1
Fair Work Act 2009
s 394—Unfair dismissal
Lauriska Graham
v
The Trustee For Jerkovich Family Trust
(U2024/4047)
COMMISSIONER LIM PERTH, 20 SEPTEMBER 2024
Application for an unfair dismissal remedy – was there a dismissal – reduction of hours of
casual employee – not a temporary reduction of staffing levels – employee was dismissed.
1. What is this decision about?
[1] The Trustee for Jerkovich Family Trust operates the Broken Hill Hotel in Boulder,
Western Australia. Ms Lauriska Graham commenced working for JFT at the Broken Hill Hotel
on Thursday 17 February 2022 as a Bartender, though she soon moved into a Duty Manager
role. Ms Graham worked her last shift on Thursday 4 April 2024.
[2] Ms Graham says that JFT dismissed her and that she was unfairly dismissed. JFT says
that Ms Graham resigned from her employment.
[3] I heard Ms Graham’s application for an unfair dismissal remedy under s 394 of the Fair
Work Act 2009 on Wednesday 10 July 2024. This hearing was listed to deal with the
jurisdictional question of whether Ms Graham was dismissed as well as merits.
[4] On their Form F3 and submissions to the Commission, JFT did not indicate that they
were a small business relying on compliance with the Small Business Fair Dismissal Code.
However, after the hearing was conducted, it came to my attention that JFT may be a small
business within the meaning of the Act. As JFT is unrepresented, I gave them the opportunity
to confirm whether they are a small business and whether they rely on compliance with the
Code if I find that Ms Graham was dismissed. JFT submitted that they are a small business and
they do rely on compliance with the Code. Ms Graham denied that JFT is a small business under
the Code.
[5] For reasons I detail later in this decision, I am satisfied that JFT is a small business.
Accordingly, as the parties have not had the opportunity to provide evidence and submissions
on the question of Code compliance, this decision only deals with the question of whether Ms
Graham was dismissed.
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DECISION
AUSTRALIA FairWork Commission
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[6] Having heard and considered the evidence from the parties, I find that JFT dismissed
Ms Graham on Thursday 4 April 2024.
[7] My detailed reasons follow.
2. Why JFT is a small business
[8] JFT provided the following evidence through Ms Gina Zivkovic, Payroll Officer for
Steel Group Australia:
(a) Ms Viki Bavcevic (ex Jerkovich) is the owner and operator of JFT. She is also a Director
of ADT Australian Nominees Pty Ltd, Steel Group Australia Pty Ltd and Steel Blast
Australia Pty Ltd.
(b) As of Thursday 4 April 2024, the date that Ms Graham alleges she was dismissed:
i. JFT employed eight employees who were full-time, part-time or regular casuals
and three non-regular casuals;
ii. Steel Blast employed two full-time employee and one non-regular casual;
iii. Steel Group employed two full-time employees and one non-regular-casual; and
iv. ADT did not employ anyone.
[9] Ms Zivkovic provided payroll summaries and rosters in support of the above. Ms
Graham did not seek to cross-examine Ms Zivkovic on this evidence when given the
opportunity to do so. I accept Ms Zivkovic’s evidence regarding the number of employees
engaged by the above entities and accept her evidence regarding the nature of their employment.
[10] Ms Zivkovic did not provide any submissions on whether JFT, Steel Blast, Steel Group
and ADT are associated entities. However, it is not necessary for me to reach a conclusive view
on this, regardless of whether the above entities are related or not, there are still less than 15
employees. I am therefore satisfied that at the time of Ms Graham’s alleged dismissal, JFT was
a small business under the meaning of s 23 of the Act.
3. Was Ms Graham dismissed?
3.1 Observations on the evidence
[11] At the hearing, Ms Graham, Ms Abby Telfer (former Venue Manager) and Ms
Alexandra Marsh (former Venue Manager) gave evidence in support of Ms Graham’s case. JFT
called Ms Zivkovic and Ms Bavcevic to give evidence. Ms Graham, Ms Telfer and Ms Marsh
provided comprehensive evidence that was supported by contemporaneous text messages. Their
evidence was consistent internally and with the others’ accounts. Their evidence was also
generally undisturbed during cross-examination.
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[12] Ms Zivkovic was largely not present during the key events in this matter. Her evidence
had low probative value. I found Ms Bavcevic had poor recall which impacted on her
credibility. Where there is conflict between her evidence and another witness, I have generally
preferred the other witness’ evidence.
[13] Much of the evidence and events involved interactions with Mr Jerkovich, who was Ms
Bavcevic’s partner at the time. Mr Jerkovich’s official title in the business was not specified,
but it is clear he held similar authority to Ms Bavcevic during the events in question. JFT were
on notice about Ms Graham’s evidentiary case but chose not to call him to give evidence.
3.2 What happened?
[14] Ms Graham was initially employed on a casual basis from February 2022 to December
2022. She then converted to part-time from around December 2022 to July 2023.1 In July 2023,
Ms Graham’s employment reverted to casual at JFT’s initiative.2
[15] Ms Graham’s evidence is that she worked 25-30 hours per week. This is supported by
evidence she provided of her rosters.
First meeting – Liquor Enforcement Unit
[16] On Monday 12 February 2024, prior to Ms Graham’s rostered shift, Ms Bavcevic sent
her a text message asking Ms Graham to attend a meeting with Ms Bavcevic and Ms Telfer the
next day on Tuesday 13 February.
[17] At the meeting, Ms Bavcevic informed Ms Graham that the Liquor Enforcement Unit
had conducted a recent venue inspection that had resulted in JFT receiving multiple fines. One
of the fines related to JFT’s failure to file an incident report for an incident several months prior
where the police had attended the venue. Ms Graham was the Approved Manager on shift at
the time, and it was her responsibility to file the incident report.3
[18] Ms Graham accepted responsibility for the mistake and apologised for not filling out the
report. Ms Graham’s understanding of the meeting is that it ended with her promising that the
situation would not arise again.4 Ms Telfer’s evidence corroborates Ms Graham’s evidence of
this meeting.5 I accept both Ms Graham’s and Ms Telfer’s evidence.
[19] Ms Graham’s evidence is that she was rostered on for four shifts that week, which she
worked.6 JFT did not contest this.
[20] Ms Telfer’s evidence is that from the first meeting, Mr Jerkovich and Ms Bavcevic
“wanted [Ms Graham’s] shifts to be cut back dramatically (maximum one a week, until they
could cut her of[f] the roster completely)”.7 Ms Telfer provided screenshots of text messages
with the Operations Manager, Ms X8 and Ms Marsh on Saturday 17 February 2024. Ms Telfer’s
evidence is that she spoke and texted with Ms X and Ms Marsh to try and sort out rostering
issues.
[21] Ms X’s text messages include:
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“So you have three solid bottleshop staff and two bar staff, one whose [sic] being
transitioned into management the other they want to fire…Hmm. I’ve deleted [JFT
employee 1]’s shift and we will just have to invest more time and training into [JFT
employee 2]’s for the mean time…otherwise you are pretty screwed to be honest…”
“Has [Ms Graham] been talked to regarding her shifts being cut back?”
“Training [JFT casual manager] and cutting back [Ms Graham] also means you run the
risk of not having any one extra to cover shifts if someone sick etc…”
“More so, I think it’s a bit rich to cut back [Ms Graham]’s shifts for not complying with
leu, in the same week you want to roster someone on without their approved
managers…it’s like she wants another fine”9
[22] Ms Telfer’s response included “[Ms Graham] hasn’t been spoken to yet by [Ms
Bavcevic] but she will before she leaves apparently”.10 JFT did not challenge these text
messages or Ms Telfer’s evidence in this regard. Ms Marsh also corroborated Ms Telfer’s
evidence.11 I accept Ms Telfer’s and Ms Marsh’s evidence.
Monday 19 February 2024
[23] On Monday 19 February 2024, Ms X and Ms Marsh attended the Broken Hill Hotel to
assist Ms Telfer with further training. At some point during the day, Ms X, Ms Marsh, Ms
Telfer and Ms Bavcevic went out to the front of the venue for a cigarette break.
[24] Ms Telfer’s evidence is that Ms X asked how the meeting with Ms Graham went. Ms
Telfer said that Ms Graham took it all on board and that she seemed quite constructive in
wanting to know how she could improve in areas of concern.
[25] Ms X then asked Ms Bavcevic why she and Mr Jerkovich had told Ms Telfer that
moving forward they only wanted Ms Graham rostered on for a maximum of one shift per week.
[26] Ms Telfer’s evidence is that Ms Bavcevic listed the following reasons why a decision
had been made to cut back Ms Graham’s shifts:
(a) Ms Bavcevic had received some customer complaints about Ms Graham chatting
instead of serving customers.
(b) Ms Bavcevic was still angry at Ms Graham for the part she had played in the LEU
infringement notice.
(c) Ms Bavcevic had been told that Ms Graham had gossiped with customers about Mr
Jerkovich cheating on Ms Bavcevic. Ms Bavcevic was so hurt and angry by it that she
could not ever trust Ms Graham again.
[27] Ms X asked Ms Bavcevic if she had investigated the allegations of Ms Graham gossiping
or if she had discussed the allegations with Ms Graham and given her an opportunity to address
them. Ms Bavcevic advised that she had not done either.
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[28] Ms Telfer’s account is that Ms X told Ms Bavcevic that if she was planning on cutting
back Ms Graham’s shifts due to work reasons then she should call a meeting with Ms Graham
to inform her that her shifts would be reduced, why they were being reduced, and what could
be improved in order to have her shifts restored. Ms X told Ms Bavcevic that she couldn’t just
suddenly cut Ms Graham from 25-30 hours per week to six hours per week.
[29] Ms X also advised Ms Bavcevic that she should address the gossip issue with Ms
Graham as it was not appropriate to use it as a reason to reduce Ms Graham’s shifts. Ms
Bavcevic agreed to schedule a second meeting.12
[30] JFT did not challenge the above version of events from Ms Telfer’s and Ms Marsh’s
evidence. I accept their evidence of this conversation.
Second meeting – Ms Bavcevic’s personal life
[31] On Tuesday 20 February 2024, Ms Bavcevic sent Ms Graham a text message to arrange
another meeting with herself and Ms Telfer on Wednesday 21 February 2024.
[32] Ms Graham’s account of this meeting is as follows:
(a) Ms Bavcevic told Ms Graham that it had come to her attention that Ms Graham had
been discussing Ms Bavcevic’s personal life with clients. Specifically, that regular
customers had told Ms Bavcevic that in December 2023 Ms Graham had gossiped about
Mr Jerkovich and Ms Bavcevic.
(b) Ms Bavcevic had not brought it up sooner as it had upset her.
(c) Ms Graham asked if there had been any investigation to substantiate her involvement.
Ms Graham strongly denied being involved in any gossip and explained that Ms
Bavcevic’s personal life was not any of her business.
(d) The meeting ended with everyone agreeing that there was to be no discussion about Ms
Bavcevic’s personal life, and if Ms Graham heard other people gossiping, she was to
shut those discussions down.
[33] Ms Telfer’s account of this meeting aligns with Ms Graham’s.13 I accept their evidence.
[34] Ms Graham was only rostered on for Saturday 24 February 2024 that week. During the
meeting, Ms Bavcevic explained to Ms Graham that her shifts had been reduced due to the
gossip issue needing to be resolved. Further, that a new casual staff member needed to be trained
up in the position of manager. Ms Graham’s impression was that her regular rostered hours
would resume the week after.14
Ms Graham’s shifts are cut
[35] The next week, Ms Graham was rostered on to work across Wednesday 28 and Thursday
29 February, and on Sunday 3 March 2024.
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[36] On Monday 26 February 2024, Ms Telfer messaged Ms Graham to check her
availability for the next few weeks so that Ms Telfer could roster her accordingly.15
[37] On Tuesday 27 February 2024, Ms X messaged Ms Telfer to let her know that Mr
Jerkovich had contacted her about taking Ms Graham off the roster.16
[38] Later that day, Mr Jerkovich sent the following message to Ms Telfer:
“Hi [Ms Telfer]…I know its your day off but the reason for the chat was I noticed that [Ms
Graham] is on for 3 days this week so Wednesday and Thursday’s shift will need to be cancelled
and replaced with [Ms Marsh] or someone else, she can still work the Sunday but no other days
moving forward…please let me know that this has been actioned otherwise ill [sic] cancel it
myself…call me if you wish to discuss.”17
[39] Mr Jerkovich and Ms Telfer exchanged several text messages where Ms Telfer warned
him against cutting Ms Graham’s hours and raised that she needed Ms Graham to plug holes in
staffing while other staff were trained up. Ms Telfer also cautioned Mr Jerkovich that it would
be against JFT’s interests for Ms Graham to go to ‘Fair Work’, given a lengthy list of issues
with how JFT pays its workers.
[40] Mr Jerkovich ended the exchange with, “We can talk about what I’m doing legal or
illegally another day remove her from the rosters apart from Sunday and replace her with [Ms
Marsh] who is full time” and, “I’ve cancelled her shift and replaced her with [Ms Marsh].”18
[41] Later that day, Ms Telfer and Mr Jerkovich exchanged further text messages where Mr
Jerkovich instructed Ms Telfer to train Ms Bavcevic up in all management procedures.19
[42] On Tuesday 27 February 2024, Ms Graham received a notification from Tanda – the
rostering software and app that JFT uses – that her roster had been changed. Ms Graham logged
onto the app and saw that several of her rostered shifts had been removed.
[43] Ms Graham tried to get answers from Ms Telfer and Ms Marsh. At 6:17pm, Mr
Jerkovich sent a message to Ms Graham stating, “[Ms Graham] your shifts have been cancelled
by myself as I had other managers/staff available to work, so I decided to change things
around”. Ms Graham asked Mr Jerkovich if there were any other shifts available as it would
only leave her with one shift for the second week in a row. Mr Jerkovich told her “no”. Ms
Graham asked Mr Jerkovich to contact her should any more shifts become available. Ms
Graham worked her shift on Sunday 3 March 2024.20
[44] On Thursday 29 February 2024, Ms Graham asked Ms Telfer why her normal three-to-
four shifts per week had been cut. Ms Telfer responded, “I’m so sorry, no updates – it looks
like you will only be rostered on for Sundays in the future”. Ms Graham asked for Ms Telfer to
keep her in mind should any additional shifts become available.
[45] That same day, JFT posted two ads on Facebook for staff vacancies. The first was for
an Assistant Manager/Bar Manager. The ad stated that full-time hours were available. The
second ad was for bar staff, stating that 30+ hours were available. The ad for an Assistant
Manager/Bar Manager was posted on Facebook again on Friday 8 March 2024.
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[46] In the week ending Sunday 17 March 2024, Ms Graham was only rostered on to work
on Sunday 17 March 2024. However, Ms Graham covered for Ms Marsh who was unwell on
Tuesday 12, Wednesday 13 and Thursday 14 March 2024.21
[47] On Sunday 17 March 2024, JFT posted an ad in the Facebook group, “Backpacker Jobs
Australia 2024/2025” for bar staff. The ad stated that 30-38 hours were available, with the
potential to be trained into a supervisory role.
[48] The following week, Ms Graham was called in to work for two hours on Tuesday 19
March 2024 to cover Ms Bavcevic as her flight had been delayed. That evening, Ms Graham
and Ms Bavcevic had the following text exchange: 22
Ms Bavcevic Thank you for helping out this evening. The girls said that you have
got a new job. I am sad to see you go, but are you still happy to help
out on Sundays or Saturday if needed?
Ms Graham Hey Hun, yeah, I am happy to keep my shifts on Sundays and not a
problem. Always happy to help. And I will not be leaving the Brokie
completely. Just need some extra income.
Ms Bavcevic Totally understand. Thank you helping out as always
[49] On Saturday 23 March 2024, Ms Bavcevic messaged Ms Graham to inform her that she
would not be rostered for any shifts the following week, due to a lack of hours because of the
Easter long weekend.
[50] On Sunday 24 March 2024, Ms Graham worked her rostered shift. This was the last
shift she worked for JFT.
[51] On Friday 29 March 2024, Ms Graham messaged Ms Bavcevic, “Hi [Ms Bavcevic],
Happy Easter. I just wanted to check if I have any shifts next week? I would like to keep my
Sunday shift if possible because I haven’t left the Brokie completely.” Ms Bavcevic replied,
“Hi [Ms Graham]. Understand and I have taken that onboard. As I have mentioned to you that
we need to reduce the wages due to the pub no performing like it should. Thank you for your
understanding. Have a nice Easter”.23
[52] On Thursday 4 April 2024, Ms Bavcevic and Ms Graham had the following text
exchange:
Ms Bavcevic Hi [Ms Graham]. Are you able to return the pub keys please. Thank
you
Ms Graham Am I fired? Just curious
Ms Bavcevic Just need them back as I am s[h]ort
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[53] On Friday 5 April 2024, Ms Graham gave the keys to Ms Bavcevic at the Broken Hill
Hotel. Ms Bavcevic told Ms Graham, “thank you, now I have a spare set”.24 Ms Bavcevic’s
evidence at the hearing was that this was not a dismissal, she just wanted to have a spare set of
keys for the premises.
[54] Ms Graham filed her unfair dismissal application on Monday 8 April 2024. On
Wednesday 24 April 2024, Ms Bavcevic removed Ms Graham from the staff WhatsApp group.
4. Consideration
[55] ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act
relevantly provides:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.”
[56] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with
‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where
the person was forced to do so because of conduct or a course of conduct’.
[57] It is well-established that a reduction in hours or pay for a casual employee can
constitute termination of employment at the employer’s initiative.25 In this case, Ms Telfer’s
and Ms Marsh’s evidence is that JFT made a deliberate decision to cut down on Ms Graham’s
shifts, despite Ms Telfer, Ms Marsh and Ms X questioning the decision.
[58] I do not accept Ms Bavcevic’s evidence that she only asked for Ms Graham’s keys back
so that she could have a spare set. I find that this supports a finding that JFT ended Ms Graham’s
employment.
[59] JFT submitted that Ms Graham was not dismissed and that the reduction in her shifts
was not due to any performance-related issues; rather, it was due to a downturn in business
which required JFT to temporarily reduce staffing levels.26 Though the reason for the reduction
in shifts is more relevant for consideration of merits, I do not accept the submission that it was
a temporary state of affairs. As per the evidence, there was a deliberate decision to suddenly
decrease Ms Graham’s rostered hours in February 2024, which continued on until April 2024.
This was not a temporary reduction of staffing levels.
[60] JFT also submitted that Ms Graham resigned her employment.27 As outlined above, I
find that JFT terminated Ms Graham. But, even if I had found that Ms Graham had resigned, I
would still be satisfied that it met the definition of ‘dismissal’ in s 386(1).
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[61] The two limbs of s 386(1) and how they might apply to a resignation was examined by
the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin
Tavassoli,28 which noted the following:29
• There may be a dismissal within the first limb of s 386(1) where a resignation was made
in the “heat of the moment” or when the employee was in such a state of emotional
stress or mental confusion that they could not reasonably be conveying a real intention
to resign.
• The test for a ‘forced’ resignation under the second limb of s 386(1) is whether the
employer engaged in the alleged conduct with the intention of ending the employment
or whether termination of employment was the probable result of the employer’s
conduct because the employee had no effective or real choice but to resign.
[62] If I had been satisfied that Ms Graham had resigned, I would have been further satisfied
that her resignation was a forced one. I note that Ms Telfer gave evidence that during her phone
calls with Mr Jerkovich, he was often use derogatory language towards Ms Graham, calling her
“vermin”, “a disease” and “an ugly problem”.30 I also note Ms Telfer’s uncontested evidence
of Mr Jerkovich’s clear instructions to cut down Ms Graham’s hours, a direction that was
confirmed by Ms Bavcevic. If I had found that Ms Graham had resigned, I would be satisfied
that JFT cut her rostered hours with the intention of ending Ms Graham’s employment, and that
given Ms Graham’s efforts to communicate that she wanted more shifts, she had no real choice
but to resign.
[63] As I have found that Ms Graham was dismissed and that JFT was a small business at
the time she was dismissed, I will now program the matter to hear the parties on whether JFT
complied with the Small Business Fair Dismissal Code
COMMISSIONER
Appearances:
L Graham, Applicant.
G Zivkovic for the Respondent.
Hearing details:
FAIR WORK COMMISSION HE SEAL OF THE
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2024.
Perth by Video using Microsoft Teams:
10 July.
Printed by authority of the Commonwealth Government Printer
PR779413
1 Digital Court Book (DCB) page 64 at [3.1].
2 Ibid page 41; page 66 at [3.7]–[3.8].
3 Ibid page 67 at [4.2].
4 Ibid.
5 Ibid page 204 at [2.4].
6 Ibid page 68 at [4.3].
7 Ibid page 206.
8 I have redacted Ms X’s name for her privacy.
9 DCB (n 1) pages 205–6.
10 Ibid page 206.
11 Ibid page 284 at [1.10].
12 Ibid pages 207–8.
13 Ibid page 208 at [3.3].
14 Ibid page 68 at [5.2].
15 Ibid page 209 at [4.1].
16 Ibid page 252.
17 Ibid page 209.
18 Ibid pages 253–262.
19 Ibid pages 265–268.
20 Ibid page 69 at [6.1]–[6.2].
21 Ibid page 69 at [7.4]
22 Ibid page 70 at [7.6].
23 Ibid page 70 at [7.9].
24 Ibid page 71 at [8.1].
25 Park v LOTW Indro Pty Ltd T/A of the Wings Indooroopilly [2020] FWC 858 at [36].
26 DCB (n 1) page 331.
27 Ibid page 369 at 5a.
28 [2017] FWCFB 3941.
29 Ibid at [47].
30 DCB (n 1) page 213.
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc858.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
