Smith, Kellie v Australian Leisure & Hospitality Group Pty Limited T/A Jimboomba Country Tavern - [2020] FWC 2347

1

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

Ms Kellie Smith

v

Australian Leisure & Hospitality Group Pty Limited 
(U2018/12783)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 MAY 2020

Application for an unfair dismissal remedy – Whether Applicant dismissed – Applicant was a 
casual employee – Applicant resigned employment as a result of reduction of hours – Whether 
reduction of hours amounted to repudiation of employment contract or constructive dismissal 
– Applicant not dismissed – Application dismissed.

BACKGROUND

[1] This Decision concerns an application by Ms Kellie Smith (the Applicant) under s. 
394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of her 
dismissal by Australian Leisure and Hospitality Group Pty Ltd (ALH/the Respondent).  The 
Applicant was employed on a casual basis as a Food and Beverage Attendant from 13 October 
2010 at the Parkwood Tavern. The Applicant has made two unfair dismissal applications each 
asserting that she was constructively dismissed by virtue of a significant reduction in her 
rostered hours. In the first application filed on 11 December 2018, the Applicant alleged that 
she was dismissed on 22 November 2018 when a roster was published by the Respondent 
which resulted in her hours being reduced and that the dismissal took effect on 26 November 
2018 when the roster commenced.  

[2] ALH objected to the first application asserting that the Applicant was not dismissed as 
she had continued to work in accordance with the roster after her alleged dismissal.  A 
Mention/Conference was held and at the insistence of the Applicant the matter was listed for 
hearing on 11 – 13 March 2019.  On 4 March 2019 the Applicant filed a second application 
for an unfair dismissal remedy contending that her employment was terminated at the 
initiative of the employer on 11 February 2019 when she was forced to resign due to 
reduction in her rostered working hours. The Applicant elected to pursue the second 
application and withdrew the first application. The original hearing dates were vacated. ALH 
objected to the second application asserting that the Applicant was not dismissed but had 
resigned her employment.

[3] In summary the events which led to the Applicant’s resignation commenced when the 
Applicant was issued with a warning in relation to her conduct on 7 November 2018.  The 

[2020] FWC 2347

DECISION


E AUSTRALIA FairWork Commission




 



[2020] FWC 2347

2

conduct was that the Applicant engaged in a conversation with a colleague during working 
time and the Venue Manager Mr Sharkey determined that the Applicant and her colleague had 
not met ALH’s standards of customer service.  The Applicant took issue with the warning and 
maintains that thereafter she was targeted by Mr Sharkey and other managers of the 
Respondent and her hours were reduced to the point where she had no option but to resign.  

[4] ALH contends that the Applicant reacted unreasonably to the warning, continued the 
conduct about which she had been warned and for this reason was allocated shifts in other 
parts of the venue which resulted in reduced hours.  ALH further contends that as a casual 
employee the Applicant could be required to work shifts in all areas of the Parkwood Tavern 
and that her hours could vary from week to week. ALH further contends that following the 
warning the Applicant refused to engage with the Venue Manager and other managers, did not 
accept shifts that she was offered and chose to resign her employment.

[5] ALH does not dispute that the Applicant is a person protected from unfair dismissal 
consistent with s. 382 of the Act and that she has completed a period of employment of at 
least the minimum period defined in s. 383 of the Act. It is also not in dispute that the 
Applicant’s employment as a casual employee was on a regular and systematic basis and that 
she had a reasonable expectation of continuing employment so that she is a person protected 
from unfair dismissal. The Applicant is covered by a modern award. ALH is not a small 
business employer and the dismissal was not a case of genuine redundancy.  

[6] Directions were issued set for the filing of material and the matter was dealt with by 
way of hearing on the basis that there were disputed facts and I considered that a hearing was 
the most appropriate way to deal with the matter. The parties agreed that the hearing would 
deal with jurisdiction and merits. The Applicant was represented by Mr Merritt who is a 
former employee of the Respondent. Mr Merritt is neither a lawyer nor a paid agent.  

[7] It was suggested by the Respondent’s Human Resources Manager in his evidence that 
the Applicant was assisted by a third person to prepare correspondence sent to him by the 
Applicant prior to her dismissal and that the same person probably prepared the material filed 
by the Applicant in support of her application.  If Mr Merritt advised the Applicant about her 
course of conduct and correspondence with Mr Pyers prior to the ending of her employment 
and/or assisted her to prepare the material filed in these proceedings, then Mr Merritt was 
more hinderance than help.  This was particularly so during the course of the hearing when 
Mr Merritt on behalf of the Applicant levelled allegations at the Respondent’s witnesses 
which were at best misconceived.

[8] The Respondent was represented by Mr See of Counsel. My reasons for granting 
permission for the Respondent to be legally represented were set out in a Decision released on 
21 June 2019.1

[9] At the hearing the Applicant gave evidence on her own behalf.2 Evidence was also 
given for the Applicant by former work colleagues Ms Lisa King and Ms Angel-Leigh Gray.  
Ms King provided a witness statement3 and Ms Gray attended pursuant to a notice requiring 
her attendance issued at the respect of the Applicant.  and gave evidence for the Applicant.  
Evidence for the Respondent was given by:

 Mr Ezra Pyers – Human Resources Manager Queensland and New South Wales4;
 Mr Alan Sharkey – Venue Manager, Parkwood Tavern5;








[2020] FWC 2347

3

 Mr Robert Miller – Assistant Manager, Parkwood Tavern6;

 Ms Sallyann Hartley – TAB Supervisor Cecil Hotel and formerly Bar Attendant and 

TAB Supervisor at the Parkwood Tavern7; and

 Ms Toni Phillips – Venue Support Officer Parkwood Tavern8.

[10] Evidence relevant to the matters in dispute is summarised below.

EVIDENCE

The Applicant’s employment

[11] The Applicant was employed at the Respondent’s Parkwood Tavern from October 
2010 in the role of Food and Beverage Attendant.  In that role the Applicant’s duties included 
the service of food and drinks to patrons and responsibility for ensuring prompt and 
professional service to patrons. Mr Sharkey tendered the Applicant’s position description 
signed by her on 28 October 2010. The position description for the Applicant’s role includes 
providing customers with outstanding levels of service. The Applicant also signed an 
acknowledgement form on 4 April 2012 indicating that she understood and accepted ALH’s 
Employee Code of Conduct.  Mr Sharkey said that the Applicant had completed multiple on-
line training courses including “Creating a Rich Customer Experience” and the “ALH On-line 
Induction” which required her to read and agree to the ALH Group Code of Conduct.

[12] Mr Sharkey tendered copies of training materials including for courses attended by the 
Applicant, indicating that staff are trained in matters including: greeting customers; awareness 
and perception of customer needs and what is happening in the room; serving customers as 
soon as possible; and ensuring that customers in the gaming room at machines are offered 
service. The training also makes clear that employees should not engage in personal 
discussions while customers are waiting at the bar and in one example it is emphasised that it 
where two employees are engrossed in a conversation they should stop what they are doing 
when a customer enters the room or is waiting for service. Mr Sharkey’s evidence was that the 
training emphasises that good service includes serving from behind the bar and walking 
around and speaking with customers away from the bar. It may also include delivering food 
and drink to customers.

[13] The Applicant said that the letter of appointment “implies an acknowledgement” of an 
ongoing employment relationship that “has not been renewed on a weekly basis”. The 
ongoing nature of the Applicant’s employment is also said to be evidenced by the provision to 
her of a staff discount card and the fact that she applied for leave on 5 August 2018 and took 
such leave in the week commencing 29 October 2018 and that the Respondent generally 
required casual employees to indicate their availability in advance of a roster.  Further, the 
Applicant contends that her employment was regular and systematic, that she had a 
reasonable expectation of ongoing employment with similar hours and had made herself 
available and accepted work sufficiently often so that it could be said that her employment 
could no longer be regarded as simply occasional or irregular.9

[14] Mr Sharkey said casual employees are not guaranteed shifts and there is no specific 
day or time they must be provided with work or any specific number of hours per day or per 
week. Instead, casual employees are assigned shifts as needed by the business where those 
shifts are not otherwise filled by permanent employees. Whether casual employees are 
assigned shifts depends on factors including what tasks need to be performed, whether the 








[2020] FWC 2347

4

casual employee has the skills needed, the availability of the casual employee over the week 
and across weeks, performance in their role and conduct at work.  Casual employees have the 
ability to make themselves unavailable without the need for approval.

Incident on 7 November 2018

[15] It is not in dispute that on 7 November 2018 the Applicant was working a shift in the 
gaming room.  This room is adjacent to the restaurant.  Mr Sharkey states that he walked into 
the restaurant and noted three customers waiting at the register to give their orders and
prepared meals sitting on the counter waiting to be served to customers at tables.  Mr Sharkey 
said that he did not know the whereabouts of the employee who should have been in the 
restaurant (Ms Angel-Leigh Gray).  Mr Sharkey was required to deliver the meals to the 
customers at their tables and informed customers waiting to be served that a staff member 
would attend to them shortly.  

[16] Later Mr Sharkey viewed CCTV footage to ascertain the whereabouts of Ms Gray 
who should have been in the restaurant.  Mr Sharkey noted that Ms Gray was in the gaming 
room and that Ms Gray and the Applicant were talking for “several minutes” at the time that 
customers were waiting at the register in the restaurant and meals were ready for delivery to 
tables.  Mr Sharkey said that customers in the gaming room were also not receiving good 
service because the Applicant was standing behind the bar talking and was not interacting 
with customers away from the bar.  

[17] Under cross-examination Mr Sharkey was asked when he noticed customers standing 
in the restaurant and said that he saw three customers waiting at the till as well as a number of 
meals ready to be delivered to customers.  Mr Sharkey also said that he knew that customers 
were waiting for meals because he was required to run the meals to their tables. Mr Sharkey 
was not sure how many meals he delivered but said that he made more than one trip.  

[18] Mr Sharkey was also asked about where the other staff member who was rostered to 
work in the restaurant with Ms Gray on 7 November and said that the other staff member had 
been called by a manager to go to another area and it was not necessary that he take action in 
relation to the absence of that staff member from the restaurant area.     

[19] The Applicant said in her evidence that Ms Gray was in her area because the 
dishwasher in the restaurant was broken and Ms Gray brought glasses to the dishwasher in the 
gaming room to be washed. The Applicant tendered CCTV footage of her and Ms Gray at the 
relevant time. The CCTV footage was produced by the Respondent pursuant to an Order 
issued at the request of the Applicant requiring its production.

[20] The Applicant sought that the Commission and the parties view the CCTV footage at 
the hearing, while Ms Gray was giving her evidence.  The Applicant’s request was acceded 
to.  The footage shows the Applicant and Ms Gray holding a conversation that went for 
approximately three minutes and thirty seconds.  Both the Applicant and Ms Gray appear to 
be engrossed in the conversation and are not looking around at patrons or into the restaurant 
area. The footage begins at 12:07:01pm (as marked on the video footage) with Ms Gray 
standing at the sink behind the bar, and the Applicant walking around behind the bar area, and 
appearing to be putting some items away. The Applicant then joins Ms Gray at the sink, and 
begins a conversation with her. During part of the conversation the Applicant is polishing 
glasses while she is conversing with Ms Gray, who also appears to be washing items at the 








[2020] FWC 2347

5

sink. From around 12:09:35pm the Applicant can be seen standing next to Ms Gray 
continuing the conversation, and at 12:09:55 pm Ms Gray walks away from the sink and 
stands in the doorway from the gaming area back to her section and continues to talk to the 
Applicant. The Applicant and Ms Gray continue their conversation until 12:10:26 pm when 
Ms Gray leaves the bar area to return to the restaurant.  

[21] The Applicant said that the video showed that they were both doing something and 
that the Applicant was polishing glasses.  The Applicant also said that she did not know what 
they were talking about and they were probably talking about glasses or stock or something 
work related.  Further the Applicant said that the footage shows Ms Gray standing at a corner 
of the bar in the gaming room where Ms Gray could see her section.  

[22] Ms Gray confirmed that during her shift on 7 November 2018 she had “wandered 
over” to the gaming area to use the dishwasher as the one in her area was broken.  Ms Gray 
agreed that she was talking to the Applicant and said that she could not remember the subject 
of the conversation, but it was probably work related as she did not have a relationship with 
the Applicant outside work. Ms Gray said that she could not have seen customers in her area 
from while she was standing at the sink in the gaming room but could have seen them from 
the corner of the bar.  

[23] Ms Gray said that she could not remember whether there were customers waiting but 
conceded that this was probably the case and that she was aware that Mr Sharkey had been 
required to take some meals out to customers.  Ms Gray also conceded that she did not need 
to stay in the gaming room and could have left as soon as she had placed the dishes in the 
dishwasher.  Ms Gray further conceded that instead of leaving the gaming room after placing 
the dishes in the dishwasher she stayed in the gaming room talking to the Applicant.  Ms Gray 
said that she could not remember whether the Applicant was working while they were talking.

Disciplinary process in relation to the Applicant’s conduct on 7 November 2018

[24] On 7 November 2018 the Applicant was given a letter by Mr Sharkey setting out 
allegations about her conduct on that day and notice of the requirement to attend a meeting 
with Mr Sharkey the Venue Manager to be held on 8 November.  Much was made by the 
Applicant of the fact that there were two versions of the letter.  Mr Sharkey tendered both 
versions of the allegations letter as Annexure Q and Annexure S to his witness statement. The
first version of the allegations letter stated that the Applicant’s recent conduct in the 
workplace may be in breach of ALH Employee Code of Conduct and that her performance in 
the role of Gaming Attendant had fallen below the expected standards.  The first allegations 
letter also stated that:

“On 7 November 2018 you failed to provide the expected level of customer service for your role by 
talking to another staff member away from your designated service area resulting in customers not 
being greeted in an appropriate time frame.”10

[25] The allegations letter went on to set out the key responsibilities for the role of Gaming 
Attendant including attending to customers’ needs promptly, and concluded by informing the 
Applicant that depending on the outcome of the meeting on 8 November that she may be 
subject of disciplinary action including the termination of her employment. The Applicant 
was advised that she was entitled to bring a representative with her to the meeting.  There is a 
space on the allegations letter for the Applicant to sign.








[2020] FWC 2347

6

[26] The Applicant said that she did not know what the meeting was about and that the 
allegations letter did not make reference to an incident or reason for her attendance at a 
meeting.  The Applicant also said that the timing of the written notice and the requirement 
that she attend the next day meant that she did not have 24 hours’ notice of the meeting. The 
Applicant also said that the allegations letter was false because she did not leave her area.  

[27] The meeting was held on 8 November 2018 and was attended by the Venue Manager 
Mr Sharkey. The Applicant attended with Ms King as her support person.  The Applicant said 
that at the meeting she was informed that she had engaged in a conversation with Ms Gray 
that left a patron waiting in the restaurant area for several minutes. The Applicant said that 
initially she was told that she left her designated work area when in fact it was Ms Gray who 
left her work area.  The Applicant also said that the customer who was allegedly left waiting 
for service was in the restaurant area was not visible from the Applicant’s position in the 
gaming room.

[28] The Applicant said that she was informed by Mr Sharkey that he would discuss the 
matter with the Respondent’s Human Resource Management Department in relation to the 
consequences of the allegations and that this may result in the Applicant receiving a formal 
written warning. This confused the Applicant as she had remained in her designated work area 
and had not neglected customers in the gaming room.  

[29] In her evidence Ms King confirmed that she ceased employment with the Respondent 
in October 2017 and had not worked with the Applicant since that time.  Ms King attended 
the meeting on 8 November with the Applicant and said that at the meeting Mr Sharkey told 
the Applicant that she performed her duties well and is looked up to by the other staff at the 
Parkwood Tavern.  Ms King also said that Mr Sharkey asked the Applicant to sign a 
document but the Applicant refused to do so because it was not accurate and indicated that the 
Applicant had left her designated area when it was Ms Gray who had left her designated area. 
Ms King said that Mr Sharkey acknowledged that the Applicant had not left her designated 
area and stated that he would re-word the document and the Applicant would be required to 
sign it.  Ms King states that she told the Applicant that she was within her rights to refuse to 
sign the document.

[30] Under cross-examination Ms King maintained that at the meeting on 8 November 
2018 Mr Sharkey said that the Applicant was a senior staff member and that younger staff 
looked up to her because she performed her duties well and had known the venue for some 
time.  Ms King also said that she believed that the document that the Applicant was asked to 
sign at the end of the meeting was a written warning.

[31] Ms King also said that after the meeting she went outside to the gaming bar with the 
Applicant and Mr Sharkey came out holding a document and told the Applicant that she 
needed to sign it.  Ms King said that the Applicant stated that she would not sign the 
document because it incorrectly stated that she left her area and that she had told the 
Applicant she did not need to sign anything.  

[32] At my request Ms King was shown the two versions of the allegations letter in an 
attempt to identify the document that the Applicant was requested to sign. Ms King said that 
her view that the document the Applicant was asked to sign on 8 November 2018 was a 
written warning was on the basis that Mr Sharkey stated at the meeting on that date that he 
had a written warning for the Applicant to sign. Ms King could not identify the document that 








[2020] FWC 2347

7

the Applicant was asked to sign on 8 November 2018 and could not state whether the 
document was one of the two versions of the allegations letter or some other document.  

[33] According to Mr Sharkey’s evidence, at the meeting on 8 November 2018 the 
Applicant disputed the allegations on the basis that she asserted there were no customers left 
waiting to be served in her designated area. Mr Sharkey conceded that the first version of the 
allegations letter was incorrect and said that after realising that this was the case, he caused a 
second version to be prepared setting out the allegation in the following terms: 

“On 7 November 2018 you failed to provide the expected level of customer service for your role by 
talking to another staff and not attending to your gaming patrons.”11

[34] In his reply Affidavit, Mr Sharkey disputed the Applicant’s claim that she did not 
understand the allegations about her conduct on 7 November. While conceding that the first 
allegations letter was incorrect in the manner in which the allegation was framed, Mr Sharkey 
maintained that this was corrected at the meeting.  In this regard, Mr Sharkey said that at the 
meeting on 8 November he acknowledged that the Applicant had not left her designated work
area. Mr Sharkey also said that the incorrect wording in the first version of the allegations 
letter did not confuse the Applicant as she recalled the incident and responded by stating that 
she was not outside her work area that she should not be disciplined because she was in her 
work area at the time. Mr Sharkey confirmed that the Applicant refused to sign the revised the 
allegations letter.  

[35] Mr Sharkey said that after the meeting on 8 November he considered the Applicant’s 
response to the allegations as well as the CCTV footage, the training the Applicant had 
completed and the events as he had experienced them, and found that the Applicant had not 
provided the appropriate level of customer service. Mr Sharkey based his views on the fact 
that despite there being no customers needing to wait for service in her assigned room, the 
Applicant should have been interacting with customers and talking to them.  Instead the 
Applicant was talking to Ms Gray who was away from her area and the Applicant should have 
limited her discussion with Ms Gray so that Ms Gray could return to her own work area.

[36] Mr Sharkey determined to issue the Applicant with a written warning in relation to her 
conduct on 7 November 2018.  The written warning tendered by Mr Sharkey is dated 12 
November 2018 and records that on 7 November 2018 the Applicant failed to provide the 
expected level of customer service for her role by talking to another staff member who was 
away from their designated service area resulting in customers not being greeted in an 
appropriate time frame.  The warning letter also records that the Applicant’s response was that 
as she had not left her designated area, she did not believe that her conduct warranted a formal 
warning.  The letter concludes with the following statement:

“On the basis that ALH finds that your conduct constitutes misconduct, you are provided a written 
warning.  Any further breaches of company policy and/or inappropriate behaviour may result in further 
disciplinary action up to and including termination of your employment.  I accept your commitment to 
improve your conduct in the area above.  Please do not hesitate to ask if you need assistance to reach 
the standards required for you to continue a successful career with ALH.”12

[37] In relation to the issuing of the warning the Applicant complains that she was required 
to attend a second meeting with no advance notice and was not advised that she could have a 
witness present. No written notice of the meeting was provided. The Applicant states that she 
was advised that she was to receive a written warning and she was required to sign the 








[2020] FWC 2347

8

warning to acknowledge receipt.  The Applicant said that she was confused and intimidated at 
the meeting.  The Applicant also said that she did not believe that she had failed in any 
customer service requirements or that a written warning was required. During her 
employment at the Parkwood Tavern the Applicant has never received a verbal or written 
warning.

[38] Mr Sharkey said that the Applicant had been informed that the outcome of the meeting 
on 8 November was that the Applicant’s responses would be considered and that he would 
seek further advice before determining what disciplinary action, if any, would be taken 
against her and that the Applicant understood that this was the case as indicated in her 
evidence to the Commission.  Mr Sharkey also said that as the meeting on 12 November was
simply called for the purpose of him providing the Applicant with the outcome of his 
deliberations he did not see the need for her to have a support person present when she was 
handed the disciplinary letter.  Further, Mr Sharkey said that the Applicant did not appear to 
be confused or intimidated at the meeting and did not take the opportunity he provided to her 
to ask questions.  The warning letter tendered by Mr Sharkey is signed by the Applicant.  Mr 
Sharkey’s evidence about the meeting of 12 November 2018 was supported by Mr Miller who 
also attended.

[39] While not disputing that she received a written warning, the evidence of the Applicant 
about the written warning and the allegations letter and the submissions made by the 
Applicant and her representative from the bar table about these matters, were somewhat 
confusing.  Initially the Applicant contended that the first meeting at which the allegations 
were put to her occurred on 21 November and that the second meeting at which she was 
handed the warning letter occurred on 22 November 2018.  The Applicant later conceded that 
the first meeting was on 8 November and the second meeting on 12 November. In her witness 
statement and during the hearing the Applicant agreed that she did sign something on 12 
November 2018.

[40] However, the Applicant also “noted” in her written submissions that the signature on 
the warning letter tendered by Mr Sharkey as Annexure S to his affidavit “bears no 
resemblance” to the Applicant’s signature on other documents also tendered by Mr Sharkey.  
During the hearing the Applicant asserted from the bar table that the signature on the warning 
tendered by Mr Sharkey is not her signature. After pointing out the seriousness of an 
allegation that Mr Sharkey had tendered a fraudulent document, I stood the matter down to 
allow the Applicant an opportunity to decide whether she wished to press the allegation.  The 
Applicant withdrew the allegation.

Disciplinary process in relation to Ms Gray’s conduct on 7 November 2018

[41]   In her evidence to the Commission Ms Gray confirmed that she received a written 
warning at the same time as the Applicant. Ms Gray also said that she had previously received 
a number of verbal warnings about talking to colleagues during working time.  Ms Gray said 
that in her meeting with Mr Sharkey she was informed that while she was in the gaming room 
talking to the Applicant a customer was waiting for four minutes. Ms Gray said that Mr 
Sharkey told her that this was poor customer service and that she would receive a first written 
warning.  Ms Gray said that she agreed she was in the wrong and signed the warning.  Ms 
Gray also said that she viewed this as a serious matter and was concerned about losing her 
job.  This caused her to ensure that she did not engage again in the conduct about which she 
had been warned.  Ms Gray also said that prior to receiving the written warning she was 








[2020] FWC 2347

9

spoken to about talking to other staff when she should have been working and received two 
verbal warnings. Ms Gray said that when she received the written warning she understood that 
the matter was serious and her job could be at risk.

[42] In response to questions from the Commission, Ms Gray agreed that she should not 
have been standing talking to the Applicant. Ms Gray also said that it was her fault for going 
over and talking and she should have just put the dishes in the dishwasher and walked away.  
In cross-examination Ms Gray said that at the meeting Mr Sharkey told her that at least one 
person was waiting at the cash register for four minutes and that he had been required to run 
meals out to customers.  Ms Gray also said that Mr Sharkey told her that the meeting was a 
performance discussion and she should not discuss it with anyone and keep it confidential.  

[43] The Applicant said that after leaving the meeting on 12 November 2018 she asked Ms 
Gray whether she had been required to sign a similar form and was advised that Ms Gray had 
not been required to do so. As a result the Applicant felt that the blame had been placed on 
her and she had been unfairly victimised and targeted. Under cross-examination the Applicant 
agreed that she communicated with Ms Gray via Facebook in or around December 2018 and 
asked Ms Gray again whether she had received a warning.  After saying she could not 
remember what response Ms Gray gave, the Applicant agreed that Ms Gray said that she did 
receive a written warning and the Applicant knew this before she prepared her witness 
statement and submissions for the Commission.    

[44] Mr Sharkey said that the Applicant’s claim that she was unfairly targeted because Ms 
Gray did not receive a written warning for her involvement in the incident on 7 November is 
wrong and confirmed that on 8 November 2018 Ms Gray received a warning for her part in 
the incident.  Mr Sharkey also said that the investigation in relation to Ms Gray’s conduct 
followed much the same course as that relating to the Applicant but there was a significant 
difference in that unlike the Applicant, Ms Gray admitted to her conduct so that Mr Sharkey 
was able to determine the matter without seeking further advice.

[45] Mr Sharkey denied that he victimised or targeted the Applicant and said that where the 
Applicant compared her experience to that of Ms Gray she failed to recognise key differences 
that affect how Mr Sharkey determines which casual hours are offered to casual employees.  
In this regard, Mr Sharkey said that after issuing the Applicant with the written warning on 12 
November 2018 her conduct and behaviour continued in the same manner and eventually 
worsened.  In comparison, Ms Gray’s overall conduct and performance improved.  According 
to Mr Sharkey, the difference in the casual hours offered to the Applicant as compared to Ms 
Gray is reflective of this.  In cross-examination Mr Sharkey accepted that he may have given 
Ms Gray verbal warnings about talking to other staff before the written warning was given. In 
this regard Mr Sharkey said that any such warning was probably just given “on the go” and 
was not a formal warning.   

[46] Ms Phillips also gave evidence about the warning given to Ms Gray.  Ms Phillips said 
that unlike the Applicant Ms Gray kept the fact that she had received a warning confidential 
and to Ms Gray’s credit had improved her conduct and performance after being given the 
warning.  

Events after the Applicant was issued with a warning on 12 November 2018








[2020] FWC 2347

10

[47] There was a range of evidence about the Applicant’s conduct after she was issued with 
the warning on 12 November 2018.  Ms Gray who was issued with a warning in relation to 
the same incident said that thereafter the Applicant made contact with her on Facebook and 
asked Ms Gray whether she had received a warning.  Ms Gray said that she told the Applicant 
that she had received a warning but she could not talk about it. In re-examination Ms Gray 
said that the date she told the Applicant that she had received a written warning was 2 
December.  

[48] Ms Gray also provided information about customers who had told her that the 
Applicant did not smile at them or talk very much after the warning was issued. Ms Gray said 
that the Applicant was still in the gaming room for a few weeks after 12 November 2018.  In 
response to questions seeking more detail about the customers referred to in her evidence, Ms 
Gray said that some were asking about the Applicant and whether she was okay.  Other 
customers raised the issue of written warnings with Ms Gray and asked her whether she 
would get into trouble if she spoke to them.  Another regular customer who comes in with his 
wife commented that the Applicant did not smile and laugh any more and seemed to be angry 
with them.  

[49] The Applicant said that in the week following the issuing of the warning she was 
constantly under the scrutiny of Mr Sharkey. On one occasion when the Applicant approached 
the chef and asked him about the specials on the restaurant menu for that night, Mr Sharkey 
told her that she had neglected customers and that no-one was watching her section.  The 
Applicant said that this was not correct and that she was still in the bar area approximately 
three metres from the gaming lounge. The Applicant also said that when she attempted to 
explain that she was asking about menu specials as she was the only person who wrote them 
on the blackboard, Mr Sharkey said that it did not matter if it was work related and under no 
circumstances was the Applicant to leave her designated work area.

[50] The Applicant said that on another occasion within a week, another staff member 
from the Sports Bar came down to make coffee while he was working and on a further
occasion was on the floor while the Applicant was checking on customers.  The Applicant 
was also informed by the Assistant Manager that she was again observed on CCTV 
interacting with other staff members and this had been noted.

[51] The Applicant also said that she was aware that she was under surveillance and being 
monitored on camera and that notes were being taken. The Applicant viewed this as vindictive 
and extreme and said that she ceased talking to all staff even when they would make enquiries 
about how gaming worked. The Applicant said that she was replaced in the gaming area by a 
person who was not trained in gaming and that when that person would ask her a question she 
would advise her to radio a manager as the Applicant was not allowed to talk to other staff.  
The Applicant said that this was very upsetting for her.

[52] According to the Applicant it got to the point where other staff would not look at her 
as she was not allowed to talk, even though other staff were observed by the Applicant to be 
having personal conversations when she walked past them. The Applicant also gave examples 
of other staff having personal conversations in the workplace including an incident on 17 
November 2018 involving the Assistant Manager, Mr Miller. The fact that there were no 
personal consequences for those staff was seen by the Applicant as unfair and caused her to 
feel like an outsider. The Applicant also said that had mental health problems and was placed 
on anti-depressants by her doctor for anxiety and mild depression.








[2020] FWC 2347

11

[53] In the week commencing 26 November 2018 the Applicant was completely removed 
from gaming lounge rosters and her hours were reduced from 28 per week to 12.  The 
Applicant said that she approached Mr Sharkey to ask why this had occurred and was 
informed that she had been talking to other staff.  In response to a question as to whether other 
staff who had been out of their sections had their hours reduced, the Applicant was told by Mr 
Sharkey that she should not be talking and that he would not be discussing those matters.  The 
Applicant said that she works in the hospitality industry and needs to communicate with other 
staff. The Applicant also said that she always asks the chefs about specials as her gaming 
customers often make enquiries and she needs to inform them about this. 

[54] The Applicant said that after several weeks with no further instructions or meetings 
with Mr Sharkey on whether her behaviour was improving, her hours continued to drop down 
to nine, then six then three and a-half hours per week.  As a mother of two children and with 
no indication of when her hours would be restored, the Applicant said that she had no choice 
but to seek other employment as she could not survive on three and a-half hours per week.  
The Applicant also said that she had refrained from talking to other staff and had reached the 
point where most of her colleagues believed she did not like them and notwithstanding this 
her hours were not increased.

[55] Under cross-examination the Applicant said that she did not tell customers that she 
had been given a warning but did tell them her hours had been cut.  The Applicant also agreed 
that she had a discussion with Ms Gray on Facebook in relation to whether Ms Gray received 
a warning and attended a second meeting notwithstanding that she had been told not to
discuss these matters.  

[56] In relation to the gaming room the Applicant agreed that this is where money comes 
into the Hotel and it is important to make sure that customers in that area are happy. Further, 
the Applicant agreed that it was necessary for employees working in the Hotel in customer 
service roles to smile and be pleasant even if they are not feeling like doing so. The Applicant 
maintained that she was told that her hours had been cut because she was talking to other staff 
and that this was unfair and incorrect. In response to a proposition in cross-examination that 
her own behaviour had resulted in the reductions to her hours, the Applicant said: 

“…I would get to work, I would see Alan or Robbie and because I felt so victimised, like, I would just 
have to look at them and I would be in the toilet crying.

Yes? ---  Like, I would get there and I would spend half an hour in the toilet crying.

Yes? ---  You know, then I would have to make sure I wasn't because I had to look at customers.  I 
didn't want to look at customers like this.  You know, even Ezra would call me before my shift and I 
would have to go to work crying.

Yes? ---  Toni- I saw her, like, multiple times crying.  She encouraged me to go get another job, so I'm 
not sure how she was supposed to help me, but she saw me crying.  The fact that if I looked at someone 
I'd start crying - I felt isolated.  No one wanted to talk to me because I wasn't allowed to talk to anyone 
and yet I would walk past people having conversations all day.  I could hear conversations.  They were 
talking about stuff like at home and just crap.  Nothing about work and yet I couldn't talk to someone 
about - like, a chef about what the specials were going to be that night.  Then I lost hours and I - that is 
what he told me and I just kept losing hours.  There was no, "You're doing the wrong thing.  You're 
doing this, you should be that."  There was nothing to encourage me or give me any hope that any more 
hours were coming.  I tried to go somewhere else.  I wasn't allowed to, so I just - every time I got there -
like, I went to my doctor just balling my eyes out.  Like, I was on antidepressants.  I have never done 








[2020] FWC 2347

12

that in my life.  Like, I'm the happiest person and I just felt so - yes, like, it was horrible.  Like, I had 
customers - you know, I'm trying not to cry in front of them and, you know, trying to be pleasant to 
them because I didn't want them to know what was going on.  Like, some knew because obviously I've 
been there eight years.  Like, there is a lot of people there that I know very well.”13

[57] Mr Sharkey’s evidence was that after the Applicant was issued with a written warning 
on 12 November 2018, the Applicant’s behaviour continued on at least two more occasions 
later in the week.  According to Mr Sharkey, the first occurred when the Applicant was seen 
talking to another employee for several minutes when they were both in the gaming room and 
the second when the Applicant was talking to the Chef in the kitchen away from the gaming 
room which was her assigned area. Mr Sharkey disputed that the Applicant was talking to the 
Chef while she was in the gaming room and said that the Applicant was in the kitchen when 
he spoke to her about this matter. 

[58] Mr Sharkey said that as a result of the Applicant’s ongoing misconduct and poor 
performance he reconsidered the factors relevant to offering shifts to the Applicant. Mr 
Sharkey considered that when compared to other casual employees, the Applicant was no 
longer performing her shifts in the gaming room at a standard that was better than, or at the 
same level as, other employees within the pool of casual employees. As a result Mr Sharkey 
removed the Applicant from consideration for available shifts in the gaming room.

[59] Mr Sharkey also said that when compared to other employees within the casual pool, 
he still considered the Applicant’s performance and conduct to be of a standard to be offered 
shifts within the Hotel and subsequently he offered her shifts in the restaurant.  According to 
Mr Sharkey, the offer of work in a different room in the Hotel has no effect on the Applicant’s 
status as an employee under the Hospitality Industry (General) Award 2010 classification of 
Food and Beverage Attendant Grade 3 as the Applicant can be assigned to work either in the 
gaming room or the restaurant. Mr Sharkey acknowledged that the available shifts in the 
restaurant are of a much shorter time span than those in the gaming room and that the hours 
the Applicant has worked are less on both a daily and overall weekly basis.  

[60] In relation to the Applicant’s claim that she was put under scrutiny unfairly, Mr 
Sharkey denied that he told the Applicant she was not allowed to talk to other staff.  Rather, 
Mr Sharkey said that he told the Applicant to stay within her own section and focus on 
customers in that section and that if she needed information – for example Chef’s specials –
she could obtain it without leaving her section. Mr Sharkey also said that his expectation was 
that the Applicant would not socialise with other employees to the detriment of customer 
service and would use her discretion and not engage in long conversations with other 
employees that would distract her and those employees from providing service to customers.

[61] Mr Sharkey agreed that he did not provide the Applicant with further instructions or 
hold meetings with her regarding her performance before her hours dropped to 9 hours per 
week but maintained that this was because the Applicant refused to talk to him between 
December 2018 and his transfer to another venue. Mr Sharkey said that when he attempted to 
talk to the Applicant she ignored him and on multiple occasions, turned her back on him. Mr 
Sharkey said that as Venue Manager this is unacceptable and clearly misconduct. However, 
rather than taking disciplinary action against the Applicant Mr Sharkey decided to give her 
space with the hope that she would work out her frustrations.  When the situation did not 
improve, Mr Sharkey spoke to Mr Miller and it was agreed that Mr Miller would approach the 
Applicant to discuss her conduct and performance.








[2020] FWC 2347

13

[62] Mr Miller said that after the Applicant received the written warning he observed her 
working in the restaurant and that her attitude was very different. According to Mr Miller, 
before the warning the Applicant was a good team player who worked well with other team 
members towards providing good customer service. Mr Miller said that on the day he 
observed the Applicant working in the restaurant her attitude was poor and she seemed not to 
want to help other employees on the shift or engage in any conversation with them.  It seemed 
to Mr Miller that the Applicant was being intentionally difficult as if to show that if she could 
not stand around and socialise she would not talk with anyone she does not want to talk to.  
Mr Miller also said that when he was out of the room and in the office he observed the 
Applicant via the CCTV camera and saw her standing around socialising with other 
employees. After a few days Mr Miller approached the Applicant and discussed this conduct 
with her but instead of improving the Applicant’s conduct worsened. 

[63] Mr Miller said that the Applicant’s conduct towards him specifically also got worse 
and the Applicant stopped acknowledging him when he attempted to speak to her. Mr Miller 
is often the approved manager on shift as required under the Liquor Act and as part of the 
Applicant’s role she was required to follow his direction.  For this reason Mr Miller believes 
that it was suitable that other employees were offered shifts instead of the Applicant.  Mr 
Miller also said that he became aware that the Applicant’s conduct towards other employees 
had declined. Between December 2018 and January 2019 three employees approached Mr 
Miller and asked not to be rostered to work with the Applicant, expressing concerns that she 
had a poor attitude and was unprofessional.

[64] In January 2019, Mr Miller approached the Applicant on a confidential basis about the 
complaints he had received.  Mr Miller said that the Applicant acted as though she was not 
listening to him.  Mr Miller confirmed the expectations that he and Mr Sharkey had in relation 
to the Applicant’s conduct and the Applicant gave no acknowledgement of those expectations 
or commitment to achieving them. According to Mr Miller, the Applicant’s conduct and 
performance did not improve after the meeting and remained poor. In relation to the 
Applicant’s evidence about Mr Miller joking around with the chefs in the kitchen when he 
was supposed to be covering for the gaming area, Mr Miller said that he did not recall such an 
incident but it would not be unreasonable for him to leave an area when covering for other 
employees on breaks because when on shift, he is the approved manager and is responsible 
for the entire venue. The Applicant on the other hand is not the approved manager and is 
responsible only for her own area.

[65] Mr Miller said that his expectation of the Applicant was not that she never talk to any 
other employee as this is neither practical or reasonable in a customer focused role as part of a 
team. The expectation is that the Applicant will not neglect the provision of good customer 
service by prioritising socialising with other employees. Mr Miller also said that the Applicant 
is expected to not engage with other employees in regular long non-work related conversation 
when there is work to be done that would benefit customers, as this affects both her own 
performance and that of the other distracted employee or employees. Mr Miller has the same 
expectation of all employees particularly those on during busy service periods or when there 
are several high priority duties to be done to prepare for service. That the Applicant twisted 
this requirement to mean that she was not able to talk to anyone was neither an expected or 
reasonable outcome of Mr Miller’s conversation with the Applicant and Mr Miller said that 
this indicated the Applicant ignored his feedback and worked actively against it.    








[2020] FWC 2347

14

[66] Under cross-examination Mr Miller accepted that after the warning was given, the 
Applicant continued to work in the Gaming Room for the next two weeks but maintained that 
he had worked with the Applicant in the restaurant after the warning and observed the change 
in her attitude towards other staff members. In response to a question about how the 
Applicant’s conduct was different, Mr Miller said that prior to the written warning he liked 
the Applicant very much as a staff member and classed her as a senior staff member who 
could give help to less experienced members of the team. Mr Miller named the three staff 
members who had complained about working with the Applicant after she received a warning.  
Mr Miller also said that the Applicant’s attitude while working in the restaurant was that she 
did not want to be there.   

[67] Mr Miller agreed that the Applicant had covered some shifts for other employees after 
12 November 2018 but maintained that he attempted to make contact with her by telephone 
on four or five occasions to offer shifts and the Applicant did not return his calls.  Mr Miller 
agreed that he had not produced telephone records to establish this. Mr Miller was also shown 
a mystery shopper report posted on the Parkwood Tavern Facebook page on 13 August 2018 
indicating poor service and agreed that no warning was given to any staff member in relation 
to that post. Mr Miller also said that a mystery shopper report is an outsider’s perspective 
looking in and a different situation than poor work performance observed by a manager about 
which a warning is given. Mr Sharkey said under cross-examination that he made the mystery 
shopper post.  Mr Sharkey agreed that no warnings were issued to any staff in relation to the 
mystery shopper report but said that he held a staff meeting where it was discussed.  

[68] In relation to his discussion with the Applicant Mr Miller said that it was not only staff 
who had not wanted to work with the Applicant.  Patrons also reported that the Applicant had 
informed them that she had been given a warning and would make comment about what had 
happened to the Applicant.  

[69] Ms Phillips also gave evidence about the Applicant’s conduct both before and after the
warning.  Ms Phillips’ view of the Applicant prior to her being given the warning on 12 
November 2018 was that she was generally approachable, talkative and friendly and appeared 
to provide good customer service. After the warning letter was issued to the Applicant Ms 
Phillips observed that the Applicant moped about, did not engage with all of the customers 
and looked unapproachable and unfriendly.  Ms Phillips also said that the Applicant’s conduct 
to her was rude and unprofessional and the Applicant would grunt at Ms Phillips when Ms 
Phillips said hello to her in the workplace.

[70] Ms Phillips said that other staff complained to her that the Applicant was discussing 
the warning in the workplace. It is Ms Phillips’ opinion that the Applicant did not accept the 
warning and instead of taking the direction to improve on her customer service skills, the 
Applicant appeared to just want to continue to argue about the warning rather than caring 
about her job and the impact she was having on customers and staff. Ms Phillips’ also said 
that in her opinion, if the Applicant had maintained the same standard of customer service as 
she had prior to the warning, then she would have continued to be offered the same number of 
hours.  

[71] In response to the Applicant’s allegation that Ms Phillips had left the gaming area 
unattended while speaking to the Chef, Ms Phillips said that while she could not recall the 
incident, her position is not a customer service focussed role and when she provides assistance 
to customer service staff, she does so to supplement their efforts. Ms Phillips said that 








[2020] FWC 2347

15

because of the nature of her role she would not be subject to discipline for leaving a service 
area unattended as she is not responsible for any service areas.

[72] Under cross-examination Ms Phillips agreed that contrary to her witness statement she 
was not involved in the meeting on 12 November when the Applicant was given the warning 
but was in the office in the vicinity of the meeting when it took place.  In response to 
questions about how she knew that the Applicant’s performance was dropping Ms Phillips 
said that she was called out to cover for the Applicant while she was in the bathroom being 
upset.  Ms Phillips also said that she saw the Applicant crying at work on several occasions.

[73] Ms Hartley gave evidence about her interactions with the Applicant following her 
promotion to the position of TAB Supervisor with effect from 1 October 2018.  Ms Hartley 
said that prior to her promotion she had worked alongside the Applicant on multiple shifts and 
found her to be positive and friendly and to provide good customer service. Ms Hartley also 
said that after her promotion the Applicant’s attitude towards Ms Hartley and other team 
members changed and became rude and abrupt.  In this regard Ms Hartley’s evidence was that 
when asked to help with customer service the Applicant would respond with a single word or 
in short curt sentences making Ms Hartley feel uncomfortable. Other team members in 
gaming also told Ms Hartley that the Applicant had treated them in a similar manner. Ms 
Hartley said that the Applicant’s attitude to customers also changed and Ms Hartley witnessed 
the Applicant being rude and abrupt to customers when Ms Hartley went to that area on 
several occasions to make coffee.

[74] Under cross-examination Ms Hartley maintained that she interacted with the Applicant 
either when they crossed paths in the Hotel or when she covered gaming breaks.  In response 
to the proposition that the Applicant was working alone in the gaming area for several weeks 
after the warning was issued, Ms Hartley said that customers and staff came to her and asked 
what they had done to upset the Applicant because of the Applicant’s behaviour.  Ms Hartley 
agreed that the Applicant helped her when requested but said that the Applicant was “mopey”.  
Ms Hartley was unable to answer a question about why she stated that the Applicant’s 
behaviour changed from 1 October when other witnesses said it changed from 12 November 
when the Applicant was given a written warning.

Reduction in hours worked by the Applicant 

[75] The Applicant tendered a document evidencing shifts that she worked in the gaming 
room and the restaurant from 14 May 2015 until 11 February 201914.  That document shows 
that up until 19 November 2019 the Applicant was regularly rostered to work 8.5 hour shifts 
in the gaming room and that she also worked 3 hour shifts in the restaurant.  The document 
also shows that the Applicant worked an average of 28 hours per week in the period from 14 
May to 19 November 2018 and that her weekly hours ranged from 14.5 to 33.5 hours per 
week. After 19 November the Applicant worked only in the restaurant and was allocated 
shifts of 3.25 to 3.5 hours duration.  The weekly hours worked by the Applicant in the period 
from 19 November to 11 February ranged from 13 to 3.5 hours in the two weeks prior to her 
employment ceasing.  

[76] In relation to her hours of work, the Applicant agreed that these had fluctuated around 
her childcare commitments and that for some periods of her employment she had only been 
able to work day shifts.  The Applicant also agreed that her hours were varied.  The Applicant 
maintained that she was told her hours were cut because she was talking to other staff and that 








[2020] FWC 2347

16

she was given no other explanation or advice as to what she needed to do in order for her 
hours to increase.  

[77] According to Mr Sharkey, the Applicant has been offered shifts on a casual basis
throughout the course of her employment and has not been guaranteed shifts.  Instead, shifts 
have been allocated on the basis of the factors identified by Mr Sharkey. Mr Sharkey also 
pointed to the fact that the Applicant had worked twenty shifts since the date stated in her first 
application as the date upon which her dismissal took effect.  Mr Sharkey stated that the 
Applicant continued to be offered shifts depending on her suitability based on the factors he 
identified. Mr Sharkey said that it is simply the case that from 7 November 2018, the 
Applicant was not offered shifts because she was not conducting herself at work or 
performing in her role in a way that would justify her being offered shifts over other available 
casual employees in a specific part of the venue.

[78] Mr Sharkey also took issue with the Applicant’s assertion that she could not physically 
survive on 3.5 rostered hours per week and had no other choice but to resign. In this regard, 
Mr Sharkey said that since December 2018 the Applicant had refused to respond to phone 
calls from him and other employees when additional shifts were being offered at short notice.  
Prior to receiving the warning about her conduct on 7 November 2018, the Applicant would 
often be called in and would work additional shifts when she could.  To the best of Mr 
Sharkey’s knowledge nothing had changed that would have stopped her from continuing to do 
so and it is Mr Sharkey’s understanding that the Applicant was making a decision not to 
work. This meant that eventually she would not be offered shifts over those who did make 
themselves available and who answered calls and wanted to work.

[79] Mr Sharkey also pointed out that on the day the Applicant resigned he was no longer 
the Venue Manager of the Parkwood Tavern and had transferred to another venue on 4 
February 2019 with his last day at the Parkwood Tavern being 3 February 2019, one week 
before the Applicant resigned. From that time, Mr Sharkey had no input or influence on the 
number of hours to be offered to the Applicant and could not be considered to have 
constructively dismissed her.  The Applicant could have worked at both the Parkwood Tavern 
and her new job which is a common occurrence among casual employees in the hospitality 
industry.  The Applicant could also have remained in employment at the Parkwood Tavern 
and worked under the new Venue Manager. Instead the Applicant chose to resign when 
according to Mr Sharkey, other meaningful options were available to her.  

[80] Mr Miller also gave evidence that after the warning on 12 November he called the 
Applicant on multiple occasions to offer her shifts and that she did not answer her telephone.  
Prior to being given the warning, when the Applicant was called in relation to covering shifts 
at short notice the Applicant would always answer her phone and try to help out by working 
the additional shifts when she could.

[81] In relation to the Applicant’s claim that she was forced to resign due to a reduction in 
her working hours, Mr Pyers said that from 12 November 2017 to 21 January 2018 the 
Applicant earned a gross pay of $4,650.68 and from 12 November 2018 to 20 January 2019 
hear earnings were $4,681.72. Mr Pyers agreed that at the time the Applicant’s employment 
ended her hours had reduced to approximately 3.5 per week.

The Applicant’s interaction with Mr Pyers








[2020] FWC 2347

17

[82] Mr Pyers’ witness statement was prepared in response to the first unfair dismissal 
application but tendered as his evidence in the second application. Mr Pyers gave evidence 
about a series of interactions he had with the Applicant by email and telephone after she was 
given the written warning.  On 30 November the Applicant sent an email to Mr Pyers stating 
that she had concerns in relation to a reduction in her hours and attaching a letter which she 
had attempted to send to Mr Sharkey.  The email stated that the Applicant had been informed 
by Mr Miller that he could not assist with her concerns and that the Applicant wished to have 
her concerns noted with HR.  The attached letter addressed to Mr Sharkey raised a number of 
issues each prefaced with the words “I note” or “I submit” including:

 The Applicant was not given “a reasonable period of 24 hours’ notice” of the 
requirement to attend the meeting on 12 November;

 No time or facts to support the allegation were set out in the notice to attend the 
meeting;

 Mr Sharkey advised at the meeting that the Applicant and Ms Gray had engaged in a 
conversation for 3 minutes and 43 seconds and the information was not contained in 
the notice to attend the meeting and no evidence was provided to support the 
statement;

 Upon consideration Mr Sharkey acknowledged that the Applicant did not leave the 
designated service area;

 No customers were required to wait in the designated service area staffed by the 
Applicant;

 The allegation was “proven to be false” and there was no breach of Company policy 
to warrant disciplinary action;

 In 8 years of service no verbal or written warning has been received by the 
Applicant;

 The allegation in the written warning was altered;
 The Applicant felt intimidated and required to sign the document;
 This was a failure to comply with ALH Group Code of Conduct Process and Fair 

Work Australia disciplinary process guidelines;
 The written warning based on the failure to support the allegation constitutes an 

unfair and unreasonable action and failed to correctly follow disciplinary process as 
required by the Code of Conduct.

[83] The letter concluded with a request that the disciplinary notice be withdrawn 
immediately and removed from the Applicant’s personnel file. Mr Pyers states that he 
responded to the Applicant by email immediately, asking:

“Did you know the event being alleged prior to the meeting?
If you did not know the event prior to the meeting, once you did know the event being alleged did you 
have any difficulty responding to the allegation? What was that difficulty?
Now that you have had further time and information regarding the event being alleged, would you 
provide a different response and if so, what response?
Can you please provide me with your full account of events?” 

[84] The Applicant’s response by email three days later included a number of assertions, 
again prefaced with the term “I note” or “I submit” including:

“I note your non-acknowledgement of the receipt of a requirement to attend a meeting in a period less 
than 24 hours as a failure of basic requirements to provide a fair and reasonable time for a response to 
alleged misconduct and poor performance.”








[2020] FWC 2347

18

[85] The email went on to state that the Applicant was not provided with sufficient time or 
information prior to the meeting to identify when the alleged failure occurred and that the 
Applicant had no knowledge of this matter prior to the meeting.  The email also states:

“I note the allegation makes comments concerning expectations and movement away from a service 
area.  
I submit the allegation was false as acknowledged in the meeting with Alan Sharkey, as at no time did I 
leave the designated service area. …
I note the allegation is not misworded but is false and been acknowledged to be false by Alan Sharkey 
on 8 November 2018.
I note your statement:

‘ALH have taken into consideration your length of service, past conduct, information gathered 
through the investigation of the allegation including your response at interview’.

I note any reasonable person would find ALH have failed to consider the above statement when 
considering these factors that I have provided 27 November 2018.  
I note no need to provide my account to yourself as Alan Sharkey advised he had provided my response 
to human resources and you have the required information.”

[86] Mr Pyers said that he found the Applicant’s letters to be aggressive and hostile but 
despite this, and notwithstanding that the Applicant had simply requested that her complaint 
be noted, Mr Pyers decided to attempt to investigate the Applicant’s complaint. Mr Pyers said 
that in an attempt to get out of the cycle of hostile letters from the Applicant he telephoned 
her and left a message. When the Applicant did not respond to that message Mr Pyers 
telephoned her again the next day and spoke to the Applicant advising her that he had asked 
the question in his email in order to understand her complaint and that he was investigating it.  

[87] Mr Pyers said that he again asked for the Applicant’s version of events and she refused 
to provide it stating that Mr Pyers “should know them” because Mr Sharkey had provided 
them to him. Mr Pyers states that he told the Applicant that based on the events as she 
recalled them and what Mr Sharkey had told him, the same findings were likely if the process 
was to repeat itself. Mr Pyers further states that the Applicant admitted that she did have 
knowledge of events prior to the meeting and knew when the alleged failure occurred and 
who was involved, contrary to what was written in her letter.
  
[88] Mr Pyers said that he asked the Applicant to consider whether she had provided good 
customer service during the events as alleged and whether, if she had not, the warning could 
have been justified.  Mr Pyers concluded the conversation by asking the Applicant to call him 
back if she wanted him to proceed with the investigation of her complaint and that if she did 
not call him back he would take it that she did not wish him to proceed with the investigation.  
Mr Pyers said that he also told the Applicant that if she wanted him to investigate her 
complaint she could email him and that it would be useful if she provided her version of 
events in her own words.  In this regard Mr Pyers said in his evidence that it is his view that 
the Applicant’s letters prior to the ending of her employment and her submissions in the 
present application were written by a third party.  I infer that Mr Pyers was suggesting that the 
third party is the Applicant’s representative in these proceedings, Mr Merritt.  

[89] The Applicant did not call or email Mr Pyers and the first that Mr Pyers was aware 
that the matter was not resolved was when the Applicant made her first unfair dismissal 
application.  On this basis, Mr Pyers disputed that the Applicant followed the grievance 
procedure and asserted that to the contrary, the Applicant abandoned the process part way 
through after having withheld information relevant to the investigation of the grievance.  Mr 








[2020] FWC 2347

19

Pyers also said that the Applicant led him to believe that her grievance had been resolved on 
the basis that she did not contact him again as agreed.

[90] In her written submission filed in these proceedings, the Applicant asserted that she 
attempted to seek employment at another ALH venue and this application was “blocked and 
refused by Mr Pyers unless the Applicant withdrew the current unfair dismissal case” and that 
this was adverse action.  

[91] In relation to the assertions that the Respondent engaged in adverse action against the 
Applicant, Mr Pyers also gave evidence about the discussion he had with the Applicant when 
she sought a transfer. Mr Pyers said that on 7 January 2019 he was informed by the Manager 
of another Hotel owned by the Respondent that the Applicant had interviewed for a vacant 
role and had advised that she was a current employee seeking a transfer.  At that time, the 
Applicant was still working shifts at the Parkwood Tavern but had filed her first unfair 
dismissal application.

[92] Mr Pyers said that he again telephoned the Applicant to discuss the fact that she was 
not a dismissed employee and that the change in hours at Parkwood was only reflective of her 
current performance and conduct.  At that point the Applicant had filed her first unfair 
dismissal application.  Mr Pyers said that he discussed with the Applicant that she could not 
be dismissed if she was still being offered work and was working those shifts and that the 
only reason for her claim was that she had lost hours and did not think it was fair. According 
to Mr Pyers, the Applicant agreed that she had not been dismissed and that she was not 
guaranteed a minimum number of hours.  

[93] Mr Pyers said that he told the Applicant that if they could resolve “this 
misunderstanding” and that the Applicant had not been dismissed, there would be no barrier 
to progressing with a transfer.  In response, the Applicant said that nothing had been resolved 
and she would still receive less hours.  The Applicant also told Mr Pyers that he was 
blackmailing her and that she needed to go to work before hanging up on Mr Pyers.  Mr Pyers 
said that the Applicant has not called him back since and the transfer did not proceed because 
of the fact that the misunderstanding about the Applicant’s employment was not resolved.  Mr 
Pyers also said that the main reason for the lack of resolution was the Applicant’s continual 
refusal to engage genuinely in finding a resolution.

[94] Under cross-examination Mr Pyers was asked about the Respondent’s disciplinary 
policy generally.  Mr Pyers said that when there are instances of poor conduct or work 
performance a letter will be prepared outlining the allegations and the potential breaches and 
set a time for meeting with the staff member concerned.  The letter is provided to the staff 
member and the meeting takes place.  It is common that the meeting takes place on the next 
day and in Mr Pyers’ view 24 hours means a reasonable overnight period for the employee to 
consider the allegations.  The manager conducting the meeting is expected to have a witness 
and the employee against whom the allegations have been made can also have a witness.   

[95]   The expectation is that the manager will conduct a meeting by telling the employee 
what the allegations are and asking the employee questions giving the employee an 
opportunity to answer those questions.  Mr Pyers’s advice is that the manager conducting the 
meeting should have a break in the meeting to consider the employee’s response which may 
be short 5 minute break or a break of several days. The manager is then expected to advise the 
employee of the outcome including written warning or dismissal. Managers may contact Mr 








[2020] FWC 2347

20

Pyers to seek his advice or simply implement disciplinary processes without reference to Mr 
Pyers.

[96] Mr Pyers said that he was not aware that Ms Gray had stated that she was given two 
verbal warnings before being issued with a written warning for her involvement in the 
incident on 7 November 2018.  Mr Pyers agreed that the allegations letter stating that the 
Applicant had left her work area was incorrect but disagreed with the proposition that the 
Applicant should have been given more time before being provided with the correct 
allegation.  Mr Pyers said that his understanding is that the Applicant disputed the correctness 
of the allegation as set out in the letter but understood what the allegation meant and could 
still continue to respond to it.  Mr Pyers also disagreed with the proposition that the Applicant 
had very little time to prepare her response to the allegations.  Mr Pyers said that more time 
would have made no difference because the issue was that the Applicant was talking to 
another staff member and the fact that she was in her own area at the time did not alter the 
fact that the concern was customers were not being served.

[97] Mr Pyers maintained that the Applicant responded to the allegation on the basis that it 
was changed having regard to the fact that she did not leave her work area and also said that 
he was prepared to discuss the Applicant’s concerns about the warning with her at a later date.  
The further discussion had not occurred because the Applicant had not contacted Mr Pyers to 
discuss the matter further. Mr Pyers rejected the proposition that the Applicant had told him 
that she only wished to be contacted in writing.  Mr Pyers also said that the Applicant could 
not have received the warning letter at the meeting on 8 November where the allegations were 
discussed because he helped Mr Sharkey to draft the warning letter after the meeting 
concluded.  Mr Pyers maintained that the letter the Applicant was given at the meeting on 8
November was the allegation letter which, in accordance with the Respondent’s usual 
practice, had a space at the bottom for the Applicant to sign to confirm receipt.  

[98] In response to the proposition that the Applicant should not have been given a written  
warning in circumstances where she had been in her work area and had not seen customers 
waiting to be served,  Mr Pyers said that the venue manager had experienced that the 
customers were not being served and he looked at CCTV footage before determining that a 
warning should be given to the Applicant and Ms Gray on the basis that they were talking for 
an extensive amount of time. It is Mr Pyers’ understanding that before the warning was given, 
Mr Sharkey had provided both employees with an opportunity to tell him what they were 
doing.  Mr Pyers also said that the intention of the warning was to enable the Applicant to 
understand that she had not performed her duties to the required standard and improve her 
performance.

[99] Mr Pyers also said that if the warning was not justified there was an appeal process 
that was not followed by the Applicant.  In this regard, Mr Pyers had the following exchange 
with the Applicant’s representative during cross-examination about whether the Applicant had 
invoked the dispute resolution procedure under clause 9 of the (the Award):

“I do believe that the applicant submitted a letter to Alan Sharkey which was then forwarded to you and 
then contacted yourself.  As I understand through the code of conduct, she has followed the award and 
the code of conduct in addressing the issue? ---  No.  If I can deal with those points, no, she sent one 
letter, I replied with an email.  That email was asking questions that really would have helped inform 
the decision as to whether or not the correct decision was reached.  She did not provide information that 
would help with that response and instead it mostly just attacked my decision to even question her.  I 
didn't want to make it any worse so I called her and then tried to helpfully get to the right decision here.  








[2020] FWC 2347

21

But it didn't work.  It ended with her saying that she would - sorry, it ended with me saying, "If you still 
want to proceed with it, call me back."  But the big part of that conversation was about, hey, this letter 
was incredibly rude and harsh and unnecessarily so.  How we treat each other like humans - I'll likely 
learn all about you to get an understanding.  You'll learn all about me because I wanted the right 
outcome.  I truly did.  If my venue manager or any manager made the wrong decision, I don't want that 
to stand.  That's not reasonable.  In this case, based on everything I am aware - because nothing has 
changed, no new information has come to light about the nature of that meeting, that would lead me to 
believe that the decision was wrong.  But in spite of that, I was still at that time willing to hear anything 
else that would say, "Alan came to the wrong decision."  But that didn't happen because she just stopped 
and said - the application for unfair dismissal that we're dealing with right now.

Which is, again, part of the award process that she has followed? ---  No, because the process of making 
an appeal or making a grievance is to actually follow it through.  You can't just throw out, "Hey, I think 
I got the wrong outcome here", or, "I think all (indistinct) was wrong", and then not help, and not 
actually provide any further information to be able to tell them that because otherwise, the termination 
is - the decision has to stand.”15

[100] Mr Pyers agreed that when the Applicant’s performance deteriorated further following 
the warning Mr Sharkey had not put an improvement plan in place.  In response to the 
proposition that there was no procedure to help the Applicant improve, Mr Pyers said that as a 
casual employee the Applicant knows that hours are given to her on the basis of her conduct 
and performance and that if you don’t conduct yourself like an appropriate employee you 
don’t get hours.  Mr Pyers also said that the Applicant knew what was expected of her before 
the warning was given and there is no expectation that someone has to tell an employee what 
performance standards are in circumstances where the employee already knows those 
standards and is expected to return to them.  In response to questions about why the Applicant 
was still given shifts if her performance had deteriorated after the warning was given, Mr
Pyers said that the Applicant’s hours reduced when she failed, after the warning, to 
demonstrate that she understood the expectations of her role. In re-examination Mr Pyers 
noted that the Applicant had been counselled by Mr Sharkey and Mr Miller in relation to her 
behaviour after being given the warning.   

[101] In response to a proposition from me that the conduct that it is alleged the Applicant 
engaged in after the warning is worse than the conduct for which she received a warning and 
yet no further warning was given to her, Mr Pyers said that it was hoped that the Applicant 
would “come good” again.  Mr Pyers also said that while the Applicant’s hours were reduced, 
the Respondent still needed someone to work those hours and perform the duties the 
Applicant performed, and the Respondent was willing to accept the standard of work the 
Applicant provided for those hours she had been given.

[102] In relation to the Applicant seeking a transfer to another venue, Mr Pyers said that at 
the time the Applicant was claiming that she had been dismissed she could have transferred if 
the dispute in that regard was resolved.  Mr Pyers said that there was no opportunity to 
resolve that dispute because the Applicant hung up on him and did not call him back.  Mr 
Pyers also had the following exchange with the Applicant’s representative:

“You're forming a constructive dismissal - you just keep cutting her hours and you won't let her go 
anywhere else to increase her hours when it's being offered to her?---No. Her hours were not 
blocked. Either the venue she was at, she could have rightly improved her performance and conduct 
and acted appropriately and she would have gotten more hours. She likely would have got more 
hours. Or importantly she could have acted like an adult, had the conversation with me and not hung up 
on me and not ever returned my phone call, come back to that conversation and she may have gotten the 
transfer to Oxenford. We can't deal with that now because she decided to never call me back.








[2020] FWC 2347

22

But she told you she only wanted to be communicated with mail?---No, she didn't.

She said she got upset every time you contacted her on the phone?---She did say she got upset. She did 
not say only by mail.

The applicant claims she made it very clear she only wanted to be contacted by mail?---No.”16

[103] In re-examination Mr Pyers stated that the Applicant transferring to another venue was 
not a foregone conclusion and that given her behaviour at the Parkwood Tavern he would not 
have recommended her for a role in the gaming room at another venue.   

SUBMISSIONS

[104] In the Applicant’s written outline of submissions it is contended that the Applicant had 
an ongoing contract of employment and an extensive period of service in excess of 8 years 
with no warning or other disciplinary action having been taken against the Applicant prior to 
the warning issued on 12 November 2018.  In relation to that warning it was asserted that the 
document tendered by Mr Sharkey as Annexure Q to his witness statement – the revised 
allegations letter – had never been provided to the Applicant and was an intentional attempt to 
mislead the Commission about the meeting the Applicant was required to attend on 12 
November 2018.  

[105] In relation to that meeting on 8 November the Applicant’s submission noted that she 
did not have 24 hours’ notice of the meeting, the allegation was “false”, and no proof or 
evidence was shown to the Applicant to substantiate the allegation. The Applicant also 
submits that the allegation was changed during the meeting. The Applicant points to Mr 
Sharkey’s statement about  the events of 7 November 2018 in relation to finding meals 
waiting to be delivered to customers, and asserts that this evidences Mr Sharkey’s failure to 
provide customer service.

[106] In relation to the meeting on 12 November 2018 the Applicant submits that she was 
not offered a witness nor given 24 hours’ notice of the meeting and contends that the 
Respondent has failed all basic requirements of a disciplinary process, has provided a false 
document and has failed to prove the original allegation.  Citing the Decision in O’Meara v 
Stanley Works Pty Ltd17 the Applicant submits that the reduction in her rostered hours was 
designed to force her resignation and was a constructive dismissal.  The Applicant also 
submitted that the actions of Mr Pyers in blocking her from obtaining employment at an 
alternative venue also amounted to constructive dismissal.

[107] The Applicant also submits that after receiving the warning on 12 November 2018 the 
Applicant followed the grievance procedure in clause 9 of the Award seeking that the warning 
be rescinded.  In support of this contention, reference was made to the Applicant’s letter to Mr 
Pyers dated 3 December 2018.  It was also submitted that the Applicant had her hours of work 
intentionally reduced giving rise to an unfair dismissal in the form of constructive dismissal.  
The Applicant’s employment is regular and systematic and the reduction in her hours of work 
was a breach of the Respondent’s Code of Conduct in relation to victimisation.  

[108] Further, it was submitted that the actions of Mr Pyers and Mr Sharkey were a breach 
of the general protections provisions of the Act and that the Applicant had been subjected to 
adverse action notwithstanding that the application was within the jurisdiction of unfair 
dismissal.








[2020] FWC 2347

23

[109] In oral submissions, it was contended that the Applicant invoked the dispute resolution 
procedure in the Award when she wrote to Mr Pyers and did so after approaching Mr Miller 
(in the absence of Mr Sharkey).  Mr Miller advised her to contact Mr Pyers.  It was further 
contended that the Applicant had requested in correspondence with Mr Pyers that she be 
contacted only in writing. When the Applicant received nothing in writing in response to her 
complaint she lodged an unfair dismissal application on 10 December 2018 in accordance 
with the dispute settlement procedure in the Award.

[110] Two weeks after lodging that claim, the Applicant’s hours were reduced.  When she 
requested a transfer to another venue, the Applicant submitted her hours were further reduced 
and the transfer was blocked by Mr Pyers.  The Applicant’s representative maintained in oral 
submissions – after taking instructions from the Applicant – that Mr Pyers had attempted to 
blackmail her into dropping her unfair dismissal application when she attempted to arrange to 
transfer to another venue and that the Respondent had engaged in adverse action against her.  

[111] The Applicant also contended that the Respondent’s disciplinary procedure did not 
provide for hours to be reduced for disciplinary reasons.  in support of the assertion that the 
Applicant was constructively dismissed, reference was made to the Decision of Ryan C in 
Goodwin v Shanaya Pty Ltd T/A Domino’s Pizza18 where the Applicant’s hours were reduced 
and the Applicant in that case raised the matter with head office before resigning.  In that case 
it was held that the Applicant was forced to resign and that his resignation was a constructive 
dismissal.

[112] The Applicant submitted that but for her dismissal she would have remained in 
employment for a further two or three years and would have therefore been entitled to long 
service leave payments on termination of her employment.  The Applicant obtained 
alternative employment from 22 February and at the time her application was heard was 
working 32 hours per week.

[113] The Respondent submitted that as a casual employee the Applicant did not have a 
contractual guarantee of hours of work – either express or implied – and the Applicant’s 
assertion that she was entitled to be rostered for 28 hours per week is based on the average 
hours she worked but otherwise has no legal basis.  The basis of casual work is that each 
engagement signals a separate employment contract.  While the employment relationship may 
continue it does so with both parties fully aware that it can end at each point in time.  The fact 
that a worker may be described as a casual employee engaged on a regular and systematic 
basis, takes the matter no further.   

[114] The Respondent further submitted that reassigning a casual employee from one part of 
an employer’s business to another, consistent with the terms of the modern award, does not 
result in unfair dismissal.  The Applicant resigned her employment when her first attempt to 
claim unfair dismissal after only two weeks in the new work area, failed.  The Respondent 
submitted that the Applicant failed to mention that from this point she refused to answer 
phone calls offering her work and became “a malcontent”. By her conduct, the Applicant 
painted herself into a corner and resigned of her own free will. 

[115] In relation to the alleged conduct or course of conduct said by the Applicant to have 
resulted in her dismissal, the Respondent identified three issues propounded in the 
Applicant’s case:








[2020] FWC 2347

24

1. That the Respondent moved the Applicant from the gaming area with no reasonable 

basis for doing so;

2. The Applicant has suffered a significant reduction in her weekly income; and

3. That the treatment by Mr Sharkey and Mr Pyers was victimisation of the Applicant.

[116] In relation to moving the Applicant from the gaming room the Respondent submits 
that this is consistent with the obligations of employees under the Award.  The Respondent 
also submits that to the reassignment was due to the conduct of the Applicant. In relation to 
the reduction in hours, the Respondent submits that there is no basis for implying a term into 
the Applicant’s contract of employment guaranteeing hours to the Applicant and nor is there 
any custom and practice guaranteeing the Applicant particular hours.  This is particularly so 
given that the Award does not contain any requirements to provide casual employees with a 
roster in relation to their employment.  

[117] Reference was also made to the Decision of a Full Bench of the Commission in City of 
Sydney RSL & Community Club Limited v Balgowan19 which held that for each shift a casual 
employee worked for the employer there was a separate contract of employment 
notwithstanding that there was also an expectation (perhaps a reasonable one) that there 
would be work in the future.   

[118] The Respondent submitted that in the present case, the Applicant’s hours were reduced 
because of the different business hours in the restaurant as opposed to the gaming room.  The 
Applicant was removed from consideration for shifts in the gaming room on the basis that in 
Mr Sharkey’s view there were better performing employees who should be given priority 
when filling the roster.  There was no deliberate intention to deprive the Applicant of hours 
and any roster was going to be available to her based on the business requirements and 
whether she was the best person for the job.  The Respondent was within its rights to deploy 
casual workers into various venue areas based on their suitability, positive contributions, 
behaviour and conduct and there is no evidence to suggest that this was a construction on the 
part of the Respondent to effect the resignation of the Applicant.

[119] In relation to the Applicant’s claims of adverse action, the Respondent submitted that 
in Mr Sharkey’s dealings with the Applicant were based solely on her conduct and 
performance.  With respect to Mr Pyers, the Applicant refused to engage with him in relation 
to her request for a transfer or the correspondence setting out her complaints about being 
issued with a warning.  Mr Pyers’ evidence that the Applicant hung up on him and did not 
make further contact should be accepted.  It was also submitted that there is a common pattern 
of behaviour on the part of the Applicant which indicates that she was acting in a rude and 
abrupt manner, ignoring other staff and was actively working against feedback from 
managers.

[120] The primary submission advanced by the Respondent was that the Applicant was not 
dismissed.  In the alternative, it was submitted that if the resignation of the Applicant is taken 
to be a dismissal, then the Respondent was within its rights to roster the Applicant in the 
manner that it had done having regard for the tasks and skills required, the Applicant’s 
availability and her performance in the role.  The Applicant was notified of the reason for the 
reduction in her hours, given an opportunity to respond and was warned both orally and in 
writing about the conduct that led to a reduction in her hours.  








[2020] FWC 2347

25

[121] In oral submissions Mr See for the Respondent accepted a proposition posed by me 
that repudiation of a contract of employment as discussed in Balgowan does not encompass 
the full range of situations that could give rise to a claim of constructive dismissal.  Mr See 
also accepted that repudiation of an employment contact and the conduct described in cases 
dealing with that concept might be a measurement of the kind of conduct that can effect a 
constructive dismissal, but is not exhaustive.

[122] Mr See submitted that matter had snowballed from a situation where two employees 
were warned about their conduct in circumstances where the Applicant was talking to Ms 
Gray when Ms Gray had left her work area and the venue manager was required to run meals 
to tables and serve customers who should have been served by Ms Gray.  Mr See also pointed 
out that at the time the Applicant was 45 years old and had significant experience at the 
Parkwood Tavern and in the hospitality industry generally and Ms Gray was 19 and had been 
employed by the Respondent for a relatively short period of time. While the Applicant 
thought the warning was unfair it was related to a practice the employer wanted to curb and it 
was reasonable that the warning was issued.  Mr See also pointed to evidence about the 
attitude of the Applicant after the warning was given and submitted that the failure to give a 
subsequent warning about the Applicant’s attitude was explained by Mr Sharkey’s evidence 
to the effect that he hoped she would get over the issues with the written warning and that her 
conduct would improve.  Further, it was submitted that Mr Miller had counselled the 
Applicant in relation to her conduct and attitude after she was given the written warning.  

[123] It was also submitted that the Applicant had other options besides resigning her 
employment and that instead of pursuing those options the Applicant hung up on Mr Pyers 
and did not call him back.  Further it was submitted that the ending of the Applicant’s 
employment was not a situation that the Respondent wanted and this was evidenced by its 
response to the first unfair dismissal application to the effect that the Applicant had not been 
dismissed and was still being provided with shifts.  In relation to the Applicant’s submission 
that her hours were reduced as disciplinary action, the Respondent asserted that reduction in 
hours was based on rostering the right people to work in the right place at the right time.  

[124] It was further submitted that the facts in Goodwin v Shanaya Pty Ltd T/A Domino’s 
Pizza could be distinguished from the present case on the basis that the employee had made 
complaints about hygiene and other issues and the employer was found to simply want to get 
rid of him.  It was also the case that the employee in Goodwin was pleading with staff in the 
Respondent’s head office to intervene and those staff did nothing to assist him. Here, the 
Applicant could have resolved the matter if she had sat down with Mr Pyers in December and 
asked him to deal with her complaint rather than hanging up on Mr Pyers and making no 
further contact with him. Accordingly the Applicant was not dismissed and in the alternative 
if the Applicant was dismissed her dismissal was not unfair.

CONSIDERATION

Constructive dismissal in the context of casual employment 

[125] There is a clear legislative intent that the unfair dismissal provisions in Chapter 3 Part 
3 – 2 of the Act apply to casual employees.  In Khayam v Navitas English Pty Ltd t/a Navitas 
English20 a majority of a Full Bench of the Commission made the following observations 
about the operation of unfair dismissal provisions in Part 3-2 of the Act with respect to casual 
employees:








[2020] FWC 2347

26

“[70] Fourth, s 384(2)(a) gives a clear indication that casual employees who have been employed on a 
regular and systematic basis and during that service have had a reasonable expectation of continuing 
employment on a regular and systematic basis are intended to be included in the unfair dismissal 
scheme in Pt 3-2. Section 382(a) requires that, in order for a person to be “protected from unfair 
dismissal” for the purpose of the Part, the person must have completed a period of employment with the 
employer of at least the “minimum employment period”. The “minimum employment period” is defined 
in s 383 to mean one year in the case of a small business employer and 6 months in the case of all other 
employers. Section 384(1) provides that an employee’s “period of employment” with an employer is the 
period of continuous service the employee has completed with that employer. Section 384(2)(a) then 
provides:

(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; ...

[71] It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the 
purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the 
operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is 
a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter 
contracts of employment (although this is not a universal indicium of casual employment and in some 
cases the existence of a longer-term contract of employment may be inferred). 77 Where a casual 
employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their 
engagement on a particular day and is never thereafter engaged by the employer, contractually the 
employment has come to an end by agreement due to the effluxion of the contractual term rather than 
by any act by the employer to terminate the contract. If that situation was incapable of being 
characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 
386(2)(a).”21

[126] Various cases before the Commission and the Courts have established that the concept 
of casual employment is capable of a number of meanings. A “true casual” has traditionally 
been defined as working under informal, uncertain and irregular arrangements.22  Increasingly 
however, there are casual employees who work for the same employer, for the maximum 
ordinary hours that can be worked in a week and who are rostered for extended periods.  
There are cases where casual employees have been found to be employed under a single 
continuing contract of employment although as the Full Bench in City of Sydney RSL v 
Balgowan23 (Balgowan) observed, such cases are rare.

[127] By virtue of s. 386(1) of the Act, 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. 

[128] The Explanatory Memorandum to the Fair Work Bill 2008 states as follows in relation 
to this provision:








[2020] FWC 2347

27

“Clause 386 - Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is 
dismissed if the person's employment with his or her employer was terminated on the employer's 
initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of 
the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their 
employment but were forced to do so because of conduct, or a course of conduct, engaged in by their 
employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and 
allow for a finding that an employee was dismissed in the following situations:

 where the employee is effectively instructed to resign by the employer in the face of a threatened or 
impending dismissal; or

 where the employee quits their job in response to conduct by the employer which gives them no 
reasonable choice but to resign.”

[129] In Mohazab v Dick Smith Electronics Pty Ltd24 the Industrial Relations Court of 
Australia was dealing with a case where an employee resigned his employment after being 
directed to do so or the police would be called.  The Court did not consider the issues in that 
case solely within the paradigm that has been described as constructive dismissal. Rather the 
Court considered the meaning to be given to the term “termination at the initiative of the 
employer” and held that:

“…it is unnecessary and undesirable to endeavor to formulate an exhaustive description of what is 
termination at the initiative of the employer but plainly an important feature is that the act of the 
employer results directly or consequentially in the termination of employment and the employment 
relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it 
did, the employee would have remained in the employment relationship.”25  

[130] The Court went on to cite with approval the judgement of Wilcox CJ in APESMA v 
David Graphics Pty Ltd26 where his Honour said:

“I agree with the proposition that termination may involve more than one action.  But I think it 
necessary to ask oneself what was the critical action or what were the critical actions, that constituted a 
termination of the employment.”27   

[131] In relation to Mohazab a Full Bench of the Australian Industrial Relations 
Commission said in O’Meara v Stanley Works Pty Ltd28:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the 
further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in 
Pawel and ABB Engineering require that there... be some action on the part of the employer which is 
either intended to bring the employment to an end or has the probable result of bringing the employment 
relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly 
or consequentially in the termination of the employment.” Decisions which adopt the shorter 
formulation of the reasons for decision should be treated with some caution as they may not give full 
weight to the decision in Mohazab. In determining whether a termination was at the initiative of the 
employer an objective analysis of the employer’s conduct is required to determine whether it was of 
such a nature that resignation was the probable result or that the appellant had no effective or real 
choice but to resign.”








[2020] FWC 2347

28

[132] Section 386(1) covers a wide range of circumstances whereby the employment 
relationship is not left voluntarily by the employee. These include, but are not limited to, 
repudiation of the contract of employment by the employer which is accepted by the 
employee and constructive dismissal.  It is well established that where there is conduct by the 
employer that amounts to repudiation of the employment contract which is accepted by the 
employee, it is the conduct of the employer that brings the employment relationship to an end.
  
[133] The term constructive dismissal is generally used to describe a situation in which the 
act of the employer bring about the termination of employment even though the final act is the 
resignation of the employee.29  It may be – as was observed by Young J in Brookton Holdings 
No 5 Pt Ltd v Kara Lar Holdings Pty Ltd30 – that there is no real difference between 
repudiation of the employment contract by an employer or constructive dismissal, although 
his Honour also observed in that case that “some philosophers might find some ground for 
distinction”.31  

[134] It is clear that the concept of constructive dismissal is dealt with by s. 386(1)(b) and 
that s. 386(1)(a) covers other situations where the employee does not voluntarily leave 
employment so that termination of employment is at the initiative of the employer.  There are 
a number of authorities for the proposition that a reduction in hours or pay for a casual 
employee can constitute termination of employment at the initiative of the employer.  These 
cases variously deal with the subject on the basis of considering whether the reduction in 
hours constitutes a repudiation of the contract of employment so that the acceptance of the 
repudiation brings the employment relationship to an end or whether the reduction forces the 
employee to resign so that the termination of employment is a constructive dismissal.  As 
previously noted there may be little if any distinction between these situations and in both 
cases the employee may have been dismissed.  However whether the employee can assert that 
a reduction in hours is a repudiation of the contract of employment or constructive dismissal, 
depends on the nature of the casual employment.  

[135] In Field v the Returned and Services League (Mount Gambier Sub-Branch & 
Memorial Club) Inc T/A Mount Gambier Community RSL32 the Applicant had been employed 
as a casual Food and Beverage Attendant initially working 12 hours per week increasing to 38 
hours after several months. Approximately 8 months after commencing employment the 
Applicant was offered a permanent full-time position on a probationary basis.  The Applicant 
was given a letter advising her that she had been “promoted” from casual to full time on a 
three month trial basis and that should the applicant’s performance during the probationary 
period be satisfactory her position “may possibly become permanent”.33

[136] After a series of incidents the Applicant’s hours were reduced so that she was offered 
only 2 shifts with a total of 7 hours in the weeks prior to the ending of her employment.  The 
applicant in that case was also required to contact the employer to find out whether additional 
shifts were available for her to work. Deputy President Bartel found that this constituted a 
significant change in the applicant’s employment arrangements.  Further, the Deputy 
President found that the applicant was not a casual employee at common law for many 
months before her “promotion” to a full-time position.34 After considering cases in relation to 
repudiation of employment, the Deputy President found that the respondent terminated the 
employment relationship when it reduced her hours of work which constituted a repudiation 
of the employment relationship. The Deputy President went on to find that the applicant 
accepted the repudiation when she refused to work any shifts unless her full time position was 
reinstated and that the applicant was dismissed at the initiative of the employer.35








[2020] FWC 2347

29

[137] In Urand v Beaconsfield Children’s Hub36 Deputy President Hamilton considered that 
a reduction in hours from 4 to 2 shifts per week with a possibility only of additional shifts, 
was a very substantial reduction.  The Deputy President concluded that the applicant was 
forced to tender her resignation and indicated this at the time and that this was a constructive 
dismissal so that the applicant’s employment ended at the initiative of the employer. In Hogan 
v TAB Hotels Pty Ltd T/A The Jubilee Hotel37 Commissioner Hunt considered whether the 
resignation of a casual employee was a constructive dismissal. The facts in that case were that 
the casual employee had been employed for some ten years and had usually worked for 30 + 
hours per week.  Following a period of unpaid absence due to personal illness, the applicant’s 
hours were reduced to 13.5 hours causing the applicant to resign her employment after 
informing her employer that she was forced to resign due to the reduced hours. In determining 
that the termination of employment was not a case of constructive dismissal, Commissioner 
Hunt noted that the reduction was temporary and the applicant had no reason to consider that 
it was permanent and that the applicant had other options which she had not utilised to 
complain of the reduction of her hours.

[138] In Goodwin v Shanaya Pty Ltd T/A Dominos Pizza38 the Commission found that the 
applicant’s resignation followed a period of 5 weeks in which his hours had been reduced to 
zero then maintained at a level significantly lower than the average for the previous 20 weeks 
and that in circumstances where the applicant had attempted to resolve the issue with the 
franchise head office it was reasonable for the applicant to resign.  The Commission also 
found that the applicant in that case did not want to resign but that the respondent’s conduct 
had forced the applicant into a position where he had no reasonable option but to resign.  It is 
notable that in Goodwin v Shanaya the Applicant took reasonable steps to resolve the 
reduction of his hours with the head office of the franchisor of the employer’s operation.  

[139]   The decision of a Full Bench of the Commission in Wilson v Town of Victoria Park39

involved an appeal against a decision of the Commission to the effect that a casual employee 
whose hours had been reduced had not been constructively dismissed in circumstances where 
he resigned his employment in protest at the reduction. In that case the Full Bench of the 
Commission noted that the applicant’s written contract of employment provided that his 
casual hours would be rostered in accordance with the operational needs of the employer, 
could vary from week to week and were not guaranteed. In refusing permission to appeal the 
Full Bench said:

“[16] The appeal grounds which we have earlier set out contend that the Commissioner erred in making 
significant errors of fact. We are not satisfied that any of these grounds of appeal are arguable. Mr 
Wilson’s case appears to depend on the proposition that the resolution of the September 2016 dispute 
concerning his working hours was resolved on the basis that he was indefinitely guaranteed 5.5 hours’ 
work per week. The Commissioner, having carefully assessed the competing evidence about this, found 
that no such guarantee was given, and that to the contrary Mr Wilson was told that as a casual employee 
his hours might change again in the future according to Victoria Park’s operational needs. This was 
consistent with the basis upon which he was originally engaged. Beyond the assertion that Mr Wilson’s 
evidence should have been preferred, no basis has been demonstrated for considering that the 
Commissioner’s finding about the resolution of the September 2016 dispute was attended by appealable 
error. Mr Wilson’s contention therefore that the proposed alteration to his working hours in late 
December 2016 represented a repudiation of his employment contract is therefore misconceived.

[17] On the facts as found by the Commissioner, it was simply not open to find that any conduct on the 
part of Victoria Park had forced Mr Wilson to resign. It was entitled under its employment arrangement 
with him to alter his hours of work. Once he protested about this, Victoria Park made it clear to Mr 
Wilson that it was willing to discuss a resolution of the problem (as it had successfully done in 








[2020] FWC 2347

30

September 2016). There are no facts demonstrating or supporting the inference that Victoria Park 
intended Mr Wilson’s employment to terminate or that it foresaw that this would be the likely 
consequence of its conduct.”40

[140] In City of Sydney RSL v Balgowan a Full Bench of the Commission considered 
whether an alteration to shifts, work location and duties performed by a casual employee was 
a repudiation of the contract of employment and whether there was a constructive dismissal. 
The Full Bench noted that the decision at first instance had not expressly determined whether 
the applicant had resigned her employment or that the employer had directly terminated the 
employment.  Instead the decision at first instance dealt with the concept of constructive 
dismissal and determined that the conduct of the employer was a repudiation of the contract of 
employment which the employee was entitled to accept, thereby bringing the contract of 
employment (and the employment relationship under it) to an end, with the consequence the 
employee was dismissed.  
[141] The Full Bench in Balgowan expressed reservations about whether the concept of 
repudiation of an employment contract could operate with respect to casual employment 
rather than making a definitive finding that repudiation could not operate with respect to 
casual employment contracts as a general rule. The Full Bench also observed that a finding 
that a contract has been repudiated requires an analysis of the terms of the contract and not 
just the conduct of the repudiating party. The Full Bench set out a passage in Koompahtoo 
Local Aboriginal Land Council v Sanpine Pty Ltd41 (Koompahtoo), a case where the High 
Court considered repudiation. From that case the following principles can be derived.

[142] Firstly, the term repudiation may be used in the sense of renunciation, which can be 
described as conduct which evinces an intention to no longer be bound by the contract or to 
fulfil it only in a manner substantially inconsistent with the party’s obligations.  The test for 
renunciation is whether the conduct of one party is such as to convey to a reasonable person in 
the situation of the other party, renunciation of the contract as a whole or of a fundamental 
obligation under it. Secondly, the term may refer to any breach of a contract which justifies 
termination by the other party.  A breach of contract by one party may entitle the other party 
to terminate where the obligation with which there has been a failure to comply has been 
agreed by the contracting parties to be essential or where breach of a non-essential term is 
sufficiently serious.42  

[143] The Full Bench in Balgowan stated:

“[18] The question whether there has been a repudiation of the contract of employment is determined 
objectively, it is unnecessary to show a subjective intention to repudiate and is a question of fact not 
law. Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an 
employee without the employee’s consent or where there is a serious non-consensual intrusion on the 
nature of the employee’s status and responsibilities in a way which is not permitted by the contract. 
Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which 
is not within the scope of the express or implied terms of the contract of employment, the conduct may 
evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an 
employee does not agree to the change, which if agreed would amount to a variation of the contract, the 
employee may claim to have been constructively dismissed. 

[19] Conduct of an employer which repudiates the contract of employment does not by that act alone 
bring the contract of employment to an end. A repudiation of the contract by the employer gives the 
employee who is not in breach the option to decide whether to continue, that is to affirm the contract, or 
to treat the contract as at an end by accepting the repudiation.

[20] As repudiation in the second sense referred to by the High Court in Koompahtoo involves conduct 
in breach of the contract of employment it is plainly necessary to identify the term or terms of the 








[2020] FWC 2347

31

contract said to exist and which it is said has or have been breached. As was observed in North v 
Television Corporation Ltd:

“Until the terms of the contract are known and identified it is impossible to say whether or not 
any particular conduct is … a breach of such gravity or importance as to indicate a rejection or 
repudiation of the contract.”43

[144] The Full Bench in Balgowan went on to find that although the applicant in that case 
was a casual employee engaged on a regular and systematic basis, her hours of work were not 
terms of a contract of employment of an ongoing nature which could only be altered by 
agreement. Rather, the number of shifts that the employee may be required to work, the 
location at which work would be undertaken and the duties to be performed in undertaking 
that work in the future, were matters of expectation – albeit reasonable expectation – but were 
not terms of a contract of employment.44 The Full Bench in Balgowan also observed that there 
are a number of different characteristics of casual employment and that the fact that casual 
employees may have their period of employment recognised as continuous for the purposes of
making an unfair dismissal application does not alter the fundamental contractual character of 
casual employment as a series of engagements each under a separate contract of employment.  
It was concluded in Balgowan that:

“[29] Since neither the future shifts, weekly hours and duties that the Respondent expected to work and 
perform nor the location at which that work would be undertaken were contractual, it was not open for 
the Commissioner to conclude that the proposed alteration, albeit short term, to the number of hours or 
shifts that the Respondent as a casual employee would be offered, the location at which work during 
those hours would be performed or the duties to be performed was a repudiation by the Appellant of the 
contract of employment. It follows that there was not a constructive dismissal.”45

[145] Balgowan is not authority for the proposition that a casual employee can never be the 
constructively dismissed. Nor is that case authority for the proposition that constructive 
dismissal can only occur in circumstances where there has been repudiation of the 
employment contract.  The concepts of constructive dismissal on the one hand and the ending 
of the employment relationship by the acceptance of repudiation of the underlying 
employment contract on the other hand, do not cover the same ground although they may 
overlap.  

[146] To find that a casual employee who is within the scheme of the unfair dismissal 
provisions in Part 2-3 of the Act, could not be dismissed in circumstances where hours which 
that employee had been regularly and systematically rostered to work were removed by the 
employer, in circumstances where such conduct if perpetrated against a weekly employee 
would constitute dismissal, would also defeat the operation of those legislative provisions.  
An employee who has been dismissed and who is covered by the legislative scheme dealing 
with unfair dismissal is entitled to pursue an unfair dismissal application.  However, where a 
casual employee asserts that dismissal occurred by either repudiation of the employment 
contract or by way of constructive dismissal because of a reduction in hours, that casual 
employee must establish that he or she has a continuous contract of employment rather than a 
contract of employment that ends at the conclusion of each engagement. An example of a 
case where a casual employee was found to have a continuing contract is Birchley v Downer 
EDI Mining Pty Ltd46 where the Applicant was specifically named on a roster which ran for a 
12 month period and was found to have been dismissed by virtue of being removed from the 
roster.   








[2020] FWC 2347

32

[147] In establishing that a casual contract of employment is continuous for the purposes of 
repudiation or constructive dismissal, it is not determinative that the employee is protected 
from unfair dismissal because he or she has served a minimum employment period in 
accordance with the requirements in s. 384(2).  In short, meeting the requirements in s. 384(2) 
means that a casual employee is protected from unfair dismissal in that he or she may make an 
application seeking a remedy for unfair dismissal.  Those requirements do not determine 
whether the employee has a contract of employment that is capable of being repudiated by the 
employer or the subject of constructive dismissal.  

[148] In the present case the Applicant and the Respondent agree that the Applicant resigned 
her employment on 11 February 2019 although there is no evidence about how the resignation 
was communicated.  The Applicant has also conducted her case on the basis of asserting that 
the resignation was forced and amounted to a constructive dismissal.  Notwithstanding this I 
have considered the ending of the employment relationship between the Applicant and the 
Respondent in the context of both repudiation and constructive dismissal. 

Whether the Applicant was dismissed

[149] Before turning to consider whether the Applicant was dismissed it is necessary to 
make a number of findings on the basis of the evidence in this case.  First, I have concluded 
that the Applicant was a casual employee engaged under a series of separate contracts of 
employment of the kind described in Full Bench decisions such as Wilson v Town of Victoria 
Park and Balgowan.  While it is true that the Applicant was engaged on a regular and 
systematic basis, for the reasons set out above, this is relevant to the question of whether the 
Applicant is a person protected from unfair dismissal.  The fact that the Applicant may have 
had an expectation that she would be placed on the roster and offered shifts on an ongoing 
basis was not a term of her contract of employment.    

[150] The Applicant’s offers of employment set out in letters dated 19 October 2010 and 31 
August 2011 make clear that her status was as a casual employee and that due to the nature of 
the hospitality industry her hours of work would be in accordance with a flexible roster that 
included work on days, nights, weekends and public holidays.  While the Applicant worked in
accordance with a roster that was published weekly, she was not guaranteed hours on that 
roster.  Further, the Applicant was employed as a Food and Beverage Attendant under the
Award and could have been deployed in any area of the Parkwood Tavern where food and/or 
beverages were served.  

[151] The fact that the Applicant’s hours were systematic or that she gave notice when she 
was not available due to going on a holiday or because of commitments relating to her 
children, does not alter the nature of the Applicant’s casual engagement.  It is also not 
determinative of the nature of her engagement that the Applicant worked in the gaming room 
for a significant period of time. The Applicant’s employment contract was such that the 
Respondent was entitled to move her to different areas and to alter her working hours 
accordingly.  

[152] Second, a written warning was within the range of reasonable responses to the 
Applicant’s conduct on 7 November 2018.  The CCTV footage viewed – at the request of the 
Applicant – during the hearing of this matter establishes that from 12:07:01pm on 7 
November 2018, the Applicant engaged in a conversation with Ms Gray for a period of 
approximately 3 minutes and 30 seconds.  It is not disputed that the time at which the 








[2020] FWC 2347

33

conversation took place was a peak lunch period.  While I accept that the dishwasher in the 
restaurant was broken and that Ms Gray needed to use the dishwasher in the gaming area to 
wash glasses or plates, all that was required was for Ms Gray to go into the gaming area and 
put those items into the dishwasher.  Ms Gray conceded that this was the case.  

[153] There is no evidence that the conversation was work related or if it was, that it was 
necessary that the two employees converse for that period of time.  Neither Ms Gray nor the 
Applicant could recall the topic of the conversation and it is more probable than not that the 
two employees engaged in idle chatter, or non-essential work related chatter, when they 
should have been devoting their time to working.  Regardless of whether the Applicant 
continued to polish glasses for some or all of the period she was conversing with Ms Gray the 
fact remains that her involvement in the conversation distracted Ms Gray from doing her job 
which required Ms Gray to be in the restaurant attending to customers.  The Applicant was an 
experienced hospitality worker and should have known better than to engage in a conversation 
with Ms Gray for that length of time. The Applicant’s insistence that she should be excused 
because she remained in her work area and polished glasses during the conversation and that 
no customers were waiting for service in the gaming area, does her no credit. It was the 
Applicant’s job to be proactive in her area and talk to customers rather than standing and 
talking to Ms Gray. 

[154] Mr Sharkey, who entered the restaurant while the Applicant and Ms Gray were 
conversing, was required to deliver meals which were waiting to be taken to tables and to 
reassure customers who were waiting to place meal orders that they would be served shortly.  
Ms Gray was given a warning for her part in events and to her credit accepted that it was not 
necessary for her to remain in the gaming area talking to the applicant after she had placed 
items in the dishwasher and that the warning was valid and reasonable and that her conduct in 
standing talking to the Applicant was deserving of censure.  

[155] Third, none of the Applicant’s collateral attacks on the warning or the process 
followed in giving it, undermine the validity of the warning.  The error in the first allegation 
letter which stated that the Applicant had been talking to another staff member away from her 
designated work area was a minor error which did not alter the substance of the allegation or 
the Applicant’s understanding of it.  The substance of the allegation was that the Applicant 
was talking to the other staff member when they both should have been working.  The 
Applicant understood the allegation.  The purpose of the meeting was to allow the Applicant 
to respond to the allegation and it is clear from the evidence that the Applicant did respond to 
the allegation.  It is also clear that the allegation was clarified at the meeting and that Mr 
Sharkey accepted that it had been incorrectly recorded in the first allegation letter.  Mr 
Sharkey went to the trouble of preparing a second allegation letter that set out the allegation 
correctly although that was not necessary.  

[156] It was not strictly necessary that the Applicant be given a letter setting out the 
allegation at all.  The meeting was for the purpose of putting the allegations to the Applicant 
and allowing her to respond. There was no decision made at the meeting and Mr Sharkey 
could simply have requested the Applicant attend the meeting and put the allegation to her 
orally at the meeting.   I also do not accept that fairness required the Applicant be given 24 
hours’ notice of the meeting. 

[157] I do not accept the Applicant’s assertion that the allegation was proven to be false or 
incorrect.  It is clear from the video footage that the Applicant requested be viewed during the 








[2020] FWC 2347

34

hearing that the allegation was correct.  The Applicant stood talking to Ms Gray for 3 minutes 
and 30 seconds during a busy lunch period when she had no legitimate reason to do so and 
when she should have been proactively looking to serve customers in her own area.  That 
conduct alone justifies a warning without the added issues that customers were waiting in the 
restaurant area for service and Mr Sharkey had to run meals to tables because Ms Gray was 
not in her designated area.  I also do not accept the Applicant’s assertion that the letter that 
was given to her immediately after the meeting was a warning letter.  The letter given to the 
Applicant immediately after the meeting, which she refused to sign, was the corrected 
allegation letter which clarified that the Applicant had not left her designated area.   

[158] Further, I do not accept that fairness required that the Applicant be given 24 hours 
notice of the meeting where she was handed the warning letter or that she be allowed to bring 
a support person.  I accept Mr Sharkey’s evidence that the purpose of the meeting was to hand 
the Applicant the warning letter and to record that she had been given the letter. The 
substantive discussions about the subject matter of the warning had already occurred and the 
Applicant had a support person at that discussion.  

[159] Fourth, the Applicant’s response to the written warning was unreasonable and her 
conduct at work deteriorated after she received the warning.  The Applicant’s own evidence is 
that Mr Sharkey made positive comments about her during the meeting at which the 
allegations were discussed including that she was a senior staff member and was looked up to 
by more junior employees.  Such comments should have encouraged the Applicant to simply 
accept the warning and get on with her job.

[160] The Applicant also stated in her evidence that she was teary and crying at the thought 
of attending work and engaging with Mr Sharkey and that she spent time at work crying.  This 
is consistent with Ms Phillips’ evidence that the Applicant was crying at work and that on one 
occasion Ms Phillips had to fill in for the Applicant because she was upset and in the 
bathroom. I also accept the evidence of the Respondent’s witnesses that the Applicant was 
disgruntled at work and discussed the fact that she had been given a written warning with 
work colleagues and patrons. The Applicant’s endeavours to contact Ms Gray to question Ms 
Gray about whether she had been given a warning is in my view indicative of the Applicant’s 
conduct generally which was to involve other parties in a matter that was between the 
Applicant and her employer and should not have been the subject of discussion with work 
colleagues or patrons.  Ms Gray, who was called by the Applicant to give evidence, also 
stated that the Applicant’s conduct at work deteriorated after she was given the written 
warning.  

[161] I accept that the Applicant avoided Mr Sharkey and would not speak to him.   I also 
accept that Mr Miller counselled the Applicant about her conduct after she had been given the 
written warning and the Applicant ignored Mr Miller or refused to engage with him.  Further, 
I accept Mr Sharkey’s evidence that the Applicant was talking to other staff members in 
working time and thereby repeating the conduct she had been warned about. In her evidence 
to the Commission the Applicant demonstrated a lack of insight about her own conduct and 
was intent on deflecting attention from her conduct by making baseless allegations against 
other employees and managers of the Respondent.  

[162] It is also the case that in her evidence to the Commission the Applicant exhibited the 
conduct that was complained of by Mr Sharkey and other managers and employees of the 
Respondent. Even making allowances for the fact that a hearing is a difficult situation, the 








[2020] FWC 2347

35

Applicant was argumentative and refused to concede points that were unarguable.  In this 
regard the Applicant persisted with allegations that were set out in her written statement and 
submissions but which were shown to be incorrect at the time she gave her evidence to the 
Commission.  The Applicant’s representative also made baseless assertions about being 
denied the opportunity to call witnesses and of not receiving a copy of the CCTV footage in 
accordance with the notice to the Respondent to produce it.  The reality was that the Applicant 
had been informed that if she wished to rely on a witness statement that the witness would 
need to be present.  The Applicant was allowed to call a witness at short notice and the 
witness was interposed.  Further, when her assertions about not receiving the CCTV footage 
were challenged, the Applicant conceded that she did receive it but had attempted to open it 
on  a mobile telephone and had been unable to do so.  The Applicant also conceded that she 
had not raised any issue with the receipt of the CCTV footage at the relevant time.

[163] I did not find the Applicant to be a credible witness.  The attitude of the Applicant was 
in stark contrast to that of Ms Gray who accepted in her evidence to the Commission that she 
should not have stayed in the gaming area talking to the Applicant and that she took the 
warning seriously and endeavoured to improve her conduct.  I also accept that Ms Gray’s 
conduct did improve notwithstanding that she was counselled about talking to other staff after 
being given the written warning.   

[164] While it is the case that the Applicant’s conduct after the written warning probably 
warranted a further written warning I accept Mr Sharkey’s evidence that he hoped that the 
Applicant would simply get over whatever was upsetting her, accept the warning and revert to 
an acceptable level of conduct in the workplace.  I also accept that Mr Miller counselled the 
Applicant about her conduct and her attitude after the warning.  Regrettably, the Applicant did 
not improve and instead continued with her unacceptable behaviour.  While the Respondent 
could be criticised for failing to issue a further written warning to the Applicant, it is highly 
improbable that it would have altered the Applicant’s conduct given her unreasonable reaction 
to the written warning that was given to her on 12 November 2018.

[165] Fifth, the Applicant was unreasonable with respect to her engagement with Mr Pyers.  
The letter dated 27 November 2018 sent to Mr Pyers on 30 November 2018 made a series of 
assertions.  Although the letter did not formally invoke the dispute resolution provisions in 
clause 9 of the Award, Mr Pyers responded to it and asked the Applicant a series of questions 
which were entirely reasonable, including asking the Applicant to provide him with a full 
account of events from her perspective, and indicated that he was open to investigating any 
issue the Applicant had with the written warning.   The Applicant’s response to Mr Pyers sent 
on 30 November 2018 was aggressive, combative and rude.  

[166] Essentially, the Applicant refused to engage in the dispute resolution procedure she 
now claims to have invoked by stating that she had no need to provide her account of the 
events she sought to complain about.  The Applicant also hung up on Mr Pyers when he 
attempted to have a telephone conversation with her about the issues she had raised and did 
not call Mr Pyers back notwithstanding he told her that she should do this if she wanted him 
to look into the matters she had raised.  The Applicant asserts that she told Mr Pyers that she 
did not want to discuss the matter by telephone and wanted all correspondence in writing.  
This request is not included in her two emails and she was unable to point to a document 
which included that request.  In any event, if such a request was made, it was unreasonable.  
The Applicant raised her issue with Mr Pyers and it was not for her to dictate how he should 
deal with it.  The Applicant had no previous issue with Mr Pyers and there was no reason for 








[2020] FWC 2347

36

her to refuse to have a discussion about her issues with him.  I am also of the view that the 
tone of the Applicant’s correspondence with Mr Pyers indicates that she would never have 
accepted an outcome other than the warning be removed from her personnel file and when Mr 
Pyers did not immediately take this step the Applicant disengaged from her contact with him 
as she had done with her managers at the Parkwood Tavern.

[167] When these factors are considered, it is apparent that the Applicant was not dismissed.  
The Applicant did not have a contractual guarantee in relation to the quantum of hours she 
would work, the times she would work or the area that she would work in.  The reduction in 
her hours was the result of the employer exercising a right to engage her in whatever part of 
its operations her skills and experience could be utilised. Accordingly, the reduction in the 
Applicant’s hours did not constitute repudiation of her contract of employment by the 
Respondent.

[168] I am also unable to accept that the Respondent or its managers engaged in conduct or a 
course of conduct that forced the Applicant to resign. The Applicant engaged in conduct of a 
kind to which a written warning was a reasonable response. In giving the Applicant a written 
warning in relation to her conduct Mr Sharkey did not take an action which was intended to 
bring the Applicant’s employment to an end or which would have that probable result. The 
reduction in the Applicant’s hours was also not an action which was intended to bring the 
Applicant’s employment to an end or which would have that probable result. 

[169] The Applicant continued to work in the gaming area for two weeks after the written 
warning was issued. This evidences that Mr Sharkey hoped that she would simply accept the 
written warning and get on with doing her job. It was only when the Applicant repeated the 
conduct she had been warned about and her attitude deteriorated that she was not rostered on 
shifts in the gaming area and was moved to the restaurant.  It was the nature of the shift 
requirements in the restaurant that brought about the reduction in the Applicant’s rostered 
hours.  If Mr Sharkey wished to terminate the Applicant’s employment, he could have issued 
her with further warnings and done so.  Mr Sharkey did not take this step notwithstanding that 
the Applicant’s conduct after being given a warning would have given Mr Sharkey cause to 
issue further warnings and possibly to terminate the Applicant’s employment.

[170] The Applicant had options other than resignation.  The obvious option was to accept 
the warning and get on with her job.  The Applicant effectively had two weeks to do this after 
being issued with the written warning by virtue of the fact that she continued to be rostered in 
the gaming area. The Applicant managed to obtain other employment within two weeks of her 
resignation and she could have taken up that employment while also maintaining her 
employment with the Respondent.  Mr Pyers’ uncontested evidence is that it is common for 
employees in the hospitality industry to have two jobs.  The Applicant could also have 
pursued her grievance about being given a written warning by engaging with Mr Pyers in a 
reasonable manner. Mr Pyers’ response to the Applicant’s correspondence was measured and 
reasonable and if the Applicant genuinely wished to have her issue addressed she had an 
opportunity to do so. Instead, the Applicant engaged in correspondence that was aggressive 
and rude and when her demands that the warning be removed from her personnel file were not 
met immediately, the Applicant resigned her employment.  Notwithstanding that the 
Applicant probably took this step in a fit of pique and without proper consideration of all of 
the implications, it was not a step that conduct by the Respondent forced her to take 








[2020] FWC 2347

37

[171] To the extent that the Applicant asserts that Mr Pyers conduct in blocking her attempts 
to transfer to another venue were part of a course of conduct that forced her resignation, I do 
not accept that this was the case.  At the point the Applicant sought the transfer she had made 
her first unfair dismissal application notwithstanding that she was working shifts at the 
Parkwood Tavern.  It was reasonable and understandable that Mr Pyers pointed out to the 
Applicant that her assertions in the first unfair dismissal application that she had been 
dismissed, were inconsistent with the fact that she was still working at the Parkwood Tavern 
and that she could not be transferred to another one of the Respondent’s venues if she was not 
employed by the Respondent.

[172] The Applicant’s case before the Commission is misconceived.  The letters to Mr Pyers 
sent before the Applicant resigned her employment are in a similar vein to the Applicant’s 
submission and statement of evidence in these proceedings.  If the Applicant was assisted by 
another person to prepare that material, then it is regrettable that the person who provided 
such assistance has led her to the position she now finds herself in. By resigning her 
employment, the Applicant disentitled herself to payment of her accrued long service leave 
entitlements.  The Applicant would be entitled to payment if she was found to have been 
unfairly dismissed.  

[173] Unfortunately for the Applicant I do not accept that she was dismissed.  Accordingly, 
the Commission does not have jurisdiction to deal with her unfair dismissal application and 
that application must be dismissed.  An Order to that effect will issue with this Decision.  

DEPUTY PRESIDENT

Appearances:

Mr A Merritt on behalf of the Applicant.

Mr A See of Counsel instructed by Mr E Pyers for the Respondent.

Hearing details:

12 & 13 September.

2019.

Brisbane.


SEAL OF THE THE IR WORK COMMISSION




 



[2020] FWC 2347

38

Printed by authority of the Commonwealth Government Printer

PR719101

                                               
1 [2019] FWC 3771.
2 Exhibit A1 – Kellie Smith Witness Statement.
3 Exhibit A6 – Lisa King Witness Statement.
4 Exhibit R1 – Affidavit of Ezra Pyers.
5 Exhibit R2 Affidavit of Alan Sharkey; Exhibit R3 Affidavit in Reply of Alan Sharkey.
6 Exhibit R4 Affidavit of Robert Miller.
7 Exhibit R5 Affidavit of Sallyann Hartley.
8 Exhibit R6 Affidavit of Toni Phillips.
9 Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078.
10 Exhibit R2 Annexure R.
11 Exhibit R2 Annexure Q.
12 Exhibit R2 Annexure S.
13 Transcript 12 September 2019 at PN528-531.
14 Exhibit A3 Kellie Smith Hours Rostered v Completed.
15 Thranscript 12 September 2019 at PN983-984
16 Transcript 12 September 2019 at PN1075-1078.
17 (2006) 58 AILR 100
18 [2016] FWC 4161.
19 [2018] FWCFB 5 at [25].
20 [2017] FWCFB 5162
21 Ibid at [70] – [71].
22 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425.
23 [2018] FWCFB 5.
24 (1995) 62 IR 200.
25 Ibid at 205-206.
26 Unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ.
27 Ibid at page 3.
28 AIRC Print PR973462.
29 Sappiden, O’Grady, Riley Macken’s Law of Employment Eighth Edition Law Book Company 2016 at 8.80 page 337.
30 (1994) 57 IR 288 at 289.
31 Ibid at 289.
32 [2011] FWA 5930.
33 Ibid at [20] – [22].
34 Ibid at [49] – [51].
35 Ibid at [52] – [53].
36 [2014] FWC 2024.
37 [2017] FWC 4662.
38 [2016] FWC 4161.
39 [2017] FWCFB 3906.
40 Ibid at [16] – [17].
41 (2007) 233CLR 115.
42 Ibid [44] – [49].








[2020] FWC 2347

39

                                                                                                                                                  
43 [2018] FWCFB 5 at [18] – [20]
44 Ibid at [25].
45 Ibid at [29].
46 [2019] FWC 6336

Cases cited by this decision: