DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Sherwin
v
Hunt’s Wholesale Cars Pty Ltd T/A Hunt’s Wholesale Cars Pty Ltd
(U2018/2258)

Application for an unfair dismissal remedy.

[1] Ms Pamela Sherwin (the Applicant) was employed by Hunt’s Wholesale Cars Pty Ltd (the Respondent) in April 2016. The Applicant alleges that she was terminated on 28 February 2018. The Respondent claims that the Applicant simply “walked out” of the workplace and did not return.

[2] The Applicant worked as a car detailer for the Respondent. The Applicant’s daughter also worked for the Respondent as the Applicant’s assistant. It is not in dispute that the Applicant was a good worker or that the Respondent was more than satisfied with the quality of the Applicant’s work.

[3] The Applicant submitted her unfair dismissal application to the Fair Work Commission (the Commission) on 5 March 2018.

[4] The Respondent advised the Commission that the business is no longer trading, ie, it has been wound up.

[5] Witness statements were sworn and attested by Ms Pamela Sherwin (Exhibit 1), Mr Matthew Hunt, the Director of the Respondent, (Exhibit 2) and Mr Bruce Bullock, the Respondent’s Manager (Exhibit 3).

[6] The Applicant represented herself during the proceeding. The Respondent was represented by Mr Hunt.

Submissions and Evidence

[7] It is not in dispute that the Applicant and Mr Hunt had a wide ranging discussion on 27 February 2018. One of the issues discussed was the work performance and attitude of the Applicant’s daughter. Mr Hunt advised the Applicant that if she ever left the business that her daughter would be dismissed. The Applicant told her daughter about this conversation that evening. The following morning, the Applicant’s daughter called in sick, claiming a mental health day.

[8] The Applicant submitted that, 10 minutes into her shift on 28 February 2018, she was approached by Mr Hunt to enquire about her daughter’s non-attendance at work. The Applicant claims that the following conversation took place:-

“Mr Hunt: “What’s going on with Ainsly”

Applicant: “What do you mean”

Mr Hunt: “She has taken a mental health day”

Applicant: “She was upset about what you said the day before and all the bullying”

Mr Hunt: “Bullshit… I can’t deal with you anymore”

Applicant: “Does that mean I am fired”

Mr Hunt: “Yes… I will put your pay in the bank”

[9] The Applicant claims that she then collected her belongings and left the premises.

[10] The Applicant submitted that she has not worked since the date of her termination. The Applicant advised that she has now set up a business called Browns Plains Bathrooms Supplies, but, apart from her individual sales on the internet, has not been paid a weekly wage since her termination. The Applicant admitted that her partner also owns a bathroom supply business.

[11] Mr Hunt strenuously denied that he had dismissed the Applicant and that she had simply walked out after she had verbally abused him in a very loud manner, including calling him a f**king wanker.

[12] Mr Hunt claims that the Applicant told him on the way out that she intended to take him for unfair dismissal.

[13] Mr Hunt testified that it was common knowledge amongst the employees that the Applicant was going to leave the Respondent and take up employment with her partner after he opened a new bathroom supply business.

[14] Mr Hunt submitted that he believed the Applicant was trying to get dismissed on the basis that she may then be successful in achieving a pay-out through an unfair dismissal application.

[15] Mr Hunt advised that following the Applicant’s actions on 28 February 2018, he was of the view that she would not be coming back to work so he sent the Applicant her separation certificate two days later, at the same time as her final pay.

[16] Mr Bullock testified that, following the Christmas/New Year shutdown, the Applicant and her daughter developed a different attitude to work.

[17] Mr Bullock confirmed that he had also been advised that the Applicant intended to resign from the Respondent and go and work with her partner in the bathroom supply business. When Mr Bullock raised this issue with the Applicant, the Applicant allegedly refused to discuss the issue with Mr Bullock, who was the day to day manager of the Respondent.

[18] Mr Bullock testified that on 28 February 2018, whilst unlocking vehicles in the warehouse he walked over to the detail bay, where he witnessed the Applicant having a discussion with Mr Hunt. Mr Bullock testified that the Applicant was yelling at Mr Hunt.

[19] Relevantly, Mr Bullock testified that he was a witness to the last comments of the conversation. Mr Bullock claimed that he heard the Applicant yell a profanity at Mr Hunt, and witnessed her walk out of the factory whilst she was still yelling. Mr Bullock claims that he did not hear Mr Hunt dismiss the Applicant during this conversation.

Statutory Provisions

[20] The relevant provisions of the Fair Work Act, 2009 (the Act) are;

Section 381 Object of this Part

The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

Section 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; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Section 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.

Section 385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

Section 386 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.

(2)  However, a person has not been dismissed if:

(a)  the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i)  to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

Consideration

[21] I have taken into account all of the submissions and evidence that were provided by the parties. I have not accepted those statements where the witnesses were not present to swear or affirm their accuracy, nor were they available for cross examination.

[22] I have taken into account the Applicant’s submission that it made no sense for her to resign when she had no alternate job or income or when her resignation was going to affect her daughter’s on-going employment.

[23] I have taken into account that the Applicant has started up a new bathroom supply business, as anticipated by the Respondent.

[24] I have taken into account that the Applicant, whilst testifying that the new business would not be fully operational until September 2018, was using an email address of the new business in mid April 2018.

[25] I have taken into account that the Applicant was verbally abusive to the Director of the Respondent, Mr Hunt, calling him a f**king wanker in a very loud voice during their conversation on 28 February 2018.

[26] I have taken into account that the Applicant unplugged her radio and took it with her when she walked out of the workplace.

[27] I have taken into account that the Respondent did not attempt to make contact with the Applicant in the days following 28 February 2018 to enquire whether the Applicant was going to return to work but unilaterally sent her an employment separation certificate two days later.

[28] I have taken into account that the Applicant was a valuable employee who was very good at her job.

[29] I have taken into account that the Respondent is no longer a trading business and that Mr Bullock is no longer an employee of the business.

[30] I have taken into account that, following the departure of the Applicant from the Respondent’s employment, Mr Hunt and Mr Bullock had to “work on the tools” in order to keep the business operational. I accept the submission of Mr Hunt that losing the Applicant from the Respondent’s employment contributed to the business failing.

Conclusion

[31] Mr Bullock was an eyewitness to the latter part of the very loud conversation between the Applicant and Mr Hunt on 28 February 2018. Mr Bullock’s compelling evidence was that the Applicant verbally abused Mr Hunt before collecting her personal belongings and storming out of the workplace. Mr Bullock did not hear Mr Hunt dismiss the Applicant but rather heard the Applicant say words to the effect of “I am out of here”.

[32] I am satisfied that Mr Bullock is a credible witness. As a result of his evidence, I am satisfied and find that Mr Hunt did not dismiss the Applicant. As a result, I find Mr Hunt’s actions do not satisfy the criteria of section 386(1)(a).

[33] Mr Hunt had no right to discuss another employee’s workplace issues with the Applicant, even though the other employee was the Applicant’s daughter. Despite the inappropriateness of Mr Hunt’s comments, I am satisfied that the Applicant was not dismissed by the Respondent but resigned voluntarily. I am satisfied that it was the Applicant’s intention to resign at some point in the near future in order to set up a business with her partner.

[34] The application for an unfair dismissal remedy is dismissed.

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