DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mandeep Kaur
v
That’s Amore Cheese Pty Ltd
(U2021/6957)

Application for an unfair dismissal remedy – whether dismissed – employee resigned – not necessary to deal with late filing of application – application dismissed.

[1] Ms Mandeep Kaur was employed by That’s Amore Cheese Pty Ltd on 22 August 2011 under the Food, Beverage and Tobacco Manufacturing Award 2020. For ten years, she had a good relationship with the business. She worked hard and was a valued member of the team.

[2] Things took a turn after a period of maternity leave that coincided with the COVID-19 pandemic. The business was suffering sales losses and had reduced the hours of work for all employees. Even so, it wanted Ms Kaur to return to work. Agreement was reached for Ms Kaur to work two days each week on Monday and Tuesday. Ms Kaur was given floating shifts, working on different teams and tasks. As the mother of a young child, Ms Kaur needed to take leave at short notice when either she or her child was unwell. After her return, she began to feel that she was deliberately being treated unfairly in the shifts she was given and the arrangements for her taking leave.

[3] On 6 August 2021, Ms Kaur applied for an unfair dismissal remedy. There is a dispute about whether Ms Kaur was dismissed. The company says Ms Kaur was not dismissed. Ms Kaur says she was dismissed on 15 July 2021. If so, her application is one day outside the statutory time limit.

[4] It is not necessary to decide whether additional time should be allowed for Ms Kaur to make her application, because I have decided that Ms Kaur was not dismissed by That’s Amore Cheese. She is not eligible to apply for an unfair dismissal remedy. These are my reasons for the decision.

Events leading to the end of the employment relationship

[5] In the first two weeks of July 2021, Ms Kaur did not attend for work – in the first week because she was feeling unwell, and in the second week because of a problem in her arm. Her absence in the second week was notified to That’s Amore Cheese at 3.36am and 2.16am respectively on the morning of her shifts.

[6] In the third week of July, on 12 July 2021, Ms Kaur sent a message to Ms Helen Ritchie, Factory & Production Manager, saying:

“Hi Helene, Hope you are well, I just wanted to discuss some concerns before I start working again with George and yourself Can we please schedule a day and time so I can come in and discuss my concerns. Thanks Mandeep”

[7] Ms Ritchie replied at 5.13am, with the words:

“Good morning Mandeep. Are you coming to work today? We can see you before you start your shift. Kind regards, Helen.”

[8] It is clear from this message that until it was received, Ms Ritchie had expected Ms Kaur to attend for work on Monday 12 July 2021. Ms Kaur did not attend for work however and did not reply to the message from Ms Ritchie.

[9] Ms Ritchie then sent a message to Ms Kaur at 1.50pm on 12 July 2021 stating that she could come in for a meeting the following day at 9.00am. Ms Kaur thanked Ms Ritchie for the meeting time. Shortly after, she sent another message to say that she could not come in at the time proposed and could the meeting be rescheduled. Ms Ritchie replied by saying Mr Giorgio Linguanti, Managing Director of That’s Amore Cheese, would be in touch the following day.

[10] On 13 July 2021, Ms Kaur spoke with Mr Linguanti. She said she was not feeling comfortable going to work and that she was feeling bullied or treated unfairly by Ms Ritchie. Mr Linguanti spoke about Ms Kaur’s late notice of absences from work by text message. Ms Kaur became upset. At the end of the call, Mr Linguanti said to Ms Kaur, in words to the effect:

“Okay, if you are not feeling comfortable to come to work, don’t come.”

[11] Immediately after the conversation ended, Mr Linguanti sent a message to Ms Kaur asking her to call him back when she could. Ms Kaur replied to Mr Linguanti, saying:

“Hey George I will call you later, I’m not able to speak at the moment because I’m pretty upset over the call we had. Just give me time to settle down, I will call you back when I’m feeling better.”

[12] On 14 July 2021, Ms Kaur called Mr Linguanti. He asked her why she had been upset the day before, and they again discussed the issues Ms Kaur was having at work. Mr Linguanti said to Ms Kaur, in words to the effect:

“Mandeep, don’t do any drama. Do whatever you want to do – if you want to do a case on Helen, if she is bullying you, you can do it.”

[13] Ms Kaur became upset again and said she had to go but that she would call Mr Linguanti back. She did not call Mr Linguanti back. Instead, on 15 July 2021, Ms Kaur called the Fair Work Ombudsman about her concerns at work. She was referred to WorkSafe Victoria although she did not follow up on the suggestion.

[14] Ms Kaur’s next rostered shift was on 19 July 2021. Ms Kaur did not attend for work on that day or the following day. On 20 July 2021, Ms Ritchie sent Ms Kaur an email, as follows:

“Dear Mandeep,

For the past few weeks you have not presented at work without giving notice. If you do not intend on returning you are required to provide a letter of resignation.

If your intention is to return to work you will be expected on Monday the 26^th at 7.30am and confirmation that you intend to return will be required as soon as possible. I have attached a Letter of Warning regarding your conduct surrounding your attendance.

Kind regards,

Helen Ritchie”

[15] The warning letter attached to Ms Ritchie’s email warned Ms Kaur about the need to give notice of absence and the requirement to provide a medical certificate for absences of two or more days.

[16] Ms Kaur replied to Ms Ritchie’s email, explaining that she had not been treated well by Ms Ritchie since her return from maternity leave and that her mental health and well-being was affected. She took issue with a statement Ms Ritchie was said to have made about only paying annual leave to “trustworthy people” and referred to her recent conversation with Mr Linguanti. She said that Mr Linguanti had unfairly dismissed her from work by saying “don’t come back to work if you are not comfortable”. She explained that she had not come in that week as she had been “basically fired” and said she believed this would have been communicated to Ms Ritchie by Mr Linguanti. She asked for answers from Ms Ritchie.

[17] On 22 July 2021, Ms Ritchie replied to Ms Kaur. She offered to discuss the issues of concern to Ms Kaur, noting that she had tried to call three times without response. She explained that because of Ms Kaur’s lack of regular attendance, it had been difficult to give her a fixed role. She confirmed the company’s intention for Ms Kaur to return to work two days per week. She invited Ms Kaur to contact her to arrange a time to discuss her concerns.

[18] Mr Linguanti also replied to Ms Kaur’s email on 22 July 2021, saying:

“Hi Mandeep,

I read your email and I can see, you definitely miss understood many thinks. I haven’t fired you and you are welcome at work. I’m looking forward to see you soon.

Very kind regards,

Giorgio Linguanti.”

[19] Ms Kaur did not respond to the emails and did not attend for work on 26 July 2021.

[20] On 27 July 2021, Mr Linguanti called Ms Kaur. An exchange occurred in words to the effect:

Mr Linguanti: “Mandeep, what do you want to do. Are you coming back or not?”

Ms Kaur: “No, I am not coming back. Because of everything that’s happened.”

Mr Linguanti: “Okay, if you don’t want to come back just send me a resigning letter.”

[21] There was no further contact from Ms Kaur and no letter of resignation. On 30 July 2021, Ms Kaur contacted the Fair Work Ombudsman and was sent links to information about entitlements on termination of employment. She accessed the links provided by the Fair Work Ombudsman, which led to her discovery of information about unfair dismissal.

[22] On 5 August 2021, Mr Linguanti sent a message to Ms Kaur saying:

“Hi Mandeep

I will like to close your file and also pay you the annual leave you have cumulated.

I need an email or a letter of resignation if you can organise it will good.”

[23] On 6 August 2021, Ms Kaur made her application for an unfair dismissal remedy.

Ms Kaur was not dismissed

[24] The evidence does not support a finding that Ms Kaur was dismissed. Certainly, Ms Kaur had concerns about how she was being treated at work and was finding the juggle of work and caring for a young child during a pandemic, with its related childcare restrictions, very stressful.

[25] In the discussion between Ms Kaur and Mr Linguanti on 13 and 14 July 2021, Ms Kaur expressed her discomfort about coming to work. Mr Linguanti made the two statements that Ms Kaur relies on to establish her dismissal. He told Ms Kaur not to come if she felt uncomfortable. And he asked Ms Kaur not to “do any drama” but said she could make a claim against Ms Ritchie if she wanted. A reasonable person would not understand either of the statements made by Mr Linguanti as clearly communicating the fact of dismissal to Ms Kaur, even if that is how Ms Kaur understood them. At best, the statements were ambiguous in the context in which they occurred. The one thing that was clear to both Ms Kaur and Mr Linguanti at the time these statements were made was that their dialogue was not over. They were going to speak again.

[26] Telling against the fact of dismissal was also the conduct of Ms Ritchie the following week. As Ms Kaur submits, it is most likely that if she had been dismissed, Mr Linguanti would have communicated the decision to her manager, Ms Ritchie. But there is no evidence that this occurred. When Ms Kaur did not attend for work and did not notify of her absence after the alleged dismissal, Ms Ritchie issued her a warning and asked Ms Kaur to confirm her intention (either to return to work or resign). She stated her expectation that if Ms Kaur wanted to return to work, she do so by attending as rostered for her next shift on 26 July 2021. These steps would not have been necessary if Ms Kaur had already been dismissed. They were both necessary and appropriate steps, however, in circumstances where Ms Kaur had not been dismissed but had also not attended for work for four consecutive weeks, the last without notice.

[27] When That’s Amore Cheese became aware of Ms Kaur’s belief that she had been dismissed, it quickly sought to clarify the misunderstanding. Ms Ritchie and Mr Linguanti each wrote to Ms Kaur on 22 July 2021. Together, their communication confirmed that Ms Kaur had not been dismissed, that their intention was for her to return to work two days per week and that she was welcome back. Mr Linguanti followed up again after Ms Kaur did not respond and did not attend for work on 26 July 2021. He asked if Ms Kaur was coming back or not. Ms Kaur replied that she was not.

[28] It was Ms Kaur who acted to end the employment relationship by advising Mr Linguanti on 27 July 2021 that she was not coming back to work. By these words, Ms Kaur resigned from her employment. The evidence does not establish that she was forced to resign by any conduct, or course of conduct, of That’s Amore Cheese. The payment of Ms Kaur’s accrued entitlements should now be made without delay.

Disposition

[29] An application for an unfair dismissal remedy can only be made by an employee who has been dismissed. As Ms Kaur was not dismissed, she cannot make this application.

[30] The result is that the application must be dismissed.

COMMISSIONER

Appearances:

M. Kaur on her own behalf.
D. Rigoni and G. Linguanti for the Respondent.

Hearing details:

2021.
Melbourne, video via Microsoft Teams:
September 8.

Printed by authority of the Commonwealth Government Printer

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