DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Belinda Solde
v
The Trustee for Infinity Green Family Trust trading as Caulfield Manor Supported Residential Service
(U2020/15141)

Application for an unfair dismissal remedy – whether dismissed – whether application made within 21 days.

[1] Belinda Solde began working for Caulfield Manor Supported Residential Service on 3 June 2013. The facility cares for people with disability, illness or infirmity. It is a private facility and does not receive any government funding or support. On 1 May 2017, the facility changed hands and became the responsibility of The Trustee for Infinity Green Family Trust. From 2016 until July 2020, Ms Solde worked at Caulfield Manor as a casual Cook on Mondays and Tuesdays for 10 hours per week. She also worked a separate job at Victoria by the Park, which appears to be an approved aged care facility.

[2] The parties agree that Ms Solde’s employment has come to an end, but there is a dispute about when that occurred and why. Ms Solde says she was dismissed on 18 November 2020 when Caulfield Manor told her it had filled her position. Caulfield Manor says Ms Solde resigned on 26 July 2020 when she chose to work exclusively at Victoria by the Park. The dispute arises in the context of restrictions imposed on work in aged care and residential facilities due to the COVID-19 pandemic.

[3] Ms Solde applied for an unfair dismissal remedy on 23 November 2020. Caulfield Manor objects to the application on two jurisdictional grounds: that Ms Solde was not dismissed; and the application was made out of time.

[4] For the reasons that follow, the jurisdictional objections are to be dismissed.

The employment history

[5] On Saturday 25 July 2020, Ms Solde was working her rostered shift at Victoria by the Park when she was told that there had been a ‘single-site directive’ issued by the Victorian Government about workers in aged care facilities. As she worked two separate jobs, Ms Solde was asked to choose between working at Victoria by the Park or Caulfield Manor, because Victoria by the Park would not be able to continue to employ her if she could not comply with the single site directive.

[6] Ms Solde decided to work at Victoria by the Park, because it represented the majority of her work (and thus income). The Facility Manager at Victoria by the Park then asked her to provide a letter of employment from Caulfield Manor stating the hours and days worked there, with a view to offering Ms Solde more hours on its next roster to reduce the impact of the single site directive.

[7] At 9.16pm on 25 July 2020, Ms Solde separately received a text message from Khamsay Luangpraseuth, Acting Manager of Caulfield Manor. The message said as follows:

“Hi colleagues, for our reference, can you please let us know if you also work in other facilities and how many. Many thanks.”

[8] Six minutes later, Ms Solde sent a text message to the owner and Director of Caulfield Manor, Lisa Li. The message said this:

“Good evening Lisa, I got message from Khamsay. Yes I am working from other place. Please let me know whats the agreement if I will choose 1 worksite. I know that there will be a government subsidy if I will work only 1 facility. Looking forward to hear from you personally THANKS. Belinda”

[9] Ms Li did not respond immediately. At 11.15am on Sunday 26 July 2020, Mr Luangpraseuth called Ms Solde and left a message asking for her to call him back. Ms Solde did not answer the call, instead trying to call Ms Li. She was unable to get through to Ms Li and eventually called Mr Luangpraseuth. She told Mr Luangpraseuth that she needed a letter of employment for Victoria by the Park stating her days and hours of work because she had to choose one place of work due to the single site policy and she had chosen Victoria by the Park. Mr Luangpraseuth agreed to provide the letter of employment.

[10] At 12.48pm on 26 July 2020, Ms Solde sent an SMS message to Mr Luangpraseuth with her email address so that he could send her the letter of employment.

[11] At 1.49pm on 26 July 2020, Ms Li returned Ms Solde’s call. They discussed the single site policy and Ms Solde’s choice to work at Victoria by the Park. Ms Solde told her that she needed a letter of employment. She also enquired about her status as a casual employee and whether she could be considered a permanent employee after working regular shifts for more than one year. Ms Li advised that she would consult her consultant.

[12] At 2.31pm on 26 July 2020, Ms Solde forwarded her email address to Ms Li for the letter of employment requested by Victoria by the Park.

[13] On Monday 27 July 2020, Ms Solde sent a message to Mr Luangpraseuth following up on the letter of employment. Mr Luangpraseuth sent her the letter the following day.

[14] The letter of employment dated 28 July 2020 states as follows:

“This is to confirm that Belinda Solde used to regularly work at Caulfield Manor until 26 July as casual cook on Monday and Tuesday for 10 hours a week.

Due to COVID 19, Belinda Solde no longer works for Caulfield Manor. Would appreciate if you could support her financially for the loss of income during this period.

If you have further questions, please contact our office on 3-9569 2600 or via email: info@caulfieldmanor.com.au.

Best regards,

Khamsay Luangpraseuth
Acting Manager”

[15] On 3 August 2020, Ms Solde commenced working additional hours at Victoria by the Park on the Mondays and Tuesdays previously worked at Caulfield Manor.

[16] On 22 August 2020, Ms Solde sent an SMS message to Ms Li at Caulfield Manor about returning to work as follows:

“Good morning Lisa..I’m looking forward to coming back to work once the stage 4 is over. Which will be on September 7. Your guidance is highly appreciated. Thanks you. Have a nice day. Belinda”

[17] Ms Li did not respond to the email.

[18] The single site work directive was subsequently extended by the Victorian Government to 30 November 2020.

[19] On 27 October 2020, Ms Solde sent an email to Ms Li about returning to work, as follows:

“Dear Lisa,

Good day. Hope this letter finds you all well. After easing the restrictions, I’m looking forward to coming back to work soon. Your guidance is highly appreciated. Thank you. Stay safe and have a nice day.

Kind regards,

Belinda Solde”

[20] Ms Li did not reply to the email.

[21] On 4 November 2020, Ms Solde received an email from Anthony Le, Facility Manager of Caulfield Manor. The email advised as follows:

“Dear Belinda,

Thanks for your email regarding the part-time casual cook position at Caulfield Manor.

I regret to advise you that we are still implementing the COVID-19 general government instructions to minimise the unnecessary health risks as much as possible to our residents and staffs. Therefore, we are currently rostered for staffs who are only able to work at one employment/workplace, and I do not see any changes about these rosters in foreseeable future.

All the very best with your employment and thanking you for your understanding.

Kind regards,

Anthony Le”

[22] On 16 November 2020, Ms Solde sent an email to Caulfield Manor as follows:

“Dear Lisa,

Hope this letter finds you well. I got a message from my Manager in my other job and confirm that the single site workplace will cease from November 30, 2020. I am looking forward to be back by December. Hoping to hear from you soon. Stay safe.

Kind regards,
Belinda Solde”

[23] On 18 November 2020, Mr Le replied to Ms Solde as follows:

“Good afternoon Belinda,

As mentioned to you in the previous email, since the COVID-19 restrictions and implementing the directions of Department of Health and Human Services, we currently only employ and roster for staffs who have been able to work at 1 employment only. As a result, we regret to advise you that the part-time casual cook position that you were employed at Caulfield Manor prior to the COVID-19 lock down is no longer available. Thanks for your email and all the very best with your future employment.

Kind regards,
Anthony Le
Facility Manager

[24] On 19 November 2020, Ms Solde attempted to call Ms Li for more information but was unable to get through. Four days later, she filed this application.

Consideration

[25] A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed. 1 Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative.2 This means that termination is brought about by an employer without the agreement of the employee. Termination of employment can occur at the initiative of the employer even if not done by the employer, if the action of the employer is the principal contributing factor which brings an end to the employment relationship.3

[26] In the context of casual employment, it is also often necessary to consider whether there has been a termination of the employment relationship as opposed to termination of the contract of employment operative immediately before the cessation of the employment. 4 This is because the contract of employment and the employment relationship are not always one and the same.

[27] The evidence does not support a finding that Ms Solde resigned or said she was “leaving” Caulfield Manor in her conversation with Mr Luangpraseuth on 26 July 2020. Ms Solde advised Mr Luangpraseuth that she would be unavailable for work while the single site directive was in place. As a casual employee, Ms Solde’s advice of her unavailability for work in connection with the single site directive did not bring the employment relationship to an end. It is likely that the conversation was imprecise, because both parties were still grappling with what the changes meant for themselves and for the businesses in which they worked. However, the effect of the conversation was to suspend the offer and acceptance of casual contracts of employment for the period affected by the single site directive. The employment relationship remained.

[28] I do not accept the letter of employment provided to Ms Solde on 28 July 2020 as evidence of her resignation from Caulfield Manor. The letter was provided for a different purpose, to assist Ms Solde in obtaining additional work with Victoria by the Park in a bid to reduce the impact of the single site directive on her ability to earn an income. The letter was provided in the context of both parties seeking to comply with restrictions aimed at limiting the spread of coronavirus, and as Mr Luangpraseuth noted, its content was technically correct. Importantly, the letter noted that “due to COVID-19” there had been a change in arrangements and asked for her to be supported “during this period”.

[29] What followed was a lack of communication between the parties and between the managers of Caulfield Manor and its owner, Ms Li, about the status of Ms Solde’s employment. It was only after Ms Solde repeatedly sought advice about her return to work at Caulfield Manor that the position was clarified.

[30] I find that Ms Solde was dismissed by Caulfield Manor. The dismissal occurred by email on 18 November 2020. The email clearly communicated to Ms Solde (for the first time) that her position with Caulfield Manor was no longer available.

[31] The application for an unfair dismissal remedy was made on 23 November 2020, within the 21 day period required by the Act.

Disposition

[32] The jurisdictional objections are dismissed.

[33] Directions will issue separately for hearing of the substantive application.

COMMISSIONER

Appearances:

A Jewell of Jewell Hancock Employment Lawyers for the Applicant.
G Chebib of Chebib Lawyers for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
February 4.

Printed by authority of the Commonwealth Government Printer

<PR727058>

 1   Fair Work Act 2009 (Cth), s 385(a).

 2   Fair Work Act 2009 (Cth), s 386.

 3   Ibid.

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