| [2021] FWC 2550 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Ka Ying Kate Ko
v
NVMAN Pty Ltd; Vinod Godara
(C2020/8607)
DEPUTY PRESIDENT BINET |
PERTH, 21 MAY 2021 |
Application to deal with contraventions involving dismissal.
[1] On 24 November 2020 Ms Ka Ying Kate Ko (Ms Ko) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging NVMAN Pty Ltd (NVMAN) and Mr Vinod Godara (Mr Godara) contravened the general protection provisions of the FW Act by dismissing her from her employment.
[2] On 28 November 2020, NVMAN filed a Form F8A asserting that Ms Ko was not dismissed by NVMAN (Jurisdictional Objection).
[3] In Coles Supply Chain Pty Ltd v Milford 1 (Coles Decision) the Full Court of the Federal Court held that where an employer submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
[4] In light of this, the Application was listed for a Hearing of the Jurisdictional Objection in Perth at 10:00am on Friday 7 May 2021 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 18 February 2021 (Directions).
[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.2
[7] Initially both Ms Ko, Mr Godara and NVMAN all sought permission to be represented at the Hearing.
[8] Having considered the submissions of the parties, leave was granted to Ms Ko, Mr Godara and NVMAN to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[9] On 4 May 2021 the firm representing Mr Godara and NVMAN filed a Form 54: ‘Notice that a lawyer has ceased to act for a person’ advising that they were no longer acting for Mr Godara and NVMAN. At the Hearing the parties were given the opportunity to make further submissions with respect to the granting of leave to Ms Ko to be represented in light of the fact that Mr Godara and NVMAN were no long represented.
[10] Having considered the submissions of the parties in particular that:
a. English was a second language for the parties – Ms Ko requiring a Cantonese interpreter and Mr Godara a Hindi translator,
b. the parties all lacked a familiarity with Australian employment law system; and
c. that the Hearing involved the determination of a jurisdictional objection
I determined that leave should still be granted for Ms Ko to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[11] At the Hearing Mr Godara represented himself and NVMAN and Ms Ko was represented by Mr Ronan Boothman of Corrs Chambers Westgarth.
[12] In accordance with the Directions Ms Ko filed a written witness statement in advance of the Hearing. She also gave oral evidence at the Hearing.
[13] In advance of the Hearing Mr Godara and the other director of NVMAN, Mr Naresh Kumar filed witness statements. Mr Godara also gave oral evidence at the Hearing.
[14] A Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as exhibit A1 at the Hearing. An audio recording of events which occurred on the day on which Ms Ko alleges she was dismissed was also tendered and marked as an exhibit.
[15] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
[16] NVMAN operates a hairdressing salon at Carousel Shopping Centre in Cannington Western Australia. Mr Godara and Mr Kumar are directors of NVMAN and both manage the salon.
[17] Ms Ko commenced full time employment as a hairdresser with NVMAN sometime between 6 and 25 November 2019 pursuant to a written contract of employment. 3 Her employment is covered by the Hair and Beauty Industry Award 2010 (Award).
[18] The Contract provided that Ms Ko was required to work 38 hours per week plus reasonable additional hours.4
[19] Ms Ko is a Chinese national and was sponsored by NVMAN via a work visa. Her right to remain in and work in Australia is restricted to her retaining her employment with NVMAN or securing another sponsor.
[20] Ms Ko alleges that she was subjected to repeated sexual harassment by Mr Kumar during her employment. She says for example that:
a. On 15 February 2020, Mr Kumar approached her from behind while she was bending over to pack her bag. She says that Mr Kumar wrapped his arms around her chest and lifted her up and down. She says that he said words to the effect of “why you are so tiny? You are so good” and started to kiss her face. Ms Ko says that she said words to the effect of: “Stop. I need to go” and pushed him away. 5
b. Mr Kumar repeatedly asked her to go out with him or go to his house. She says that she declined all of Mr Kumar’s requests. 6
c. On 3 October 2020, she was packing her bag to leave work when Mr Kumar pulled her up and pushed her against the wall and pressed his body into hers. He then closed the door, stroked her back and rubbed her buttocks. She says that he then reached up under her jacket to stroke her back. She says that she said words to the effect of: “I’m scared and I don’t like this.” Ms Ko says that he said words to the effect of: “I haven’t done anything yet” and kissed her face. Ms Ko says that she pushed herself away from him so she could leave. 7
[21] Ms Ko also alleges that during her employment NVMAN: 8
a. failed to make payment of her wages in a timely manner;
b. required her to work unreasonable additional hours which she was not paid for and which averaged over 50 hours per week during her employment;
c. offered to pay her cash and not withhold taxation;
d. was required to work public holidays without additional renumeration;
e. underpaid her and only remedied these underpayments after investigation by the Fair Work Ombudsman;
f. failed to provide payslips to her excepting two incomplete payslips provided after investigation by the Fair Work Ombudsman;
g. required her to work unreasonable additional hours over 38 hours per week and failed to fulfil promises to remunerate her for the additional hours she worked;
h. required her to undertake management and receptionist duties outside of her contracted position as a hairdresser; and
i. required or caused her to work without breaks and punished her for taking reasonable bathroom breaks.
[22] She says that she raised these concerns on multiple occasions with Mr Godara and Mr Kumar. For example on 12 April 2020 she sent a text message to Mr Godara complaining that she had not been paid on time. In July 2020 she sent a text message complaining that her superannuation had been deducted from her wages but not been credited to her superannuation fund. 9 On 15 August 2020 she sent Mr Godara a text message complaining that she had not been permitted to take reasonable rest breaks.10 On 1 November 2020 she sent a text message complaining that she had not been paid for additional hours she had worked.11
[23] On 2 November 2020, Ms Ko sent an email to Mr Godara complaining about various matters including 12:
a. the workplace being understaffed thereby preventing her from taking meal and rest breaks;
b. his failure to address her previous allegations of sexual harassment by Mr Kumar;
c. the failure to pay her wages on time;
d. the requirement that she work unreasonable amounts of overtime;
e. the refusal to pay her for her additional hours of work;
f. the failure to provide her with pay slips;
g. the failure to make superannuation contributions on her behalf in accordance with law.
[24] In her email, Ms Ko requested that Mr Godara and Mr Kumar put all future communications, in respect of these matters, in writing. 13
[25] On the evening of 2 November 2020, Mr Godara tried to contact Ms Ko by telephone. Ms Ko did not answer his calls. 14
[26] On 3 November 2020, Ms Ko attended for work. She says Mr Godara told her that he was very angry with her for not taking his calls. He asked her to discuss the matters outside of the work premises. 15 Mr Godara says that he was not angry and explained that he wanted to discuss the matters outside because it was not appropriate to do so in front of clients.16
[27] Ms Ko says that she explained to Mr Godara that she wanted to have the discussion in writing because previous promises had been made to her which were not subsequently fulfilled. She says that she also believed it to be more productive to discuss issues jointly with Mr Kumar and Mr Godara in writing rather than separately verbally. Ms Ko says that she was also reluctant to hold the discussions outside of the workplace in case she was subjected to sexual harassment. 17 I note that there is no allegation that Mr Godara had engaged in any sexual harassment of Ms Ko and that the evidence is that Mr Kumar was not present at the workplace that day.
[28] Ms Ko says that Mr Godara began speaking very loudly and forcefully towards her, saying words to the effect of: “you can go now, I don’t need your notice, I don’t need you to work here, we don’t need this kind of staff, you can go to Fairwork [sic] and ask them to pay you, I don’t have anything to give you.” 18 Mr Godara denies his tone was loud or forceful. He says that he offered Ms Ko the option of resigning if she was unhappy with her employment arrangements and did not dismiss her.
[29] Ms Ko asked Mr Godara to repeat his statement so that she could record it on her phone. Ms Ko began recording the conversation. She says that Mr Godara tried to remove her phone from her. She says that she resisted his efforts and attempted to make a call on the reception landline however he pulled the cables of the phone from the wall. 19
[30] Ms Ko says that Mr Godara told her that she had to talk to him. She says that when she told him that she was concerned about her safety he said words to the effect of: “If you don’t want to talk, if you don’t want to do work, no problem you can leave. Your four weeks’ notice counts from here, so you can leave from today, no problem.” 20 Again Mr Godara says that his intention was to make clear to Ms Ko that if she wanted to resign she could do so.
[31] Ms Ko says that she saw a boy walking past the premises. She left the workplace and asked the boy if she could borrow his mobile phone. The boy agreed and gave her his mobile phone. She used the boy’s mobile phone to call the police, stating that she feared for her safety and needed help.
[32] While she was talking to the police, Mr Godara sent a text message to Ms Ko’s mobile phone, stating that she had been on the phone for 45 minutes and that she should go home and return to work at 3pm on Thursday. In the same text message he informed her that he, Mr Kumar or their lawyer would be in touch to discuss the issues raised in her email. 21 Ms Ko says that she told Mr Godara that he had already dismissed her.22
[33] Ms Ko eventually returned to the work premises accompanied by a friend. She packed up her belongings. Mr Godara says that Ms Ko and her friend were rude and abusive to him so he called a security guard from the shopping centre to escort them both from the business premises.
[34] Ms Ko left the business premises and did not return to work on Thursday as instructed. She says that she did not return to work because she believed that she had been dismissed and even if she hadn’t she would not have returned to work because she felt unsafe in the workplace. She says she had no confidence that the concerns she had raised in relation to her pay, duties and hours of work or her allegations that she had been sexually harassed by Mr Kumar would be resolved.
[35] On 11 November 2020, Ms Ko returned her work keys. 23
[36] On 12 November 2020 Ms Ko reported her allegations of sexual harassment by Mr Kumar to the Western Australian Police Force. 24
[37] Ms Ko subsequently made a complaint to the Fair Work Ombudsman. 25
[38] On 3 December 2020, she was issued a payslip which included a payment labelled
“backpay for 28.11.19 to 4.11.20”.
[39] The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[40] The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“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.”
[41] While section 386 is found in Part 3-2 Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
[42] It is not contested, and I am satisfied that sub section 386(2) of the FW Act has no application in this case.
[43] According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[44] Ms Ko submits that her employment was terminated at the initiative of NVMAN or in alternative that she was forced to leave her employment because of conduct engaged in by NVMAN and Mr Godara which left her with no reasonable choice but to resign.
[45] A termination will be at the initiative of the employer where:
a. the act of the employer results directly or consequentially in the termination of employment – that is had the employer not taken the action, the employee would have remained in employment; and
b. the employment is not voluntarily left by the employee. 26
[46] Whilst the act of the employer which results directly or consequentially in the termination of employment is a key consideration, it is not the sole consideration. It is also important to consider:
a. the circumstances giving rise to the termination; and
b. the seriousness of the issues involved; and
c. the respective conduct of the employer and employee. 27
[47] Section 365(a) will be fulfilled where there has been a dismissal in fact. It is not
fulfilled merely because an applicant asserts they have been dismissed. 28
[48] Ms Ko submits that Mr Godara’s statements that:
a. “You can go now, I don’t need your notice, I don’t need you to work here, we don’t need this kind of staff, you can go Fairwork [sic] and ask them to pay you, I don’t have anything to give you.”; and
b. “If you don’t want to talk, if you don’t want to do work, no problem you can leave. Your four weeks’ notice counts from here, so you can leave from today, no problem.”
Were intended to sever the employment relationship. She says that his was further confirmed by Mr Godara calling a shopping centre security guard to escort her from the premises.
[49] To the extent that any, ambiguity as to the meaning of these statements arises, Ms Ko submits that the statements should be viewed in the context that:
a. Mr Godara confronted Ms Ko in the workplace questioning why she had refused to answer his phone calls to discuss her complaint. When Ms Ko refused to discuss the matter verbally Mr Godara raised his voice and physically acted in a manner likely to intimidate her including trying to forcibly take her phone from her and pulling the cables from the reception phone;
b. The complaints she made were of a serious nature, including allegations of sexual harassment, underpayment of wages and other breaches of the Fair Work Act; and
c. She had verbally complained to the Mr Godara and Mr Kumar on numerous occasions without success.
[50] NVMAN submit that Mr Godara’s intention was merely to offer Ms Ko the opportunity to resign without the need for her to complete her notice period. They point to the text message sent by Mr Godara while Ms Ko was on the phone to the police instructing her to leave the workplace and return at 3pm Thursday as evidence that Mr Godara did not wish to end Ms Ko’s employment.
[51] Ms Ko says that this text message was sent after Mr Godara had dismissed her when it became apparent that she was calling the police. She submits that this text message was an attempt to re-characterise the dismissal.
[52] Mr Godara says that it was necessary to call a security guard because Ms Ko and her friend were abusive and creating a disturbance. He says that it was clear from his text message that instructed Ms Ko to leave immediately and not return until Thursday that he did not intend to dismiss her rather he wanted her off the premises until she had calmed down.
[53] I am not satisfied that Mr Godara’s statements on their own evidenced an intention by Mr Godara acting on behalf of NVMAN to bring Ms Ko’s employment to end. Rather it appears he intended to provide Ms Ko with the option of resigning if she was unhappy with her treatment.
[54] Ms Ko received Mr Godara’s text message that she should return to work on Thursday before she left the workplace. This should have clarified any ambiguity she might have held in relation to whether Mr Godara intended to dismiss her. A course of conduct does not constitute a dismissal merely because an employee treats it as such. While Ms Ko may have preferred that her employment end Mr Godara’s text made it clear that the business did not intend to terminate her employment notwithstanding that it did not wish her to remain in the workplace while in a heightened emotional state.
[55] The fact that Mr Godara did not seek and Ms Ko did not provide the shop keys until 8 days after is consistent with neither party believing that Mr Godara had intentionally terminated her employment on 3 November 2020.
[56] In [2013] FWCFB 5279 AT [23] the Full Bench held that:
“First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result.” [FOOTNOTES OMMITTED]
[57] The business had gone to considerable expense and effort to secure Ms Ko’s work visa. The business was only able to secure such a visa because of a shortage of local skilled labour. Ms Ko’s skill set were therefore highly valuable to the business. The evidence suggest that while NVMAN may have been negligent in ensure that it discharged its statutory obligations in relation to her employment conditions and entitlements was no reason for or conscious desire on the part of NVNAM or Mr Godara to force Ms Ko to resign. Rather to the contrary it was a period of time in which the business was particularly busy and Ms Ko’s skill set was particularly crucial to the business.
[58] I am not satisfied that Mr Godara’s statements on their own or even in the context of the surrounding circumstances evidenced an intention by Mr Godara acting on behalf of NVMAN to bring Ms Ko’s employment to end. Rather it appears he intended to provide Ms Ko with the option of resigning if she was unhappy with her treatment.
[59] The evidence reveals that Ms Ko had proactively agitated concerns about a variety of her working conditions over an extended period of her employment.
[60] This included complaints about NVMAN’s failure to:
a. provide a safe workplace free of sexual harassment;
b. provide reasonable meal and rest breaks;
c. compensate her for additional hours of work; and
d. respond to requests for reasonable and timely remuneration and the issuing of payslips consistent with an applicable modern award and the FW Act.
[61] All of these issues were raised again in the email sent on 2 November 2020.
[62] That she was in fact unpaid is evidenced by the payment of backpay after Ms Ko sought the assistance of the Fair Work Ombudsman. Although contested by NVMAN the evidence suggests that many of Ms Ko’s others concerns may also have been legitimate.
[63] In light of a protracted failure to address these concerns and her allegations of sexual harassment it was not unreasonable for her to refuse to continue to endeavour the resolve these matters verbally and insist that the issues be addressed in writing.
[64] An insistence by Mr Godara that the matters be resolved verbally outside the workplace is unreasonable and inappropriate given the number of times she had unsuccessfully tried to resolve her concerns informally in the past.
[65] More critically Mr Godara’s statement that she should take her concerns to Fair Work implied that NVMAN did not intend to consider and endeavour to resolve her concerns. Ms Ko was left without a means to have her concerns about her safety, pay and conditions properly and promptly addressed within her employment.
[66] While Mr Godara or NVMAN may not have intended to bring about the end of the employment relationship it was a probable result of their reckless failure to ensure they complied with their contractual and statutory obligations and their resistance to resolving Ms Ko’s concerns in a timely and appropriate manner.
[67] I am satisfied that the course of conduct engaged in by Mr Godara and Mr Kumar left Ms Ko with no other alternative but to abandon her employment.
[68] I am satisfied that Ms Ko was dismissed for the purposes of section 365 of the FW Act.
[69] I therefore dismiss the Jurisdictional Objection.
DEPUTY PRESIDENT
Appearances:
R. Boothman for the Applicant.
V. Godara for the Respondent.
Hearing details:
2021,
Perth
7 May
Printed by authority of the Commonwealth Government Printer
<PR729433>
1 [2020] FCAFC 152.
2 Warrell v Walton (2013) 233 IR 335, 341 [22].
3 DCB 9-11.
4 Ibid.
5 Ibid 64.
6 Ibid.
7 Ibid.
8 Ibid 66.
9 Ibid 86.
10 Ibid 77.
11 Ibid 79.
12 Ibid 58-59.
13 Ibid 58-59.
14 Ibid 66.
15 Ibid.
16 Ibid 345.
17 Ibid 66.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid 60.
22 Ibid 67.
23 Ibid 63.
24 Ibid 21-25.
25 Ibid 67.
26 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.
27 Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.
28 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].