1
Fair Work Act 2009
s.394—Unfair dismissal
Tammy Cooper
v
East Coaster Tasmania
(U2019/6074)
COMMISSIONER LEE MELBOURNE, 19 DECEMBER 2019
Application for an unfair dismissal remedy - whether there was a termination at the initiative
of the employer.
Introduction
[1] This is an application for unfair dismissal remedy made pursuant to s.394 of the Fair
Work Act 2009 (the Act). Ms. Tammy Cooper (the Applicant) claims she was unfairly
dismissed from her employment with East Coaster Tasmania Pty Ltd (the Respondent).
[2] The application was heard before me in Hobart on 23 September 2019. The Applicant
was represented by Mr Edmondson who was given permission to appear. The Applicant gave
evidence on her own behalf. Mr. Oliver Strickland, General Manager for the Respondent and
Ms. Woolnough, the Applicant’s supervisor, appeared and gave evidence on behalf of the
Respondent. The matter proceeded by way of a determinative conference (the conference).
The background
[3] The Applicant was employed on a casual basis as a level 2 food and beverage
attendant. The Hospitality Industry (General) Award 2010 (the Award) covered and applied to
the Applicant. The Applicant had been employed by the Respondent since November 2016. It
is not in dispute that she was engaged as a casual employee throughout her employment with
the Respondent and further, that she was engaged on regular and systematic basis throughout
that period.
[4] There was no written contract of employment that covered the majority of the period
of employment. However, a written contract of employment was entered into on 7 May 2019,
shortly prior to the purported dismissal. That contract of employment made clear that the
Applicant was employed on a casual basis. It included the following terms:
“1.1 Your employment will be on a casual basis, as required.
1.2 Each occasion that you work will be a separate contract of employment which
ceases at the end of that engagement.
[2019] FWC 8592
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 8592
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1.3 As a casual employee, there is no guarantee of ongoing or regular work.”1
It is apparent that the Applicant was engaged as a casual employee throughout her
employment, both before and after the execution of the written contract of employment.
[5] The Applicant claims that she was terminated on the Respondent’s initiative on 21
May 2019. In the Applicant’s outline of submissions and witness statement, the Applicant
submits that the reason given for the termination was related to an incident in January 2019
where the Applicant refused to provide a highchair to a family who requested one for their
child (the highchair incident). The Applicant claims that she was unfairly dismissed.
[6] The Respondent submits that the Applicant was not in fact dismissed by the
Respondent. The Respondent disputes the alleged sequence of events set out by the Applicant.
The Respondent also submits that as a result of the Applicant’s abandonment of her
employment, another casual had to be hired, which is indicative of the fact the Applicant’s
position still exists.2
[7] The threshold matter for determination is whether or not the Applicant was in fact
terminated on the Respondent’s initiative.
The evidence
[8] The key evidence in this matter largely revolves around a conversation between the
Applicant and her supervisor, Ms Woolnough that occurred on 21 May 2019, as well as the
circumstances and events surrounding that conversation. An incident, generally referred to by
the parties as the “highchair incident” featured in the conversation that transpired on 21 May
2019 between the Applicant and Ms Woolnough. In particular, it will become apparent that
the Applicant claims that the highchair incident was referred to in the conversation of 21 May
and was referred to by her supervisor as a reason for her purported dismissal. Ms Woolnough
agrees that there was a conversation about the highchair incident, however her version of the
conversation differs considerably from that of the Applicant. In order to better understand the
evidence that follows, it is convenient to consider the evidence pertaining to the highchair
incident at the outset.
The highchair incident
[9] In her witness statement, the Applicant described the highchair incident in the
following terms:
“The high chair incident occurred in January and was an incident involving me
informing some customers that their child was too big to fit in a high chair. The
customers complained to management. I thought this issue had resolved.”3
[10] However, the Applicant’s evidence during the conference differed somewhat to her
statement:
1 Court book, page 91.
2 Court book, page 14.
3 Court book, page 67.
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“What's the highchair incident?---Back in January I had a young couple with a child
come into the restaurant to have a meal. I recommended to them that their child was too
big for the highchair so I supplied the child with pencils and colouring in paper, and it
didn't seem to have been a problem at the time.”4
[11] At another point during the conference, the Applicant agreed that the outcome of the
highchair incident was that the Respondent gave the parents of the child another night’s
accommodation free of charge, and a meal at the restaurant which the Applicant offered to
pay for, and Mr Strickland stated that she did not have to do that.5 It is apparent that the
Applicant’s claim that the incident did not seem to be a problem at the time is inconsistent
with her further evidence that the the Respondent provided free accommodation and a meal to
the parents, presumably to placate them.
[12] Ms Woolnough’s evidence is that the guest who requested the highchair was very
unhappy and had spoken to the Respondent personally as well as putting the event on social
media.6
[13] Mr Strickland gave the following account of the highchair incident”
“I guess what I'm trying to ask you is was anything published on social media by the
guest?---We were being pre-emptive, okay, and looking for Tammy's version of events
so that we could get a response organised should that happen, given the threat that was
made about going to media and/or social media. It's incredibly prevalent and we have
to be a little bit proactive and that was why we asked the applicant for some feedback,
to which she said, 'No, get stuffed, that's not my job, that's Oliver's job.'”
I am just trying to be clear, when you first had a discussion with Ms Cooper about the
high chair incident, what did she say to you about it?---Not a hell of a lot. There
wasn't a very coherent response or reason given for denying the guest a high chair
apart from, 'Well, I thought the child was too big.'
Sure. Do you hold any resentment about the incident to Ms Cooper?---No.”7
Events prior to the meeting of 21 May 2019
[14] In the 12 months leading up to the alleged dismissal, the Applicant was offered and
accepted shifts in every week of that period, with the exception of the week prior to her
purported dismissal, that is the roster week of the 16 - 22 May 2019.8 However, while the
Applicant was not rostered to work that week, the Applicant was offered two shifts during
that week to fill a late vacancy but declined to accept those shifts as she was taking a mini
vacation. Other than the week of 16 - 22 May, it is not in contest the Applicant had regularly
been rostered for shifts, though the hours worked per week varied. There are payslips in
evidence from May 2018 to May 2019 which confirm the Applicant worked every week for a
varying number of hours.
4 PN148.
5 PN357.
6 PN447.
7 PN639; PN643; PN645
8 PN256.
[2019] FWC 8592
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[15] The Applicant said that the roster cycle “normally goes from Wednesday to
Wednesday,“9and that she would normally see the roster on Tuesday night.10 However, Ms
Woolnough gave evidence that the roster ran from Thursday to Wednesday.11 Ms
Woolnough’s evidence is consistent with the actual rosters in evidence and is preferred.
[16] The rosters in evidence demonstrate that the Applicant was allocated two shifts during
the roster period commencing 9 May 2019. This certainly represents a reduction in the
amount of work she was normally rostered for. The Applicant’s evidence is that on or around
14 May 2019, she stopped receiving shifts on the roster. It is apparent this relates to the roster
for the week of the 16 - 22 May. It is not in contest that the Applicant was not allocated any
shifts in the 16 - 22 May roster, though was offered two shifts to fill a late vacancy after the
posting of the roster.
[17] The Applicant states that she was concerned about the number of shifts she was
allocated and she approached Mr Strickland about the matter as Ms Woolnough, her
supervisor was away. The Applicant spoke to Mr Strickland on the 15 May 2019.12 The
Applicant says that Mr Strickland said he was not aware of the Applicant not getting any
shifts on the roster. Mr. Strickland agrees that this conversation took place.13
[18] Mr Strickland advised the Applicant to speak to Ms Woolnough.14 The Applicant
contacted Ms Woolnough on the morning of 21 May 2019, and Ms Woolnough arranged a
meeting at 2:00pm that same day with the Applicant. Whether or not there was a termination
on the Respondent’s initiative largely depends on what was said in the meeting on 21 May.15
The 21 May meeting between Ms Woolnough and the Applicant
[19] In her witness statement, the Applicant gave the following evidence as to what
occurred at the meeting on 21 May, as follows:
“I attended the meeting with Ms Woolnough on 21 May 2019. I asked Ms Woolnough
“why am I not getting any shifts”. Ms Woolnough replied by saying “they said, I am
not to put you on the roster anymore”. I asked whether they was a reference to “Mr
Strickland and Mr Townsend”, Ms Woolnough said “that is correct”.
I asked if I had done anything wrong, Ms Woolnough said that “they cannot get past
the highchair incident”. For the sake of completeness, the highchair incident occurred
in January and was an incident involving me informing some customers that their
child was too big to fit into a high chair. The customers complained to management. I
thought this issue had resolved.
9 PN184.
10 PN188.
11 PN394.
12 PN129 .
13 PN662.
14 PN129; PN137.
15 PN82.
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I asked Ms Woolnough “are you telling me I no longer have a job here anymore”. Ms
Woolnough replied with “yes that is correct”.
I asked Ms Woolnough whether Mr Strickland knew about that when she 1 it [sic]
with him on or around 15 May 2019, Ms Woolnough replied “yes he did”.
I informed Ms Woolnough that I would pack my things up and leave. Ms Woolnough
made no attempt to stop me.
I packed up my personal belongings and stopped into reception prior to leaving. I
asked Ms Woolnough if she could write me a letter stating that I no longer had a job.
Ms Woolnough replied that she would.”16
[20] During the conference, the Applicant maintained her claim that Ms Woolnough agreed
with the proposition that the Applicant no longer had a job with the Respondent:
“And so what did Ms Woolnough say to you? What did you say to Emma about not
getting any shifts after she told you that?---I said, 'So are you telling me I no longer
have a job here now?' And she said, 'Yes, that is correct.'
She told you, you didn't have a job?---Yes.”17
[21] Then Applicant claims that the following exchange then took place:
“So after that then what happened?---I then said to her, 'Well, I guess I should pack my
things and go?' And she said, 'Yes.'”18
…
“How did the meeting end?---After I said to Emma, 'So you're telling me I no longer
have a job here now,' and she said, 'Yes, that is correct,' I then said, 'I guess I'll pack
my things up and I'll go.'”19
[22] During the conference, the Applicant restated the claim that Ms Woolnough said that
“they (Mr Strickland and “Scott”) said not to put you on the roster anymore.”20 The Applicant
stated that Ms Woolnough did not criticise her performance during the meeting, however
reiterated that Ms Woolnough said the reason Mr Strickland told her not to put the Applicant
on future rosters was that “they can’t get past the highchair incident.”21
[23] Ms Woolnough in her witness statement gave the following evidence as to what
occurred at the meeting on 21 May:
“To start with, we sat down in the Terrace Room to discuss hours. Tammy asked what the go
was with her hours, why she wasn't getting many. My response was the business levels have
16 Court book, page 67.
17 PN149-150
18 PN158
19 PN271
20 PN141
21 PN147
[2019] FWC 8592
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decreased, and so the workload wasn't there to offer the casuals many shifts. So then she
asked where does that leave me, my response was I don't know, I can't offer you any more
hours at the moment. Prior to the meeting, she was getting two to four shifts per week. There
wasn't any time apart from the week of the meeting, where she had no shifts. We even offered
her two full day shifts in the week of the meeting, which she said no to because she had a
mini vacation. After the conversation with the hours, we then spoke about attitude towards
work. That discussion was about her reaction to the request for some feedback about the
'highchair incident', so we could write a response to the guest on social media, not the incident
itself. Her reaction was, that's not my job or something similar. Which led into the
conversation of work culture. She said that was bulls***, then virtually stood up and walked
out and said this is f* * **d.
Then she drove down the restaurant, must of got her belongings, came back up and
asked for a termination letter. My response was oh ok I'll talk to Oliver.”22
[24] Ms Woolnough was consistent in her evidence that Mr Strickland did not tell her not
to put the Applicant on any more rosters.23 Ms. Woolnough was also consistent in her denial
of the allegation that she told the Applicant that she did not have a job anymore when this
proposition was repeatedly put to her by the Applicant’s representative.24
[25] The responses of Ms Woolnough to questions on this point included the following:
“That she couldn't get any shifts?---I said that the business levels had decreased and it
affected all the casual hours and so at this stage it was undetermined whether there
would be many hours to give after that.”25
…
“But you communicated that you weren't terminating her employment?---I said that we
had no hours. I didn't say we were terminating anything, I – it was just purely the fact
that there was no shifts for casuals.”26
“Do you agree that you told her that she wasn't going to be getting any shifts?---I didn't
say that to her either.”27
[26] As referred to earlier, the Applicant agreed that there was not a time, other than the
week of 14 - 21 May, where the Applicant was not rostered for any shifts.28 However, the
Applicant agrees that she was offered but declined two days of work during that roster period,
as she was having a mini vacation.29
[27] As set out earlier, Ms Woolnough claims she advised the Applicant that the business
levels had significantly decreased, and that the Applicant’s response was “where does that
leave me?” Ms Woolnough then said, “I don’t know, I can’t offer you any more hours at the
22 Court book, page 20.
23 PN434.
24 PN436; PN453; PN485; PN523; PN525; PN528.
25 PN437.
26 PN489.
27 PN524.
28 PN256.
29 PN258.
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moment.”30 When it was put to Ms Woolnough that she said she could not give the Applicant
any shifts during the meeting, her evidence was that she said, “At this stage I don’t have
many hours to give”31 and that due to a decrease in business levels there was not many hours
to give to casual employees.32
[28] There was no mention in the Applicant’s witness statement that Ms Woolnough
referred to the down turn in work as a reason for the Applicant being offered less hours.
However, the Applicant does refer to the downturn in work in her letter to Mr Strickland of 2
June 2019, as well as the claim that her refusal of shifts on 17 and 18 May was a reason given
by Ms Woolnough that resulted in the Applicant’s purported dismissal. Also, in reference to
the evidence of Ms Woolnough, the Applicant said during the conference, “she just said that
because I refused the two days that she offered, and that it was getting quiet. That was it.”33
[29] The Applicant’s evidence as to what was said as the reason for the purported dismissal
is rather inconsistent. It is noteworthy that the Applicant makes no reference to Ms
Woolnough speaking of the downturn of work in her witness statement. Further, the
Applicant’s witness statement does not refer to the claim that the refusal of the two shifts
offered to her was a reason given for dismissal by Ms Woolnough.
[30] As set out earlier, Ms Woolnough then said the conversation moved to the Applicant’s
“attitude to work.” Ms Woolnough said the conversation related to the Applicant’s alleged
reaction to a request to provide feedback about the highchair incident in order to write a
response to the guest on social media.34 However, the Applicant disputes that was the nature
of the conversation.35
[31] During the conference I questioned Ms Woolnough about how it was they came to
speak of the highchair incident as part of a conversation where the Applicant had sought an
explanation as to her lack of hours. Her response was as follows:
“Right. And you also referred to, when you were talking about the hours, is that the
point at which you referred to the highchair incident?---No, not exactly. It was just
another – it was just added on conversation. I can't remember how we got there, just
leading from one to another.
Well, I want you to think about it. How did you get there? Why did the highchair
incident come up in the conversation about hours?---So Tammy wanted to talk about
the hours so I said – and so we had the exchanged text messages for her to come in
and meet me at 2 pm.
Yes?---We spoke about the hours and then I just started talking about the culture in the
restaurant and just some different performance things that we need to work on, and it
was just the sort of – bit of performance.
30 Court book, page 20.
31 PN468.
32 PN555.
33 PN267.
34 PN442.
35 PN260.
[2019] FWC 8592
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That's not telling me much. What, her performance, the performance of other people,
your own performance?---Her performance in the restaurant.
Her performance?---Yes.
And what did you say to her about her performance?---That's where I've referred back
to the highchair just in regards to her response when we told her about the feedback
that we'd received on social media and just wanted to see her thoughts on it because
Oliver needed to respond back to the guests.
Was performance raised as a reason for her not getting many hours into the
future?---No. No.
Right?---No.
Are you sure about that?---Yes. No, we worked very well together and I valued
Tammy as an employee.”36
[32] The Applicant then went to an area where she kept her belongings and then returned to
reception. The Applicant says that she again saw Ms Woolnough and asked her for a “letter
stating I no longer had a job.”37 The Applicant says she asked for that letter because she
needed something in writing to take to Centrelink for some government assistance.38
“Yes. And that you then came back up to, presumably, some other office where Ms
Woolnough was and you asked for a termination letter, do you agree with that?---Yes.
Yes, and that she said, 'Oh, okay, I'll talk to Oliver'?---She said that she would write
one. She never said she would talk to Oliver.”39
[33] Ms Woolnough agreed that the Applicant was upset when she left.40
[34] Ms Woolnough agrees the Applicant demanded a letter of termination. However, she
maintains that she said she would speak to Mr Strickland about it.41 Ms Woolnough said she
was not sure about providing a separation certificate as “I felt as though she’d just walked out.
I didn’t terminate her in that meeting.”42
[35] According to the Applicant, after this last exchange with Ms Woolnough, the
Applicant was walking out of the premises and passed Mr Strickland who was walking
through the door at that moment in time. Mr Strickland says that he said “hello” to the
36 PN556 - PN564.
37 PN160.
38 Court book, page 67.
39 PN274 - PN275.
40 PN478; PN479.
41 PN469.
42 PN471.
[2019] FWC 8592
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Applicant. He says that the Applicant responded by saying “don’t you dare talk to me.”43 The
Applicant does not dispute that this exchange with Mr Strickland occurred.44 The Applicant
says she responded in this manner as she was very upset because Ms Woolnough just told her
that Mr Strickland knew about the decision to no longer offer her shifts when Ms Woolnough
discussed it with him on the 15 May 2019.45 However, Mr Strickland denied that he told Ms
Woolnough not to give the Applicant shifts as a result of the highchair incident or any other
reason.46
The Applicant’s availability to work in the roster period of 16 - 22 May
[36] It is apparent from the rosters that another casual employee, Mr Tutor was rostered to
work in the roster period of 16 – 22 May, on Thursday, 16 May, Monday, 20 May, Tuesday,
21 May and Wednesday, 22 May. Ms Woolnough was referred to that roster and asked about
why Mr Tutor was given “substantial shift hours.” Ms Woolnough responded with the
following:
“Who's been given shifts for that week, and by the looks of it, it's over at least the 20th
and 22 May, where it looks like he's been given substantial shift hours?---Yes, so the
Sunday was Ambulance, the 19th. Monday was her RDO. Tuesday was the
meeting. And then on the Wednesday she had Ambulance, as well. So she only really
had one day available for me to roster her on.
Right?---And then given that I've got two casuals, sometimes I need to divvy up where
people are at, and then I offered the two days, Friday, Saturday, full time in the
restaurant because I fell ill, so I was supposed to be down there working, but
unfortunately I couldn't get them covered.”47
[37] The Applicant was asked about the claims of Ms Woolnough as to her availability.
She at first said the only date she asked for off was Wednesday nights as that was her
volunteer ambulance night.48 However, she then later confirmed when questioned by Mr
Strickland that she was not available on Sundays either as it was the day she sees her
son.49The Applicant also confirmed that for the week in question she was unavailable on the
16 to 18 May.50 Generally, the evidence of the Applicant was consistent with that of Ms
Woolnough as to her availability:
“Let me stop you there. So the applicant has given evidence earlier that the roster goes
from Wednesday till - - -?---It goes from Thursday to Wednesday.
Okay?---Yes.
All right, sorry, keep going?---So on the Thursday, that was her executive (sic) day
off, so - - -
43 PN656.
44 PN167.
45 PN168.
46 PN646.
47 PN440 - PN441.
48 PN230.
49 PN347
50 PN286.
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What date? I need the dates?---The date's 16 May.
Right?---So on the Wednesday prior, the 15th, she had Ambulance and then she
wanted to have two days consecutive off?---Yes.
So that was the Thursday, the 16th.
Yes?---I fell ill on Friday, the 17th and 18th and had contacted Tammy to see if she
could do two full days in the restaurant. She was unable to as she was going away,
camping.
Yes?---And then Sunday, she had Ambulance, Monday was an RDO, and Tuesday
was the meeting.
Right. And when would you have posted the roster for the next roster cycle?---So I
would have started doing it on the Monday, and yes, just checking business levels as
hospitality always changes, so there wasn't much going on at all, unfortunately.51
Events after the meeting of 21 May 2019
[38] After the meeting on 21 May, the Applicant and Ms Woolnough engaged in an SMS
exchange. On 22 May, the Applicant sent a message to Ms Woolnough asking, “if my letter
has been done.” Ms Woolnough replied “not as yet I’m sorry. As soon as I have something I
will let you know.” Ms Woolnough was asked about this response and she replied:
“So the day previously when we spoke and she had stormed out and said the swear
word that this was F'd, rah, rah, rah, went down to the restaurant then came back in,
demanded a letter of separation, then proceeded to walk back, out of the
building. Oliver walked in. He said, 'hello.' Her response was, 'Do not talk to me.' So
to me, I felt a little bit intimidated and that I needed to respond like that.”52
[39] Ms Woolnough also said she sent that message as she felt the Applicant had left the
Respondent, not that she had told her to leave. Ms Woolnough was not sure what to do and
subsequently spoke to Mr Strickland on the matter.53
[40] The next day, Ms Woolnough sent an SMS to the Applicant stating that “we are not
terminating your employment with us. If you would like to resign Oliver is happy to do a
separation certificate for you.”54 Mr Strickland gave evidence that he did not tell Ms
Woolnough not to send the SMS saying she had not been terminated.55 Ms Woolnough’s
evidence was that Mr Strickland did not ask her to send the message, however she discussed it
with him and he said “it was okay to send it.”56 As mentioned earlier, on 2 June, the
Applicant wrote to the Respondent seeking a letter of separation “as one has not been
51 PN394 - PN402.
52 PN517.
53 PN477.
54 Court book, page 78.
55 PN682.
56 PN496.
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provided since my dismissal on 21 May 2019.”57 In that letter she says the reasons Ms
Woolnough gave for dismissal were as follows:
“1. "That "they" (referencing Oliver and Scott) could not get over the high chair
situation which arose in January 2019. I was unaware that this was an ongoing issue.
2. That I had not covered the two shifts that Emma had asked me about on 16th May for
her shifts on 17th and 18th of May. I had not been rostered for these shifts, the notice
was less than 48 hours and I had other arrangements. I was within my rights to turn
down working these shifts.
3. "Plus it's starting to slow down". There had been no discussions about this and no
other casual employees were terminated.”58
[41] The letter also seeks $10,500 for lost wages, a separation certificate and $5,500 of
alleged unpaid overtime from the Respondent and advises that an unfair dismissal claim had
been lodged in the Commission. The application for unfair dismissal was in fact lodged on 3
June.
[42] On 5 June 2019, the Respondent replies in writing, again asserting the Applicant has
not been terminated and says, “I am also not clear on your intent of ongoing casual
employment with us.”59
[43] The Applicant did not respond to this letter until 4 July 2019. In that letter, the
Applicant largely disputes the content of the 5 June letter, but agrees she told Mr Strickland
not to speak to her and says that is because she was in shock. When asked why the Applicant
did not respond to that letter for four weeks, the Applicant said that she had gone to the Fair
Work Ombudsman to ascertain what her rights where.60 Further, the Applicant did not think
about making inquiries as to what shifts she would receive, given the 5 June letter and the
assertion that she had been told by Ms Woolnough she no longer had a job there.61
[44] The Applicant says in her witness statement that she cannot return to work for the
Respondent as she has “lost trust and confidence in them.”62 Mr Strickland responded to this
claim as follows:
“What do you say about that?---I don't know what to say about that. We've acted
honourably, we've, you know, held the door open, we have a conciliatory approach, we
still value Tammy as a member of a team, we have all the way through. If she's lost
faith or however she put it, they are reasons best known to her. There's no prejudice
on our part, there's no reason for her to feel anything apart from a valued member of
the team.”63
[45] Ms Woolnough confirmed that subsequent to the meeting on 21 May, she did not offer
the Applicant any more shifts. When questioned as to why, she responded that “I felt that she
57 Court book, page 79.
58 Court book, page 79.
59 Court book, page 76.
60 PN335.
61 PN345.
62 Court book, page 68.
63 PN711.
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no longer wanted to be here anymore.”64 Ms Woolnough was asked if she agreed that the
Applicant resigned and replied, “No, she just stormed out.”65
[46] Mr Strickland was asked:
“Would you think that if someone was still employed, they would be receiving shifts for
that period?---We would think so. However, the manner in which Ms Cooper left the
organisation, the failure of Ms Cooper to communicate, ordinarily I would imagine
would be viewed as abandonment of shift. We left the door open and hoped that she
would re-establish contact so that we could take the matter forward with, obviously,
holding the door open, as we have been throughout, for Ms Cooper to come back to the
fold and continue casual employment with us.”66
[47] Mr Strickland was then asked why he did not contact the Applicant and he replied:
“So, I would suggest that Ms Woolnough didn't contact Ms Cooper either, Ms Cooper
contacted Ms Woolnough via the text message. Again, I go back to that very, very
strong assertion that I was not to dare talk to her, which I've respected throughout until
she came back.”67
[48] Mr Strickland also said:
“Sure. So you waited until Ms Cooper wrote you a letter before you said anything to
her?---I would have happily taken a phone call, would have happily spoken face to
face. I was waiting for Ms Cooper to re-establish contact after instructing me not to
communicate with her.68
[49] Mr Strickland was asked whether he agreed that the Applicant may have felt as if she
had been dismissed following the meeting on 21 May. He replied “I would put another
version forward that she had decided that she was dismissed and was demanding a letter. I
mean its-they’re two very different things.”69
Law to be applied
[50] Unfair dismissal is governed by Part 3-2 of the Act. Under the Act, a person is
protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
64 PN481 - PN482.
65 PN483.
66 PN698.
67 PN684.
68 PN677.
69 PN680.
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(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in
accordance with the regulations, is less than the high income
threshold.”
[51] The meaning of 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.”
[52] With regard to s.382(a) of the Act, there is no contest between the parties that the
Applicant commenced employment with the Respondent in November 2016, despite the
Respondent in their Form F3 asserting that the Applicant commenced employment on 7 May
2019. This date is when a formal contract was executed. There is no dispute that the
Applicant was engaged as a casual on a systematic and regular basis during that time. I am
satisfied the Applicant completed the minimum employment period.
[53] With regard to s.382(b) of the Act, the Applicant’s annual rate of earnings at the time
of the dismissal were clearly less than the high-income threshold. Further the Applicant was
covered by a modern award.
[54] I find that in respect to the provisions in s.382, the Applicant is a person protected
from unfair dismissal as she had completed the minimum employment period; her earnings
were less than the high-income threshold and she was covered by a modern award.
[55] Section 386 defines when a person is dismissed for the purpose of Part 3-2 of the Act.
Relevantly, s.386(1) provides:
“386 Meaning of dismissed
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(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.”
[56] As discussed above, there is a contest as to whether the Applicant was terminated on
the employer’s initiative.
[57] With regard to s.385(c), the Respondent asserts that it is a small business employer in
accordance with s.23 of the Act and The Applicant does not dispute that the Respondent was a
small business at the relevant time. However, the claim that the respondent was a small
business is inconsistent with the number of employees in the roster in evidence. However, for
reasons that become apparent it is not necessary to determine this matter.
[58] With regard to s. 385(d), there is no suggestion that the Applicant’s dismissal is a case
of genuine redundancy.
[59] For there to be a termination on the employer’s initiative as contemplated in s.
386(1)(a), there must be action by the employer that either intends to bring the relationship to
an end or has that probable result.
[60] The question of whether the act of an employer results ‘directly or consequentially’ in
the termination of employment is an important consideration but it is not the only
consideration.70 It is important to examine all of the circumstances including the conduct of
the employer and the employee.71
[61] The Respondent characterised the actions of the Applicant as “abandonment of
employment.”72
[62] ‘Abandonment of employment’ is an expression sometimes used to describe a
situation where an employee ceases to attend his or her place of employment, without proper
excuse or explanation, and as a result shows an unwillingness or inability to substantially
perform his or her obligations under the employment contract.73 This may be termed a
‘renunciation’ of the employment contract.
70 Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000).
71 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at
para. 23, [(2006) 58 AILR 100].; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites
SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA
645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999
(AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
72 Court book, page 14; PN698.
73 Abandonment of Employment [2018] FWCFB 139 (Hatcher VP, Gostencnik DP, Cribb C, 23 January 2018) at
para. 21.
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[63] Renunciation is ‘the formal abandoning of a right, title, etc’ or ‘a voluntary giving up,
especially as a sacrifice’.74
[64] The test is whether the conduct of one party is such as to convey to a reasonable
person, in the situation of the other party, renunciation either of the contract as a whole or of a
fundamental obligation under it.75
[65] Renunciation is a species of repudiation which entitles the employer to terminate the
employment contract. Although it is the action of the employer in that situation which
terminates the employment contract, the employment relationship is ended by the employee’s
renunciation of the employment obligations.76
Consideration
[66] There was a contest as to whether or not Ms Woolnough had the authority to dismiss
the Applicant in the event that the Applicant was dismissed. The Respondent claimed that Ms
Woolnough did not have the requisite authority to dismiss the Applicant. I do not accept that
to be the case. The Applicant was referred to Ms. Woolnough when she queried her allocation
of shifts, and was the Applicant’s direct supervisor. If it were the case that Ms Woolnough
had terminated the Applicant, it is apparent she would have had the authority to do so.
However, for the reasons that follow, I am not satisfied that the Applicant’s employment was
terminated by Ms Woolnough.
[67] The Applicant’s representative conceded that if I do not accept that Ms Woolnough
said to the Applicant, “I am never offering you any more shifts” that is the essentially the end
of the Applicant’s case.
[68] If Ms Woolnough did tell the Applicant that Mr Strickland had instructed her that she
was not to be given further shifts and that Ms Woolnough had said the Applicant no longer
had a job, this would clearly indicate an intention of the Respondent to bring the employment
relationship to an end. However, on the balance of probabilities, I do not think that is what
happened for the following reasons.
[69] Firstly, the Applicant had experienced only the one week of being rostered for no
shifts at all. However, even in that week, she was offered the opportunity to fill in for two
shifts as a result of Ms Woolnough’s illness. In the week prior to this, the Applicant was also
rostered for two shifts. However, this was clearly less than she was generally offered. Against
that background, the Applicant sought a meeting to query the quantity of shifts she was being
allocated. Ms Woolnough conceded that the Applicant was allocated less shifts than usual,
which she attributed to the seasonal slowdown.
74 Macquarie Dictionary.
75 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 (13 December 2007) at para.
41; citing Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 (2 May 1989) at para.
16 (per Deane and Dawson JJ), [(1989) 166 CLR 623 at p. 659]; see for eg Thompson v Zadlea Pty Ltd T/A
Atlas Steel [2019] FWC 1687 (Gregory C, 15 March 2019) at paras 49–53.
76 Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) at para. 81, [(2009)
239 CLR 361].
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[70] As mentioned earlier, the Applicant’s evidence as to what was said in the discussion
with Ms Woolnough was somewhat inconsistent. In her letter of 2 June to the Respondent,
she cites three reasons that were given for her purported dismissal. However, in her witness
statement tendered as part of the proceedings, only the highchair incident is referred to as the
reason for the purported dismissal. It is noteworthy that in the Applicant’s witness statement,
she omits any reference to the conversation about the slowdown in work which she admits did
occur. Her witness statement focussed entirely on the claim that she was told she was being
offered no shifts as a result of the highchair incident.
[71] Secondly, the failure to provide any shifts at all in the roster period of 16 – 22 May
can partly be explained by the Applicant advising she was unavailable as she wanted to have a
break, combined with her other days of unavailability for ambulance volunteering and time
arranged to see her son. In any case, only days before the meeting, Ms Woolnough offered the
Applicant two shifts to cover an absence. The Applicant was entitled to refuse those shifts,
however the fact they were offered is inconsistent with the Applicant’s assertion of Ms
Woolnough having been directed by Mr Strickland to offer no shifts.
[72] Mr Strickland was clear that he did not instruct Ms Woolnough to no longer offer the
Applicant any shifts. I note that if Mr Strickland had decided that the Applicant was no longer
to be offered any shifts as a result of the highchair incident, he could have communicated that
directly to the Applicant when she asked why she was not getting many shifts. Rather, what
he did do was refer the Applicant to Ms Woolnough to establish what was happening.
Further, the highchair incident occurred in January, approximately four months prior. It is odd
that Mr Strickland would have taken that long to form a view that the incident was now a
reason to no longer offer the Applicant any shifts. Mr Strickland was a credible and consistent
witness and I prefer his evidence to that of the Applicant where there is a conflict on the
evidence.
[73] The next roster period following 22 May according to the roster documents starts on
23 May. I do not have that roster or any roster after that, however it is not in contest that the
Applicant was not offered any shifts after that point. The Applicant’s representative claims
this further reinforced the fact that she was dismissed. However, Mr Strickland was clear and
forthright in his evidence that she was offered no further shifts as the last conversation he had
with her the Applicant made clear that he was not to speak to her, and he was respecting that.
[74] While the highchair incident was raised in the discussion on 21 May which was some
considerable time after the event occurred in January, I am satisfied that Ms Woolnough was
referring to it as part of a discussion about the Applicant’s response to being asked for
feedback about the incident. Ms Woolnough was consistent in her evidence as to what
happened at the 21 May meeting and maintained that consistency during cross examination
from the Applicant’s representative. On the other hand, the Applicant’s version of events
varied somewhat from her letter of 2 June 2019. The Applicant’s evidence as to the highchair
incident was inconsistent, initially downplaying its significance, then conceding it was the
subject of a complaint and a significant response from management.
[75] The Applicant was also adamant that she was told that she would no longer be offered
any shifts. Ms Woolnough’s evidence as to what she said about the availability of hours on 21
May included “…it was undetermined whether there would be many hours” and “we had no
hours” and “there was no shifts for casuals” and that “there are not many hours to give”. As
the Applicant was told there were no shifts for casuals it is not surprising that the Applicant
[2019] FWC 8592
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became upset. However, a change, even a substantial change to the number of hours offered is
entirely consistent with the express terms of her contract of employment and the nature of
casual engagement. Had the Applicant been told she was never to be offered any more shifts,
that would be a different matter entirely. However, I am not satisfied that Ms Woolnough said
that.
[76] The SMS exchange between the Applicant and Ms Woolnough merely reflected the
fact that the Applicant had demanded a letter of termination on 21 May 2019. Ms Woolnough
sent a response via SMS to the effect that one had not yet been prepared, followed by a
message of clarification the following day that the Applicant had not been terminated. The
SMS exchange is explained by the evidence of Ms Woolnough that she was not sure what to
do given the circumstances. I accept Ms Woolnough’s evidence on this point. Overall, Ms
Woolnough was a reliable witness. Where there is a conflict on the evidence, I prefer the
evidence of Ms Woolnough over that of the Applicant.
[77] Having considered the evidence, I am not satisfied that there was a termination at the
initiative of the Respondent. What occurred on 21 May, was the Applicant became upset
about the discussion as to the lack of shifts for casuals and the subsequent discussion about
her attitude to the workplace and the associated highchair incident. The Applicant has become
angry, sworn at Ms Woolnough and has stormed out of the workplace. Her response to Mr
Strickland who has simply said “hello” to her is clear evidence of the mood of the Applicant
at that time.
[78] The Applicant formed the view, erroneously, that she had been terminated and
demanded from Ms Woolnough, a letter to that effect. The evidence of Ms Woolnough was
that she was confused and was not sure how to deal with this,77 and so her reply of “not as yet
I’m sorry” needs to be understood in that context. In any case, Ms Woolnough confirmed to
the Applicant that there was no termination of employment the next day. The key issue with
the SMS exchange is it simply reflects the Applicant telling Ms Woolnough that she was
terminated, when in fact she was not. The Applicant simply formed the view, erroneously,
that she was.
[79] Having considered the evidence, the version of events attested to by Ms Woolnough
and Mr Strickland is the more likely to have occurred on the balance of probabilities. I am not
satisfied that the Applicant was told that she would no longer be offered any shifts or no
longer had a job.
[80] The Applicant has not indicated she is resigning her employment. However, her
actions, in swearing at her supervisor, storming out of the workplace and telling Mr.
Strickland that he is not to speak to her, is conduct such as to convey to a reasonable person in
the situation of the Respondent, a renunciation of the employee’s fundamental obligations
under the employment contract. The employment relationship was ended by the Applicant’s
renunciation of the employment obligations.
Conclusion
[81] Section 394(1) provides that a person must be dismissed to apply for an unfair
dismissal remedy. The applicant was not “dismissed” within the meaning of s. 386 of the Act.
77 PN491.
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[82] Accordingly, the Commission has no jurisdiction to determine the unfair dismissal
application.
[83] The application must therefore be dismissed. An order to that effect will be issued
concurrently with this decision.
COMMISSIONER
Appearances:
Mr Edmondson on behalf of the Applicant
Mr Strickland on behalf of the Respondent
Hearing details:
2019
Hobart:
23 September
Printed by authority of the Commonwealth Government Printer
PR715447
THE FAIR WORK OF THE SEAL MISSION
