1
Fair Work Act 2009
s.394—Unfair dismissal
Samantha Harston
v
Australian Leisure and Hospitality Group Pty Ltd T/A Sandringham Hotel
(U2018/8599)
DEPUTY PRESIDENT MASSON MELBOURNE, 10 JANUARY 2019
Application for an unfair dismissal remedy –jurisdictional objections – Applicant not
dismissed – minimum employment period not met – application not made within 21 days of
dismissal – jurisdictional objections dismissed.
Introduction
[1] On 15 August 2018, Ms Samantha Harston (the Applicant) lodged an application
pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her alleged
dismissal by the Australian and Hospitality Group Pty Ltd T/A Sandringham Hotel (ALH
Group).
[2] The Applicant, prior to the alleged dismissal, was employed by the ALH Group on a
casual basis as a food, beverage and TAB attendant at the Sandringham Hotel from 1 July
2013. The Applicant’s last shift at the Sandringham Hotel was on 6 June 2018.
[3] The ALH Group objects to the application on three grounds. Firstly, that the Applicant
was not dismissed; secondly that the Applicant had not completed the minimum employment
period as at the date of her alleged dismissal; and finally that the application had not been
made within 21 days of the alleged dismissal taking effect.
[4] Determination of ALH Group’s jurisdictional objections was listed for hearing on 12
November 2018.
[5] The Applicant was represented at the hearing by Mr A Dircks who was granted
permission to appear pursuant to s 596 of the Act. The Applicant was called to give evidence.
[6] The ALH Group was represented at the hearing by Mr K Hickie of Counsel, who was
granted permission to appear pursuant to s 596 of the Act. Mr Hickie called three witnesses to
give evidence for the ALH Group:
[2019] FWC 41
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 41
2
Ms Jenny Wregg Human Resources Manager of the ALH Group
Ms Claire Crotty Venue Manager for ALH Group at the
Sandringham Hotel
Mr Jye Kurz Assistant Venue Manager for ALH Group at the
Sandringham Hotel
Background and evidence
[7] The Applicant commenced employment with the ALH Group at the Sandringham
Hotel as a casual employee on 1 July 2013 and worked as a food, beverage and TAB
attendant, principally in the public bar which has TAB facilities.1 The Applicant typically
worked two to four shifts per week and one shift on the weekend, which was confirmed by
payroll records for the two year period that immediately preceded the termination of the
Applicant’s employment.2 Due to the Applicant’s original letter of employment having been
misplaced by the ALH Group, Ms Harston received a formal letter confirming her
employment dated 26 August 2017.3
[8] In late May 2018, the Applicant approached her supervisor, Mr Kurz, in relation to a
role at the TAB that she had applied for.4 The Applicant characterised the role with the TAB
as “short term and training” and an opportunity to broaden her skills and add more value to
her role at the Sandringham Hotel when she returned.5 Mr Kurz rejected the Applicant’s
characterisation of the role as directly related to her role at the Sandringham Hotel.6 The short
term role, which was described by the Applicant as a TAB brand promotion role, was initially
for a six week period but was subsequently extended for a further two weeks.
[9] The Applicant, while characterising the job with the TAB as a training and a
broadening opportunity, concedes that her role at Sandringham Hotel, unlike the TAB role,
did not involve promotion of the TAB and had a different operational perspective.
Furthermore, she received a substantially higher rate of pay for the TAB role then her role at
the Sandringham Hotel. The Applicant states that the TAB role “unfortunately” did not lead
to a longer term role, but she was adamant that it was only ever intended to be a short term
role and she intended to return to the Sandringham Hotel.7
[10] In a Facebook message to Mr Kurz on 30 May 2018, the Applicant sought to clarify
whether she needed to quit or whether she could remain “on the books” during the period of
her role with the TAB. Mr Kurz confirmed that she could “go for 3 months before we have to
terminate you, so if you want to stay in the system that’s fine, we can just leave it”.8 Mr Kurz
was requested by the Applicant to act as a referee for the TAB role, to which he agreed and
subsequently completed an on-line reference check.9
[11] According to Mr Kurz, the Applicant’s request for a six week period of “leave” for
the role at TAB was not approved by the Venue Manager.10 He had, however, indicated to the
Applicant that it (the leave request) was “ok”, did not subsequently tell her that the leave had
not been approved, and was not aware if any other staff member had told the Applicant that
her “leave” request had been disallowed.11
[12] The Applicant confirmed via a Facebook message to Mr Kurz on Monday, 4 June
2018 that she had secured the role with the TAB for six weeks and that Wednesday, 6 June
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2018 would be her last shift at the Sandringham Hotel prior to her commencement with the
TAB on Thursday, 7 June 2018. Mr Kurz acknowledged in his reply that the Applicant’s
shifts would need to be covered for that period to which the Applicant responded and
“promised” she would be back.12
[13] Mr Kurz met with the Applicant during her last shift at the Sandringham Hotel on 6
June 2018. Mr Kurz states that during his meeting with the Applicant he told her that there
was no guarantee of a job on completion of her role with the TAB; that she may need to re-
apply depending on the situation; and that there were a number of variables including how
long her role with the TAB went for, staff resignations at the Sandringham Hotel and
upcoming renovations.13 Ms Harston rejects Mr Kurz’s version of that conversation and states
that Mr Kurz was anxious and did not want her to leave, told her that she could remain on the
books for up to three months and could come back to a full time position. The Applicant
denies that she was told by Mr Kurz that there was no guarantee of a job on her return.14
[14] A series of messages were exchanged via Facebook Messenger between Mr Kurz and
the Applicant over the weeks following the Applicant’s last shift at the Sandringham Hotel.
The nature of those exchanges can be summarised as follows:
(i) 10 June 2018 – Mr Kurz messaged the Applicant asking if she was available to
work that evening. The Applicant declined.
(ii) 21 June 2018 – Message exchange between the Applicant and Mr Kurz in
which the Applicant variously states:
a. “okay so I’m not coming back” to which Mr Kurz responds
“Nooooooooo”
b. Applicants also states “But seriously I don’t wanna come back. Maybe for
a few weeks then I’m done. Who knows.”
Mr Kurz conceded during cross-examination that he did not accept the
Applicant’s comments as a resignation.15
(iii) 22 June 2018 – Applicant messaged Mr Kurz confirming that she will be back
on 23 July 2018 and wants to hold a meeting regarding the upcoming busy
period of racing to which Mr Kurz agrees.
(iv) 24 June 2018 – Applicant messaged Mr Kurz stating that she is not coming
back while a particular customer is “hanging around”.
(v) 29 June 2018 – Applicant messaged Mr Kurz asking about how she could
secure a full-time role to which Mr Kurz replies…“Perfect timing Sam. Claire
and I were talking about a full time tab person. I’ll let her know you’re
interested when I get to work and see if I can get you more info…..Claire is
totally on board for it, we just need to go to Andrew for approval before we
can get any more info…”
(vi) 4 July 2018 – Applicant messaged Mr Kurz asking whether it will be OK for
her to do her normal shifts on her return to which Mr Kurz replies…. “I guess.
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I’ll talk to Claire about the meeting and Andrew is in today so if I can pin him
down for a minute I’ll ask about the full time.”
(vii) 4 July 2018 – Mr Kurz messaged the Applicant asking whether she would like
to work the next day, to which the Applicant declines.
(viii) 6 July 2018 – Applicant messaged Mr Kurz advising that she will be working a
further two weeks with the TAB and will not finish until 29 July 2018 to which
Mr Kurz replies…“Boooooo”.
(ix) 7 July 2018 – Applicant messaged Mr Kurz asking whether they need a “hand
in the bar tonight”. While Mr Kurz initially responds that they do, he advises
later in the evening that assistance is probably not required.
(x) 8 July 2018 – Mr Kurz messaged the Applicant with a procedural request
regarding signing of TAB cheques. The Applicant responds.
(xi) 13 July 2018 – Applicant messaged Mr Kurz advising that she will be
available for shifts on 1 August 2018 to which Mr Kurz replies “All good!”
(xii) 21 July 2018 – Mr Kurz messaged the Applicant asking whether she is able to
work that evening. Applicant declines due to a social engagement.
(xiii) 25 July 2018 – Applicant forwarded an on-line TAB survey document to Mr
Kurz that Sandringham Hotel staff are required to complete. She also asks
whether there is any word on shifts for her yet.
[15] Ms Crotty commenced as Venue Manager with the ALH Group at the Sandringham
Hotel on 18 June 2018. Ms Crotty states that in late June or early July there were discussions
regarding a potential full time position in the TAB/Sportsbar that was opening up at the
Sandringham Hotel. At or around this time, Mr Kurz advised Ms Crotty that the Applicant
wanted to come back to the Sandringham Hotel. She states that she advised Mr Kurz that it
was important for her as the new Venue Manager to meet with Ms Harston before any shifts
were distributed to her. A meeting between Ms Crotty and the Applicant was arranged for 18
July 2018.16
[16] Ms Crotty states that she met with the Applicant on 18 July 2018 and that it was a
causal conversation. According to Ms Crotty, the Applicant expressed interest in returning to
the venue. Ms Crotty indicated that while there were no current roles, she told the Applicant
that she would be interested in filling a role of TAB attendant at some stage following
completion of venue renovations that were underway. Ms Crotty also states that she suggested
she would contact the Applicant to arrange for her to meet with a fellow manager, Ms Corrina
Kennedy for an interview as she had more TAB skills than Ms Crotty.17 The Applicant states
in respect of the meeting of 18 July 2018 that Ms Crotty said she would be in contact in the
next week about going back on the roster but then failed to contact her.18
[17] Ms Crotty states that on 25 July 2018 she was at the Sandringham Hotel and entered
the TAB area and found the Applicant present in plain clothes behind the counter on the TAB
computer.19 The Applicant states that she was dealing with an “urgent compliance” matter
and had been contacted by another employee, Mr Michael McCauley, who was confused and
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had sought her assistance to which the Applicant, believing she was still an employee,
responded to by going into the hotel to assist.20
[18] Ms Crotty states that she was shocked to see the Applicant behind the bar and asked
her to come out and speak with her in another area. During the course of the subsequent
conversation, Ms Crotty states that she made it clear to the Applicant that her presence was in
breach of the ALH Group’s policies and gaming regulations. She also introduced the
Applicant to Ms Kennedy and said to the Applicant that her position at the Sandringham
Hotel had not yet been determined. The Applicant was then politely requested to leave the
premises.21
[19] On 28 July 2018, the Applicant visited the venue with her partner in the capacity of a
patron. The Applicant states that she was in the public bar and changed the channels on the
TV monitor at the request of another patron. The Applicant states that she understood that as
an employee she was not permitted to attend the venue as a patron without prior approval of a
manger.22 The incident was reported to Ms Crotty who was concerned about the Applicant’s
conduct compromising ALH Group’s compliance with gaming regulations that applied to the
venue.23
[20] Rostering of staff at the Sandringham Hotel was managed by Mr Kurz who received
verbal or email advice from staff as to their availability. Mr Kurz confirmed that there was no
maximum set period that casual staff members were allowed to make themselves unavailable
for shifts and agreed it was quite reasonable for staff members to take holidays for a period.24
Whereas staff availability was previously maintained in an “unavailability book”, it is now
recorded electronically in an internal Google document that is maintained by and only visible
to management. Mr Kurz states that based on notified staff availability he prepares rosters
weekly in advance. Once the roster is reviewed by the Operations Manager it is then
published to a closed Facebook group of employees.25
[21] The Applicant was a member of that Facebook group until her removal by Mr Kurz at
Ms Crotty’s direction in early August 2018.26 Mr Kurz states that Ms Crotty’s direction to
remove the Applicant from the Facebook group was the only time he had been instructed to
remove a staff member from that group. Furthermore, he did not advise the Applicant of her
removal and was not aware of whether there would be an automatic Facebook notification to
the Applicant of such removal.27
[22] Ms Crotty states that she directed Mr Kurz to remove the Applicant from the Facebook
group some time on or after 1 August 2018 to prevent other staff from undertaking shift
swaps with her, shift swaps being a common occurrence amongst staff. This action was taken
by Ms Crotty in response to “the week of misconduct”28 of the Applicant, that reference being
to the incidents of 25 and 28 July 2018. Ms Crotty denied that the Applicant’s removal would
prevent the Applicant getting shifts and states that she could have contacted management if
she wanted work.29 Ms Crotty further states the misconduct that had led to the Applicant’s
removal from the Facebook group was “being reviewed”.30
[23] On 1 August 2018, the Applicant sent an email to Ms Crotty seeking clarification
regarding her employment.31 The Applicant referred in the email to previous contact she had
made with Ms Crotty and that Ms Crotty had not contacted her despite having told the
Applicant that she would do so. The Applicant put to Ms Crotty in the email that the lack of
response and the fact that the Applicant had not been placed on the roster indicated to her that
[2019] FWC 41
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she had been terminated. The Applicant requested a response by end of business on 3 August
2018. There was no evidence of a substantive response from Ms Crotty to the issues raised in
the Applicant’s email.
[24] Ms Crotty states that she took issue with various statements in the Applicant’s email of
1 August 2018, specifically the Applicant’s claim that she had taken six weeks off for training
with the TAB and the Applicant’s claim that she came in to the Sandringham Hotel on 25 July
2018 to deal with “urgent compliance matters”. Ms Crotty further states that she discussed
the email with her Operations Manager who advised her that, in the present circumstances
where renovations of the venue were underway and where the Applicant had taken time off to
take up a role with the TAB, ALH Group was not obliged to offer the Applicant any shifts.32
[25] On 4 August 2018, the Applicant sent an email to Ms Wregg33 in which the Applicant
detailed the steps she had taken to clarify her employment status with the ALH Group at the
Sandringham Hotel. The Applicant complained of the failure of managers at the venue to get
back to her and advise whether she had a job or not. Ms Wregg responded by email on 6
August 2018 and proposed they speak via telephone the following day.34
[26] On 7 August 2018, Ms Wregg spoke by telephone with the Applicant. According to
Ms Wregg, the conversation with the Applicant traversed a number of issues including the
Applicant’s role at the TAB, her original request for leave made to Mr Kurz, her attendance to
the “compliance matter” at the venue on 25 July 2018, emails sent to Ms Crotty and the
Operations Manager to which she had received no reply and her role at the Sandringham
Hotel. At the end of the conversation, Ms Wregg asked the Applicant what she was seeking to
which the Applicant replied “do I have a job”.35 Ms Wregg made handwritten notes of the
conversation.36
[27] On 8 August 2018, Ms Wregg spoke with Ms Crotty regarding her telephone
conversation with the Applicant the previous day. That conversation was also captured in a
handwritten note.37 Under cross-examination in relation to her conversation with Ms Crotty
Ms Wregg variously states that:
As a result of her conversation with the Applicant on 7 August 2018, she intended
to find out whether the Applicant had a job but was also following up on her
complaint38 but then did not ask Ms Crotty specifically whether the Applicant had a
job.39
The particular words recorded in her handwritten note “may not have” were not in
response to the immediately preceding question raised by the Applicant recorded in
her notes “do I have a job”. Ms Wregg while rejecting that the comments were
linked, was unable to say what the words “may not have” referred to.40
Comments recorded in her notes including “no respect”, “go back of house,
“breach ALH and TAB” referred to the Applicant’s conduct issues discussed with
Ms Crotty.41
There were no shifts currently available as the venue was undergoing renovations
and there were times when some of the bars in the hotel were closed.42
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[28] On 13 August 2018, Ms Wregg had a further telephone conversation with the
Applicant during which she states:
She repeatedly advised the Applicant that the hotel was undergoing renovations
and there are no shifts available for at least two weeks43;
She explained to the Applicant that she failed to follow Ms Crotty’s instruction
about going back of house;44
The Applicant repeatedly asked about shifts to which Ms Wregg advised that the
allocation of shifts was Ms Crotty’s responsibility;45
She suggested to the Applicant that she could approach managers at other hotels in
the area and if she could secure employment at another hotel within three weeks,
ALS Group could offer continuity of employment46; and
After being pressed by the Applicant, Ms Wregg confirmed that there were no
shifts available.47
[29] The Applicant states that she was told by Ms Wregg during their conversation that
there was no longer a job for her at the Sandringham Hotel. The Applicant further states that
when she asked Ms Wregg whether this meant she did not have a job, Ms Wregg replied
“yes”.48 Ms Wregg denied having dismissed the Applicant during the conversation and could
not recall the Applicant asking, “does this mean I don’t have a job?”.49
[30] The Applicant subsequently requested a Separation Certificate which was provided to
her on 24 August 2018. The Separation Certificate, while not produced in evidence,
apparently referred to the separation as having been due to the Applicant having left
voluntarily. The Applicant queried this reason and was subsequently contacted by Ms Wregg
via email on 24 August 2018. Ms Wregg reaffirmed in her email to the Applicant that she had
not terminated the Applicant; that the Applicant had voluntarily left the Sandringham Hotel to
pursue a role with the TAB; and that the hotel had been undergoing renovations which meant
shifts were not available for a period of a few weeks.50
Relevant legislation
[31] The ALH Group has raised three jurisdictional objections to the application, those
being:
(i) the Applicant was not dismissed by the ALH Group;
(ii) the Applicant had not completed the minimum employment period as at the
date of the alleged dismissal; and
(iii) in the alternative to the above, the application which was made on 15 August
2018 was made outside of the statutory 21 day period based on the cessation of
the Applicant’s employment on 6 June 2018.
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[32] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act.
Section 394(1) reads as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.”
[33] Section 386 of the Act prescribes when a an employee has been dismissed and states
as follows:
“386 Meaning of dismissed
(1) [When a person has been dismissed]
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.”
[34] The initial matters to be considered are contained in s.396 of the Act as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection
394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy.
Section 396(b) requires the Commission to consider whether the person making the
application is protected from unfair dismissal.”
[35] In so far as this application is concerned s 382(a) of the Act addresses this as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
[2019] FWC 41
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(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period.”
[36] A “period of employment” is defined in s 384 of the Act which provides:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer at that
time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and
systematic basis; and
(ii) during the period of service as a casual employee, the employee
had a reasonable expectation of continuing employment by the
employer on a regular and systematic basis.”
[37] The “minimum employment period” is defined in s 383 of the Act as follows:
“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.
The “minimum employment period” is one year for a small business or 6 months for
an employer which is not a small business.”
[38] Having regard to the above, it is necessary for me to consider whether the Applicant
was dismissed at the initiative of the ALH Group, and if so, determine on what date the
dismissal took effect. Should I find the Applicant was dismissed by the ALH Group, I must
then consider whether any of the periods of service of the Applicant as a casual employee can
be counted in the Applicant’s period of employment. To do so, I must consider whether the
Applicant was employed on a regular and systematic basis and had a reasonable expectation
of continuing employment on a regular and systematic basis. If I find in the affirmative for all
or any of her service, I must consider whether this service amounted to a period of
employment that is at least the minimum employment period of six months.
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[39] Should I find that the Applicant was dismissed at the initiative of the ALH Group and
had served the minimum employment period, it will then be necessary for me to consider
whether the application was filed with thin the statutory 21 day period, and if not, whether an
extension of time should be granted for the application to be made.
Consideration
Was the Applicant dismissed?
[40] ALH Group submit that the Applicant was not dismissed but rather ceased
employment when she took up a role with the TAB and that prior to doing so was expressly
told by Mr Kurz that there was no guarantee of further shifts and that the availability of
further shifts would be dependent on a range of variables. ALH Group point to other evidence
of the cessation of employment being at the Applicant’s initiative, that evidence being the
Facebook messages she shared with Mr Kurz on 21 June 2018 in which she variously stated
that she did not want to return to the Sandringham Hotel.
[41] As regards the alleged termination of the Applicant by Ms Wregg on 13 August 2018,
ALH Group deny that Ms Wregg said to the Applicant that she no longer had a job in a
telephone conversation on that day. ALH Group rely on the evidence of Ms Wregg that she
had simply reaffirmed to the Applicant that there were no shifts available for a few weeks due
to renovations to the venue.
[42] The Applicant denies that Mr Kurz made a statement to her to the effect that there
was no guarantee of shifts on completion of her role with the TAB. She further states that Ms
Wregg confirmed in the telephone conversation on 13 August 2018 that she no longer had a
job. The Applicant also points to a number of other factors that confirm her clear intention to
return to her casual role at the Sandringham Hotel including her extensive Facebook messages
with Mr Kurz.
[43] ALH Group seeks to rely on the content of the conversation between Mr Kurz and the
Applicant on 6 June 2018 in support of its submission that the Applicant left ALH Group
voluntarily. The absence of any formal record of the conversation means that it is necessary to
consider the context in which that conversation took place; the preceding and subsequent
communication between the Applicant and Mr Kurz; and the reliability of the respective
evidence of Mr Kurz and the Applicant.
[44] Mr Kurz was adamant that he warned the Applicant during their 6 June 2018
conversation that there was no guarantee of shifts on completion of her job with TAB. There
is, however, a significant tension in his evidence when viewed in the context of almost all
other evidence and communication between himself and the Applicant. That other evidence
and communication includes:
(i) On 30 May 2018, the Applicant advised Mr Kurz that she had had an interview
for the TAB role and sought to clarify whether she would have to quit. Mr
Kurz responded that she could remain “on the books” for three months before
ALH Group would have to terminate her.
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(ii) Mr Kurz confirmed in his evidence that it was not unusual for casual
employees to take periods of leave and that there was no maximum period of
time that a casual employee was allowed to make themselves unavailable.
(iii) Notwithstanding that the Applicant was a casual employee, Mr Kurz states that
he agreed to the Applicant’s period of leave, did not disabuse the Applicant of
her understanding that her period of “leave” was ok and he was not aware of
any other manager advising the Applicant that the period of “leave” was not
approved.
(iv) Mr Kurz acknowledged in Facebook messages to the Applicant on 4 June 2018
that the Applicant’s shifts would need to be covered while she did the TAB
role.
(v) Confronted with Mr Kurz’s apparent disappointment with her taking a period
of “leave” to do the TAB role, the Applicant “promised” Mr Kurz in
Facebook messages on 4 June 2018 that she would be returning and that he
should think of her absence as if she were going on a “holiday”.
(vi) On 10 June 2018, Mr Kurz contacted the Applicant to see if she was available
to work that evening.
(vii) Facebook messages exchanged between the Applicant and Mr Kurz on 21 June
2018 appear to indicate that the Applicant was reconsidering her planned
return to the Sandringham Hotel.
(viii) Notwithstanding the expression of uncertainty by the Applicant on 21 June
2018 as to her returning to work at the venue, she subsequently confirms in a
Facebook message on 22 June that she will be returning on 23 July 2018.
(ix) On 29 June 2018, the Applicant asks Mr Kurz via a Facebook message about
returning on a full time basis to which Mr Kurz responds enthusiastically,
although he notes that approval for a full-time role rests with the Operations
Manager.
(x) On 2 – 4 July 2018, the Applicant asks Mr Kurz whether she will be able to do
her normal shifts on her return. Mr Kurz responds “I guess” and states that he
will follow up with the Operations Manager regarding the full-time role.
(xi) On 4 July 2018, Mr Kurz sends a Facebook message to the Applicant and asks
whether she wants to work on 5 July 2018.
(xii) On 5 July 2018, Mr Kurz asks the Applicant via a Facebook message whether
she can stay a few hours and do closing that evening due to other employees
not having turned up for the TAB close.
(xiii) On 6 July 2018, the Applicant advises Mr Kurz via a Facebook message that
she will be doing an extra two weeks with the TAB and will not be finishing
until 29 July 2018, to which Mr Kurz expresses disappointment.
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(xiv) On 7 July 2018, the Applicant inquires with Mr Kurz as to whether the venue
“needs a hand” that evening as she would like to earn some additional income.
Mr Kurz after initially indicating that they could use some assistance later
advises that assistance is probably not required.
(xv) On 8 July 2018, Mr Kurz sends a query to the Applicant regarding
requirements for signing TAB cheques.
(xvi) On 13 July 2018, the Applicant sends a Facebook message to Mr Kurz
indicating she will be available for shifts from 1 August 2018 to which Mr
Kurz acknowledges by saying “all good!”
(xvii) On 21 July 2018, Mr Kurz sends a Facebook message to the Applicant asking
whether she is able to work that evening.
[45] In addition to the above-referred communication, there is stream of private Facebook
message banter between the Applicant and Mr Kurz regarding the venue and its staff. Much
of the banter appears to be gossip but is nonetheless indicative of an ongoing interest of the
Applicant in the venue and supports a conclusion that the Applicant had a clear intention to
return to the venue on completion of her role with the TAB.
[46] Having regard to both the specific communication between the Applicant and Mr
Kurz summarised above and the general communication to which I have referred, I have
formed a strong view that Mr Kurz reluctantly accepted that the Applicant would be taking a
break from the venue due to her TAB role and was enthusiastic at the prospect of her return.
He was supportive of the opportunity the Applicant had by acting as her referee for the TAB
role, made clear that she could stay “on the books” for up to three months and had advised
her that her period of “leave” was “OK”. Furthermore, Mr Kurz continued to offer her shifts
during the period of her absence as well as seeking specific work related advice from her on at
least one occasion.
[47] Against the weight and tone of the ongoing communication between Mr Kurz and the
Applicant, I find Mr Kurz’s evidence of the content of his conversation with the Applicant on
6 June 2018 unconvincing. I prefer the evidence of the Applicant and am satisfied that she
was not “warned” by Mr Kurz that there was no guarantee of shifts on completion of her
short term role with TAB or that future shifts would be dependent on a range of variables.
[48] I am further satisfied that the Applicant took up the short-term brand promotion role
with the TAB, albeit with a limited hope of an ongoing role, with a clear expectation gained
from her interactions with Mr Kurz that she would be able to return to her casual role at the
end of the short-term TAB role. The weight of evidence supports a conclusion that Mr Kurz,
while supportive of the TAB opportunity, was disappointed that she took up that role, was
anxious for the Applicant to return and gave her every indication that she would be able to
return to her casual role, if not a permanent role that was tentatively discussed but failed to
progress.
[49] As regards Mr Kurz’s evidence that the Facebook message of 21 June 2018 caused
him to be uncertain about the Applicant’s intention of returning to work, I do not accept that
evidence. It is apparent on a full reading of the communication between Mr Kurz and the
Applicant that there was a level of informality and at times coarseness in the banter that
[2019] FWC 41
13
reflects poorly on both, but in particular on Mr Kurz as a supervisor. It was in the context of
that banter that the Applicant appears to have been speculating with Mr Kurz about her return
to work at the venue, but any doubts as to the seriousness of those comments are dispelled by
subsequent messages from the Applicant on 22 June 2018 when she confirms her intended
return on 23 July 2018. Furthermore, there is no subsequent uncertainty evident on the part of
Mr Kurz as to the Applicant’s intention to return based on the continued stream of Facebook
Messenger communication between himself and the Applicant and his offers of shifts to the
Applicant. Tellingly, Mr Kurz conceded during cross examination that he did not regard the
Applicant’s Facebook comments on 21 June 2018 as a resignation.
[50] I consequently find ALH Group’s submission on the Applicant’s return to work
intentions and its reliance on the 21 June 2018 messages as selective and misrepresent the
overall tenor of communication between the Applicant and Mr Kurz. I am satisfied on the
evidence that the Applicant intended to return to her casual role at the Sandringham Hotel and
that Mr Kurz did nothing to dispel the Applicant’s belief that she would be returning to her
casual role.
[51] Having considered the communication between Mr Kurz and the Applicant, it is also
necessary to consider the events leading up to and including the telephone conversation
between the Applicant and Ms Wregg on 13 August 2018 during which conversation it is
alleged by the Applicant that Ms Wregg confirmed she no longer had a job.
[52] Ms Crotty gave evidence that she commenced on 18 June 2018 as the venue manager
at the Sandringham Hotel and in that capacity was reviewing staff requirements moving
forward. Ms Crotty was progressively meeting with all staff, including the Applicant, with
whom she met on 18 July 2018. At the conclusion of that meeting, she indicated to the
Applicant that she would contact her the following week to arrange a further meeting between
the Applicant and Ms Korrina Kennedy.
[53] What followed the meeting of 18 July 2018 were two incidents at the Sandringham
Hotel involving the Applicant which Ms Crotty states breached both gaming regulations and
ALH Group policies. The incidents of 25 and 28 July 2018 in which the Applicant visited the
venue were referred to by Ms Crotty as the Applicant’s “week of misconduct”. As a
consequence of those incidents, Ms Crotty directed Mr Kurz to remove the Applicant from the
closed Facebook group that existed for the purpose of roster notification to staff. That action
was taken to prevent employees arranging shift swaps with the Applicant. The Applicant’s
removal from the Facebook group was, on Mr Kurz’s evidence, unprecedented in his
experience at the Sandringham Hotel and appeared on the evidence to have occurred
sometime on or after 1 August 2018.
[54] Ms Crotty gave further evidence that the incidents of the Applicant’s misconduct that
led to her removal from the closed Facebook group were “being reviewed”, although what
such review involved was not adduced in evidence. Certainly, there was no evidence of a
formal investigation of the incidents and/or interview of the Applicant or any decision taken
and communicated to the Applicant regarding any consequence. The explanation as to the
lack of any formal process is likely explained by Ms Crotty’s belief, based on her discussion
with the Operations Manager, that the ALH Group were under no obligation to offer shifts to
the Applicant as a consequence of the venue renovations and the Applicant having taken a job
with the TAB.
[2019] FWC 41
14
[55] Ms Crotty maintained that the Applicant’s removal from the closed Facebook group
did not prevent the Applicant getting shifts and that she could have contacted management by
telephone. I find that evidence unconvincing and do not accept it. My reasons for this are that,
there was no evidence of any other staff being previously removed from the Facebook group;
the stated reason for the Applicant’s removal from the Facebook group was her alleged
“misconduct”; and Ms Crotty wanted to prevent other staff doing shift swaps with the
Applicant. It is trite for Ms Crotty to suggest that the Applicant could have rung up
management and sought shifts when on her own evidence ALH Group did not believe they
were obliged to offer the Applicant shifts and the specific reason for her removal from the
Facebook group was to prevent other staff from doing shifts swaps with her.
[56] I am satisfied that Ms Crotty formed a view that the Applicant should not be offered
shifts and that the Applicant was to be prevented from doing shift swaps with other staff by
her removal from the Facebook group. Tellingly, the Applicant was not advised by Mr Kurz
or Ms Crotty that she had been removed from the Facebook group and that her removal was
for reasons of her “week of misconduct” and that such misconduct was under “review”.
[57] It is apparent that by early August 2018, the Applicant had become increasingly
concerned as to her employment status with ALH Group as evidenced by her emails to Ms
Crotty on 1 August 2018 and to Ms Wregg on 4 August 2018. The Applicant expressed
frustration in her emails as to a lack of response to her queries regarding whether she had a
job at the Sandringham Hotel.
[58] Ms Wregg then spoke with the Applicant on the telephone on 7 August 2018 at the
end of which, according to Ms Wregg’s handwritten notes, the key question asked by the
Applicant was, “do I have a job”. Ms Wregg then spoke with Ms Crotty on 8 August 2018
during which a number of matters were discussed including various concerns regarding the
Applicant including the incidents of “misconduct” on 25 and 28 July 2018. Ms Wregg
acknowledges the key question posed by the Applicant that she needed to follow up on, that
of whether the Applicant had a job, but according to her evidence she failed to gain an answer
to that question.
[59] The unsatisfactory nature of Ms Wregg’s evidence in respect of her response to the
Applicant’s question as to her employment status is brought into focus by her handwritten
notes of her conversations with both the Applicant and Ms Crotty. The specific statement
recorded by Ms Wregg, “may not have”, which was written by her directly below her record
of the Applicant’s key question, “do I have a job” was not explained. Ms Wregg, while
denying the two statements were linked, was unable to say what the recorded comment “may
not have” was in reference to. In the absence of a plausible explanation by Ms Wregg as to
the meaning of the particular reference and having regard to other contextual matters, i.e. the
Applicant’s “week of misconduct” that was under “review”, a reasonable inference may be
drawn that the comment “may not have” was in relation to the question raised by the
Applicant “do I have a job”. No alternate explanation was offered by Ms Wregg and
consequently I draw the inference as I have described, that is the Applicant may not have had
a job.
[60] There was a lack of candour on the part of Ms Wregg and Ms Crotty in their dealings
with the Applicant as she strove to gain clarity on her employment status. On the one hand it
was stated to the Applicant that there were no shifts available for a few weeks due to venue
renovations. This was despite Mr Kurz having offered the Applicant work as recently as 21
[2019] FWC 41
15
July 2018. They also omitted to tell the Applicant that she had been removed from the staff
Facebook group, effectively preventing her from doing any shift swaps with other staff. Nor
was she told that her removal was due to her “week of misconduct” which was under
“review”. Seen in this context, Ms Wregg’s statements to the Applicant that there were no
shifts available due to the venue renovations underway appear disingenuous. I would also
observe that the venue was not closed during the period but parts of the venue were impacted
by the renovations and were at times closed.
[61] Ms Wregg in her evidence denies telling the Applicant on 13 August 2018 that she no
longer had a job. The Applicant directly contradicts Ms Wregg’s version. In the circumstances
of the lack of candour I have found on the part of Ms Wregg and Ms Crotty in relation to the
Applicant’s employment status, I regard it as inherently unlikely that Ms Wregg would have
then confirmed the Applicant’s employment status in the conversation on 13 August 2018. I
consequently prefer Ms Wregg’s evidence of the conversation of 13 August 2018 that she did
not tell the Applicant she no longer had a job. That Ms Wregg did not tell the Applicant she
no longer had a job was in my view merely consistent with the above-described lack of
candour.
[62] Having considered the evidence, I am not persuaded that the Applicant’s decision to
take up a short-term role with TAB constituted a resignation. I have reached this view based
on; the Applicant consistently expressed an intention to her supervisor Mr Kurz that she
would return at the end of the short-term TAB role; Mr Kurz had agreed to the Applicant
taking “leave”; had acknowledged that her shifts would be covered; confirmed that she could
stay “on the books” for up to three months; and continued to offer her shifts during the period
she was working for the TAB. Importantly, I have also found that Mr Kurz did not “warn”
the Applicant that there was no guarantee of shifts at the Sandringham Hotel on completion of
her short term TAB job.
[63] It is however clear that by late July 2018, despite Mr Kurz’s previously communicated
support and enthusiasm for the Applicant’s return, circumstances had changed and the new
venue manager, Ms Crotty, had formed a less sanguine view of the Applicant’s future with the
ALH Group. I am satisfied on the evidence that the ALH Group determined that the
Applicant should not be offered further shifts. While seeking to rationalise that decision on
the basis of the venue renovations and the Applicant having taken a short term role with TAB,
I am satisfied that the decision was in fact taken in response to Ms Crotty’s concerns over the
Applicant’s “week of misconduct”.
[64] The ALH Group sought to present their decision to not offer the Applicant further
shifts as driven by the venue renovations underway in August 2018. That explanation is
significantly undermined by Mr Kurz’s prior offers of shifts to the Applicant and Ms Crotty’s
direction to Mr Kurz to remove the Applicant from the closed staff Facebook group which
occurred on or after 1 August 2018. At no stage was the Applicant advised that her conduct
was under “review” as a consequence of her “week of misconduct” or that she had been
removed from the Facebook group.
[65] Termination at the initiative of the employer means a termination brought about by an
employer and which is not agreed to by the employee. A termination of employment can
occur at the initiative of the employer even if it is not done by the employer.51 It requires the
action of the employer to be the principal contributing factor which leads to the termination of
the employment relationship. I am satisfied in the circumstances that the principal
[2019] FWC 41
16
contributing factor to the dismissal of the Applicant was the decision of the ALH Group to not
offer the Applicant shifts and to remove her from the closed staff Facebook group. I am
consequently satisfied that the Applicant was dismissed at the initiative of the ALH Group.
Has the Applicant completed the minimum employment period as at the date of her alleged
dismissal?
[66] In order for the Applicant to establish that she has satisfied the minimum employment
period as a casual employee, it is necessary that her period of service with the ALH Group
meets two tests:
(i) that she was regularly and systematically engaged for an aggregate period of
service of at least six months; and
(ii) during that period of service she had a reasonable expectation of continuing
employment by the employer on a regular and systematic basis.
[67] ALH Group concede that the Applicant was regularly and systematically engaged as a
casual employee up until her final shift on 6 June 2018 and that such period of regular and
systematic employment exceeds the minimum period of employment of six months. They
contend however that as at the 6 June 2018, the Applicant could not have had a reasonable
expectation of ongoing employment on the basis of the warning given by Mr Kurz to the
Applicant on that day that there was no guarantee she would be given further shifts on
completion of the short-term role with TAB.
[68] In the context of casual employees pursuing an unfair dismissal remedy,
Commissioner Roe considered the meaning of the terms “regular and systematic”
engagement and “reasonable expectation of ongoing employment” in Mr Cori Ponce v DJT
Staff Management Services Pty Ltd T/A Daly’s Traffic52 (Ponce). Commissioner Roe
specifically considered at what point the expectation of ongoing employment must be
determined and relevantly stated as follows:
“[57] The other significant change is that the WR Act required that for a casual to
achieve jurisdiction:
“the employee has, or but for a decision by the employer to terminate the employee’s
employment, would have had, a reasonable expectation of continuing employment by
the employer (Section 638(4)(b)).”
[58] Whilst the 2009 Act requires that:
“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 (Section 384(2)(a)(ii)).”
[59] The focus on the reasonable expectation of continuing employment is not now
about the expectation at the point of termination but about the expectation during the
period of service that is to count towards achievement of the minimum employment
period to achieve jurisdiction.
……………..
[2019] FWC 41
17
[64] So it is clear that a period of continuous service for the purposes of Sections 22
and 383 and 384 of the Act can include a period of casual employment
notwithstanding the fact that the employee may be engaged and re-engaged on a daily
or even an hourly basis during that period of casual employment. The test is simply
whether or not during a period of at least six months prior to the dismissal the
employment as a casual employee was on a regular and systematic basis and the
employee had, during that period, a reasonable expectation of continuing employment
by the employer on a regular and systematic basis.”53(emphasis added)
[69] I regard Ponce as authority for the proposition that it is not at the point of termination
that one must assess whether there is a “reasonable expectation of continuing employment on
a regular and systematic employment”. Rather, the focus is on whether such an expectation
existed during the period of service. Based on Ponce with which I respectfully concur, it is
not the test to assess whether the Applicant had a reasonable expectation of continuing casual
employment on a regular and systematic basis as at the 6 June 2018. Rather, the assessment is
to be made during her period of continuous service that counts towards the six month
minimum employment period.
[70] In the present case, I am satisfied that the Applicant was engaged on a regular and
systematic basis as a casual employee over a period of almost five years, well in excess of the
required minimum period of at least six months. Furthermore, I am satisfied that during her
period of service prior to her dismissal, she had a reasonable expectation of continuing casual
employment on a regular and systematic basis.
[71] I would add for the sake of completeness that I do not accept the ALH Group’s
submission that the Applicant could not have had a reasonable expectation of continuing
employment on a regular and systematic basis as a result of the 6 June 2018 conversation
between the Applicant and Mr Kurz. That is because I am not persuaded that Mr Kurz warned
the Applicant that there was no guarantee of future shifts. Quite the contrary as Mr Kurz
continued to liaise with and encourage the Applicant’s belief that she would be able to return
to the Sandringham Hotel as a casual employee following her short-term TAB role.
[72] The ALH Group also submit that if the date of termination is accepted as 13 August
2018 as contended by the Applicant, then the fact that the Applicant’s last shift was 4 June
2018 means that there was a clear break in her regular and systematic employment between
the date of her last shift and her alleged date of dismissal. ALH Group submit that such break
means that the Applicant is unable to establish the minimum employment period of six
months as at the date of her alleged dismissal.
[73] I do not accept the above submission of the ALH Group. The assessment of whether
the minimum period of six months service is met is not conducted at the date of termination.
Were that the case, then a deliberate and orchestrated break in regular and systematic
engagement of a casual employee would act as a barrier to casual employees pursuing an
unfair dismissal remedy notwithstanding having an aggregate period of service on a regular
and systematic basis in excess of six months. The assessment is to be properly conducted by
reference to the aggregate of the periods of the Applicant’s service on a regular and
systematic basis throughout the Applicant’s casual employment with the ALH Group.
[74] As I have already found, the two tests are satisfied in the present case, that of the
minimum period of continuous service of at least six months and a reasonable expectation of
[2019] FWC 41
18
continuing employment on a regular and systematic basis. I am consequently satisfied that the
Applicant has completed the minimum employment period.
Was the application filed within the statutory 21 day period?
[75] It is evident that there is some uncertainty as to when the Applicant’s employment was
terminated. Identification of the date on which the dismissal took effect is a necessary step in
determining the ALH Group’s jurisdictional objection that the Applicant’s unfair dismissal
application was not made within the required 21 day period.
[76] The date on which a dismissal should be considered to take effect is the date that the
employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v
NSW Trains54 the Full Bench explained as follows:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not
consider in relation to either question that the provision should be interpreted or
applied so that the 21-day period to lodge an application for an unfair dismissal
remedy could begin to run before an employee who has been dismissed at the initiative
of the employer became aware that he or she had been dismissed, or at least had a
reasonable opportunity to become aware of this. The combination of the very
restricted time period to lodge an application under s.394(2)(a), together with the very
high bar of “exceptional circumstances” required to be surmounted in order to obtain
an extension of time to lodge an application, clearly demonstrates that it was intended
that the timeframe to agitate such an application was to be strictly limited. Indeed
s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this
was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the
period allowed by s.394(2)(a) is extremely short having regard for the need for a
dismissed person to take stock of his or her situation, seek advice or information about
his or her rights, make a decision to seek a remedy, and complete and lodge an
application. In that context it would require express language to justify an
interpretation of the provision under which the 21-day time period allowed is further
shortened because a dismissal is taken to have had effect before the employee has
become aware that it has occurred. Were it otherwise, it would be possible for a
dismissal with retrospective effect to be constructed which significantly diminished or
even entirely eliminated the time allowed for an employee to lodge an unfair dismissal
remedy application.” (Emphasis added)
[77] The difficulty in the present case is that I have found that the Applicant was not
advised by the ALH Group that she had been dismissed. I have, however, found that the
actions of ALH Group in deciding not to offer the Applicant further shifts and to remove her
from the closed staff Facebook group had the effect of dismissing the Applicant. The evidence
did not reveal the specific dates on which those decisions were taken, although it was
confirmed by Ms Crotty that the Applicant’s removal from the Facebook group occurred on
or after 1 August 2018.
[78] Having regard to the uncertainty of the dates of the decision of ALH group to not offer
the Applicant any further shifts and her removal from the closed staff Facebook group, I am
satisfied that the dismissal of the Applicant took effect no earlier than 1 August 2018. As the
Applicant’s unfair dismissal application was filed on 15 August 2018, I am satisfied that the
application was filed within 21 days of the date the dismissal took effect.
[2019] FWC 41
19
Conclusion
[79] I am satisfied that the Applicant was dismissed at the initiative of the ALH Group.
[80] I am further satisfied that the Applicant was a casual employee who was employed on
a regular and systematic basis by the ALH Group and that during her period of service as a
casual employee, had a reasonable expectation of continuing employment. The period of the
Applicant’s employment was in excess of the minimum period of employment of six months
at the time of her dismissal as required by s 382 of the Act.
[81] On the basis of the evidence before me, I am also satisfied that the Applicant’s
dismissal took effect on or after 1 August 2018. The Applicant filed her application for an
unfair dismissal remedy on 15 August 2018. Consequently her application was filed within 21
days of the date the dismissal took effect.
[82] The jurisdictional objections of the ALH Group are dismissed. The application will be
referred for further programming by the Commission.
DEPUTY PRESIDENT
Appearances:
A Dircks on behalf of the Applicant.
K Hickie on behalf of the Respondent.
Hearing details:
2018.
Melbourne.
12 November.
Printed by authority of the Commonwealth Government Printer
PR703597
OF THE FAIR WORK USTRALIA ISSION THE SEAL
[2019] FWC 41
20
1 Exhibit R1, Witness statement of Ms. Jenny Wregg, dated 22 October 2018 at paragraph [8].
2 Ibid at Annexure JW1.
3 Exhibit R3, Witness statement of Ms. Claire Crotty, dated 22 October 2018 at annexure CC2.
4 Exhibit R2, Witness statement of Mr. Jye Kurz, dated 22 October 2018 at paragraph [9].
5 Exhibit A1, Witness statement of Ms. Samantha Harston, dated 11 October 2018 at paragraph [7].
6 Exhibit R2 at paragraph [10].
7 Transcript at PN639-PN643.
8 Exhibit R2, Facebook messages, Annexure JK2.
9 Exhibit R2 at paragraph [15]-[17].
10 Transcript at PN260.
11 Ibid at PN262-PN266.
12 Exhibit R2 at Annexure JK2.
13 Exhibit R2 at paragraph [20].
14 Exhibit A2, Supplementary witness statement of Ms Samantha Harston, dated 31 October 2018 at paragraphs [1] – [11].
15 Transcript at PN390.
16 ExhibitR3 at paragraph [11]-[14].
17 Ibid at paragraph [15]-[17].
18 Exhibit A1 at paragraph [17].
19 Exhibit R3 at paragraph [21].
20 Transcript at PN845-PN854.
21 Exhibit R3 at paragraph [23]-[25].
22 Transcript at PN875.
23 Exhibit R3 at paragraphs [26] – [27].
24 Transcript at PN294-PN295.
25 Exhibit R2 at paragraph [6].
26 Transcript at PN297-PN299.
27 Ibid at PN303–PN 307.
28 Ibid at PN461.
29 Transcript at PN475-PN477.
30 Ibid at PN480.
31 Exhibit A1, Annexure A3, Emails.
32 Exhibit R3 at paragraphs [28]-[30].
33 Exhibit R1 at Annexure JW2.
34 Ibid at Annexure JW3.
35 Ibid at paragraphs [14]-[21].
36 Ibid at Annexure JW4.
37 Ibid.
38 Transcript at PN99-PN100.
39 Ibid at PN109-PN111.
40 Transcript at PN103-PN104.
41 Ibid at PN106-PN107.
42 Ibid at PN118.
43 Exhibit R1 at paragraph [25].
44 Ibid at paragraph [26].
45 Ibid at paragraph [30].
46 Ibid at paragraph [36].
47 Ibid at paragraph [37].
[2019] FWC 41
21
48 Exhibit A1 at paragraph [29].
49 Exhibit R1 at paragraph [39].
50 Exhibit R1, Annexure JW5.
51 Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.
52 [2010] FWA 2078.
53 Ibid at paragraphs [57]-[64].
54 [2016] FWCFB 5500.
