1
Fair Work Act 2009
s.365—General protections
Christine Shuet Yee Lim
v
Asami Pty Ltd
(C2024/797)
DEPUTY PRESIDENT DEAN CANBERRA, 18 APRIL 2024
Application to deal with contraventions involving dismissal – whether Applicant was
dismissed.
[1] This decision concerns an application made under s.365 of the Fair Work Act 2009 (the
Act) by Ms Christine Shuet Yee Lim (Applicant) for the Commission to deal with a general
protections dispute involving her alleged dismissal by Asami Pty Ltd (Respondent).
[2] The Respondent has raised a jurisdictional objection that the Applicant was not
dismissed for the purposes of s.365 and within the meaning of s.386 of the Act. It argues that
the Applicant abandoned her employment by leaving the workplace during her rostered work
hours and not returning to work.
[3] Section 386 of the Act relevantly provides that 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.
[4] A dismissal is a fundamental prerequisite that must be established before the
Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a
dismissal was in contravention of the general protections provisions.1 There is no dispute the
Applicant did not resign. The issue then is whether her employment was terminated on the
Respondent’s initiative.
[5] A hearing was conducted on 12 April 2024 to determine the jurisdictional objection.
The Applicant was self-represented and Mr S Tomkins appeared for the Respondent.
When is a person dismissed?
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DECISION
AUSTRALIA FairWork Commission
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[6] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassol2,
a Full Bench considered the circumstances in which an employee’s employment is ‘terminated
on the employers initiative’. Amongst other matters, it found that it is not sufficient to simply
demonstrate that the employee did not voluntarily leave their employment.3
[7] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention.4 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.5
[8] All the circumstances must be examined, including the conduct of both the employer
and employee.6 In other words, it must be shown that there is an act of the employer which
results directly or consequentially in the termination of the employment and the employment
relationship is not voluntarily left by the employee.
[9] As noted earlier, the Respondent contends that the Applicant abandoned her
employment. As a result, it argued, there was no termination at the initiative of the employer.
[10] Abandonment of employment has a particular meaning, which was considered by a Full
Bench in the context of the award modernisation review process7:
“[21] “Abandonment of employment” is an expression sometimes used to describe a
situation where an employee ceases to attend his or her place of employment without
proper excuse or explanation and thereby evinces an unwillingness or inability to
substantially perform his or her obligations under the employment contract. This may
be termed a renunciation of the employment contract. 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. Renunciation is a species of repudiation which entitles the employer
to terminate the employment contract. 5 Although it is the action of the employer in that
situation which terminates the employment contract, the employment relationship is
ended by the employee’s renunciation of the employment obligations.”
[11] The difference between renunciation and repudiation was explained by Gleeson CJ,
Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine
Pty Limited8 as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted
to repudiatory breach of contract. The term repudiation is used in different senses. First,
it may refer to conduct which evinces an unwillingness or an inability to render
substantial performance of the contract. This is sometimes described as conduct of a
party which evinces an intention no longer to be bound by the contract or to fulfil it only
in a manner substantially inconsistent with the party's obligations. It may be termed
renunciation. The test is whether the conduct of one party is such as to convey to a
reasonable person, in the situation of the other party, renunciation either of the contract
as a whole or of a fundamental obligation under it ... Secondly, it may refer to any breach
of contract which justifies termination by the other party... There may be cases where a
failure to perform, even if not a breach of an essential term ... manifests unwillingness
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or inability to perform in such circumstances that the other party is entitled to conclude
that the contract will not be performed substantially according to its requirements. This
overlapping between renunciation and failure of performance may appear conceptually
untidy, but unwillingness or inability to perform a contract often is manifested most
clearly by the conduct of a party when the time for performance arrives. In contractual
renunciation, actions may speak louder than words.”
Factual circumstances
[12] The Applicant was employed by the Respondent on 13 December 2023 as a Chef.
[13] On the afternoon of 22 January 2024, before the start of her shift, the Applicant had a
conversation with one of the co-owners of the Respondent, Ms Joyce Palermo, about her hours
of work and other matters.
[14] She commenced work at around 5pm that day and about 10 minutes later she received
a phone call from the other co-owner of the Respondent, Mr Tomkins. The Applicant gave
evidence that Mr Tomkins raised his voice and said words to the effect of: “How dare you speak
to [Joyce] that way! Joyce is the most hard-working person in the restaurant, without her there
is no Asami. If you don’t start showing her and your peers respect, there’s the door!”
[15] The Applicant said she did not say much during the conversation because she felt
uncomfortable. She said she told the Head Chef and Sous Chef about the conversation, and
between them they agreed to proceed with her training that evening as planned.
[16] The Applicant said that as time passed, she was distracted by the conversation with Mr
Tomkins. She said she could not focus on her work because she thought that Mr Tomkins had
intimidated and threatened her and his treatment of her was unfair. She decided to go outside
the restaurant to call her partner and explain the situation, then went back inside to talk with the
Sous Chef who was her immediate supervisor. She gave evidence that she told her supervisor
she couldn’t continue working because of the phone call with Mr Tomkins, and her supervisor
allowed her to leave work part way through her shift to go home.
[17] The Applicant said she called her supervisor the following day to see if she could work
that night and was told: “I don’t think so because Joyce is still not happy with how you spoke
to her”. She took this to mean she should let some time pass before she started work again.
[18] Later that day, on 23 January, she was removed from the Respondent’s Facebook group
chat which provided access to rosters.
[19] On 1 February 2024 the Applicant found an email in her spam folder from Mr Tomkins
dated 22 January 2024 which attached a letter in the following terms:
“Dear Christine,
Re: Your Absence from Duty
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Since walking out during dinner service on 22nd January 2024, with the restaurant full
of pre-booked reservations. The Company now considers you have abandoned your
employment as you have neither returned during this service or contacted management
with reasoning. The termination of your employment will therefore be effective from
the date of this letter.
Any entitlements owing to you will be held until all Asami property has been returned.
Yours sincerely
Shane Tomkins
Asami Pty Ltd”.
[20] The Applicant said there were no attempts by the Respondent to contact her after
22 January 2024, and her attempts to contact Ms Palermo were unsuccessful because the
Applicant’s phone number had been ‘blocked’ by Ms Palermo.
[21] The Respondent contended that the Applicant was not dismissed because she walked
out during a shift when the restaurant was full and failed to contact Ms Palermo with any reason
why she did not return to work. The Respondent contended that Ms Palermo was the
Applicant’s manager and the Sous Chef did not have authority to allow her to go home.
[22] After 10 days the Applicant had not returned to work nor supplied any medical
certificate. The Respondent said it was short staffed as a result of the Applicant leaving midway
through her shift, and as a result it suffered a loss of business as 16 customers walked out
because there was no-one to replace her.
[23] The Respondent said that Applicant had been unable to fulfil the role she was employed
to do and had received a negative Google review and numerous complaints by customers.
[24] The Respondent gave evidence that the Applicant had spoken inappropriately to Ms
Palermo and had verbally abused Ms Palermo on the afternoon of 22 January 2024. Because of
this abuse, Mr Tomkins then phoned the Applicant at work to discuss her aggressive attitude
and tell her that she needed to be respectful in her dealings with Ms Palermo and other staff and
customers. Mr Tomkins denied he was in any way abusive towards the Applicant.
Consideration
[25] As noted earlier, to find that a termination of employment is at the employer’s initiative,
it is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring
the employment relationship to an end.
[26] Further, the factual circumstances of this matter do not support a finding that the
Applicant evinced an unwillingness to substantially perform her obligations under her
employment contract on an ongoing basis.
[27] For the following reasons, I am satisfied and find that the Applicant’s employment was
terminated at the initiative of the Respondent:
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a. The Applicant was given permission by her supervisor to leave mid-way through her
shift. It may have been that the Applicant should have contacted Ms Palermo, but the
Respondent did not dispute that the Applicant advised her supervisor she could not
continue to work and was allowed to go home;
b. The Applicant phoned her supervisor the following day to ascertain whether she should
return to work that evening and was told she should not attend work at that time;
c. The Respondent’s email and letter to the Applicant on 22 January 2024 states clearly
that the termination of her employment was effective that day. The intention of the
Respondent to end her employment is not negated by the fact the Applicant did not
receive the letter until 1 February 2024;
d. The Respondent removed the Applicant from the Facebook group chat which was
necessary to access the rosters and blocked her phone number; and
e. the Respondent made no attempt to contact her after 22 January 2024.
[28] All these circumstances lead to a conclusion that the Applicant’s employment was
terminated at the initiative of the Respondent.
[29] The jurisdictional objection made by the Respondent is dismissed and the application
will be scheduled for a conciliation conference in accordance with s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
C Lim on her own behalf.
S Tomkins for Asami Pty Ltd.
Hearing details:
2024.
By video:
April 12.
Printed by authority of the Commonwealth Government Printer
PR773448
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
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1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
2 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
3 Ibid.
4 Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works
Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
5 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].
6 Whirisky v DivaT Home Care [2021] FWC 650at [77].
7 Abandonment of Employment [2018] FWCFB 139].
8 [2007] HCA 61.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb139.htm
