1
Fair Work Act 2009
s.394—Unfair dismissal
Liane Trainor
v
Wild West Pty Ltd
(U2023/11194)
DEPUTY PRESIDENT O’KEEFFE PERTH, 5 MARCH 2024
Application for an unfair dismissal remedy
[1] On 14 November 2023, Liane Trainor (the Applicant) made an application to the Fair
Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for
a remedy, alleging that she had been unfairly dismissed from her employment with Wild West
Pty Ltd (the Respondent). The Respondent objects to the FWC dealing with the application on
the basis that the Applicant resigned her employment and the termination was not at the
initiative of the Respondent.
Background
[2] The Applicant was employed by the Respondent at its recycling facility in Mandurah,
Western Australia, and commenced this employment on 21 May 2021. The Applicant was
employed on a casual basis and typically worked five days a week from 9am to 2pm. On 25
October 2023, it appears the Applicant had a difficult discussion regarding her work duties with
Ms Suezette West, a director of the Respondent. As a result of this discussion, the Applicant
left work early having received permission to do so from Mr Terry West, the other director of
the Respondent. When the Applicant returned for her next shift there was another discussion
with Ms West. The parties are in dispute about the content of this discussion and its
implications. Notwithstanding this, the Applicant left the Respondent’s premises after this
discussion and did not return.
Permission to appear
[3] Both the Applicant and the Respondent sought to be represented before the Commission.
The Respondent made relevant submissions regarding s596(2)(a) and the efficient conduct of
the hearing, and also s596(2)(b) with respect to the Respondent lacking any experience in
Commission matters. As I need only find one of the circumstances in s596(2) to be applicable,
I was persuaded that the Respondent did not have the necessary experience or capacity to
effectively represent itself and as such I granted permission for the Respondent to be
represented.
[2024] FWC 567
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 567
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[4] The Applicant made relevant submissions addressing s596(2)(a) and s596(2)(b). From
the submissions addressing s596(2)(b) I was persuaded that the Applicant would not be able to
represent herself effectively and as such I granted permission for the Applicant to be
represented.
Witnesses
[5] The Applicant gave evidence on her own behalf.
[6] The following witnesses gave evidence on behalf of the Respondent:
• Ms Suezette West (Ms West), director of the Respondent
• Mr Terry West (Mr West), director of the Respondent
Has the Applicant been dismissed?
[7] A threshold issue to determine is whether the Applicant has been dismissed from their
employment.
[8] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[9] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[10] The parties are in dispute about whether the Applicant was terminated at the initiative
of the Respondent. As such, I need to make a determination on this issue before considering
any of the other relevant matters.
Submissions and Evidence
[11] The Applicant submits that she was terminated by the Respondent on 27 October 2023.
The Applicant submits that she was subjected to hostile, unjustified and aggressive allegations
from Ms West on 25 October 2023. The Applicant submits that Ms West also gave her an
ultimatum on that day, to the effect that she needed to comply with the instructions issued by
Ms West or leave her employment. Following this, the Applicant submits that she was upset
and given permission to leave work by Mr West and advised to return on 27 October 2023.
However, on her return, the Applicant submits that Ms West queried why she was in attendance,
on the basis that she was no longer employed. It was the Applicant’s submission that Ms West’s
words to that effect were communicating a termination of her employment.
[12] Notwithstanding this, the Applicant submits that a conversation with Mr West ensued
and then a further conversation with Ms West. The Applicant submits that she was abused by
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Ms West during this subsequent conversation and advised that she could finish her employment
in two days. The Applicant submits that she chose not to work these days due to the hostility
to which she had been subjected and as such left the workplace.
[13] The Applicant’s evidence is that the situation began on 25 October 2023 when she was
approached by Mr West, who gave her some instructions on how to perform her job. The
Applicant states that she acknowledged the instruction but was confused as Ms West had given
her different instructions. The Applicant’s evidence is that she raised this discrepancy with
Mr West, and he undertook to speak with Ms West.
[14] The Applicant states that some short time later Ms West approached her in what she
describes as a furious and aggressive manner. The Applicant’s evidence is that Ms West
challenged her about a number of behaviours at work and warned her not to try to “white ant”
her. The Applicant states that the interaction ended with Ms West saying: “if you don’t like
what I am saying take your shit and leave.” The Applicant states that she was very upset and
approached Mr West for permission to leave work, which was granted, with Mr West saying
take the rest of the day off, enjoy your day off tomorrow and then come back Friday1. The
Applicant’s further evidence is that when she returned to work for her next shift, being 27
October 2023, Ms West was waiting for her in the driveway, and raised her arms and said:
“what the hell are you doing here?” The Applicant states that she said she was coming to work,
and Ms West then said: “no you’re not you no longer work here.” The Applicant states that she
then approached Mr West to find out if she had been terminated and Mr West said that he would
speak to Ms West. The Applicant’s evidence on what happened next is as follows:
“Susette (sic) then came outside and totally abused me for reporting to her husband.
She then said I could work today and tomorrow (as staff had called in sick). I elected to
leave after being dismissed.”
[15] The Applicant also provided a recording of the interaction between herself and Ms West
on 27 October 2023. It was my initial assessment that the recording may have been made
covertly and potentially in such a way as to contravene the Western Australian Surveillance
Devices Act 1998. I raised this with the parties at the beginning of the hearing, but the
Respondent did not object to the recording being tendered. It has been established by the FWC
(for example see Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2019]
FWCFB 4258 at [46]) that material that has been improperly or illegally procured may be
admitted into evidence in the FWC subject to certain conditions. In this case the recording,
which may or may not have been improperly procured, contained evidence that was very much
central to the issue in dispute and, given the Respondent had no objections, I determined that it
should be admitted.
[16] That recording contains two relevant interactions between the Applicant and Ms West.
In the first, which is found at time stamp 1:00, Ms West states as follows:
“So, this is how it’s going to be. You can work today and tomorrow and we’ll see how it
goes but no more going back to Terry and no more trying to make trouble.”
In the second, which is found at time stamp 3:10, the conversation is as follows:
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Ms West: “So, what are you going to do?”
Applicant: “Well, I’m not going to do you any favours so I’ll just go.”
[17] Under cross-examination the Applicant was asked why, given that she was arguing that
Ms West’s comments to her as she entered the workplace on 27 of October conveyed
termination of her employment, she did not raise this in the subsequent discussion with Ms
West that had been recorded. The Applicant stated that she thought there was no need as the
termination was clear. She was then asked to comment on the clear offer of at least two days
of further employment and why she had not accepted this offer. The Applicant replied that she
had been dismissed and had seen how the Respondent had treated other employees, and further,
that she thought the Respondent was motivated purely by a shortage of staff.
[18] The Respondent submitted that the Applicant had resigned of her own accord and had
not been dismissed. It submitted, citing the decision of a Full Bench of the FWC in
Abandonment of Employment2 that where an employee ceases to attend his or her place of
employment without proper excuse or explanation and thereby evidences an unwillingness or
inability to substantially perform his or her obligations under the contract, this will amount to
abandonment of employment, and will be deemed a renunciation of the employment contract.
[19] The Respondent further submitted, citing the decision of the High Court in Koompahtoo
Local Aboriginal Land Council v Sanpine Pty Ltd3 that when assessing whether an employee’s
conduct constitutes an abandonment of their employment, the test is whether the employee’s
conduct is such as to convey to a reasonable person in the situation of the employer, a
renunciation of the employment contract as a whole or the employee’s fundamental obligations
under it. It was the submission of the Respondent that the actions of the Applicant in leaving
the workplace without permission, following a heated discussion with Ms West where the
Applicant declined to work her remaining shifts for that week, and in circumstances where the
Applicant had made the comment “have a nice life and good luck” to Mr West on her way out,
had led the Respondent to reasonably conclude that the Applicant would not be returning to
work. In such circumstances, the Respondent submitted that there had been no termination at
the initiative of the employer.
[20] In her witness evidence, Ms West stated that she had spoken to the Applicant on 25
October 2023 about what she perceived as confusion over the Applicant’s duties. Ms West
stated that during this conversation she commented to the Applicant that she felt she was not
adequately performing her employment duties. Ms West’s evidence is that the Applicant
responded by saying in effect “what part of that was not part of my job?” Ms West states that
she replied and told the Applicant that she was trying to do too much at once but before she
had finished speaking with the Applicant, the Applicant had turned her back to her and walked
off back into the shed.
[21] With respect to the events of 27 October 2023, Ms West’s evidence is that at around
8.50am that morning, she was in the driveway speaking with a customer when the Applicant
arrived dressed for work. Ms West states that the Applicant walked past her through the shed
without putting her personal items down and walked to the other side of the shed to speak to
[2024] FWC 567
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Mr West. Ms West states that some short time later Mr West had approached her and said that
the Applicant was waiting to speak to her on the other side of the shed.
[22] Ms West further stated that she walked around to meet with the Applicant and a
discussion ensued. Ms West notes that the Applicant did not have her permission to record that
conversation. It is Ms West’s evidence that she and the Applicant went over the relevant
points of the discussion held on 25 October 2023 and that she told the Applicant she could work
that day and the following day and Ms West would “see how it goes”, meaning that the
Applicant’s employment would be ongoing if the parties worked out their differences. Ms West
states that the Applicant responded by saying in effect that she wouldn’t be doing Ms West any
favours, that she had been recording everything to put it on Facebook and told Ms West to
watch her back before turning and leaving. It was Ms West’s further evidence that she did not
at any time dismiss the Applicant.
[23] Under cross examination Ms West conceded that the Applicant was a good employee
but confirmed that she felt that the Applicant had been going behind her back to Mr West and
further confirmed that she had, on 25 October 2023, accused the Applicant of “white-anting”
her. However, she continued to refute that she had made the comment “if you don’t like it you
can take your shit and leave” to the Applicant on that day. Under further cross-examination Ms
West confirmed that she had made the comment “what are you doing here” to the Applicant
when the Applicant walked past her to enter the workplace on 27 October 2023 but refuted that
she had said “you don’t work here anymore”. Under cross examination and re-examination Ms
West continued to maintain that she had not dismissed the Applicant.
[24] The relevant evidence of Mr West is that on 25 October 2023, the Applicant had
approached him during her shift regarding an instruction given to her by Ms West. Following
this a discussion was held between himself and Ms West regarding the Applicant’s duties. Mr
West’s evidence is that he then left the matter to be sorted out between Ms West and the
Applicant. Some short time later, Mr West states that he observed the Applicant and Ms West
having a conversation that, in his words “became heated”. Mr West states that following this
conversation the Applicant spoke with him and advised that she did not want to finish her shift.
At this point Mr West states that he allowed the Applicant to leave work and the Applicant told
him to call her when he wanted her to return.
[25] Mr West’s further evidence is that on 27 October 2023 the Applicant approached him
at approximately 8.50am and asked him what was happening. Mr West states that he advised
the Applicant that this was a matter for her to clear up with Ms West, and then advised Ms West
that the Applicant wanted to speak with her. Mr West’s evidence is that the next interaction he
had with the Applicant was some minutes later when she approached him and said words to the
effect that she was leaving and he should have a good life and the Applicant wished him good
luck. Mr West states that he took these comments to mean that the Applicant would not be
returning to work.
[26] Under cross-examination Mr West conceded that, as per the Applicant’s claim, he had
actually approached her on 25 October 2023 regarding her duties and it had not been the
Applicant who approached him. He was also questioned on his assertion that the Applicant had
said to him that he should call her when she was required to return to work. Mr West seemed
somewhat vague in his recollection but stated that the Applicant had asked him to call her but
[2024] FWC 567
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he could not recall why he was supposed to call her. It was put to Mr West that, as per the
Applicant’s evidence, he had told the Applicant on 25 October 2023 to have Thursday off and
that he would see her Friday. Mr West stated that he could not recall if he had said those words.
When asked if he expected the Applicant to return on the Friday Mr West answered that he was
not sure if she would return. I asked Mr West about the conversations he had with Ms West
regarding the Applicant’s employment after the Applicant had left work on 25 October 2023
and his answers were somewhat vague and unhelpful.
[27] In addition to the witness statements of Mr West and Ms West, the Respondent
submitted two video recordings made by CCTV at the workplace. I note that these recordings
do not contain audio. In the first recording, taken at 8.50am on 27 October 2023, the Applicant
can be seen entering the workplace via a driveway while Ms West is seen speaking to a customer
in a red vehicle. Towards the end of the recording, Ms West can be seen turning away from the
customer and making a gesture with her hands.
[28] The second recording appears to be footage of the meeting between Ms West and the
Applicant that was also recorded, albeit essentially with audio only, by the Applicant. There
was little probative value in this video albeit that it broadly confirmed the time frame of the
discussion between Ms West and the Applicant.
Consideration
[29] In the first instance I should note that I found the Applicant to be a very credible witness
who was straightforward and honest. Ms West was a fairly forthright witness but her credibility
was not assisted by the fact that her witness statement contained some notable omissions –
which were extracted by Mr Petherick for the Applicant in cross-examination – that suggested
that her statement had been crafted to avoid anything that could be regarded as portraying her
in a negative light. Mr West’s statement suffered from a similar shortcoming, and he had to
concede one point was incorrect and another was not consistent with his recall. I further found
that Mr West was very reticent to become involved in the dispute between Ms West and the
Applicant and seemed to have taken a “not my problem” approach to that dispute.
Notwithstanding these observations, I find that the most relevant evidence in this matter is to
be found in the audio recording submitted by the Applicant, and the video recordings submitted
by the Respondent, for the reasons set out below.
[30] In this matter, I find that, on balance of probability, events proceeded as follows: Ms
West was concerned about the Applicant undermining her, albeit that I make no finding as to
whether this undermining was actually occurring. Proceeding on the basis of her belief, Ms
West has had what I will, perhaps euphemistically, describe as a frank conversation with the
Applicant on 25 October 2023. This conversation has caused a level of shock and anxiety for
the Applicant, who has then approached Mr West for support. I find that while the parties do
not agree what was said, I accept that Mr West both gave the Applicant permission to leave
work early and that he told her he would see her on Friday.
[31] I believe that such conversations as took place between Mr West and Ms West regarding
the employment status of the Applicant resulted in Ms West forming a view that she did not
want the Applicant to return to work. I accept that when the Applicant did return to work, Ms
[2024] FWC 567
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West’s reaction was to ask why she was at work and I also find it is the case, on balance of
probability, that she said words to the effect of “you no longer work here’.
[32] Before moving on to the conversation recorded by the Applicant, I should make
comment on this statement that I attribute to Ms West. The Applicant says that this statement
should be taken to be a termination of employment, making it clear that the Applicant no longer
works at the Respondent’s business. I am not convinced that the case is so clear cut, particularly
given the question that proceeds it. It could be said that the comment, if paraphrased, should
be taken as “why are you here, I thought you had resigned?” It is not alleged and, in any case,
clear that there had been no termination of the Applicant’s employment prior to this time. As
such, if Ms West is making the comments “why are you here” and “you no longer work here”
she is not doing so based on her having previously terminated the Applicant. To perhaps labour
the point, her comments cannot logically be paraphrased as “what are you doing here you have
been terminated?” As such, if it is the case that it is a termination, it is the first time the
Respondent is raising termination with the Applicant and the two statements taken together are
a somewhat unusual way to terminate the Applicant in the first instance. That is not to say that
it may not simply have been clumsy language, however, I find that on balance of probability,
those comments did not terminate the Applicant’s employment. In any case whether this was
a termination or not may be largely irrelevant, due to the statements made by Ms West in the
recorded conversation.
[33] In that conversation, Ms West makes it clear that the Applicant can continue to work for
the Respondent, via her comment that the Applicant could work the next two days and see how
it goes. Giving that statement its most generous interpretation from the Respondent’s
perspective, it offers ongoing employment subject to the Applicant addressing the concerns
outlined to her by Ms West. In this scenario, the two days may be taken to be an – albeit brief
– opportunity to demonstrate a willingness to remedy the issues raised by Ms West. If I give
the statement the interpretation preferred by the Applicant, it was merely a cynical offer
designed to help the Respondent out of a staffing shortage and there would be no employment
offered after those two days.
[34] I find that it does not matter which of those two interpretations is preferred. What is
clear is that the Applicant could have elected to remain in the employ of the Respondent for
those two days. If at the end of those two days her employment continued, she has no quarrel
with the Respondent. If her employment had ended after those two days, then she could have
lodged an unfair dismissal claim at that point. The Applicant may have had her suspicions
about what the Respondent would do, but she could not know for sure what the future would
hold. Rather than remain in employment and allow events to take their course, the Applicant
has chosen to end her employment.
[35] It is important that I now explain my finding that it may not be relevant whether the
comments from Ms West to the Applicant when she was entering the workplace amounted to
termination. If those comments do not amount to termination, then it is clear that the Applicant
has resigned her employment. However, if those comments do amount to a termination, then I
make this observation. Those comments, based on the video footage, were made at
approximately 8.51am. The conversation recorded by the Applicant took place at
approximately 8.55am and the offer to work the next two days is made at approximately
8.56am. As such, even if the Applicant was terminated at 8.51am, then I find that within five
[2024] FWC 567
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minutes that termination had been withdrawn and the Applicant’s employment reinstated. As
I stated above, the Applicant could have remained in the employ of the Respondent but chose
not to do so. In taking that decision, I find that she has resigned her employment and as such
there was no termination of employment at the initiative of the employer.
[36] I also note that it was open for the Applicant to claim that the resignation had been
forced by the actions of the Respondent and indeed I questioned the Applicant at hearing as to
whether she was making this plea. However, the Applicant made it clear that she was pleading
that her employment had been terminated by the Respondent by virtue of the comment from
Ms West and that she was not pursuing the notion of forced resignation.
Conclusion
[37] As I have found that the ending of the Applicant’s employment was by virtue of her
resignation and not at the initiative of the Respondent, I find that the FWC does not have
jurisdiction to deal with the Applicant’s unfair dismissal claim and her application is dismissed.
DEPUTY PRESIDENT
Appearances:
T Petherick of Petherick Cottrell for the Applicant.
C Rautenbach of HHG Legal for the Respondent.
Hearing details:
2024.
Perth:
February 22.
Printed by authority of the Commonwealth Government Printer
PR771995
1 Witness Statement of Liane Trainor page 6 paragraphs 2 – 3.
2 Abandonment of Employment [2018] FWCFB 139 at [21].
3 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 at [44].
TE FAIR WORLE SOMECCION
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