretty appalling for an employee to be terminated by SMS”. In the absence of any compelling reason why dismissal would need to be communicated by any means other than direct face-to-face conversation, I am inclined to concur with the sentiments of Mr Barwick.’

See also: Kaye v Fahd & Ors[2013] FWC 1059 at para [139].

[35] It also seems to me that what is relevant here is that by all accounts, there were three differently characterised periods of employment. The three periods of employment were:

• from 10 June 2011 to 18 November 2013 as a casual employee;



• from 18 November 2013 to 28 April 2015, as a permanent part time employee;



• from 28 April to 31 August 2015 as a casual employee.

[36] There can be little doubt that Ms Rahim had offered no overt criticism or concerns at the time Ms Cannon reverted her employment to casual. She accepted it and worked according to being paid a casual loaded rate of pay for the days she worked. Ms Rahim later submitted that she was ‘coerced’ into the casual employment status and, when pressed in questioning, she said that she was concerned at having no work at all. That Ms Rahim had accepted her change of employment status, was exemplified by her comment in Exhibit 1: ‘Thus at the time I received the dismissal text on 14 August 2015 (actually 31 August) it may be implied that I was a casual employee.’ I acknowledge, of course, that Ms Rahim was on closedown leave from 7 December 2015 to 18 January 2015 and from 18 January to 6 March 2015, she was on unpaid personal leave, with medical certification.

[37] As I understand it, the Centre’s submission proceeds on the basis that the last period of casual employment, was less than six months, meaning that Ms Rahim had not completed the minimum employment period, provided for in s 383 of the Act. This submission is misconceived. I intend to elaborate.

[38] Section 384 of the Act is set out as follows:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

[39] It is apparent that s 384 of the Act draws a distinction between ‘period of employment’ and ‘period of service’. This distinction was explained in Shortland v The Smiths Snackfood Co Ltd[2010] FWAFB 5709 (‘Shortland v Smiths’), where the Full Bench of Fair Work Australia (as the Commission was then known), said at paras [10]-[13]:

‘[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury [endnote omitted].’

Shortland v Smiths remains the correct legal position; See also: Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[2010] FWA 2078; Grives v Aura Sports Pty Ltd [2012] FWA 5552; and Beeton v Toowoomba Community Housing Service Inc. T/A Toowoomba Community Housing[2013] FWCA 896, Ndege v World Gym Sunshine Pty Ltd [2013] FWC 3633 and Murray v Zinctech Cladding and Roofing[2016] FWC 2098 at paras [13]-[16].

[40] This being the case, it is necessary for me to be satisfied that the preconditions in s 384 have been met. In reviewing the rosters provided by the Centre it seems obvious that Ms Rahim was available for work in her last period of employment and was offered work by the Centre. She worked at least one day a week, sometimes two and once three days:

• Week beginning 1 June: Friday.



• Week beginning 8 June: Monday and Friday.



• Week beginning 15 June: Monday and Friday.



• Week beginning 22 June: Wednesday and Friday.



• Week beginning 29 June: Monday and Friday.



• Week beginning 6 July: Friday.



• Week beginning 13 July: Monday and Friday.



• Week beginning 20 July: No record.



• Week beginning 27 July: No record.



• Week beginning 3 August: Wednesday and Friday.



• Week beginning 10 August: Monday, Wednesday and Friday.



• Week beginning 17 August: Not rostered.



• Week beginning 24 August: Not rostered.

[41] In my view, this pattern of weekly work was not occasional or irregular. It no doubt mirrored Ms Rahim’s rosters during her permanent part time employment between November 2013 and 7 December 2014 (the commencement of the Christmas/New Years’ closedown), where she worked between 7.5-22.5 hours a week. I was not provided with roster records for the earlier period of casual employment June 2011 – 18 November 2013. However, it may be presumed that given Ms Cannon’s evidence as to Ms Rahim’s reliability (at least to 6 March 2015), that similar hours were likely to have been worked during that time. In any event, I need not take into account the first period of employment, because I am satisfied that when taken together, her period of service of part time employment and her third period of service as a casual employee, well exceeded the minimum employment period of six months, in accordance with s 382 of the Act.

[42] As to Ms Rahim’s expectation of ongoing employment at the Centre, she would hardly have communicated with the Centre in February/March 2015 if she had no expectation of ongoing employment when her health and visa issues had been resolved; a fortiori, given that Ms Rahim had worked in the Centre for over four years, apparently without any complaint from management, until around April 2015. Accordingly, I am satisfied that Ms Rahim’s period of service as a casual was regular and systematic. These two periods constituted a continuous period of employment of at least one year and ten months. Objections 3 and 4 are dismissed.

[43] Lastly, I shall deal with the notion that Ms Rahim had ‘voided her contract’ by abandoning her employment during the period of 6 March – 28 April 2015. For the following reasons, I consider such a submission to be misconceived. Moreover, it was unsupported by the Centre’s own evidence.

[44] Firstly, I know of no concept at common law or statute law of ‘voiding one’s employment contract’ (I consider that ‘voiding a contract’ is more akin to voiding a commercial warranty for a washing machine by attempting to repair it yourself). However, it is possible that Ms Cannon may have actually meant that Ms Rahim had ‘repudiated her employment contract’. If this is so, I draw Ms Cannon’s attention to Carol Sappideen et al, Macken’s Law of Employment (Thomson Reuters (Professional) Australia, 7^th Ed, 2011) at 8.430, where reference is made to Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61, a judgment of the High Court, in which it was said that repudiation is ‘sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfill it only in a manner substantially inconsistent with the party’s obligations.’ I am unable to identify any such conduct by Ms Rahim in this case. In my view, Ms Rahim had not taken any steps or engaged in any conduct which had the intention of ‘voiding’ (or repudiating) her own employment contract. Indeed, quite to the contrary. The evidence was that Ms Rahim was regularly keeping the Centre up to date with her health and visa problems, despite Ms Cannon, rather off-handedly suggesting, that she could not recall receiving such emails. This was at odds with Ms Cannon’s own claim that all staff communicated with the Centre by email and Facebook. In this respect, Ms Cannon’s lack of recall was disingenuous. There was an exchange of text messages on 11 March 2015 as follows:

Ms Rahim

10:43am:

Hi Jacqui, are you free for coffee or lunch today?

Ms Cannon

11:13am:

Hi Zarina. Not today. I didn’t know you were in the country. I need to have a work related meeting with you.

Ms Rahim

11:14am:

I came in yesterday and I have to leave tomorrow’s flight coz immigrations will not proceed with my visa processing when I’m in d country.

Ms Rahim

11:16am:

I just got the email from them yesterday and went to the immigrations office three times yesterday but no help there.

Ms Rahim

11:19am:

If there’s no more work for me Jacqui just let me know I understand . if you want me to see you at the office I can but I hv to attend a lecture 12.30-2.30 then a lab 5.30-7.30, so anytime between the two I can

Ms Cannon

11:30am:

It’s not about there being no work it’s about your contract of employment [my emphasis].

[45] Secondly, from the 11 March 2015 email exchange set out above, it is obvious that Ms Cannon, at least at that point, knew of Ms Rahim’s difficulties and had no trouble in communicating with her. Even accepting that this was an appropriate means of communication, it beggars belief that she would wait until 28 April 2015 before confronting Ms Rahim by email about her ongoing employment and telling her that the Centre believed she had abandoned her employment. Ms Cannon had merely said that they needed to discuss her contract of employment. Nowhere in this exchange is there any reference to Ms Rahim ‘voiding’ her contract. Indeed, on one view, there is a clear implication of ongoing work. Ms Cannon said she had mentioned Ms Rahim ‘voiding her contract’ in this exchange. This was untrue. I am perplexed by Ms Cannon’s ‘stretching the truth’ about the intention of this email interchange. She said in her evidence:

‘Between the 6th of March and the 16th of April, Ms Rahim abandoned her employment, providing no contact or information for her absence. Within the broader context of a text message interaction on the 11th of March 2015, about Ms Abdul Rahim’s whereabouts, I indicated that she had voided her contract due to her non-attendance at work (Evidence :4) During a conversation with Ms Rahim, on her “return”, I highlighted the fact that she had voided her work contract due to her abandonment of employment; (Evidence : 2) indicates the extended time between work attendances [emphasis as in original].’

[46] Thirdly, rather than accepting the ‘voiding’ or repudiation of her contract, Ms Cannon did the opposite. She proposed that Ms Rahim remain engaged by the Centre on a casual basis. I am unable to reconcile the conflict as to whether this was at Ms Rahim’s request; although given Ms Cannon’s evidence that Ms Rahim’s permanent part time employment was a ‘mistake’, it seems probable that the proposal came from Ms Cannon. In my opinion, it was not open to continue to rely on Ms Rahim’s services for four months and, when it suited the Centre in late August 2015, to then claim she had abandoned her employment in March or April 2015.

[47] Fourthly, it seems rather curious that it was not until Ms Rahim returned to work on 28 April 2015, that Ms Cannon raised with her the notion of ‘voiding her contract’. It was surely incumbent on Ms Cannon to have warned Ms Rahim beforehand and ask her to explain her absence. Objection 2 is dismissed.

[48] For the aforementioned reasons, I dismiss the Centre’s jurisdictional objections to this application. I am satisfied that Ms Rahim is a person protected from unfair dismissal, pursuant to s 382 of the Act and that she was dismissed at the initiative of the employer (ss 385 and 386). I propose to list this matter for further Directions as to whether the dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act and, if so, what, if any remedy, should be ordered by the Commission.

[49] However, given the relatively modest income earned by Ms Rahim in the previous six months prior to 31 August 2015, taking into account her earnings as a babysitter ($200 a week) and considering the Committee’s response to her grievance (see para [10]), I strongly recommend that the parties engage in negotiations to settle the claim before the listing. Unless otherwise advised, the matter will be listed for mention and directions by telephone, on Monday 9 May 2016 at 12:30pm AEST.

DEPUTY PRESIDENT

Appearances:

Applicant in person with Ms B Wyatt.

Ms J Cannon and Ms D Pino-Pasternak for the respondent.

Hearing details:

2016,

Perth:

22 February.

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578813>