[2022] FWC 2537
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Donna Byles
v
Retailcorp Pty Ltd
(U2022/5422)

COMMISSIONER SIMPSON

BRISBANE, 20 OCTOBER 2022

Application for an unfair dismissal remedy – jurisdictional objection – was the applicant dismissed – where the Applicant was unfairly dismissed – compensated awarded.

[1] On 16 May 2022, Ms Donna Byles (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Retailcorp Pty Ltd (the Respondent).

[2] On 14 June 2022, the Respondent filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that the Applicant had not been dismissed.

[3] As the matter could not be resolved by conciliation, directions were issued for the filing of material and the matter was listed for hearing on 8 September 2022 to determine the jurisdiction and substantive merits of the application.

[4] At the hearing, the Applicant appeared on her own behalf. The Respondent sought to be represented by a lawyer or paid agent, which the Applicant did not oppose. Permission was granted for Ms Fiona Stanton from Francis Burt Chambers to appear for the Respondent.

[5] It was not in contest in the proceedings that the Respondent had only 5 employees and on that basis the Small Business Fair Dismissal Code (the Code) applies. The Respondent did not raise the Code as a jurisdictional objection prior to the hearing, which is understandable in circumstances where the Respondent’s primary position is that there was no termination of employment at the initiative of the Respondent, however the Commission is still required to deal with the matter before determining the merits. I invited submissions on the issue before the conclusion of the hearing.

[6] The Respondent submitted in closing that its submissions cover issues in relation to the Code as a summary dismissal was warranted. I will address this separate jurisdictional issue below.

Background and Evidence

[7] The Applicant filed two sets of material on 10 August 2022 which were adopted as her evidence. 1 The Applicant filed another document on 23 August 2022 which she titled her response to the Respondent’s submissions, and responses to the witness statement of Mr Cherniakov. There were also separate documents on pages 36 to 39 of the Court Book. The material on pages 28 to 39 of the Court Book was admitted into evidence as one document.2 These two sets of documents described above were admitted as the Applicant’s evidence in chief.

[8] Mr Cherniakov provided a witness statement 3 dated 12 August 2022 and he adopted it as his evidence.

[9] On 19 January 2016, the Applicant commenced employment with ‘Concrete Taxi’ as a scheduler based in Banyo, Queensland.

Respondent purchases business July 2020

[10] Concrete Taxi was purchased by the Respondent, owned by Mr Paul Cherniakov in July 2020. The Applicant signed an employment agreement given to her by Mr Cherniakov and was from there on employed by the Respondent after the transfer of employment. In his witness statement dated 12 August 2022, Mr Cherniakov stated that the Respondent provides staff to Onsite Mix Pty Ltd as trustee for Onsite Mix Trust trading as Concrete Taxi.

[11] The Respondent is engaged in the business providing concrete at construction sites. Customers of the Respondent telephone the Respondent’s call centre to order concrete. The telephone ordering service operates from 6:00am to 6:00pm on Monday to Friday, and from 7:00am 2:00pm on Saturday. If a customer calls to order concrete, a call centre contact specialist relays orders for the provision of concrete to truck drivers, who are on standby. The truck driver then delivers the concrete requested to the customer’s construction site. The Applicant worked for the Respondent as a call centre contact specialist.

Applicant’s position reduced from Full-Time to Part-Time 3 days per week

[12] According to the Applicant, in October 2020, she was advised by Mr Cherniakov that he intended to hire a new full-time employee to manage the Respondent’s accounts. He also advised that as there were not enough accounts to occupy a full-time employee, the new employee would also help out at the call centre two days a week. Mr Cherniakov informed the Applicant that he would be taking two days a week off her work schedule to ‘give’ to the new employee, effectively making the Applicant a part-time employee. The Applicant told Mr Cherniakov that this change would be extremely difficult for her financially, as she was a sole parent with a school-aged child. Mr Cherniakov allegedly advised the Applicant that the Respondent did not have enough money in the marketing account to pay both the Applicant and a new person as full-time employees, but he would reconsider the Applicant’s position when the business picked up.

[13] The Applicant confirmed during her oral evidence that she was employed on a full-time basis at the time the Respondent took over the business and several months later she changed to a part time role working Monday Tuesday and Wednesday. The Applicant said she worked Tuesday Wednesday Thursday to accommodate ‘Lana’ and that happened at some point before Christmas 2021. The Applicant said at the time of her termination her regular days were Monday, Tuesday, Wednesday and she would sometimes work Thursdays to accommodate ‘Lana’.

[14] The Applicant agreed the Respondent’s call centre worked Monday to Friday 6am to 6pm and Saturday 7am to 2pm. The Applicant accepted the business was busy when she was working for the Respondent.

[15] The Applicant agreed the call centre operator had to know how to convey and order and involved scheduling including how long it may take to get to a job, and how long a job might take. The Applicant accepted that a person could not just walk into the job.

[16] The Applicant agreed ‘Lana’ was doing three to four shifts per week. The Applicant did not accept that she regularly worked four days a week. The Applicant said occasionally she got an extra shift, however when ‘Lana’ went on placement she got more shifts.

[17] It was put to the Applicant that her average hours were about 30 per week and she disagreed. The Applicant agreed sometimes there were three or four call centre workers rostered on.

[18] The Applicant submitted that after her employment was changed to three days a week, she supplemented her income and redrew on her mortgage. The Applicant submitted that she believed Mr Cherniakov when she said he told her that when the business picked up, he would reinstate her to at least four days a week. The Applicant submitted that although the business had increased considerably, and she has asked on a number of occasions to be re-instated to at least four days a week, Mr Cherniakov had consistently refused.

[19] The Applicant submitted that she has always been an extremely hardworking, efficient, punctual, and loyal employee. The Applicant said after her workdays were cut by Mr Cherniakov, she would often change her days to accommodate other people and would fill in when other employees took leave.

[20] The Applicant submitted that she loved her job and intended to work there for many years to come. The Applicant submitted that every time an employee left, she would ask Mr Cherniakov if she could work four days a week instead of three days a week. The Applicant submitted that Mr Cherniakov rejected her every time and stated he would look at the situation again when the business picked up.

December 2020 new full-time employee commences

[21] Just prior to Christmas 2020, a new full-time employee commenced working for the Respondent. The Applicant stated that the employee only stayed for a few months before resigning. The Applicant alleges that her co-worker, ‘Sue’, asked Mr Cherniakov if he would allow the Applicant to work four days a week now that the new person had resigned, and business had picked up. The Applicant alleges she was told by ‘Sue’ that Mr Cherniakov said ‘no’ because he was hiring another person.

April 2022 Lana advises she intends to resign and reduces work days

[22] Sometime prior to 27 April 2022, one of the Applicant’s colleagues, ‘Lana’, advised the Respondent that she intended to resign as soon as she could find a job in the field for which she was studying. ‘Lana’ had been working four days a week for the Respondent, in addition to attending university two days a week. ‘Lana’ advised the Respondent while she looked for a new job, she was going to commence placement as part of her university degree. Accordingly, she would no longer be able to work four shifts a week for the Respondent, and could only work two days a week on Fridays and Saturdays. The Applicant alleges that at this point, ‘Sue’ had become the officer manager for the Respondent, and offered the Applicant an extra day’s work on Thursdays temporarily. The Applicant alleges that ‘Sue’ told her that this additional work was temporary, because Mr Cherniakov intended to hire a new person to replace ‘Lana’. When the Applicant asked ‘Sue’ why Mr Cherniakov didn’t just hire a new person to work three days a week, so the Applicant could work more, ‘Sue’ said that Mr Cherniakov wanted to hire someone new to work four days a week.

[23] The Applicant alleges that at some point prior to 27 April 2022, Mr Cherniakov called her and asked if she could cover ‘Lana’s’ shifts until he could find a replacement. The Applicant told Mr Cherniakov that she would help where she could, but that she was actively looking for a second job to supplement her income whilst working three days a week for the Respondent. The Applicant alleges that Mr Cherniakov told her to let him know if she couldn’t fill any of ‘Lana’s’ shifts. The Applicant asserted that at this point, it became apparent to her that Mr Cherniakov was never going to give her permanent extra shifts (in other words, restore her full-time employment).

[24] The Applicant said that whilst looking for a second job, the Applicant happened upon an advertisement for a full-time call centre contact specialist to work the morning shift. The Applicant said she believed this was her job which was being advertised, because she did the morning start.

[25] The Applicant accepted in cross examination that by April 2022 she knew ‘Lana’ was studying to be a nurse, and that by 27 April ‘Lana’ would be leaving the employment of the Respondent. The Applicant accepted that another employee would need to be hired to replace ‘Lana’. However, the Applicant did not agree that the advertisement she saw was to fill Lana’s role and believed it was to fill her role.

[26] It was put to the Applicant that she would not have been surprised to see an advertisement for a role and the Applicant said she would not be surprised to see an advertisement for a part time role, but it was full time. The Applicant said the advertisement was for a full-time morning shift.

[27] The Applicant was referred to a text message sent to her from Mr Cherniakov which said to her that ‘Lana’ was leaving and the Applicant’s hours would not change. It was put to the Applicant the ‘Recutran’ advertisement had nothing to do with the Respondent and she had nothing to worry about. The Applicant said she did not believe Mr Cherniakov.

Text messages exchanged between the Applicant and Mr Cherniakov

[28] The Applicant sent the link to the advertisement she had discovered to Mr Cherniakov in a text in the evening of 27 April 2022. This triggered a series of text messages being exchanged between the Applicant and Mr Cherniakov that evening and into the next day. Screenshots of the text messages exchanged between the Applicant and Mr Cherniakov were tendered as evidence. They are summarised below however it needs to be noted that the third last and second last messages set out below are the subject of a factual dispute. The Applicant maintains that she received the third last message set out below from Mr Cherniakov, whereas Mr Cherniakov disputes that he ever sent that text message and instead produced in his evidence a different message which he claims to have sent the Applicant, and the Applicant claims she did not receive from Mr Cherniakov.

Paul Cherniakov: (Cherniakov version claimed to be sent at at 11.31am 28 April)

[29] Mr Cherniakov gave evidence that he did not respond to the final text message from the Applicant.

Unavailability for work on 28 April

[30] It was put to the Applicant that the business often gets calls from customers cancelling and changing orders, particularly between 6am and 8am. The Applicant said it happens all day and between 6am and 8am this happens sometimes. The Applicant accepted only one person is rostered on between 6am and 8am. The Applicant said there was someone there to answer on the day.

[31] It was the Applicant’s evidence that she gave notice she would not be doing the shift at 6am on 28 April.

[32] The Applicant was asked if the text message she sent to Mr Cherniakov saying she had another part time job was true. The Applicant said yes, and that it was the IGA job.

[33] The Applicant was asked about when this message was sent. An adjournment was granted in order for the Applicant to attempt to determine from her mobile phone the time the message was sent. After the adjournment the Applicant gave evidence that she sought some assistance from an IT person who indicated that the message at page 22 of the Court Book was sent by her at 7.42pm. It was not in dispute that the message that started “Hi Donna. I’ll Have to look into this tomorrow..” was sent in response shortly after.

[34] Mr Cherniakov gave evidence that at 7.49pm the Applicant texted back saying “Ok if you have to look into it tomorrow then I’m having the day off. Thanks goodnight.” The Applicant accepted that she sent this message back around that time.

[35] The Applicant was asked whether at 8.03pm Mr Cherniakov sent her the message that said, “Donna if this is your resignation, you must give us a 4 week notice.” The Applicant accepted that the message was sent that night but gave evidence that she did not see this message until the following morning. It was put to the Applicant that she deliberately ignored the last text message from Mr Cherniakov asking her if she was resigning and she rejected that, saying she went to bed.

[36] It was put to the Applicant that her actions would cause Mr Cherniakov to have to find someone to fill the shift at 6am the next day. The Applicant said words to the effect that it was not that hard. The Applicant said everybody knows how to do it, and it is not different to if she is unwell. It was put to the Applicant that she decided not to go to work the next day to inconvenience her employer. The Applicant rejected that claiming she was very upset and would be unable to function properly.

[37] It was put to the Applicant there was no reason for her to be upset and the Applicant disagreed, maintaining she did not believe Mr Cherniakov that her job was safe. The Applicant did not attend for work the next day, being 28 April. The Applicant said she got up in the morning to make sure someone was there, and that Sue was there. The Applicant said she called Sue around 6am or a few minutes before 6am. The Applicant said the Respondent’s phone runs through the internet, and she logged on and saw her initial there, so she rang Sue from a landline that runs through the internet.

[38] It was put to the Applicant that there was not a record of her having called ‘Sue’ on the morning of 28 April 2022. The Applicant said if there is no record she may have called ‘Sue’ from her own phone. The Applicant was asked to check her phone for the call record of 28 April. The Applicant said on checking her own phone there was no record of having called Sue from that phone at the relevant time. The Applicant said it must have been from the work phone.

[39] Mr Cherniakov said he checked the Respondent’s records and there was no record of the Applicant making any calls to the Respondent from the Applicant’s mobile or work phone at the relevant times.

[40] The Applicant accepted she did not contact Mr Cherniakov until 11.21am on 28 April, when she sent the text stating that her text the previous evening was not a resignation. The Applicant agreed that she was saying that she couldn’t do the extra shifts as she had another job.

[41] It was put to the Applicant that she only gave 14 hours of notice and that was not sufficient notice, and the Applicant maintained that it was. The Applicant said it obviously was as someone showed up.

[42] I asked the Applicant how long she knew she was rostered on for that Thursday 28 April, and she said Mr Cherniakov had rung her a couple of weeks earlier and asked her if she could cover all of Lana’s shifts and the Applicant maintained that she told Mr Cherniakov she could at that point but she had applied for another position and if she was successful she wouldn’t be able to do it and the Applicant maintained that Mr Cherniakov said that was okay. The Applicant continued to maintain that she was not up to working the shift on Thursday 28 April.

[43] I asked the Applicant if she was being paid ordinary time or overtime for these additional shifts and she said ordinary time. The Applicant said Mr Cherniakov knew she was looking for another part time job. The Applicant said the additional job was always meant to be an additional job to supplement her income.

[44] Mr Cherniakov said he checked payroll records and that on average from 1 July 2021 to 27 April 2022 the Applicant worked just over 30 hours per week which is four shifts per week.

[45] I asked Mr Cherniakov about the Applicant’s evidence that her rostered shifts were Monday, Tuesday and Wednesday and she worked extra shifts when required. Mr Cherniakov said the hours were largely determined by the employees. He said there was an understanding that the Applicant would be filling in for staff that may be away for example someone on holidays or who was sick, or in Covid isolation. Mr Cherniakov said she was working four days per week on average including in the weeks immediately before her resignation.

[46] The Applicant asked Mr Cherniakov why he would not give the Applicant four days per week on a permanent basis and kept hiring new people such as ‘Skye’ or ‘Katie’. Mr Cherniakov said the persons the Applicant was referring to perform accounts functions and the Applicant is not qualified to do that work.

[47] I said to Mr Cherniakov that under the Modern Award a permanent part time employee is entitled to know the days and hours of the week they are rostered to work and I asked what the Applicant’s fixed days were. Mr Cherniakov said it may have changed throughout the course of her work however he believed in 2022 it was Monday, Tuesday ,Wednesday, however in the weeks preceding 27 April she was also working Thursdays and or Fridays as they had a staff member away.

[48] Mr Cherniakov said that initially he thought as the Applicant had not provided notice, and therefore he was entitled to withhold notice pay, however he had since discovered he is only entitled to withhold one week of pay and he has paid the Applicant difference.

Dispute over particular text message

[49] The Applicant was asked about the text message she alleged that she received that started with the words “Yeah she ubderstands now….”. The Applicant was asked how she was looking at the text message and she said that an IT person who she pays sent the text from her phone to his phone and she didn’t know how but he sent it to the Applicant’s computer.

[50] The Applicant was also referred to the text message attached to the statement of Mr Cherniakov that reads as follows:

“Donna I explained to you yesterday that your days and hours will not change. The Ad you were referring to was to replace Lana’s job and not yours, as previously mentioned. Despite this, you did not come to work today, which as you would know is a huge inconvenience for the team. My understanding from your text, and absence today is that effective immediately you have resigned. We have now organised for someone to do your shifts, that were allocated to you.”

[51] The Applicant agreed that the words, “immediately you have resigned” appear at the bottom of the message the Applicant claimed to have received. It was put to the Applicant that she had edited Mr Cherniakov’s text message. The Applicant vehemently denied this and said she would not even know how to do it.

[52] The Applicant was asked by reference to her phone what time she said the message came from Mr Cherniakov. The Applicant said 11.31am on 28 April. The Applicant agreed she put her finger on the message and three little dots came up and she received a message that said 11.31am. The Applicant did not know how to make a screen shot of the message. It was put to the Applicant that Mr Cherniakov does not have that message on his phone and has metadata on his phone that shows he sent the message that he said he sent.

[53] It was again put to the Applicant that she tampered with the message, and she again rejected that saying that is the message she received. It was put to her that the reason she did it was because she didn’t want the Commission to see the message saying her job was never in jeopardy, and also because she caused a significant inconvenience to the Respondent. It was also put that she meddled with the message because she wanted to show the Commission that Mr Cherniakov wanted to get rid of her. The Applicant denied these suggestions and insisted the message she received from Mr Cherniakov was the message she had produced.

[54] It was put to the Applicant that there was no one called ‘Sally’ who worked for the Respondent. The Applicant said there was. It was put to her that if someone comes in for 1 day in July 2020 it would not be surprising that Mr Cherniakov would not remember them. The Applicant said she (Sally) was Mr Cherniakov’s friend.

[55] It was put to the Applicant that the message she provided is not characteristic of how Mr Cherniakov writes. The Applicant maintains that Mr Cherniakov gets others to write the messages.

[56] Mr Cherniakov was referred to his witness statement at pages 61 and 62 of the Court Book and the times that text messages were sent and received between himself and the Applicant. Mr Cherniakov said he found out those times by looking at the messages on his phone and when they were sent and received. Mr Cherniakov was referred to the text message that the Applicant claimed that he sent to her on pages 26 and 27 of the Court Book. He said in his oral evidence he did not draft that message however the last couple of lines appear to be from a text he did send to the Applicant.

[57] The Applicant put to Mr Cherniakov that she did receive the message and that it came from him where he was referring to ‘Sally’. Mr Cherniakov said he did not know anyone called ‘Sally’, and she did receive the message from him on her phone.

Applicant’s view that Mr Cherniakov wanted to get rid of her

[58] The Applicant agreed that she was not paid more than others. It was put to the Applicant that there was no reason for Mr Cherniakov to want to get rid of her. The Applicant responded that the fact that he had chopped her days back goes to show what he thinks of her. The Applicant said she did not know why he would want to dismiss her however she also did not know why he would want to cut her hours back.

Further communication from Mr Cherniakov

[59] The Applicant said over the following days, Mr Cherniakov left the Applicant a voicemail and sent an email advising the Applicant that she had resigned and asking her to return the IT equipment and office key as soon as possible. The Applicant said she was advised by ‘Sue’, the Respondent’s office manager, that she was going to disable the Applicant’s sign in codes, because Mr Cherniakov told ‘Sue’ that she had resigned. The Applicant submitted that she sent another text and an email to Mr Cherniakov re-iterating that she had not resigned. The Applicant said she did not receive a response.

Commencement of New Role at IGA on 17 May 2022

[60] The Applicant was asked about her evidence saying she commenced a casual position on 9 May. The Applicant corrected this date in her oral evidence and said she started work on 17 May. The Applicant made clear that she sought compensation for the period from 28 April up until 17 May when she started her new employment.

[61] The Applicant’s Form F2 Application filed on 16 May 2022 said that she was unemployed. The Applicant was cross examined about a statement she made in a document filed on 10 August appearing at page 19 of the Court Book. The statement said as follows:

“I am currently unemployed and have no income. It is a difficult financial time for me and one that I believe is not my fault. I have been an extremely hardworking, efficient, punctual and loyal employee. I believe that by dismissing me Paul has been extremely unfair to myself.”

[62] It was put to the Applicant that this statement was untrue at the time the document was filed. The Applicant said she thought the document was sent earlier. The Applicant accepted that she got that wrong and said she was unemployed from 28 April to 17 May.

[63] It was put to the Applicant that it was not until the Respondent asked her to produce payslips that she provided the information and didn’t volunteer it, and she had not corrected the error herself. The Applicant repeated that she had just got it wrong. The Applicant accepted that she initially resisted producing the payslips, however she did not accept that she attempted to hide that she had other employment.

[64] The Applicant said she attempted to gain other employment with IGA several weeks before 27 April 2022. The Applicant said IGA rang her and asked her if she was interested. The Applicant said her son works at IGA and he suggested she could get work at IGA.

[65] The Applicant said she had a conversation with ‘Todd’ at IGA and she thought from this conversation that she had the job at IGA. The Applicant said they had not set upon a time for her start. The Applicant’s evidence was ‘Todd’ said he would be in touch however she expected it would be very soon. The Applicant said his son is a retail assistant at IGA and she did speak to her son about when she may start at IGA.

[66] The Applicant said she believed it was approximately three weeks between talking to Todd and commencing her new role. There is some disparity about these dates however I am satisfied that the Applicant commenced her new role on 17 May 2022. The Applicant gave evidence that it was her son that told her on 16 May that she had a shift at IGA the following day.

Consideration of jurisdictional issues

[67] Before I determine whether the dismissal was consistent with the Code or whether Applicant was unfairly dismissed, I must first determine whether the Applicant was indeed dismissed at all.

[68] On the meaning of “dismissed”, s.386 of the Act provides:

“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

(iii) 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.”

[69] The Respondent submitted that the Applicant’s employment was not terminated at the initiative of the employer, but rather, that the Applicant’s conduct on 27 and 28 April 2022 constituted a resignation from her employment. The Respondent submitted that the Applicant resigned because she had secured alternative employment.

[70] The Respondent submitted that an employer is entitled to reply upon unambiguous words or statements of resignation. 4 If words of resignation are expressed ‘in the heat of the moment’ or ‘under extreme pressure’ an employer may be found to have a duty to clarify or confirm the resignation with the employee.5 It must be apparent to the employer that the resignation had been given ‘in the heat of the moment.’6 The Respondent specifically referred the decision of Ngo v Link Printing Pty Ltd,7where it was found in the first instance and on appeal that Mr Ngo’s employment had not been terminated at the initiative of the employer, and that, if Mr Ngo’s resignation had been given in the heat of the moment, it was not retracted sufficiently swiftly, such that Mr Ngo was not entitled to withdraw his resignation the next day.

[71] The Respondent noted that at the time of the Applicant’s resignation, the Applicant and Mr Cherniakov were communicating via SMS. Therefore, Mr Cherniakov could not ascertain visual or aural cues that might have revealed the Applicant’s emotional state.

[72] The Respondent submitted that Mr Cherniakov had no reason to suspect that the Applicant was distressed on the evening of 27 April 2022. While the Respondent discerned that the Applicant’s texts were rude, demanding, impatient and unreasonable, she was not obviously distressed. The Respondent asserted that Mr Cherniakov had reassured the Applicant that her job was safe and undertook to look into her query about shifts the following day. The Respondent submitted that there was no reason for the Applicant to remain concerned about her days of work after receipt of that message. The Respondent suggested that it was apparent from both the terms and the immediacy of Mr Cherniakov’s response that he was seeking to preserve the Applicant’s employment to avoid any risk of the Applicant resigning in order to take up the alternative employment she had apparently secured.

[73] The Respondent submitted that despite Mr Cherniakov’s reasonable and reassuring SMS, the Applicant sent a reply that made clear that she was not going to come to work for her scheduled shift the next day. The Respondent asserted that the Applicant’s response, coupled with her initial message, should objectively be regarded as an unequivocal resignation.

[74] The Respondent noted that Mr Cherniakov immediately sought to confirm that the Applicant meant to resign, and to inform her that if she did mean to resign, she was required to give 4 weeks’ notice. The Respondent submitted that it was imperative that he discovered immediately whether the Applicant was giving four weeks’ notice of resignation, given the critical function of the Applicant’s role. The Respondent submitted that Mr Cherniakov did not receive a response, and the Applicant’s last text was sent at 7:49pm. The Respondent submitted it had no option but to seek a replacement for the Applicant on an urgent basis.

[75] The Respondent submitted that Mr Cherniakov did not hear from the Applicant again until 11:17am on 28 April 2022, well after the commencement of her scheduled shift, when the Applicant sent a text claiming that she had not resigned. By that time, Mr Cherniakov had, out of necessity, acted on the Applicant’s resignation and secured a new employee to replace her.

[76] The Respondent in closing oral submissions emphasised that the test for the purposes of section 386(1) is an objective one and restated its argument put in written submissions. The Respondent submits that the combination of factors viewed objectively amounts to a resignation.

[77] The Respondent submits that if it was true that the Applicant engaged with ‘Sue’ at 6am on the morning of 28 April, it would be expected she would have seen the text message from the previous evening from Mr Cherniakov. The Respondent submits that it is open to find that Applicant ignored the message of Mr Cherniakov. The Respondent submits Mr Cherniakov proceeded to find another person for the following morning.

[78] The Respondent submits there was a resignation, and that the email at 11.17am the next day was too late to retract the resignation.

[79] The Applicant strongly refuted the Respondent’s allegation that she resigned. Rather, she submits that she told Mr Cherniakov that she was unable to fill the extra shift on 28 July 2022 because it was not her shift and she needed to attend to personal matters. The Applicant noted that she told Mr Cherniakov via SMS that that she did not resign.

[80] The Applicant believed that Mr Cherniakov had wanted to dismiss her for some time, referring to the disputed text message which she believes was accidentally sent to her by Mr Cherniakov.

[81] To further support her allegation that Mr Cherniakov wanted to dismiss her, the Applicant referred to a previous conversation she had had with the Respondent’s former office manager, ‘Kyle’. The Applicant submitted that ‘Kyle’ told her he had worked for Mr Cherniakov for some time, during which Mr Cherniakov had purchased and sold several businesses. ‘Kyle’ allegedly told the Applicant that the first thing Mr Cherniakov does after a purchase is to determine who has worked there the longest. ‘Kyle’ allegedly said that older people and people who are paid well are always the first to go. ‘Kyle’ allegedly said it’s always about profitability, and young people are often paid substantially less. The Applicant did not call ‘Kyle’ as a witness.

[82] In closing oral submissions, the Applicant said that she did not resign, and having one day off because she was upset about the advertisement is not resigning, and the fact that Mr Cherniakov had her sign-in codes disabled and demanded the return of the office key and IT equipment made it impossible to return. The Applicant submitted that Mr Cherniakov did not go to much trouble to find out if she had resigned.

[83] I am not satisfied that the evidence establishes that the Applicant resigned from her employment. The evidence supports the conclusion that Mr Cherniakov was aware for some time that the Applicant had wanted to have an ongoing permanent part time role of four days per week as opposed to the existing arrangement of three days with additional days when available.

[84] The text message sent by the Applicant on the evening of 27 April where she advised she has another part time job and could not cover for ‘Lana’ anymore, when viewed in the full context of the evidence, including the Applicant having had her hours previously reduced from full time to part time, and her stated desire for a permanent four days, was sufficiently clear in attempting to communicate to her employer that she no longer wanted to cover the additional shifts when required, if the Respondent was not prepared to commit to additional minimum permanent part time hours on an ongoing basis. The Applicant was a permanent part time employee, not a casual.

[85] It was not reasonably open on the evidence before the Commission to accept that the Applicant was foreshadowing that she intended to resign from her employment if the Respondent did not agree to give her four days a week on a permanent basis.

[86] There is no dispute in the evidence that the Thursday shift on 28 July was not part of the Applicant’s ongoing permanent part time minimum hours, which it was accepted were Monday, Tuesday and Wednesday at the relevant time. The Thursday shift was someone else’s shift that she had been asked to cover on a temporary basis a few weeks earlier.

[87] The Applicant’s position is fortified by her confirmation on the morning of 28 April that the text messages from the previous evening were not a resignation. The Applicant’s evidence that Mr Cherniakov had told her previously to let him know if she could not fill one of ‘Lana’s’ shifts was not contested.

[88] I reject the Respondent’s argument that it is open to find the Applicant resigned because she had found other employment. The evidence disclosed that while the Applicant was of the view at the relevant time that she would be employed by IGA, it was not her intention at the relevant time to resign based on the potential new IGA role. The evidence supports the conclusion that the Applicant intended for the IGA role to supplement her existing employment with the Respondent, because she had been unable to secure additional permanent ongoing hours with the Respondent and needed to earn more income.

[89] I am also not persuaded by the Respondent’s argument that the Commission should not find that the Applicant was distressed by the advertisement because she knew her role was secure, and because she knew the advertisement was to replace ‘Lana’s’ role. I am inclined to accept the Applicant’s evidence that she was distressed because she believed, it would appear from the evidence incorrectly, that the advertisement was directed to eventually replacing her with someone else.

[90] This is not a case where I am inclined to prefer one witnesses evidence over the others in relation to credit. I found both the Applicant and Mr Cherniakov to be credible witnesses. I am inclined to accept Mr Cherniakov’s explanation concerning the Respondent seeking to find another employee to fulfil the functions Mr Cherniakov described in his evidence as being required by the Respondent, and that the Respondent was not intending to replace the Applicant.

[91] Unfortunately, because a decision had been taken to reduce the Applicant’s hours at an earlier point in time from full-time to part-time, and further that the Applicant did not understand why the Respondent had not agreed to increase her hours when other employees had left the organisation, the Applicant had formed a genuine subjective belief, incorrect as it was in my view, that the Respondent was not well disposed toward her, or toward continuing to employ her in the longer term. I do not accept that the Applicant’s view was accurate, but I do accept she believed it to be true.

[92] There was some cross examination of the Applicant about her not responding to Mr Cherniakov’s text message asking her if she was resigning on the evening of 27 April. The Applicant said she did not see the message until the following day. Whilst it is possible that the Applicant ignored the message until the following day as was submitted, I have not been persuaded that it is probable. I found the Applicant generally to be attempting to answer questions put to her truthfully and as best she could. I am more inclined to believe the Applicant went to bed as she said she did and did not see the message until the next day. Even if I am wrong about that, it does not alter the outcome as even if the Applicant did decide to not respond to the text of Mr Cherniakov querying whether the Applicant was resigning, the delay in the Applicant responses until the following day was not a proper basis for the Respondent to conclude that because it had not received a timely response the Applicant had in fact resigned.

[93] I agree with the Applicant’s closing submission that having one day off because she was upset about the advertisement is not resigning.

[94] For the reasons set out above, the jurisdictional objection that the termination was not at the initiative of the Respondent is dismissed, and I am satisfied that the Applicant was dismissed by the Respondent. The Applicant was advised by the Respondent that she had resigned and her sign in codes were disabled and she was required to return the office key and IT equipment. Mr Cherniakov confirmed in his evidence that he decided not to respond to the final text message from the Applicant sent on 2 May where she was requesting advice as to whether she was still rostered to work the following day.

Consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code, and if not whether the dismissal was harsh, unjust or unreasonable.

[95] While I have rejected the Respondent’s submission that the Applicant resigned, the Respondent accepted that if a dismissal did occur, it would be a summary dismissal. The relevant part of the Code pertaining to summary dismissal says as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[96] The Code applies to dismissal for cause based on conduct or capacity. In accordance with the approach as set out in the Full Bench decision in Pinawin v Domingo [2012] FWAFB 1359 there are two steps to be followed in assessing whether a summary dismissal is consistent with the Code.

[97] For the employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal.

[98] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what enquiries or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient enquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.

[99] In relation to the first step, the evidence that Mr Cherniakov believed that Applicant had resigned does not tend to support a conclusion that at the relevant time Mr Cherniakov held a subjective belief that the Applicant had engaged in conduct that was serious and that justified immediate dismissal. If that conclusion is wrong, and Mr Cherniakov did in fact hold such a belief despite believing the Applicant had resigned, the test in relation to the Code fails at the second step. I am not satisfied that the Respondent has established a basis for such a belief being reasonable. I am not satisfied that it is reasonable to hold a belief that the conduct of a part time employee who seeks to withdraw from an agreement struck to temporarily perform additional shifts to cover a temporary gap in the roster, when the shift falls on a day other than that employee regular permanent part time rostered shifts, is so serious that it is conduct that justifies immediate dismissal.

[100] Despite the case that has been put for the Respondent that by the Applicant only advising the evening before, that she would not be available to cover the shift, and this had potential to cause significant inconvenience to the Respondent, the evidence is a replacement was found. I asked the question in the course of the hearing how the Applicant was being paid for these additional shifts beyond her contracted permanent shifts and the evidence was that it was at ordinary time. There was never any suggestion that the Applicant had been directed to work overtime.

[101] I am not satisfied on the basis of the evidence that the Respondent had complied with the Code.

[102] Having made that finding it is necessary to turn to section 387. Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

(a) whether there was a valid reason for the dismissal

[103] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[104] The Applicant submitted that she was dismissed by the Respondent after she told Mr Cherniakov that she could not fill ‘Lana’s’ shift on 28 April 2022. The Applicant submitted she followed Mr Cherniakov’s previous instructions to let him know if she could not fill one of ‘Lana’s’ shifts.

[105] The Applicant believed that Mr Cherniakov had wanted to dismiss her for some time, referring to the disputed text message which she believes was accidentally sent to her by Mr Cherniakov.

[106] To further support her allegation that Mr Cherniakov wanted to dismiss her, the Applicant referred to a previous conversation she had with the Respondent’s former office manager, ‘Kyle’.

[107] The person referred to as ‘Kyle’, was not called to give evidence. As I have already stated, I found both the Applicant and Mr Cherniakov to be credible witnesses and I am not inclined to accept the Applicant’s claims that Mr Cherniakov had wanted to dismiss her, despite her holding this view as he gave a logical explanation for the employment decisions that had been taken.

[108] The Applicant submitted that Mr Cherniakov had her sign-in codes disabled and demanded the return of the office key and IT equipment, and did not go to much trouble to find out if she had resigned.

[109] The Respondent submits that the conduct warranted a summary dismissal. The Respondent relied on the short amount of notice given for not being available for work the following morning meant the Respondent had to act urgently to find someone to fill the shift, and it was calculated to cause inconvenience and even perhaps financial harm to the business.

[110] The Respondent submitted the Applicant’s conduct was entirely uncalled for, and that if she had been sick it would be a different matter, however she wasn’t sick.

[111] The Respondent submits the Applicant’s explanation for being upset was not rational, and further the evidence is that she was in fact working 30 hours a week. I put to the Respondent’s representative that a permanent part time employee would have set hours, and that the Applicant was agitating for more guaranteed hours. The Respondent submitted that issue falls away because Mr Cherniakov had sent a message saying he would look into the matter.

[112] Mr Cherniakov said that the Applicant went from full time to part time after restructuring, and from Mr Cherniakov perspective she was getting 30 hours as compared to 38 hours.

[113] The Respondent submitted that it was simply not open to conclude that Mr Cherniakov actually wanted to dismiss the Applicant as he had said that he valued her as an employee. It was submitted that no performance and capacity issue had been identified and the employment would still be on foot if it were not for the Applicant’s actions.

[114] The Respondent submitted that it had a valid reason for dismissal as the Applicant refused to work the shift on Thursday 28 April without any application for leave.

[115] The Respondent submitted that in instances where a contact specialist did not attend work, the operation of the business halted and the business suffered financial loss and damage to its reputation, as there would be no means for the drivers to receive work orders. In this instance, the Applicant was scheduled to commence a shift at 6:00am on Thursday, 28 April 2022. Between 6:00am and 8:00am, the Applicant was the only contact specialist scheduled to be on duty. At 8:00am, a second contact specialist would commence work. The Respondent submitted that the period of time between 6:00am and 8:00am on weekdays was a critical period of time.

[116] The Respondent submitted that there was no basis on which the Applicant was entitled to fail or refuse to attend that shift. The Applicant did not claim to be unfit for work by reason of illness or injury, nor was she entitled to be on annual leave or any other form of leave on 28 April 2022.

[117] The Respondent submitted that the Applicant capriciously withdrew her labour with inadequate notice. The Applicant knew that refusing to attend the shift would cause the Respondent great inconvenience and potential loss if a replacement could not be found on an urgent basis. The Respondent submitted that the unreasonable and capricious refusal to work and the failure to attend work amounted to serious misconduct and constitute a valid reason for summary termination of the employment.

[118] The Respondent submitted that moreover, the rude, demanding, belligerent and unreasonable tone of the Applicant’s communications with Mr Cherniakov on the night of 27 April 2022 constituted misconduct, and was in itself a valid reason for the termination of the employment. The Applicant’s apparent reason for dealing with the Respondent in such a manner was entirely irrational – the Applicant had no reason to be concerned for the security of her employment.

[119] The Respondent submitted that the Applicant was at the relevant time employed to work three shifts per week and she was frequently given additional shifts such that she often worked four shifts per week. The Applicant could not have taken on her own shifts together with the shifts of ‘Lana’, and she had not made a request to do so. She had requested a minimum of four shifts per week, and she had been given an assurance by Mr Cherniakov, immediately upon making that request, that he would look into the matter the very next day.

[120] The Applicant persisted in her refusal to attend work even after receiving a text message from Mr Cherniakov seeking to know whether she was resigning and pointing out that she needed to give four weeks’ notice of a resignation. In circumstances in which the Applicant had initiated the text messaging with Mr Cherniakov that evening, her failure to respond to that message of Mr Cherniakov, which he sent immediately after her preceding message, was deliberately rude and calculated to cause inconvenience, loss and potential damage to the Respondent.

[121] The Respondent had sought make a case that the Applicant had tampered with a text message that Mr Cherniakov had sent her. I have considered the evidence on this matter and listened to the Applicant’s responses during cross examination. I have also considered the the evidence of Mr Cherniakov and the attachment to his witness statement on this issue. It is difficult to reach a conclusion as to how it is that the text messages appear to be so different, with Mr Cherniakov claiming to have never sent one version, and the Applicant claiming to have never received the other. Whilst it is difficult to reconcile the inconsistency, I am inclined to the view that both witnesses were truthful in relation to the disputed issue. I am inclined to the view that it unlikely that the Applicant would know how to tamper with a text message as has been suggested. I am also of the view given the incoherence of the message the Applicant has produced that it unlikely that even if a text were to be tampered with it would be done in a manner as produced.

[122] It seems on reading the message that one possibility is that it the message received by the Applicant from Mr Cherniakov was not a text message typed by Mr Cherniakov or deliberately sent by him, but may have been instead a voice to text message sent unintentionally. The message reads more like a recording of a conversation than a message deliberately typed into a phone. This conclusion if it is correct, sits more comfortably with my impression set out above that both witnesses appeared to be truthful. I am simply unable to reach a definite conclusion as to why it may be that the text message Mr Cherniakov has on his phone was apparently not received by the Applicant, and the other convoluted message was. The evidence on the matter is simply insufficient to arrive at a firm conclusion. In any event, I have not been satisfied on the available evidence that I should reach an adverse conclusion about the credit of either witness in relation to this disputed issue.

[123] Similarly in relation to the suggestion in the Respondent’s case that the Applicant had not been truthful about her claim that she confirmed with ‘Sue’ at approximately 6am on the morning of 28 April that someone was filling the shift that morning, there was evidence from Mr Cherniakov that the Respondent could not find a record of the Applicant making contact with ‘Sue’ that morning. ‘Sue’ was not called to give evidence. The Applicant was clear in her evidence that she did, however was uncertain as to whether she was using her mobile or the work phone. I am not satisfied the Applicant was being untruthful in regard to this issue.

[124] I have some sympathy for the Respondent’s submission that the Applicant was acting unreasonably by seeking to withdraw from the agreement to cover ‘Lana’s’ additional shifts on a temporary basis and this placed the Respondent in a somewhat difficult position in having to fill the shift at short notice. However, I am also inclined to accept that the Applicant was genuinely distressed when she saw the advertisement in circumstances where she had been seeking additional permanent shifts for some time for financial reasons without success, and was frustrated that from her perspective the Respondent wanted her to cover additional shifts when it suited the employer, but would not agree to give her additional hours on a permanent basis despite opportunities having arisen to do so.

[125] The Applicant’s contracted permanent part-time hours did not include the day in question, and it was clear from the evidence the covering of these additional shifts was a short term temporary arrangement and the Applicant was to advise Mr Cherniakov if it did not suit her. The evidence does not suggest the Applicant was not intending to perform her permanent ongoing shifts, and the Applicant was also in the course of securing a second job which at that time intended to be for the purpose of supplementary income to top up income lost when her role was reduced from full time to part time.

[126] Given all of what is set out above, whilst the Applicant’s conduct in declining to perform the shift on Thursday 28 April may be able to be seen as somewhat unreasonable given that she had indicated a few weeks earlier she would be prepared to cover shifts additional to her permanent ongoing shifts, and she did not appear to have a conflicting commitment the next day, in the context of all of the evidence it becomes clear the Applicant was acting out of a sense of frustration that she could not secure additional permanent hours, and could only obtain less secure additional work if and when it suited the Respondent. In that context what the Applicant said in the text exchanges was not sufficient to justify her dismissal. The shift the Applicant was declining to work was not a shift that formed part of her contracted permanent hours.

[127] Looked at from that perspective, the Respondent’s actions appear almost as if it believed the Applicant had refused to perform a shift which was a shift falling within her permanent contracted part time hours when it was not. The Applicant claimed she was too distressed on account of seeing the advertisement to work the next day. I have some doubt about her claim that she was so distressed she was unable to work the next day, however I do not doubt she was distressed. Taking into account all of the relevant facts, I am not satisfied the Respondent had a valid reason to dismiss the Applicant related to her conduct.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[128] The Respondent submitted that because the Applicant resigned from her employment, a formal notification of dismissal was not given. However, Mr Cherniakov did send a text message in response to the Applicant’s message sent him 11:17am on 28 April 2022 pointing out, in effect, that she well knew that there had been no reason for her to have failed to attend the shift that day and that she knew that this would be “a huge inconvenience for the team”. She was informed that Mr Cherniakov understood that she had resigned, and that a replacement employee had been found. The Respondent submits that by that text message, the Applicant was effectively informed of the reason for dismissal for the purposes of s.387(b) of the Act.

[129] I reject the submission of the Respondent in relation to s.387(b). As was stated in Crozier v Palazzo Corporation Pty Ltd 10 as a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. It is apparent in this case the Applicant was not notified of a valid reason for their termination before the termination occurred.

[130] The Respondent submitted that upon receiving Mr Cherniakov’s message querying whether she had resigned, the Applicant could have retracted her refusal to work. In that sense she was given an opportunity to respond to the matter leading to her dismissal for the purposes of s.387(c) of the Act.

[131] In order for the Applicant to have had an opportunity to respond to the reason related to her conduct, the Applicant needed to have an opportunity to explain her conduct before the decision was taken to dismiss and before the termination itself. The Applicant did not have that opportunity in this case.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[132] The Applicant had no opportunity to ask to have a support person present for any discussions relating to the dismissal.

(e)if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[133] The Respondent submitted the reason for dismissal was not a performance issue. I agree, and on that basis, this is a neutral consideration.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[134] The Respondent is a small business and does not have dedicated human resource specialists.

(h) any other matters that the FWC considers relevant

[135] The Applicant had been experiencing financial strain prior to the dismissal and the dismissal would have exacerbated that situation although the Applicant was able to commence other employment soon after the termination.

Conclusion on Harsh, Unjust or Unreasonable

[136] I have found that there was not a valid reason for dismissal. I have also found that dismissal was procedurally flawed. I have weighed each of the considerations in section 387 and have concluded that the dismissal was harsh, unjust or unreasonable.

Remedy

[137] The Applicant did not seek reinstatement but sought compensation. The Applicant has obtained other employment. I am satisfied in the circumstances that it would be inappropriate to make an order that the Applicant be reinstated.

[138] I am satisfied an order for the payment of compensation is appropriate in this case. I intend to adopt the formula in Sprigg v Paul’s licensed Festival Supermarkets 11. It was common ground that the Applicant was earning $31 per hour. The Applicant started in another job on 17 May 2022. On the basis of the evidence and the Applicant’s own submissions I intend to adopt the period that the Applicant would have remained employed as being the same as the period that the Applicant has sought to be compensated for. The Applicant was quite clear that the amount of compensation she sought was for the period from 28 April 2022 to 16 May 2022 which was the period of time from termination to the day before she commenced new employment at IGA.

[139] I have assessed a day as 7.6 hours. Whilst I am aware the evidence was that the Applicant had been working an average of 30 hours per week on the basis of working additional shifts, because of the evidence that the Applicant no longer wished to cover other shifts, I have assessed that she would have worked three days per week in the relevant period. I have calculated by reference to the period that the Applicant told the Commission that she seeks to be compensated, that had the Applicant not been dismissed she would have worked for seven more days being the 2, 3 and 4 May, the 9, 10 and 11 May and 16 May 2022.

[140] $31 dollars multiplied by 7.6 equals $235.60. $235.60 multiplied by 7 days equals $1649.20 dollars. There was no evidence that the Applicant earned any other income between 28 April and commencing the new employment on 17 May. I do not intend to make any deduction on account of contingencies.

[141] There was no evidence to suggest a payment for the amount of $1,649.20 would affect the viability of the Respondent. I do not intend to reduce the amount on the basis of the Applicant’s length of service.

[142] Whilst the Respondent submitted that the Applicant has not mitigated her loss on the basis of her actions in not being more proactive in seeking to commence the role she did at IGA or another role at an earlier stage, in all of the circumstances of this case, and the Applicant having obtained other employment so soon after termination, I do not intend to make any deduction on the basis of the effort on the part of the Applicant to mitigate her loss.

[143] In the course of the hearing, the Respondent had submitted that it did not quibble with the monetary amount estimated by the Commission, however in closing submissions submitted that the Commission should take into account the Applicant’s own conduct which contributed to or brought about the ending of the employment relationship. It was submitted that the Applicant’s conduct indicated she did not value the job.

[144] Whilst I accept that the Applicant’s response to the advertising of a role that she incorrectly perceived as being intended to replace her was an emotional response, and not entirely rational, in the particular circumstances of this case as set out above, I am not inclined to accept that her actions, including withdrawing from a recent agreement to temporarily cover shifts additional to her permanent shifts, was a form of misconduct that would warrant a further reduction in the amount of compensation assessed.

[145] There are no other matters that I consider relevant in assessing compensation. I have decided to award the Applicant compensation in the amount of $1,649.20 and 10% superannuation contribution based on that amount to be paid into the Applicant’s nominated superannuation fund. A separate Order of the Commission will be issued concurrently with this decision.

[146] There was some evidence though not thoroughly explored, that the Respondent had received some advice in relation to withholding an amount from the Applicant on the basis that the Applicant had resigned without providing appropriate notice. As it is apparent from this decision that the Applicant did not resign, to the extent that there are any minimum statutory entitlements outstanding on the basis of an erroneous view that the Applicant had resigned and was not terminated at the initiative of the employer, the Applicant is also entitled to those amounts.

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COMMISSIONER

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Appearances:

Ms D. Byles appearing on her own behalf
Ms F. Stanton appearing on behalf of the Respondent

Hearing details:

2022
Brisbane (by Video on Microsoft Teams)
8 September.

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Bupa Aged Care Australia Pty Ltd t/as Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941

[37]; Hattingh v Compass Group [2021] FWC 1564 [120].

 5   Minato v Palmer Corporation Ltd [1995] IRCA 316; Ngo v Link Printing Pty Ltd [1999] AIRC 57; Bupa [47]; Hattingh [120].

 6   Achal v Electrolux Pty Ltd (1993) 50 IR 236 which was found that the “distress must be real and obvious”; Koutalis [44] which was found that the employee must ‘act in the heat of the moment in such a way that a reasonable person in the position of the parties and all the circumstances would not understand the employee to be resigning’; Ngo [17].

 7   Ngo v Link Printing Pty Ltd [1999] AIRC 57 [18].

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 9   Ibid.

 10   (2000) 98 IR 371 at 151.

 11   (1998) 88 IR 21.