DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Harston
v
Australian Leisure and Hospitality Group Pty Ltd T/A Sandringham Hotel
(U2018/8599)

Application for an unfair dismissal remedy –jurisdictional objections – Applicant not dismissed – minimum employment period not met – application not made within 21 days of dismissal – jurisdictional objections dismissed.

Introduction

[1] On 15 August 2018, Ms Samantha Harston (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her alleged dismissal by the Australian and Hospitality Group Pty Ltd T/A Sandringham Hotel (ALH Group).

[2] The Applicant, prior to the alleged dismissal, was employed by the ALH Group on a casual basis as a food, beverage and TAB attendant at the Sandringham Hotel from 1 July 2013. The Applicant’s last shift at the Sandringham Hotel was on 6 June 2018.

[3] The ALH Group objects to the application on three grounds. Firstly, that the Applicant was not dismissed; secondly that the Applicant had not completed the minimum employment period as at the date of her alleged dismissal; and finally that the application had not been made within 21 days of the alleged dismissal taking effect.

[4] Determination of ALH Group’s jurisdictional objections was listed for hearing on 12 November 2018.

[5] The Applicant was represented at the hearing by Mr A Dircks who was granted permission to appear pursuant to s 596 of the Act. The Applicant was called to give evidence.

[6] The ALH Group was represented at the hearing by Mr K Hickie of Counsel, who was granted permission to appear pursuant to s 596 of the Act. Mr Hickie called three witnesses to give evidence for the ALH Group:

Background and evidence

[7] The Applicant commenced employment with the ALH Group at the Sandringham Hotel as a casual employee on 1 July 2013 and worked as a food, beverage and TAB attendant, principally in the public bar which has TAB facilities. 1 The Applicant typically worked two to four shifts per week and one shift on the weekend, which was confirmed by payroll records for the two year period that immediately preceded the termination of the Applicant’s employment.2 Due to the Applicant’s original letter of employment having been misplaced by the ALH Group, Ms Harston received a formal letter confirming her employment dated 26 August 2017.3

[8] In late May 2018, the Applicant approached her supervisor, Mr Kurz, in relation to a role at the TAB that she had applied for. 4 The Applicant characterised the role with the TAB as “short term and training” and an opportunity to broaden her skills and add more value to her role at the Sandringham Hotel when she returned.5 Mr Kurz rejected the Applicant’s characterisation of the role as directly related to her role at the Sandringham Hotel.6 The short term role, which was described by the Applicant as a TAB brand promotion role, was initially for a six week period but was subsequently extended for a further two weeks.

[9] The Applicant, while characterising the job with the TAB as a training and a broadening opportunity, concedes that her role at Sandringham Hotel, unlike the TAB role, did not involve promotion of the TAB and had a different operational perspective. Furthermore, she received a substantially higher rate of pay for the TAB role then her role at the Sandringham Hotel. The Applicant states that the TAB role “unfortunately” did not lead to a longer term role, but she was adamant that it was only ever intended to be a short term role and she intended to return to the Sandringham Hotel. 7

[10] In a Facebook message to Mr Kurz on 30 May 2018, the Applicant sought to clarify whether she needed to quit or whether she could remain “on the books” during the period of her role with the TAB. Mr Kurz confirmed that she could “go for 3 months before we have to terminate you, so if you want to stay in the system that’s fine, we can just leave it”. 8 Mr Kurz was requested by the Applicant to act as a referee for the TAB role, to which he agreed and subsequently completed an on-line reference check.9

[11] According to Mr Kurz, the Applicant’s request for a six week period of “leave” for the role at TAB was not approved by the Venue Manager. 10 He had, however, indicated to the Applicant that it (the leave request) was “ok”, did not subsequently tell her that the leave had not been approved, and was not aware if any other staff member had told the Applicant that her “leave” request had been disallowed.11

[12] The Applicant confirmed via a Facebook message to Mr Kurz on Monday, 4 June 2018 that she had secured the role with the TAB for six weeks and that Wednesday, 6 June 2018 would be her last shift at the Sandringham Hotel prior to her commencement with the TAB on Thursday, 7 June 2018. Mr Kurz acknowledged in his reply that the Applicant’s shifts would need to be covered for that period to which the Applicant responded and “promised” she would be back. 12

[13] Mr Kurz met with the Applicant during her last shift at the Sandringham Hotel on 6 June 2018. Mr Kurz states that during his meeting with the Applicant he told her that there was no guarantee of a job on completion of her role with the TAB; that she may need to re-apply depending on the situation; and that there were a number of variables including how long her role with the TAB went for, staff resignations at the Sandringham Hotel and upcoming renovations. 13 Ms Harston rejects Mr Kurz’s version of that conversation and states that Mr Kurz was anxious and did not want her to leave, told her that she could remain on the books for up to three months and could come back to a full time position. The Applicant denies that she was told by Mr Kurz that there was no guarantee of a job on her return.14

[14] A series of messages were exchanged via Facebook Messenger between Mr Kurz and the Applicant over the weeks following the Applicant’s last shift at the Sandringham Hotel. The nature of those exchanges can be summarised as follows:

(i) 10 June 2018 – Mr Kurz messaged the Applicant asking if she was available to work that evening. The Applicant declined.

(ii) 21 June 2018 – Message exchange between the Applicant and Mr Kurz in which the Applicant variously states:

a. “okay so I’m not coming back” to which Mr Kurz responds “Nooooooooo”

b. Applicants also states “But seriously I don’t wanna come back. Maybe for a few weeks then I’m done. Who knows.”

Mr Kurz conceded during cross-examination that he did not accept the Applicant’s comments as a resignation. 15

(iii) 22 June 2018 – Applicant messaged Mr Kurz confirming that she will be back on 23 July 2018 and wants to hold a meeting regarding the upcoming busy period of racing to which Mr Kurz agrees.

(iv) 24 June 2018 – Applicant messaged Mr Kurz stating that she is not coming back while a particular customer is “hanging around”.

(v) 29 June 2018 – Applicant messaged Mr Kurz asking about how she could secure a full-time role to which Mr Kurz replies…“Perfect timing Sam. Claire and I were talking about a full time tab person. I’ll let her know you’re interested when I get to work and see if I can get you more info…..Claire is totally on board for it, we just need to go to Andrew for approval before we can get any more info…”

(vi) 4 July 2018 – Applicant messaged Mr Kurz asking whether it will be OK for her to do her normal shifts on her return to which Mr Kurz replies…. “I guess. I’ll talk to Claire about the meeting and Andrew is in today so if I can pin him down for a minute I’ll ask about the full time.”

(vii) 4 July 2018 – Mr Kurz messaged the Applicant asking whether she would like to work the next day, to which the Applicant declines.

(viii) 6 July 2018 – Applicant messaged Mr Kurz advising that she will be working a further two weeks with the TAB and will not finish until 29 July 2018 to which Mr Kurz replies…“Boooooo”.

(ix) 7 July 2018 – Applicant messaged Mr Kurz asking whether they need a “hand in the bar tonight”. While Mr Kurz initially responds that they do, he advises later in the evening that assistance is probably not required.

(x) 8 July 2018 – Mr Kurz messaged the Applicant with a procedural request regarding signing of TAB cheques. The Applicant responds.

(xi) 13 July 2018 – Applicant messaged Mr Kurz advising that she will be available for shifts on 1 August 2018 to which Mr Kurz replies “All good!”

(xii) 21 July 2018 – Mr Kurz messaged the Applicant asking whether she is able to work that evening. Applicant declines due to a social engagement.

(xiii) 25 July 2018 – Applicant forwarded an on-line TAB survey document to Mr Kurz that Sandringham Hotel staff are required to complete. She also asks whether there is any word on shifts for her yet.

[15] Ms Crotty commenced as Venue Manager with the ALH Group at the Sandringham Hotel on 18 June 2018. Ms Crotty states that in late June or early July there were discussions regarding a potential full time position in the TAB/Sportsbar that was opening up at the Sandringham Hotel. At or around this time, Mr Kurz advised Ms Crotty that the Applicant wanted to come back to the Sandringham Hotel. She states that she advised Mr Kurz that it was important for her as the new Venue Manager to meet with Ms Harston before any shifts were distributed to her. A meeting between Ms Crotty and the Applicant was arranged for 18 July 2018. 16

[16] Ms Crotty states that she met with the Applicant on 18 July 2018 and that it was a causal conversation. According to Ms Crotty, the Applicant expressed interest in returning to the venue. Ms Crotty indicated that while there were no current roles, she told the Applicant that she would be interested in filling a role of TAB attendant at some stage following completion of venue renovations that were underway. Ms Crotty also states that she suggested she would contact the Applicant to arrange for her to meet with a fellow manager, Ms Corrina Kennedy for an interview as she had more TAB skills than Ms Crotty. 17 The Applicant states in respect of the meeting of 18 July 2018 that Ms Crotty said she would be in contact in the next week about going back on the roster but then failed to contact her.18

[17] Ms Crotty states that on 25 July 2018 she was at the Sandringham Hotel and entered the TAB area and found the Applicant present in plain clothes behind the counter on the TAB computer. 19 The Applicant states that she was dealing with an “urgent compliance” matter and had been contacted by another employee, Mr Michael McCauley, who was confused and had sought her assistance to which the Applicant, believing she was still an employee, responded to by going into the hotel to assist.20

[18] Ms Crotty states that she was shocked to see the Applicant behind the bar and asked her to come out and speak with her in another area. During the course of the subsequent conversation, Ms Crotty states that she made it clear to the Applicant that her presence was in breach of the ALH Group’s policies and gaming regulations. She also introduced the Applicant to Ms Kennedy and said to the Applicant that her position at the Sandringham Hotel had not yet been determined. The Applicant was then politely requested to leave the premises. 21

[19] On 28 July 2018, the Applicant visited the venue with her partner in the capacity of a patron. The Applicant states that she was in the public bar and changed the channels on the TV monitor at the request of another patron. The Applicant states that she understood that as an employee she was not permitted to attend the venue as a patron without prior approval of a manger. 22 The incident was reported to Ms Crotty who was concerned about the Applicant’s conduct compromising ALH Group’s compliance with gaming regulations that applied to the venue.23

[20] Rostering of staff at the Sandringham Hotel was managed by Mr Kurz who received verbal or email advice from staff as to their availability. Mr Kurz confirmed that there was no maximum set period that casual staff members were allowed to make themselves unavailable for shifts and agreed it was quite reasonable for staff members to take holidays for a period. 24 Whereas staff availability was previously maintained in an “unavailability book”, it is now recorded electronically in an internal Google document that is maintained by and only visible to management. Mr Kurz states that based on notified staff availability he prepares rosters weekly in advance. Once the roster is reviewed by the Operations Manager it is then published to a closed Facebook group of employees.25

[21] The Applicant was a member of that Facebook group until her removal by Mr Kurz at Ms Crotty’s direction in early August 2018. 26 Mr Kurz states that Ms Crotty’s direction to remove the Applicant from the Facebook group was the only time he had been instructed to remove a staff member from that group. Furthermore, he did not advise the Applicant of her removal and was not aware of whether there would be an automatic Facebook notification to the Applicant of such removal.27

[22] Ms Crotty states that she directed Mr Kurz to remove the Applicant from the Facebook group some time on or after 1 August 2018 to prevent other staff from undertaking shift swaps with her, shift swaps being a common occurrence amongst staff. This action was taken by Ms Crotty in response to “the week of misconduct” 28 of the Applicant, that reference being to the incidents of 25 and 28 July 2018. Ms Crotty denied that the Applicant’s removal would prevent the Applicant getting shifts and states that she could have contacted management if she wanted work.29 Ms Crotty further states the misconduct that had led to the Applicant’s removal from the Facebook group was “being reviewed”.30

[23] On 1 August 2018, the Applicant sent an email to Ms Crotty seeking clarification regarding her employment. 31 The Applicant referred in the email to previous contact she had made with Ms Crotty and that Ms Crotty had not contacted her despite having told the Applicant that she would do so. The Applicant put to Ms Crotty in the email that the lack of response and the fact that the Applicant had not been placed on the roster indicated to her that she had been terminated. The Applicant requested a response by end of business on 3 August 2018. There was no evidence of a substantive response from Ms Crotty to the issues raised in the Applicant’s email.

[24] Ms Crotty states that she took issue with various statements in the Applicant’s email of 1 August 2018, specifically the Applicant’s claim that she had taken six weeks off for training with the TAB and the Applicant’s claim that she came in to the Sandringham Hotel on 25 July 2018 to deal with “urgent compliance matters”. Ms Crotty further states that she discussed the email with her Operations Manager who advised her that, in the present circumstances where renovations of the venue were underway and where the Applicant had taken time off to take up a role with the TAB, ALH Group was not obliged to offer the Applicant any shifts. 32

[25] On 4 August 2018, the Applicant sent an email to Ms Wregg 33 in which the Applicant detailed the steps she had taken to clarify her employment status with the ALH Group at the Sandringham Hotel. The Applicant complained of the failure of managers at the venue to get back to her and advise whether she had a job or not. Ms Wregg responded by email on 6 August 2018 and proposed they speak via telephone the following day.34

[26] On 7 August 2018, Ms Wregg spoke by telephone with the Applicant. According to Ms Wregg, the conversation with the Applicant traversed a number of issues including the Applicant’s role at the TAB, her original request for leave made to Mr Kurz, her attendance to the “compliance matter” at the venue on 25 July 2018, emails sent to Ms Crotty and the Operations Manager to which she had received no reply and her role at the Sandringham Hotel. At the end of the conversation, Ms Wregg asked the Applicant what she was seeking to which the Applicant replied “do I have a job”. 35 Ms Wregg made handwritten notes of the conversation.36

[27] On 8 August 2018, Ms Wregg spoke with Ms Crotty regarding her telephone conversation with the Applicant the previous day. That conversation was also captured in a handwritten note. 37 Under cross-examination in relation to her conversation with Ms Crotty Ms Wregg variously states that:

•  As a result of her conversation with the Applicant on 7 August 2018, she intended to find out whether the Applicant had a job but was also following up on her complaint 38 but then did not ask Ms Crotty specifically whether the Applicant had a job.39

•  The particular words recorded in her handwritten note “may not have” were not in response to the immediately preceding question raised by the Applicant recorded in her notes “do I have a job”. Ms Wregg while rejecting that the comments were linked, was unable to say what the words “may not have” referred to. 40

•  Comments recorded in her notes including “no respect”, “go back of house, “breach ALH and TAB” referred to the Applicant’s conduct issues discussed with Ms Crotty. 41

•  There were no shifts currently available as the venue was undergoing renovations and there were times when some of the bars in the hotel were closed. 42

[28] On 13 August 2018, Ms Wregg had a further telephone conversation with the Applicant during which she states:

•  She repeatedly advised the Applicant that the hotel was undergoing renovations and there are no shifts available for at least two weeks 43;

•  She explained to the Applicant that she failed to follow Ms Crotty’s instruction about going back of house; 44

•  The Applicant repeatedly asked about shifts to which Ms Wregg advised that the allocation of shifts was Ms Crotty’s responsibility; 45

•  She suggested to the Applicant that she could approach managers at other hotels in the area and if she could secure employment at another hotel within three weeks, ALS Group could offer continuity of employment 46; and

•  After being pressed by the Applicant, Ms Wregg confirmed that there were no shifts available. 47

[29] The Applicant states that she was told by Ms Wregg during their conversation that there was no longer a job for her at the Sandringham Hotel. The Applicant further states that when she asked Ms Wregg whether this meant she did not have a job, Ms Wregg replied “yes”. 48 Ms Wregg denied having dismissed the Applicant during the conversation and could not recall the Applicant asking, “does this mean I don’t have a job?”.49

[30] The Applicant subsequently requested a Separation Certificate which was provided to her on 24 August 2018. The Separation Certificate, while not produced in evidence, apparently referred to the separation as having been due to the Applicant having left voluntarily. The Applicant queried this reason and was subsequently contacted by Ms Wregg via email on 24 August 2018. Ms Wregg reaffirmed in her email to the Applicant that she had not terminated the Applicant; that the Applicant had voluntarily left the Sandringham Hotel to pursue a role with the TAB; and that the hotel had been undergoing renovations which meant shifts were not available for a period of a few weeks. 50

Relevant legislation

[31] The ALH Group has raised three jurisdictional objections to the application, those being:

(i) the Applicant was not dismissed by the ALH Group;

(ii) the Applicant had not completed the minimum employment period as at the date of the alleged dismissal; and

(iii) in the alternative to the above, the application which was made on 15 August 2018 was made outside of the statutory 21 day period based on the cessation of the Applicant’s employment on 6 June 2018.

[32] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act. Section 394(1) reads as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

[33] Section 386 of the Act prescribes when a an employee has been dismissed and states as follows:

“386 Meaning of dismissed

(1) [When a person has been dismissed]

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.”

[34] The initial matters to be considered are contained in s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.”

[35] In so far as this application is concerned s 382(a) of the Act addresses this as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period.”

[36] A “period of employment” is defined in s 384 of the Act which provides:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(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.”

[37] The “minimum employment period” is defined in s 383 of the Act as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

The “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.”

[38] Having regard to the above, it is necessary for me to consider whether the Applicant was dismissed at the initiative of the ALH Group, and if so, determine on what date the dismissal took effect. Should I find the Applicant was dismissed by the ALH Group, I must then consider whether any of the periods of service of the Applicant as a casual employee can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of her service, I must consider whether this service amounted to a period of employment that is at least the minimum employment period of six months.
[39] Should I find that the Applicant was dismissed at the initiative of the ALH Group and had served the minimum employment period, it will then be necessary for me to consider whether the application was filed with thin the statutory 21 day period, and if not, whether an extension of time should be granted for the application to be made.

Consideration

Was the Applicant dismissed?

[40] ALH Group submit that the Applicant was not dismissed but rather ceased employment when she took up a role with the TAB and that prior to doing so was expressly told by Mr Kurz that there was no guarantee of further shifts and that the availability of further shifts would be dependent on a range of variables. ALH Group point to other evidence of the cessation of employment being at the Applicant’s initiative, that evidence being the Facebook messages she shared with Mr Kurz on 21 June 2018 in which she variously stated that she did not want to return to the Sandringham Hotel.

[41] As regards the alleged termination of the Applicant by Ms Wregg on 13 August 2018, ALH Group deny that Ms Wregg said to the Applicant that she no longer had a job in a telephone conversation on that day. ALH Group rely on the evidence of Ms Wregg that she had simply reaffirmed to the Applicant that there were no shifts available for a few weeks due to renovations to the venue.

[42] The Applicant denies that Mr Kurz made a statement to her to the effect that there was no guarantee of shifts on completion of her role with the TAB. She further states that Ms Wregg confirmed in the telephone conversation on 13 August 2018 that she no longer had a job. The Applicant also points to a number of other factors that confirm her clear intention to return to her casual role at the Sandringham Hotel including her extensive Facebook messages with Mr Kurz.

[43] ALH Group seeks to rely on the content of the conversation between Mr Kurz and the Applicant on 6 June 2018 in support of its submission that the Applicant left ALH Group voluntarily. The absence of any formal record of the conversation means that it is necessary to consider the context in which that conversation took place; the preceding and subsequent communication between the Applicant and Mr Kurz; and the reliability of the respective evidence of Mr Kurz and the Applicant.

[44] Mr Kurz was adamant that he warned the Applicant during their 6 June 2018 conversation that there was no guarantee of shifts on completion of her job with TAB. There is, however, a significant tension in his evidence when viewed in the context of almost all other evidence and communication between himself and the Applicant. That other evidence and communication includes:

(i) On 30 May 2018, the Applicant advised Mr Kurz that she had had an interview for the TAB role and sought to clarify whether she would have to quit. Mr Kurz responded that she could remain “on the books” for three months before ALH Group would have to terminate her.

(ii) Mr Kurz confirmed in his evidence that it was not unusual for casual employees to take periods of leave and that there was no maximum period of time that a casual employee was allowed to make themselves unavailable.

(iii) Notwithstanding that the Applicant was a casual employee, Mr Kurz states that he agreed to the Applicant’s period of leave, did not disabuse the Applicant of her understanding that her period of “leave” was ok and he was not aware of any other manager advising the Applicant that the period of “leave” was not approved.

(iv) Mr Kurz acknowledged in Facebook messages to the Applicant on 4 June 2018 that the Applicant’s shifts would need to be covered while she did the TAB role.

(v) Confronted with Mr Kurz’s apparent disappointment with her taking a period of “leave” to do the TAB role, the Applicant “promised” Mr Kurz in Facebook messages on 4 June 2018 that she would be returning and that he should think of her absence as if she were going on a “holiday”.

(vi) On 10 June 2018, Mr Kurz contacted the Applicant to see if she was available to work that evening.

(vii) Facebook messages exchanged between the Applicant and Mr Kurz on 21 June 2018 appear to indicate that the Applicant was reconsidering her planned return to the Sandringham Hotel.

(viii) Notwithstanding the expression of uncertainty by the Applicant on 21 June 2018 as to her returning to work at the venue, she subsequently confirms in a Facebook message on 22 June that she will be returning on 23 July 2018.

(ix) On 29 June 2018, the Applicant asks Mr Kurz via a Facebook message about returning on a full time basis to which Mr Kurz responds enthusiastically, although he notes that approval for a full-time role rests with the Operations Manager.

(x) On 2 – 4 July 2018, the Applicant asks Mr Kurz whether she will be able to do her normal shifts on her return. Mr Kurz responds “I guess” and states that he will follow up with the Operations Manager regarding the full-time role.

(xi) On 4 July 2018, Mr Kurz sends a Facebook message to the Applicant and asks whether she wants to work on 5 July 2018.

(xii) On 5 July 2018, Mr Kurz asks the Applicant via a Facebook message whether she can stay a few hours and do closing that evening due to other employees not having turned up for the TAB close.

(xiii) On 6 July 2018, the Applicant advises Mr Kurz via a Facebook message that she will be doing an extra two weeks with the TAB and will not be finishing until 29 July 2018, to which Mr Kurz expresses disappointment.

(xiv) On 7 July 2018, the Applicant inquires with Mr Kurz as to whether the venue “needs a hand” that evening as she would like to earn some additional income. Mr Kurz after initially indicating that they could use some assistance later advises that assistance is probably not required.

(xv) On 8 July 2018, Mr Kurz sends a query to the Applicant regarding requirements for signing TAB cheques.

(xvi) On 13 July 2018, the Applicant sends a Facebook message to Mr Kurz indicating she will be available for shifts from 1 August 2018 to which Mr Kurz acknowledges by saying “all good!”

(xvii) On 21 July 2018, Mr Kurz sends a Facebook message to the Applicant asking whether she is able to work that evening.

[45] In addition to the above-referred communication, there is stream of private Facebook message banter between the Applicant and Mr Kurz regarding the venue and its staff. Much of the banter appears to be gossip but is nonetheless indicative of an ongoing interest of the Applicant in the venue and supports a conclusion that the Applicant had a clear intention to return to the venue on completion of her role with the TAB.

[46] Having regard to both the specific communication between the Applicant and Mr Kurz summarised above and the general communication to which I have referred, I have formed a strong view that Mr Kurz reluctantly accepted that the Applicant would be taking a break from the venue due to her TAB role and was enthusiastic at the prospect of her return. He was supportive of the opportunity the Applicant had by acting as her referee for the TAB role, made clear that she could stay “on the books” for up to three months and had advised her that her period of “leave” was “OK”. Furthermore, Mr Kurz continued to offer her shifts during the period of her absence as well as seeking specific work related advice from her on at least one occasion.

[47] Against the weight and tone of the ongoing communication between Mr Kurz and the Applicant, I find Mr Kurz’s evidence of the content of his conversation with the Applicant on 6 June 2018 unconvincing. I prefer the evidence of the Applicant and am satisfied that she was not “warned” by Mr Kurz that there was no guarantee of shifts on completion of her short term role with TAB or that future shifts would be dependent on a range of variables.

[48] I am further satisfied that the Applicant took up the short-term brand promotion role with the TAB, albeit with a limited hope of an ongoing role, with a clear expectation gained from her interactions with Mr Kurz that she would be able to return to her casual role at the end of the short-term TAB role. The weight of evidence supports a conclusion that Mr Kurz, while supportive of the TAB opportunity, was disappointed that she took up that role, was anxious for the Applicant to return and gave her every indication that she would be able to return to her casual role, if not a permanent role that was tentatively discussed but failed to progress.

[49] As regards Mr Kurz’s evidence that the Facebook message of 21 June 2018 caused him to be uncertain about the Applicant’s intention of returning to work, I do not accept that evidence. It is apparent on a full reading of the communication between Mr Kurz and the Applicant that there was a level of informality and at times coarseness in the banter that reflects poorly on both, but in particular on Mr Kurz as a supervisor. It was in the context of that banter that the Applicant appears to have been speculating with Mr Kurz about her return to work at the venue, but any doubts as to the seriousness of those comments are dispelled by subsequent messages from the Applicant on 22 June 2018 when she confirms her intended return on 23 July 2018. Furthermore, there is no subsequent uncertainty evident on the part of Mr Kurz as to the Applicant’s intention to return based on the continued stream of Facebook Messenger communication between himself and the Applicant and his offers of shifts to the Applicant. Tellingly, Mr Kurz conceded during cross examination that he did not regard the Applicant’s Facebook comments on 21 June 2018 as a resignation.

[50] I consequently find ALH Group’s submission on the Applicant’s return to work intentions and its reliance on the 21 June 2018 messages as selective and misrepresent the overall tenor of communication between the Applicant and Mr Kurz. I am satisfied on the evidence that the Applicant intended to return to her casual role at the Sandringham Hotel and that Mr Kurz did nothing to dispel the Applicant’s belief that she would be returning to her casual role.

[51] Having considered the communication between Mr Kurz and the Applicant, it is also necessary to consider the events leading up to and including the telephone conversation between the Applicant and Ms Wregg on 13 August 2018 during which conversation it is alleged by the Applicant that Ms Wregg confirmed she no longer had a job.

[52] Ms Crotty gave evidence that she commenced on 18 June 2018 as the venue manager at the Sandringham Hotel and in that capacity was reviewing staff requirements moving forward. Ms Crotty was progressively meeting with all staff, including the Applicant, with whom she met on 18 July 2018. At the conclusion of that meeting, she indicated to the Applicant that she would contact her the following week to arrange a further meeting between the Applicant and Ms Korrina Kennedy.

[53] What followed the meeting of 18 July 2018 were two incidents at the Sandringham Hotel involving the Applicant which Ms Crotty states breached both gaming regulations and ALH Group policies. The incidents of 25 and 28 July 2018 in which the Applicant visited the venue were referred to by Ms Crotty as the Applicant’s “week of misconduct”. As a consequence of those incidents, Ms Crotty directed Mr Kurz to remove the Applicant from the closed Facebook group that existed for the purpose of roster notification to staff. That action was taken to prevent employees arranging shift swaps with the Applicant. The Applicant’s removal from the Facebook group was, on Mr Kurz’s evidence, unprecedented in his experience at the Sandringham Hotel and appeared on the evidence to have occurred sometime on or after 1 August 2018.

[54] Ms Crotty gave further evidence that the incidents of the Applicant’s misconduct that led to her removal from the closed Facebook group were “being reviewed”, although what such review involved was not adduced in evidence. Certainly, there was no evidence of a formal investigation of the incidents and/or interview of the Applicant or any decision taken and communicated to the Applicant regarding any consequence. The explanation as to the lack of any formal process is likely explained by Ms Crotty’s belief, based on her discussion with the Operations Manager, that the ALH Group were under no obligation to offer shifts to the Applicant as a consequence of the venue renovations and the Applicant having taken a job with the TAB.

[55] Ms Crotty maintained that the Applicant’s removal from the closed Facebook group did not prevent the Applicant getting shifts and that she could have contacted management by telephone. I find that evidence unconvincing and do not accept it. My reasons for this are that, there was no evidence of any other staff being previously removed from the Facebook group; the stated reason for the Applicant’s removal from the Facebook group was her alleged “misconduct”; and Ms Crotty wanted to prevent other staff doing shift swaps with the Applicant. It is trite for Ms Crotty to suggest that the Applicant could have rung up management and sought shifts when on her own evidence ALH Group did not believe they were obliged to offer the Applicant shifts and the specific reason for her removal from the Facebook group was to prevent other staff from doing shifts swaps with her.

[56] I am satisfied that Ms Crotty formed a view that the Applicant should not be offered shifts and that the Applicant was to be prevented from doing shift swaps with other staff by her removal from the Facebook group. Tellingly, the Applicant was not advised by Mr Kurz or Ms Crotty that she had been removed from the Facebook group and that her removal was for reasons of her “week of misconduct” and that such misconduct was under “review”.

[57] It is apparent that by early August 2018, the Applicant had become increasingly concerned as to her employment status with ALH Group as evidenced by her emails to Ms Crotty on 1 August 2018 and to Ms Wregg on 4 August 2018. The Applicant expressed frustration in her emails as to a lack of response to her queries regarding whether she had a job at the Sandringham Hotel.

[58] Ms Wregg then spoke with the Applicant on the telephone on 7 August 2018 at the end of which, according to Ms Wregg’s handwritten notes, the key question asked by the Applicant was, “do I have a job”. Ms Wregg then spoke with Ms Crotty on 8 August 2018 during which a number of matters were discussed including various concerns regarding the Applicant including the incidents of “misconduct” on 25 and 28 July 2018. Ms Wregg acknowledges the key question posed by the Applicant that she needed to follow up on, that of whether the Applicant had a job, but according to her evidence she failed to gain an answer to that question.

[59] The unsatisfactory nature of Ms Wregg’s evidence in respect of her response to the Applicant’s question as to her employment status is brought into focus by her handwritten notes of her conversations with both the Applicant and Ms Crotty. The specific statement recorded by Ms Wregg, “may not have”, which was written by her directly below her record of the Applicant’s key question, “do I have a job” was not explained. Ms Wregg, while denying the two statements were linked, was unable to say what the recorded comment “may not have” was in reference to. In the absence of a plausible explanation by Ms Wregg as to the meaning of the particular reference and having regard to other contextual matters, i.e. the Applicant’s “week of misconduct” that was under “review”, a reasonable inference may be drawn that the comment “may not have” was in relation to the question raised by the Applicant “do I have a job”. No alternate explanation was offered by Ms Wregg and consequently I draw the inference as I have described, that is the Applicant may not have had a job.

[60] There was a lack of candour on the part of Ms Wregg and Ms Crotty in their dealings with the Applicant as she strove to gain clarity on her employment status. On the one hand it was stated to the Applicant that there were no shifts available for a few weeks due to venue renovations. This was despite Mr Kurz having offered the Applicant work as recently as 21 July 2018. They also omitted to tell the Applicant that she had been removed from the staff Facebook group, effectively preventing her from doing any shift swaps with other staff. Nor was she told that her removal was due to her “week of misconduct” which was under “review”. Seen in this context, Ms Wregg’s statements to the Applicant that there were no shifts available due to the venue renovations underway appear disingenuous. I would also observe that the venue was not closed during the period but parts of the venue were impacted by the renovations and were at times closed.

[61] Ms Wregg in her evidence denies telling the Applicant on 13 August 2018 that she no longer had a job. The Applicant directly contradicts Ms Wregg’s version. In the circumstances of the lack of candour I have found on the part of Ms Wregg and Ms Crotty in relation to the Applicant’s employment status, I regard it as inherently unlikely that Ms Wregg would have then confirmed the Applicant’s employment status in the conversation on 13 August 2018. I consequently prefer Ms Wregg’s evidence of the conversation of 13 August 2018 that she did not tell the Applicant she no longer had a job. That Ms Wregg did not tell the Applicant she no longer had a job was in my view merely consistent with the above-described lack of candour.

[62] Having considered the evidence, I am not persuaded that the Applicant’s decision to take up a short-term role with TAB constituted a resignation. I have reached this view based on; the Applicant consistently expressed an intention to her supervisor Mr Kurz that she would return at the end of the short-term TAB role; Mr Kurz had agreed to the Applicant taking “leave”; had acknowledged that her shifts would be covered; confirmed that she could stay “on the books” for up to three months; and continued to offer her shifts during the period she was working for the TAB. Importantly, I have also found that Mr Kurz did not “warn” the Applicant that there was no guarantee of shifts at the Sandringham Hotel on completion of her short term TAB job.

[63] It is however clear that by late July 2018, despite Mr Kurz’s previously communicated support and enthusiasm for the Applicant’s return, circumstances had changed and the new venue manager, Ms Crotty, had formed a less sanguine view of the Applicant’s future with the ALH Group. I am satisfied on the evidence that the ALH Group determined that the Applicant should not be offered further shifts. While seeking to rationalise that decision on the basis of the venue renovations and the Applicant having taken a short term role with TAB, I am satisfied that the decision was in fact taken in response to Ms Crotty’s concerns over the Applicant’s “week of misconduct”.

[64] The ALH Group sought to present their decision to not offer the Applicant further shifts as driven by the venue renovations underway in August 2018. That explanation is significantly undermined by Mr Kurz’s prior offers of shifts to the Applicant and Ms Crotty’s direction to Mr Kurz to remove the Applicant from the closed staff Facebook group which occurred on or after 1 August 2018. At no stage was the Applicant advised that her conduct was under “review” as a consequence of her “week of misconduct” or that she had been removed from the Facebook group.

[65] Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. 51  It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship. I am satisfied in the circumstances that the principal contributing factor to the dismissal of the Applicant was the decision of the ALH Group to not offer the Applicant shifts and to remove her from the closed staff Facebook group. I am consequently satisfied that the Applicant was dismissed at the initiative of the ALH Group.

Has the Applicant completed the minimum employment period as at the date of her alleged dismissal?

[66] In order for the Applicant to establish that she has satisfied the minimum employment period as a casual employee, it is necessary that her period of service with the ALH Group meets two tests:

(i) that she was regularly and systematically engaged for an aggregate period of service of at least six months; and

(ii) during that period of service she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[67] ALH Group concede that the Applicant was regularly and systematically engaged as a casual employee up until her final shift on 6 June 2018 and that such period of regular and systematic employment exceeds the minimum period of employment of six months. They contend however that as at the 6 June 2018, the Applicant could not have had a reasonable expectation of ongoing employment on the basis of the warning given by Mr Kurz to the Applicant on that day that there was no guarantee she would be given further shifts on completion of the short-term role with TAB.

[68] In the context of casual employees pursuing an unfair dismissal remedy, Commissioner Roe considered the meaning of the terms “regular and systematic” engagement and “reasonable expectation of ongoing employment” in Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 52 (Ponce). Commissioner Roe specifically considered at what point the expectation of ongoing employment must be determined and relevantly stated as follows:

“[57] The other significant change is that the WR Act required that for a casual to achieve jurisdiction:

“the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer (Section 638(4)(b)).”

[58] Whilst the 2009 Act requires that:

“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 (Section 384(2)(a)(ii)).”

[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.

……………..

[64] So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 53(emphasis added)

[69] I regard Ponce as authority for the proposition that it is not at the point of termination that one must assess whether there is a “reasonable expectation of continuing employment on a regular and systematic employment”. Rather, the focus is on whether such an expectation existed during the period of service. Based on Ponce with which I respectfully concur, it is not the test to assess whether the Applicant had a reasonable expectation of continuing casual employment on a regular and systematic basis as at the 6 June 2018. Rather, the assessment is to be made during her period of continuous service that counts towards the six month minimum employment period.

[70] In the present case, I am satisfied that the Applicant was engaged on a regular and systematic basis as a casual employee over a period of almost five years, well in excess of the required minimum period of at least six months. Furthermore, I am satisfied that during her period of service prior to her dismissal, she had a reasonable expectation of continuing casual employment on a regular and systematic basis.

[71] I would add for the sake of completeness that I do not accept the ALH Group’s submission that the Applicant could not have had a reasonable expectation of continuing employment on a regular and systematic basis as a result of the 6 June 2018 conversation between the Applicant and Mr Kurz. That is because I am not persuaded that Mr Kurz warned the Applicant that there was no guarantee of future shifts. Quite the contrary as Mr Kurz continued to liaise with and encourage the Applicant’s belief that she would be able to return to the Sandringham Hotel as a casual employee following her short-term TAB role.

[72] The ALH Group also submit that if the date of termination is accepted as 13 August 2018 as contended by the Applicant, then the fact that the Applicant’s last shift was 4 June 2018 means that there was a clear break in her regular and systematic employment between the date of her last shift and her alleged date of dismissal. ALH Group submit that such break means that the Applicant is unable to establish the minimum employment period of six months as at the date of her alleged dismissal.

[73] I do not accept the above submission of the ALH Group. The assessment of whether the minimum period of six months service is met is not conducted at the date of termination. Were that the case, then a deliberate and orchestrated break in regular and systematic engagement of a casual employee would act as a barrier to casual employees pursuing an unfair dismissal remedy notwithstanding having an aggregate period of service on a regular and systematic basis in excess of six months. The assessment is to be properly conducted by reference to the aggregate of the periods of the Applicant’s service on a regular and systematic basis throughout the Applicant’s casual employment with the ALH Group.

[74] As I have already found, the two tests are satisfied in the present case, that of the minimum period of continuous service of at least six months and a reasonable expectation of continuing employment on a regular and systematic basis. I am consequently satisfied that the Applicant has completed the minimum employment period.

Was the application filed within the statutory 21 day period?

[75] It is evident that there is some uncertainty as to when the Applicant’s employment was terminated. Identification of the date on which the dismissal took effect is a necessary step in determining the ALH Group’s jurisdictional objection that the Applicant’s unfair dismissal application was not made within the required 21 day period.

[76] The date on which a dismissal should be considered to take effect is the date that the employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v NSW Trains 54 the Full Bench explained as follows:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” (Emphasis added)

[77] The difficulty in the present case is that I have found that the Applicant was not advised by the ALH Group that she had been dismissed. I have, however, found that the actions of ALH Group in deciding not to offer the Applicant further shifts and to remove her from the closed staff Facebook group had the effect of dismissing the Applicant. The evidence did not reveal the specific dates on which those decisions were taken, although it was confirmed by Ms Crotty that the Applicant’s removal from the Facebook group occurred on or after 1 August 2018.

[78] Having regard to the uncertainty of the dates of the decision of ALH group to not offer the Applicant any further shifts and her removal from the closed staff Facebook group, I am satisfied that the dismissal of the Applicant took effect no earlier than 1 August 2018. As the Applicant’s unfair dismissal application was filed on 15 August 2018, I am satisfied that the application was filed within 21 days of the date the dismissal took effect.

Conclusion

[79] I am satisfied that the Applicant was dismissed at the initiative of the ALH Group.

[80] I am further satisfied that the Applicant was a casual employee who was employed on a regular and systematic basis by the ALH Group and that during her period of service as a casual employee, had a reasonable expectation of continuing employment. The period of the Applicant’s employment was in excess of the minimum period of employment of six months at the time of her dismissal as required by s 382 of the Act.

[81] On the basis of the evidence before me, I am also satisfied that the Applicant’s dismissal took effect on or after 1 August 2018. The Applicant filed her application for an unfair dismissal remedy on 15 August 2018. Consequently her application was filed within 21 days of the date the dismissal took effect.

[82] The jurisdictional objections of the ALH Group are dismissed. The application will be referred for further programming by the Commission.

DEPUTY PRESIDENT

Appearances:

A Dircks on behalf of the Applicant.

K Hickie on behalf of the Respondent.

Hearing details:

2018.

Melbourne.

12 November.

Printed by authority of the Commonwealth Government Printer

<PR703597>

 1   Exhibit R1, Witness statement of Ms. Jenny Wregg, dated 22 October 2018 at paragraph [8].

 2   Ibid at Annexure JW1.

 3   Exhibit R3, Witness statement of Ms. Claire Crotty, dated 22 October 2018 at annexure CC2.

 4   Exhibit R2, Witness statement of Mr. Jye Kurz, dated 22 October 2018 at paragraph [9].

 5   Exhibit A1, Witness statement of Ms. Samantha Harston, dated 11 October 2018 at paragraph [7].

 6   Exhibit R2 at paragraph [10].

 7   Transcript at PN639-PN643.

 8   Exhibit R2, Facebook messages, Annexure JK2.

 9   Exhibit R2 at paragraph [15]-[17].

 10   Transcript at PN260.

 11   Ibid at PN262-PN266.

 12   Exhibit R2 at Annexure JK2.

 13   Exhibit R2 at paragraph [20].

 14   Exhibit A2, Supplementary witness statement of Ms Samantha Harston, dated 31 October 2018 at paragraphs [1] – [11].

 15   Transcript at PN390.

 16   ExhibitR3 at paragraph [11]-[14].

 17   Ibid at paragraph [15]-[17].

 18   Exhibit A1 at paragraph [17].

 19   Exhibit R3 at paragraph [21].

 20   Transcript at PN845-PN854.

 21   Exhibit R3 at paragraph [23]-[25].

 22   Transcript at PN875.

 23   Exhibit R3 at paragraphs [26] – [27].

 24   Transcript at PN294-PN295.

 25   Exhibit R2 at paragraph [6].

 26   Transcript at PN297-PN299.

 27   Ibid at PN303–PN 307.

 28   Ibid at PN461.

 29   Transcript at PN475-PN477.

 30   Ibid at PN480.

 31   Exhibit A1, Annexure A3, Emails.

 32   Exhibit R3 at paragraphs [28]-[30].

 33   Exhibit R1 at Annexure JW2.

 34   Ibid at Annexure JW3.

 35   Ibid at paragraphs [14]-[21].

 36   Ibid at Annexure JW4.

 37   Ibid.

 38   Transcript at PN99-PN100.

 39   Ibid at PN109-PN111.

 40   Transcript at PN103-PN104.

 41   Ibid at PN106-PN107.

 42   Ibid at PN118.

 43   Exhibit R1 at paragraph [25].

 44   Ibid at paragraph [26].

 45   Ibid at paragraph [30].

 46   Ibid at paragraph [36].

 47   Ibid at paragraph [37].

 48   Exhibit A1 at paragraph [29].

 49   Exhibit R1 at paragraph [39].

 50   Exhibit R1, Annexure JW5.

 51   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.

 52   [2010] FWA 2078.

 53   Ibid at paragraphs [57]-[64].

 54   [2016] FWCFB 5500.