1
Fair Work Act 2009
s.604—Appeal of decision
Il Migliore Pty Ltd T/A Il Migliore
v
Miss Kelly McDonald
(C2013/2693)
VICE PRESIDENT LAWLER
DEPUTY PRESIDENT SMITH
COMMISSIONER BLAIR SYDNEY, 14 AUGUST 2013
Appeal against decision [[2012] FWA 10828] of Commissioner Ryan at Melbourne on 21
December 2012 in matter number U2012/405 – Unfair Dismissal – Appeal against findings of
fact – whether there was a dismissal.
[1] This is an application by the Appellant (Il Migliore) for permission to appeal and, if
permission is granted, an appeal against a decision and order ([2012] FWA 10828) of
Commissioner Ryan on 21 December 2012 upholding an application for an unfair dismissal
remedy and an order for compensation in favour of the Respondent (McDonald) in the
amount of the statutory cap.
Background
[2] Il Migliore operates a small biscuit shop. After completing her secondary education,
Ms McDonald undertook a pastry course at TAFE. She obtained part time casual employment
with Il Migliore in September 2007. At some point Ms McDonald began working the
equivalent of full time hours. She was still characterised as a casual employee. Ms
McDonald’s employment came to an end as a result of events and conversations on 22
December 2011 and 3 February 2012.
[3] Ms McDonald claimed she was unfairly dismissed when she was informed on 3
February 2012 that she would not be given further work unless she was prepared to commit to
a period of months. Il Migliore contended that Ms McDonald had resigned her employment in
a conversation on 22 December 2011 and that further casual employment had been given, as a
favour to Ms McDonald, in late January 2012 and that Ms McDonald refused an offer of
extended employment and instead sought an employment separation certificate. Il Migliore
contended that there was no dismissal at its initiative.
[4] The central issue before the Commissioner was whether there was a dismissal at the
initiative of the employer on or about 3 February 2012. That issue turned on what was said
between the parties on 22 December 2011 and 3 February 2012.
[2013] FWCFB 5759
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 5759
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The evidence in relation to the events of 22 December 2011
[5] Ms McDonald gave the following account in her statement:
“2. In November [2011] I confided in Paula Lindsey my wish to become a Veterinary
Nurse. I told her out of respect and thoughtfulness as this would mean when I found a
job in the field I would be possibly leaving employment at il migliore. She fully
supported me in my dream and said I’d make an excellent Vet Nurse and it was
wonderful I knew what I wanted to do with my life. I explained it’s a hard industry to
break into, it might not happen for a while and I may still be able to work part-time
depending on the hours of the new employment. She was fully supportive at this time
and gave me no reason to doubt my decision in sharing this knowledge.
3. On 22nd of December 2011, the last day of work for the year, we all said our
goodbyes as there is a compulsory month off in which the business shuts down. I
hadn’t officially talked to Bridget yet about my intentions but was made aware by
Paula who told her after our discussion the previous month. I went to say my goodbyes
for the year and mentioned to Paula and Bridget, who were standing next to each
other, that there is a chance I may find work as a Veterinary Nurse over the break.
Paula was aware that the job may only be part time, in which case she said I could still
work at il migliore the following year. This was established in the conversation I had
with her in November. Paula did not offer me casual shifts during the brief
conversation on the 22nd of December as I did not resign and would be coming back
as usual along with everyone else when the business opens again in January. I did not
give her any letter of resignation or verbal notice on this day or any other days
throughout my employment. I would not leave voluntarily knowing I didn’t have other
employment to go into.”
[6] Ms Paula Lindsey, the owner of Il Migliore1, gave the following account in her
statement of the relevant discussions with Ms McDonald:
“2.1 In November 2011, Kelly requested a meeting with me alone. She explained that
she had decided upon a career change and that she intended to enrol in a Veterinary
Nursing Course in [2012].
2.2 Kelly explained that a requirement for entry to the course was that she worked in
the field for a period of time.
2.3 Kelly said that she would be applying for suitable jobs immediately.
2.4 She said that if offered a position she would leave Il Migliore forthwith.
2.5 Although November and December are our busiest months and the timing was not
the best, I expressed my genuine delight and support for her decision as I believed she
would be a wonderful Vet Nurse. I was very aware of her love for animals.
1 The appellant is a company in which Ms Lindsey is the sole director. After this decision was reserved Ms McDonald sent a
submission attacking Mr Lindsey for saying at the appeal hearing that he was a director of the company. That submission
has no relevance to the outcome of the appeal because Mr Lindsey gave no evidence before the Commissioner and his
statement cannot reflect adversely on the evidence of Ms Lindsey.
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2.6 I offered Kelly time off for interviews.
2.7 At her request I said that I would be delighted to be a referee.
2.8 Following this meeting during November and December Kelly’s career change and
job interviews were openly discussed in the bakery with enthusiasm by all.
3. RESIGNATION
3.1 Although Kelly was not successful in gaining employment in the field of
Veterinary Nursing during November and December, she told me and Bridget
Cordiner, the Bakery Manager on December 22, 2011 our last day of work prior to our
Christmas and New Year break that she was leaving.
3.2 Kelly expressed confidence in gaining employment in January.
3.3 When Kelly announced that it was to be her last day, I expressed concern that we
had not been able to give her a farewell and suggested that perhaps we could all get
together in the New Year for a delayed farewell.
3.4 As a parting gesture and because of my long and special relationship with Kelly, I
said that if by chance she had not secured the job in Veterinary Nursing in January,
that she could return to Il Migliore temporarily so that she was still earning money.”
[7] Ms Cordiner, Il Migliore’s supervisor gave the following version in her witness
statement:
“In December 2011 it was common knowledge and openly discussed within the bakery
that Kelly McDonald was pursuing a change of career and had been applying and
interviewing for jobs as Veterinary Nurse.
On December 22nd 2011, our last day in the bakery prior to Christmas and our January
shut down, Kelly McDonald stated to myself and Paula Lindsey that she was confident
of getting a Veterinary Nursing job over January and this would be her last day. Paula
Lindsey then offered Kelly McDonald casual shifts at Il Migliore if she was not able to
find employment elsewhere by the time she came back to work on January 23rd 2012.”
[8] The Commissioner summarised the key oral evidence of Ms McDonald in his ex
tempore decision (T2502ff):
“...At paragraphs 201 to 203 of the transcript the applicant in her examination-in-chief
was asked to describe what happened on 22 December and the answer from the
applicant was at paragraph 201:
We were just packed up and we were all saying our good-byes. I told [Ms
Lindsey] and Paula that, “It’s a chance I might find a job as a vet nurse over the
holidays.” If so, I will keep them updated, otherwise I will see them next year.
And we just said our good-byes and left for the year.
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At paragraph 202 the question was asked:
So you had every intention of returning to Il Migliore in late January and
resuming your full-time role as an assistant kitchen manager?---Yes, I did. I
would not leave without another job to go to. I resumed my full time role as
assistant kitchen manager and the same hours and the same capacity as the
previous year.
Then at 203 the question was put:
And part of the evidence that was submitted was a Facebook post and on 22
December 2011 you placed a post on Facebook. What did that detail? ---It said,
“Last day of work for the year. Hello vet nursing next year if all goes well.”
Just meaning it was the last day of work for the year.
Under cross-examination at paragraph 370 to 374 the question was:
On 22 December you’re aware that the evidence from both Paula and Bridget
Cordiner is that you stayed back and said to both Bridget and Paul that this
would be your last day and you would be leaving, you were doing vet
nursing?---Was that a question or was that
It’s a question?---No, I definitely did not say that.
Yes?---I definitely did not say that. As I said, I wouldn’t leave a job without
another to go to.
Is this not a case of you making a rash decision to do that and now regretting it
some ?---No.
- - - considerable time later?---Of course not. I was thinking logically the whole
time.”
[9] The Commissioner also set out the key oral evidence of Ms Lindsey and Ms Cordiner
(T2512ff):
“In contrast to the evidence of the applicant is the evidence of Ms Lindsey and her
evidence at paragraph 1672 and 1673 of the transcript where she was answering
questions in examination-in-chief and the question put to her at 1672:
Now, is there any doubt in your mind that Kelly McDonald resigned during the
course of the conversation that took place on 22 December?---Absolutely no
doubt at all, it was very clear.
The question at 1673:
Yes. And could you recall basically this conversation?---The kitchen staff had
completed work for the year on the 22nd and all the staff had left other than
Bridget, Kelly and myself, and Kelly said to Bridget and I that this would be
her last day, that she was leaving to pursue her career in veterinary nursing. We
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were pretty thrilled for Kelly and my concern at the time was that I hadn’t been
able to give her a farewell and I said, “I’m so sorry. I haven’t been able to give
you a farewell but maybe we’ll all get together,” and we agreed we’d all get
together in the new year and do that. As a parting gesture, I said to Kelly,
“Look, darling, if it doesn’t work out in January and it takes you a little bit
longer to get your job, you can always come back and do some casual shifts at
work,” and it was basically just not wanting to see her out-of-pocket until that
job was secure.
Ms Cordiner, who also took part in that conversation, gave evidence on the same point
and at paragraph 2262 Ms Cordiner in examination-in-chief was asked the question:
Can you describe the circumstances and content of the conversation that
occurred on the 22nd between Paula, yourself and Kelly?---It was at the end of
the working day. It was after 3 o’clock. In the kitchen we’d packed up and
we’d said our good-byes. People swapped gifts if they were swapping gifts. It
just happened that Paula, Kelly and myself were the last three left and we were
still talking. Then Kelly stated that this would be her last day. She was very
confident that she was going to find a job over the January period and this
would be her last day at Il Migliore.
Is there any doubt in your mind that during the course of this conversation that
Kelly resigned?---No.
Was there any discussion of a farewell for Kelly?---Paula was a little bit
distressed that we were - both her and I were going overseas and that we
wouldn’t be able to organise a farewell until we came back in February. So it
was discussed that we would be in touch and organise something for when
everybody came back.
And was there any discussion of temporary work?---Paula offered Kelly some
temporary work if she happened not to find a job over January and said to
contact her if she needed to.”
Resumption of work in January 2012
[10] In relation to her resumption of work with Il Migliore in January 2012 Ms McDonald
said the following in her statement:
“On Saturday the 21st of January 2012, I Sent Paula a text message informing her that I
had an interview for a Vet Nurse job on Friday of the first week back after the break.
(See attachment A) I wanted to give her some notice instead of turning up on Tuesday
and informing her then therefore this message was out of courtesy. It did not mention
myself asking for casual shifts, just me informing her I could not come in on Friday as
I had an interview. I should also note that the Thursday of that week was Australia day
so the kitchen was shut which is why I didn’t work that day either. ...”
[11] The SMS message sent by Ms McDonald on 21 January 2012 was as follows:
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“Hi Paula it’s Kelly from work. I have just been waiting to hear from a few places
regarding a job. Should know by the end of Monday about one that’s in hawthorn. And
I also have a trial at another on Friday. I just wanted to let you know I will be coming
in this week on Tuesday, wed and possibly Friday depending what happens with this
hawthorn job. Hope you have had a good holidays!”
[12] Ms Lindsey replied by SMS:
“Thanks for letting me know Kelly. I’m still in Bali so can you let Bridget know the
days you’ll be in? And very good luck with the jobs, you’ll make a great Vet Nurse! x”
[13] Ms Lindsey said in her statement:
“On January 21, 2012 Kelly sent me a text message requesting some casual work,
(Kelly McDonald Witness Statement, Attachment A ).
As I was still on holidays overseas, I replied asking her to inform Bridget Cordiner of
the days she wished to work. I also reassured her that she would make a great Vet
Nurse.
I interpreted this text message as an acceptance by Kelly of my offer for temporary
work at the time of her resignation.
All matters relating to ‘return to work dates’ or ‘ unscheduled days off’ are and have
always been handled by Bridget Cordiner. Kelly’s suggestion that she was informing
me of her movements out of courtesy has no basis in history whatsoever. At no other
time did Kelly (nor any other staff member, other than Bridget) notify me regarding
these matters.
When Kelly returned to work she did not resume her role as an assistant to Bridget
Cordiner. She performed very basic tasks and took no additional responsibilities.
Bridget can substantiate her work tasks.
It is important to note that when Kelly returned to Il Migliore she seemed out of sorts
and anxious about the fact that job opportunities had not been fruitful. Her general
demeanour was of an unhappy nature. I felt for Kelly and could understand how
humiliating it was to return to hospitality as she had made it quite clear that she had no
interest in it anymore.”
The events of 3 February 2012 and the Separation Certificate
[14] Ms McDonald said the following in her statement:
“5. On Friday the 3rd of February 2012 at approximately 9:45am, Paula Lindsey
called me out into the back room. I thought she was going to ask me how my job
hunting has been, as I told her out of courtesy last November my plans on becoming a
Veterinary Nurse. Paula asked me how I was and how the job hunting was going. I
replied it wasn’t going well as everyone wants experienced staff but no one is willing
to give the experience. I also stated the jobs available have decreased dramatically and
I’m going to give voluntary work with animals a go to try build up some experience.
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Paula Lindsey then followed with; “As you are aware we are hiring many new
employees, full time and casual.” She said they were looking at restructuring the
business to keep staff on longer since we have a high employee turnover. Paula then
went on to say that because of the restructure and my choice to follow my dream and
become a Veterinary Nurse she would rather replace me now than in a few months
down the track when I leave due to finding other employment. Paula also believed it
would be easier choosing from the full timers that have already applied for a job at il
migliore instead of waiting for the time I leave. Paula Lindsey then went on to say that
if I could commit to a set period of time, e.g. Six months or a year I could stay but if
not I would have to leave. She said she doesn’t like the uncertainty of not knowing
when I was leaving because that would mean she would have to find someone else to
replace me quickly when she could just replace me now. Paula then followed by
bringing up the issue of wages and how they would be too high to afford me and all the
new and existing staff. In my head I believe that more staff equal more production
therefore profit so I didn’t understand her reasoning. After this she claimed that my
intention in finding another job while still employed at il migliore (not even in the
same industry) would send the wrong message to the new employees. She would think
they would see it as acceptable to do just that and would send a bad message to staff.
Through out this whole conversation, in which she did most of the talking, I was in
disbelief that she would treat one of the hardest working employees of four and a half
years in this manner after everything I have done for her and her business. I felt like
she was being heartless and didn’t want my employment with her company anymore. I
then asked “Well how long do I have left; a few weeks?” Paula Lindsey then nodded
and went on to say “I don’t have an exact date for you yet but I’ll keep you updated.”
When Paula said I only had a few weeks of employment left at il migliore, I, as anyone
else in my situation would have believed that meant two weeks. This discussion was
on a Friday so I mentally and emotionally prepared myself for my employment to be
terminated 2 weeks from this date which would make it Friday the 17th of February
2012. ...”
[15] Ms Lindsey gave the following version in her statement:
“On February 3, 2012 I had a discussion with Kelly to enquire as to how her job hunting
was progressing and to ascertain how long she would be needing work.
Bridget Cordiner was not in attendance at this meeting as it did not involve matters of
work performance or discipline.
In order to provide context to this conversation, some background information is
required.
Il Migliore had taken on significant additional business, supplying an additional seven
Melbourne and Sydney based supermarkets at the beginning of 2012. In addition the
new On Line site was being developed, representing a further expansion to the
business and consequent increased production requirements.
In order to meet production requirements I determined that I would need to increase
kitchen staffing levels by approximately six.
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As Kelly had left Il Migliore in December and had returned temporarily, it was
appropriate that I establish how long she would be needing work in order to plan my
recruitment requirements.
Il Migliore does not recruit seasonal workers eg backpackers and so the temporary
employment arrangement I had offered Kelly was unusual and offered only as a kind
gesture.
During my discussion with Kelly she indicated that her job hunting in Veterinary
Nursing was not looking as promising as she had hoped for. I suggested that she could
consider committing to Il Migliore for a period of some months.
Kelly seemed despondent throughout the conversation and it ended inconclusively.”
[16] In relation to the preparation of the Employment Separation Certificate, Ms Lindsey
stated:
“On February 8, 2012 Kelly handed me a Separation Certificate from Centre Link
which she asked me to complete.
I had never seen a Separation Certificate before and was shocked that Kelly had given
it to me.
The form required a ‘leaving date’ and I recall clearly saying to Kelly “This form
requires a leaving date”. She replied with no hesitation “next Friday” (which was
February 17). I responded by saying “Are you sure?” to which she replied a definite
“Yes”.
...
I completed the form stating that Kelly was leaving voluntarily due to a career change.
At no time did Kelly question the ‘reason for leaving’”
The Commissioner’s Decision
[17] The Commissioner dealt with the events of 22 December 2012 by first considering
authorities on ‘forced resignation” and then continued (T2502ff):
“In considering what happened on 22 December 2011, there is no suggestion either by
the applicant or by the respondent that any issues around employer conduct arises, in
that there is nothing suggested that the employer forced the employee to resign; rather
what is in contest is whether or not the actions of the employee constituted a free and
willing resignation given by the employee to the employer where the employee
intended to terminate the employment relationship.”
[18] The Commissioner set out the oral evidence extracted above and continued (at
T2518ff):
“There is a stark difference between the descriptions of the conversation on the 22nd
between the applicant and both Ms Lindsey and Ms Cordiner but I have also had
regard to the evidence of Mrs McDonald in this matter, which was given at PN895
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through to PN912 of transcript. This is in answer to some questions from myself and at
paragraph 895 of the transcript I say:
Let me interpose here. You’re saying that through all of this relevant period
Kelly McDonald was living with you?---Yes.
Did you have any reason to believe that on 22 December 2011 Kelly
McDonald resigned her employment - - -?---No. No.
- - - with Il Migliore?---No.
You answer that emphatically with “No”?---Yes.
Why do you form that opinion, that on 22 December 2011 Kelly McDonald did
not resign her employment with Il Migliore? I’m sorry if I get the name wrong.
Then at 902:
Why do you say that she - - -?---Because we had a close relationship she did
tell me everything and she would have certainly told me if she was resigning
because it would have impacted on me. If she didn’t have a job to go to,
therefore I would be supporting her.
The rest of the discussion at paragraphs 903 through to 912 detail Mrs McDonald’s
understanding of the return to work by Ms McDonald in January and confirms the
same strength of view that at no stage did Mrs McDonald believe that that Ms
McDonald had resigned her employment on 22 December 2011.
I also again go back to a part of the evidence of Ms Lindsey which I have already
referred to in the discussion on casual and permanent employment. At paragraph 1745
Ms Lindsey, in answer to a question under cross-examination from Ms McDonald,
was asked the question:
Did I hand you a formal letter of resignation on 22 December?---No. In our
industry nobody ever gives a written resignation, not that I’ve experienced.
What I conclude from having regard to the evidence in this matter is that on
22 December 2011 Ms McDonald clearly indicated to both Ms Lindsey and
Ms Cordiner that the 22nd was her last day of work and that she was hopeful and
expected to get a job in veterinary nursing. But I do not treat it that it was intended to
be a resignation of employment. The Facebook entry that has been referred to (exhibit
A4) was referred to in answers given by Ms McDonald but the Facebook entry makes
it very clear that after the conclusion of work, when Ms McDonald was making that
Facebook entry it was done on the basis that it was a reference to last day of work for
the year.
The difficulty in this matter is that there has been in my view a clear
miscommunication between both Ms McDonald on the one hand and Ms Lindsey and
Ms Cordiner on the other. This miscommunication has been enhanced by the way in
which Ms Lindsey has treated all employees as casuals and where Ms Lindsey does
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not expect anyone to give a letter of written resignation, in which case it is easy then to
misinterpret or misread a conversation.
I am satisfied that in this particular instance the evidence makes it clear that there was
not an intention by Ms McDonald to have ended the employment relationship on 22
December 2011. It is very clear that Ms McDonald intended at some point in time of
ending the employment relationship but it was conditional upon her getting work as a
veterinary nurse. In that sense, the conversation on the 22nd cannot be construed as
being an explicit, willing and clearly identified resignation by the employee from her
employment with Il Migliore. In fact and at law because the applicant was a
permanent employee there would have been and should have been a requirement for
her to give written notice of resignation consistent with the obligations that would
arise under the relevant modern award and the National Employment Standards.”
(underline emphasis added)
[19] In relation to the conversation between Ms McDonald and Ms Lindsey on 3 February
2012, the Commissioner held:
“In my view the evidence establishes that the conduct of Ms Lindsey effectively
constituted a repudiation of the contract of employment that she had with each of the
two persons. Repudiation has been discussed by some authorities and there is an
observation from Brennan J of the High Court in a case known as Laurinda Pty Ltd v
Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 647. Brennan J
observed:
“Repudiation is not ascertained by an inquiry into the subjective state of mind
of the party in default; it is to be found in the conduct, whether verbal or other,
of the party in default which conveys to the other party the defaulting party’s
inability to perform the contract or promise or his intention not to perform it or
to fulfil it only in a manner substantially inconsistent with his obligations and
not in any other way ... The question is what effect the defaulter’s conduct
“would be reasonably calculated to have upon a reasonable person”.”
In there Brennan J uses words used by Lord Herschell in an English case called
Carswell v Collard. Brennan J goes on to say:
“It suffices that, viewed objectively, the conduct of the relevant party has been
such as to convey to a reasonable person, in the situation of the other party,
repudiation or disavowal either of the contract as a whole or of a fundamental
obligation under it.”
It appears to me, and I have no hesitation in finding, that the conduct of Ms Lindsey in
conducting the conversation with the applicant on 3 February was effectively a
repudiation of the contract. The employee had a right to continue employment without
giving an undertaking to forgo her statutory rights. Her statutory rights are those
provided for in the notice of termination provisions in the NES. To require an
employee to forgo their statutory rights in order to retain their employment is clearly
an exercise where the employer was not prepared to comply with their obligations and
in fact would only allow the employment relationship to continue if the applicant
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forgo such rights. The conduct of the employer appears to me to quite clearly be a
repudiation of the contract of employment and the employment relationship.”
Consideration
[20] This is an appeal from the application of a broad discretionary standard and subject to
the well-known principles in House v The King (1936) 55 CLR 499 at 505. This Full Bench
has no jurisdiction to interfere with the decision and order of the Commissioner through an
exercise of the powers conferred by s.607(3) unless error is demonstrated and the
requirements of s.400 are satisfied.
[21] This appeal involves a challenge to the factual findings of the Commissioner in
relation to the events of 22 December 2011 and 3 February 2013.
[22] We are mindful of the limitations on an appellate bench interfering in findings of fact
based on an assessment of the evidence by a member of the Commission at first instance.
However, factual findings based on an acceptance of the oral evidence of a particular witness
are not immune from appellate review.
[23] A key statement of principle was provided by Brennan, Gaudron and McHugh JJ in
Devries v Australian National Railways Commission (1993) 177 CLR 472 where their
Honours observed (at 479):
“More than once in recent years, this Court has pointed out that a finding of fact by a
trial judge, based on the credibility of a witness, is not to be set aside because an
appellate court thinks that the probabilities of the case are against - even strongly
against - that finding of fact ((12) See Brunskill (1985) 59 ALJR 842; 62 ALR 53;
Jones v. Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v. Postal Commission (1990)
171 CLR 167.). If the trial judge’s finding depends to any substantial degree on the
credibility of the witness, the finding must stand unless it can be shown that the trial
judge “has failed to use or has palpably misused his (or her) advantage” ((13) S.S.
Hontestroom v. S.S. Sagaporack (1927) AC 37, at p 47.) or has acted on evidence
which was “inconsistent with facts incontrovertibly established by the evidence” or
which was “glaringly improbable” ((14) Brunskill (1985) 59 ALJR, at p 844; 62 ALR,
at p 57.).”
[24] In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)
Gaudron, Gummow and Hayne JJ referred to that passage in Devries with apparent approval
(at 807) and concluded:
“It is true that the trial judge, in determining whether to accept the evidence of Mrs
Page, was heavily swayed by his impression of her whilst giving oral evidence.
However, this circumstance does not preclude a court of appeal from concluding that,
in light of other evidence, a primary judge had too fragile a base to support a finding
that a witness was unreliable. The documentary evidence in this case, comprising
unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and
related documents of Earthline and Nuline, the list of plant (at least in relation to
machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity
claims), provides significant support to the allegations made by Mrs Page.”
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(underline emphasis added)
[25] It is not permissible to make findings based on the oral evidence of a witness where
those findings are inconsistent with reliable contemporaneous records and that inconsistency
is not adequately explained. In Fox v Percy (2003) 214 CLR 118 Glesson CJ and Gummow
and Kirby JJ summarised the relevant legal principles in the following way:
“23. ... On the one hand, the appellate court is obliged to “give the judgment which in
its opinion ought to have been given in the first instance”. On the other, it must, of
necessity, observe the “natural limitations” that exist in the case of any appellate court
proceeding wholly or substantially on the record. These limitations include the
disadvantage that the appellate court has when compared with the trial judge in respect
of the evaluation of witnesses’ credibility and of the “feeling” of a case which an
appellate court, reading the transcript, cannot always fully share. Furthermore, the
appellate court does not typically get taken to, or read, all of the evidence taken at the
trial. Commonly, the trial judge therefore has advantages that derive from the
obligation at trial to receive and consider the entirety of the evidence and the
opportunity, normally over a longer interval, to reflect upon that evidence and to draw
conclusions from it, viewed as a whole.
...
25. Within the constraints marked out by the nature of the appellate process, the
appellate court is obliged to conduct a real review of the trial and, in cases where the
trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate
courts are not excused from the task of “weighing conflicting evidence and drawing
[their] own inferences and conclusions, though [they] should always bear in mind that
[they have] neither seen nor heard the witnesses, and should make due allowance in
this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to
decide on the proper inference to be drawn from facts which are undisputed or
which, having been disputed, are established by the findings of the trial judge.
In deciding what is the proper inference to be drawn, the appellate court will
give respect and weight to the conclusion of the trial judge but, once having
reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ...
operation”.
26. After Warren v Coombes, a series of cases was decided in which this Court
reiterated its earlier statements concerning the need for appellate respect for the
advantages of trial judges, and especially where their decisions might be affected by
their impression about the credibility of witnesses whom the trial judge sees but the
appellate court does not. Three important decisions in this regard were Jones v Hyde,
Abalos v Australian Postal Commission and Devries v Australian National Railways
Commission. This trilogy of cases did not constitute a departure from established
doctrine. The decisions were simply a reminder of the limits under which appellate
judges typically operate when compared with trial judges.
[2013] FWCFB 5759
13
27. The continuing application of the corrective expressed in the trilogy of cases was
not questioned in this appeal. The cases mentioned remain the instruction of this Court
to appellate decision-making throughout Australia. However, that instruction did not,
and could not, derogate from the obligation of courts of appeal, in accordance with
legislation such as the Supreme Court Act applicable in this case, to perform the
appellate function as established by Parliament. Such courts must conduct the appeal
by way of rehearing. If, making proper allowance for the advantages of the trial judge,
they conclude that an error has been shown, they are authorised, and obliged, to
discharge their appellate duties in accordance with the statute.
28. Over more than a century, this Court, and courts like it, have given instruction on
how to resolve the dichotomy between the foregoing appellate obligations and
appellate restraint. From time to time, by reference to considerations particular to each
case, different emphasis appears in such reasons. However, the mere fact that a trial
judge necessarily reached a conclusion favouring the witnesses of one party over those
of another does not, and cannot, prevent the performance by a court of appeal of the
functions imposed on it by statute. In particular cases incontrovertible facts or
uncontested testimony will demonstrate that the trial judge’s conclusions are
erroneous, even when they appear to be, or are stated to be, based on credibility
findings.
29. That this is so is demonstrated in several recent decisions of this Court. In some,
quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate
conclusion may be reached that the decision at trial is “glaringly improbable” or
“contrary to compelling inferences” in the case. In such circumstances, the appellate
court is not relieved of its statutory functions by the fact that the trial judge has,
expressly or implicitly, reached a conclusion influenced by an opinion concerning the
credibility of witnesses. In such a case, making all due allowances for the advantages
available to the trial judge, the appellate court must “not shrink from giving effect to”
its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is
costly and usually upsetting. But in every appeal by way of rehearing, a judgment of
the appellate court is required both on the facts and the law. It is not forbidden (nor in
the face of the statutory requirement could it be) by ritual incantation about witness
credibility, nor by judicial reference to the desirability of finality in litigation or
reminders of the general advantages of the trial over the appellate process.
30. It is true, as McHugh J has pointed out, that for a very long time judges in
appellate courts have given as a reason for appellate deference to the decision of a trial
judge, the assessment of the appearance of witnesses as they give their testimony that
is possible at trial and normally impossible in an appellate court. However, it is
equally true that, for almost as long, other judges have cautioned against the dangers
of too readily drawing conclusions about truthfulness and reliability solely or mainly
from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société
d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine
Insurance Co (The “Palitana”):
“... I think that an ounce of intrinsic merit or demerit in the evidence, that is to
say, the value of the comparison of evidence with known facts, is worth pounds
of demeanour.”
[2013] FWCFB 5759
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31. Further, in recent years, judges have become more aware of scientific research that
has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood
accurately on the basis of such appearances. Considerations such as these have
encouraged judges, both at trial and on appeal, to limit their reliance on the
appearances of witnesses and to reason to their conclusions, as far as possible, on the
basis of contemporary materials, objectively established facts and the apparent logic of
events. This does not eliminate the established principles about witness credibility; but
it tends to reduce the occasions where those principles are seen as critical.”
(footnotes omitted)
[26] The Commissioner was wrong in stating: “In fact and at law because the applicant was
a permanent employee there would have been and should have been a requirement for her to
give written notice of resignation consistent with the obligations that would arise under the
relevant modern award and the National Employment Standards.” There is no requirement in
either the relevant modern award or the National Employment Standards that notice of
termination given by an employee is to be in writing. The applicant was able to terminate her
contract of employment verbally.
[27] In finding that Ms McDonald did not resign her employment on 22 December 2011
the Commissioner placed weight on the subjective intention of the applicant. That was an
error. The subjective intention of the applicant on 22 December 2011 was irrelevant. Whether
or not there was a resignation on that day was a matter to be determined objectively on the
words said, and the context in which those words were said.
[28] The Commissioner found that “on 22 December 2011 Ms McDonald clearly indicated
to both Ms Lindsey and Ms Cordiner that the 22nd was her last day of work and that she was
hopeful and expected to get a job in veterinary nursing. But I do not treat it that it was
intended to be a resignation of employment.” The issue is not whether Ms McDonald
intended what she said to be a resignation. The issue is whether the words she used in the
particular context objectively conveyed that she was terminating her employment with Il
Migliore.
[29] Ms Lindsey and Ms Cordiner gave emphatic evidence that Ms McDonald said she was
leaving her employment with Il Migliore. The Commissioner did not reject that evidence as
untruthful. Rather, he seems to have concluded they were mistaken because of a
“miscommunication”. This was consistent with accepting that the two witnesses were
endeavouring to do their best to tell the truth. The Commissioner appears to have generally
accepted the version of events given by the applicant and therefore concluded that the
employer witnesses must be mistaken.
[30] Given the simplicity of the central fact in issue between the parties – whether, on 22
December 2011, the applicant said words that objectively conveyed that she was ending her
employment relationship with Il Migliore - it is improbable that Ms Lindsey and Ms Cordiner
were each so mistaken in what they heard as to be able to give the accounts that they did.
[31] More importantly, the versions given by Ms Lindsey and Ms Cordiner were
corroborated by objective and reliable records contemporaneous with the 22 December 2011
conversation and in the period to early February 2012. This included a number of posts and
comments appearing on Ms McDonald’s Facebook page that were fundamentally
[2013] FWCFB 5759
15
corroborative of the employer’s case and fundamentally inconsistent with Ms McDonald’s
case.
[32] The Commissioner referred to a post by Ms McDonald at 10.30pm on 22 December
2011 which reads.
“Last day of work for the year! Hello Vet Nursing next year! =D (hopefully if all goes
well)”
[33] That post is entirely consistent with the employer’s case.
[34] The Commissioner did not refer to a comment posted by Ms McDonald at 4.52pm on
22 December 2011, the post most closely contemporaneous to the key conversation:
Matthew Cady post: “Kelly! Just working and saving, going to Europe in April for 6
months. What’s news with you? How’s everyone at il migliore?”
Kelly McDonald’s comment: “Nice! What are you doing in Europe? Things are ok
there, lol. I’m actually leaving and doing vet nursing. Just waiting to hear back from
some places. Don’t feel like my future is in hospitality anymore!” (emphasis added)
[35] The reference “lol” (“laugh out loud”) conveys irony or sarcasm: Ms McDonald
suggests that in fact things are not okay at Il Migliore. The statement “I’m actually leaving”
amounts to an admission that is fundamentally inconsistent with Ms McDonald’s evidence in
relation to the conversation on 22 December 2011. It fundamentally corroborates the
employer’s case. That admission was not satisfactorily explained. It was not open to the
Commissioner to accept Ms McDonald’s evidence in preference to the evidence of Ms
Lindsey and Ms Cordiner unless that admission was satisfactorily explained: Voulis v Kozary
(1975) 180 CLR 177.
[36] Posts on 8 and 9 January 2012 also support the employer’s case:
8 January 2012:
Kelly McDonald comment: “I’m switching to Veterinary Nursing. Over hospitality.
Waiting to hear back from some people so fingers crossed?”
9 January 2012:
Kelly McDonald post: “I think I just got a job...”
SL comment: “What’s the job?”
Kelly McDonald comment: “Veterinary nurse :)”
SL comment: “That’s awesome. Have you started studying? What happened with
pastries?
Kelly McDonald comment: “Not yet. Have to start working first! Pastry is a hobby,
not a career I have decided.”
(emphasis added)
[37] On Ms McDonald’s case she had not stopped working at Il Migliore and would
resume work in the usual way when the store reopened. Her statement “Have to start working
first” suggests that she regarded herself as being without a job as at 9 January 2012.
[2013] FWCFB 5759
16
[38] In a posted comment on 12 January 2012 Ms McDonald’s sister stated: “Can’t believe
how easily you’ve exposed yourself to a totally different career. I’m so proud and happy for
you!” On Ms McDonald’s case there was no occasion for such a remark. On Ms McDonald’s
case she has not resigned her employment at Il Migliore and had not “exposed” herself.
However the remark makes sense on the employer’s version of events.
[39] On 22 January 2012 Ms McDonald posted the following:
“Just don’t know what to do. Should I go for the job I would love and go broke in the
process? Or find another?”
[40] This suggests that Ms McDonald considered herself jobless with a need to “find
another” job so that she would not “go broke in the process” of going for the job in Vet
Nursing that she would love.
[41] On 1 February 2012 Ms McDonald posted:
“Want a job soon otherwise I won’t survive long”.
[42] That post is fundamentally inconsistent with Ms McDonald’s case and her oral
evidence. On her case and oral evidence there was no resignation on 22 December 2011 and
her employment simply continued in 2012 until she was dismissed, without any prior notice,
on 3 February 2012. On the other hand, the post of 1 February 2012 is entirely consistent with
the version of events given by Ms Lindsey and Ms Cordiner.
[43] Collectively, the entries on Ms McDonald’s Facebook page fundamentally corroborate
the employer’s case that Ms McDonald resigned her employment. Ms McDonald did not
provide a satisfactory explanation for the inconsistency between these Facebook posts and her
version of events.
[44] It is common ground that on 8 February 2012 Ms McDonald handed Ms Lindsey a
Centrelink Employment Separation Certificate and asked her to complete it. Ms Lindsey gave
evidence that Ms McDonald specified the date of separation - 17 February 2012 - and the
reason for separation as “seeking new career voluntarily”. That contemporaneous record also
corroborated Ms Lindsey’s oral evidence.
[45] On 17 February 2012, Ms McDonald’s last day, Ms Lindsey threw a farewell function
for Ms McDonald and gave her a valuable gift voucher as a present. Ms McDonald attended
the function and accepted the gift albeit that she contends that she did not want to do either.
[46] The evidence from the applicant’s mother, elicited by the Commissioner in leading
questions - that she did not remember her daughter saying she had resigned and that she
would have recalled such a thing because he daughter discussed all important matters with her
- is evidence of dubious weight, even putting aside concessions obtained in cross-examination
that undermined the claim. The Commissioner’s questions appear designed to provide a fig-
leaf of support for an acceptance of the applicant’s oral evidence notwithstanding the
inherently plausible evidence of the two employer witnesses, corroborated as it was, by
contemporaneous records that were not adequately explained by the applicant.
[2013] FWCFB 5759
17
[47] We conclude that, in light of all the evidence, the Commissioner had, to use the
language of Earthline, too fragile a base to support a finding that the evidence of Ms
McDonald should be accepted and the evidence of the employer witnesses rejected as
mistaken or unreliable. This is a case where, making all due allowances for the advantages
available to the trial of fact, we conclude that the Commissioner’s findings are affected by
error that we are obliged to correct.
[48] The Commissioner referred to a number of authorities dealing with casual
employment at common law and concluded that Ms McDonald was a permanent employee as
at 3 February 2013. It appears that the Commissioner considered this conclusion to be
necessary for the events of 3 February 2013 to constitute a dismissal at the initiative of the
employer. That reasoning was affected by error.
[49] The concept of casual employment at common law is not well defined. The main
authorities and the difficulties of characterisation are usefully identified by Boland P in Public
Service Association and Professional Officers’ Association Amalgamated Union of New South
Wales v Department of Justice and Attorney General (Corrective Services NSW) [2010]
NSWIRComm 148. However, those authorities had no proper application in the present case.
[50] A modern award, the Food, Beverage and Tobacco Manufacturing Award 2010,
applied to the applicant in her employment by Il Migliore. The provisions of a modern award
operate by force of statute and displace the common law to the extent of such operation. The
modern award defines casual employment. Clause 13 provides:
“13.1 A casual employee is one engaged and paid as such. A casual employee for
working ordinary time must be paid an hourly rate calculated on the basis of 1/38th of
the minimum weekly wage prescribed in clause 20.1(a) for the work being performed
plus a casual loading of 25%. The loading constitutes part of the casual employee’s all
purpose rate.
13.2 On each occasion a casual employee is required to attend work the employee
must be paid for a minimum of four hours’ work. In order to meet their personal
circumstances a casual employee may request and the employer may agree to an
engagement for less than the minimum of four hours.
13.3 An employer when engaging a casual must inform the employee that they are
employed as a casual, stating by whom the employee is employed, the classification
level and rate of pay and the likely number of hours required.”
[51] If an employee covered by this modern award is employed as a casual (that is, the
employment is characterised by the parties in that way) and paid as a casual, then the
employee is a casual under the modern award. The modern award applies by operation of
statute and displaces the common law for the purposes of determining whether an employee
covered by that modern award is a casual employee.
[52] The characterisation of an employee’s type of employment supplied by an applicable
modern award (or enterprise agreement) is the characterisation of that employee’s type of
employment for the purposes of the Fair Work Act 2009 (FW Act): see the discussion in
Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013]
FWCFB 2434.
[2013] FWCFB 5759
18
[53] There was no scope for the application of the common law authorities relied upon by
the Commissioner in the consideration of the s.394 application before him. Nevertheless, the
FW Act confers unfair dismissal protection on casual employees whose work has been regular
and systematic for a sufficient period: see s.384(2)(a).
[54] The evidence was unanimous that Ms McDonald was engaged and paid as a casual at
all material times. That was the case with all of Il Migliore’s employees. For the purposes of
the Fair Work Act 2009, Ms McDonald was a casual employee and not a permanent
employee.
[55] We disagree with the Commissioner’s finding that the commitment sought by Ms
Lindsey on 3 February 2013 involved a repudiation of Ms McDonald’s contract of
employment such as to constitute a termination at the initiative of the employer.
[56] The long standing employment relationship between the parties had been terminated at
the initiative of the applicant on 22 December 2011. A new employment relationship, casual
in nature (even in the common law sense), was established in January 2012, when the
applicant took up Ms Lindsey’s offer made on 22 December 2011 – as an apparent act of
generosity and kindness – to give her casual work while she continued her search for a job as
a veterinary nurse should she need the work. A reasonable person in the position of Ms
McDonald would not have had a reasonable expectation of continuing employment by the
employer on a regular and systematic basis (compare s.384(2)(b)).
[57] As at 3 February 2012 there was no ongoing employment contract (or employment
relationship) for Ms Lindsey to repudiate. Moreover, even on Ms McDonald’s version of the
events of 3 February 2012, Ms Lindsey wanted Ms McDonald to remain working at Il
Migliore for a further period of weeks at least.
[58] On different facts it may have been open to conclude that the parties agreed to a
withdrawal of the earlier resignation and/or agreed to restore the old employment relationship
as if there had been no resignation. However, there is no evidence permitting a conclusion that
that is what occurred in this case.
Permission to appeal
[59] The decision was made under Part 3-2 of the Fair Work Act 2009 (FW Act),
accordingly, s. 400 of the FW Act applies:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA considers that it is in the public
interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.”
[2013] FWCFB 5759
19
[60] In GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 a Full Bench
addressed the public interest requirement in s.400(1) (at [27]):
“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”We are satisfied that there is a public interest in granting permission
to appeal.”
[61] In our view, allowing the decision to stand would involve a manifest injustice such
that there is a public interest in granting permission to appeal.
[62] The Commissioner’s finding in relation to the events of 22 December 2011 involve
error of fact that meets the description in s.400(2). Indeed, that finding was central.
[63] The decision is affected by error and the requirements of s.400 are satisfied. We grant
permission to appeal. Permission having been granted, the appeal proceeds as a rehearing.
Rehearing
[64] The Commission has no jurisdiction to grant an unfair dismissal remedy to an
employee unless that employee was dismissed by the employer. The term “dismissed” is
defined in s.386 which relevantly 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.”
[65] We reject the Commissioner’s conclusion that Ms Lindsey and Ms Cordiner were
mistaken because of a miscommunication as implausible and in the teeth of corroborative
documentary evidence. For the reasons we have given the evidence of Ms Lindsey and Ms
Cordiner, corroborated by contemporaneous records, must be preferred to the evidence of Ms
McDonald. We find that Ms McDonald resigned her employment with Il Migliore on 22
December 2011. There was no termination at the initiative of the employer on that occasion.
[66] We are not persuaded that the events of 3 February 2012 involved a termination of Ms
McDonald’s employment at the initiative of the employer. On 22 December 2011,
notwithstanding Ms McDonald’s resignation, Ms Lindsey offered to provide casual work to
assist Ms McDonald if she remained looking for work. Ms McDonald accepted that offer
through her SMS message of 21 January 2012. A new employment relationship, truly casual
in nature, was established. As at 3 February 2012 the true casual nature of the new
employment relationship meant that Ms Lindsey had no obligation to continue providing
[2013] FWCFB 5759
20
shifts to Ms McDonald. Ms Lindsey wanted to provide ongoing work to Ms McDonald but
was seeking a commitment of several months. She had proper business reasons for seeking
such a commitment. Ms McDonald did not explicitly accept or reject Ms Lindsey’s offer of
continuing employment. Ms Lindsey did not state or otherwise indicate that Ms McDonald’s
non-response meant that her employment was being terminated.
[67] Ms McDonald, apparently unwilling to give a commitment of several months work,
believed that unless she gave that commitment she would not be given further work at Il
Migliore. Consistent with that belief, it was Ms McDonald who sought an Employment
Separation Certificate. But Ms Lindsey had not, at that time, dismissed Ms McDonald.
Indeed, even on Ms McDonald’s evidence, when the Employment Separation Certificate was
presented to Ms Lindsey to complete and sign, Ms Lindsey wanted Ms McDonald to continue
working at Il Migliore, at least for a period of weeks.
[68] However, even if, contrary to the conclusion we reached, the events of 3 February
2012 could be construed as a repudiation of the contract of employment and the employment
relationship by Il Migliore that was accepted by Ms McDonald such that there was a
termination at the initiative of the employer, Ms McDonald is nevertheless precluded from
obtaining an unfair dismissal remedy because, on a proper analysis, she had not completed the
“minimum period of employment” required by s.382(a) and thus could not satisfy the
jurisdictional requirement that she was protected from unfair dismissal as required by
s.390(1)(a).
[69] An employee cannot obtain an unfair dismissal remedy unless the person is “protected
from unfair dismissal”: s.390(1)(a). Relevantly for present purposes, a person is not
“protected from unfair dismissal” unless “the person is an employee who has completed a
period of employment with his or her employer of at least the minimum employment period”:
s.382(a).
[70] The expression “minimum employment period” is defined in s.383
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the
earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[71] The expression “period of employment” is defined in s.384 and includes special
provision for calculating the “period of employment” for casual employees:
“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.
[2013] FWCFB 5759
21
(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; ...
[72] The applicant’s resignation on 22 December 2011 brought her “employment... on a
regular and systematic basis” by Il Migliore to an end. It brought her employment relationship
– her “period of continuous service” - with Il Migliore to an end.
[73] In circumstances of this case, the “period of employment” referred to in s.382(a) was
the period of the new employment relationship that commenced in January 2012 when the
applicant took up Ms Lindsey’s December 2011 offer and worked a handful of casual shifts.
That period of employment was well short of the minimum period of employment required by
s.383. Accordingly, even if the events of 3 February 2011 involved a repudiation of her
employment by the employer, Ms McDonald was not protected from unfair dismissal and the
Commission has no jurisdiction to grant her a remedy.
Conclusion
[74] For the reasons we have given, on the rehearing Ms McDonald’s application for an
unfair dismissal remedy must be dismissed. We allow the appeal, quash the decision and
order of the Commissioner and dismiss the originating application for an unfair dismissal
remedy.
VICE PRESIDENT
OF FAIR WORK COME AUSTRALIA THE SEAL
[2013] FWCFB 5759
22
Appearances:
Mr. R. Barker for the Appellant
Ms. K. McDonald on her own behalf
Hearing details:
2013.
Melbourne:
February 13.
Final written submissions:
13 February 2013
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