Application to deal with contraventions involving dismissal - jurisdictional objection - whether the applicant was dismissed.

• [1] On 9 July 2022, Alex Zucco made an application to the Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed from her employment with Mariana Chedid trading as Brulee Patisserie in contravention of the general protections contained in Part 3-1 of the Act.

• [2] The respondent objects to the application on the basis that the applicant was not dismissed. Accordingly, the matter proceeded to a jurisdictional hearing before me on 9 November 2022.

• [3] For the reasons that follow, I find that the applicant has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, the respondent's jurisdictional objection is dismissed.

• [4] The respondent is a French-themed patisserie. It is owned by Mariana Chedid, who founded the patisserie in late 2020.[1]

• [5] The applicant commenced casual employment with the respondent as a barista on or around 28 December 2021.[2] The applicant was one of approximately 17 employees.[3]

• [6] The applicant worked pursuant to a roster, established by the respondent's General Manager, Mr Paul Elkhouri.[4] Mr Elkhouri publishes the roster on a weekly basis via a WhatsApp group.[5] Rosters are ordinarily published on either Saturday or Sunday prior to the next roster period commencing on a Monday.[6] Members of the WhatsApp group include current staff of the respondent.[7] Employees of the respondent are notified of their rostered shifts by way of the WhatsApp rostering system.[8]

• [7] The applicant typically worked between four and five days per week, or between 20 and 40 hours per week.[9] It is not in dispute that the applicant's employment could be characterised as being regular and systematic and that the applicant's terms and conditions of employment were governed by the Restaurant Industry Award 2020 and a contract of employment.

• [8] Ms Chedid gave evidence that she sought to provide the applicant with as many opportunities as she could. Ms Chedid understood that the applicant had no family in Australia and therefore offered the applicant additional paid work at a hosted dinner, provided the applicant with furniture to furnish her home, loaned the applicant the business vehicle to assist her to move house, and offered to pay for a tracheal shave, being a procedure that the applicant had discussed with Ms Chedid as part of her gender transition.[10]

• [9] Ms Chedid describes her working relationship with the applicant as "positive." The text messages in evidence before the Commission support Ms Chedid's position in this respect. The messages demonstrate that Ms Chedid and the applicant developed considerable personal affection for each other. For instance, in response to a message from the applicant advising that she was unable to attend work in January 2022, Ms Chedid responded, "No worries darling have some rest." A further exchange in February 2022 included a text message from the applicant to Ms Chedid apologising for staying home and signing off, "I love you and hope you have a beautiful Sunday" to which Ms Chedid responded, "Xxoo" and a red heart emoji.[11] In May 2022, the applicant signed off a message to Ms Chedid by stating, "Thank you for calling. I love you. Alexa."[12] Ms Chedid said that she understood from these messages that she was an important person in the applicant's life and felt a level of responsibility towards the applicant as a result.[13] Ms Chedid said that the applicant shared details of her gender transition,[14] and Ms Chedid felt that she provided support to the applicant about this process.

• [10] Ms Chedid said that she sought to make Brulee Patisserie an inclusive and welcoming place to work. Ms Chedid established a chalkboard in the staff room upon which Ms Chedid says that the respondent's employees were encouraged to write about what the business means to them. The applicant wrote on the board, "Brulee is a place where you can be you." Similar sentiments were left by other employees, such as "Brulee is magic," "Brulee is like family," "Brulee is being anything you want to B," and "Brulee is Mariana."[15] Ms Chedid said that these messages embody the experience she hoped to create for her employees.[16]

• [11] The applicant was rostered to work a shift on 18 June 2022. On 17 June 2022, Mr Elkhouri sent the applicant a text message which stated, "Hey Alex. Hope you are feeling better today. And hope to see you tomorrow." The message was punctuated with a smiling face emoji. The applicant responded to Mr Elkhouri's text message at 7:11am on 18 June 2022. The applicant stated, "Hi Paul. I deeply appreciate the well wishes. Yesterday was really bad and I injured myself. I'm trying so hard but I don't think I'm capable today. I'm sorry." Mr Elkhouri responded a short time later, stating "Oh alex. Not good to hear. I hope you are better soon x".[17]

• [12] Ms Chedid said she found this exchange "alarming" and telephoned the applicant.[18] The applicant informed Ms Chedid that she had attempted to take her own life on 17 June 2022.[19] Ms Chedid gave evidence that she was distressed by this news and wanted to ensure that the applicant was safe and felt supported.[20] Specifically, Ms Chedid did not want the applicant to be at home alone due to the risk of further self-harm.[21] Accordingly, Ms Chedid invited the applicant to come to the workplace with her that day to undertake light cooking duties.[22] Ms Chedid said that she wanted to find the applicant something to do to keep her occupied. Ms Chedid subsequently sent the applicant the following text message:[23]

And never ever stay at home if you are not feeling well

• [13] The applicant's text message in response to Ms Chedid on 18 June 2022 demonstrates that the applicant appreciated Ms Chedid's "kind words." While the applicant sought to attend work, she felt concerned that she made "customers and staff uncomfortable." The applicant concluded her message by committing to attend the workplace the following day, stating "I'll try with everything I can tomorrow, I can't miss work like this. I hope your day is beautiful".[24]

• [14] It is apparent that the applicant went to the workplace with Ms Chedid on 19 June 2022,[25] although the applicant submits in these proceedings that she felt pressured to do so.[26] Ms Chedid said that she understood the applicant to be a passionate photographer, so Ms Chedid and the applicant went for a drive to collect the applicant's camera.[27] Ms Chedid said that she felt concerned about the applicant's wellbeing and noted that the applicant was in "no state for work." Ms Chedid instead invited the applicant to attend the workplace again on 21 June 2022 to do some food photography. Ms Chedid said she was trying to find paid work for the applicant to do that would not involve dealing with customers.[28] The applicant gave evidence that she agreed to attend on 21 June 2022.[29]

• [15] The work roster for the week commencing 20 June 2022 was issued via WhatsApp on 19 June 2022. Consistent with Ms Chedid's view that the applicant was in "no state for work," Mr Elkhouri did not allocate the applicant any shifts.[30]

• [16] The applicant did not attend the respondent's premises on 21 June 2022 as agreed. The applicant said that she did not understand attendance to be a requirement as the shift was not contained on the work roster released on 19 June 2022.[31] Ms Chedid said that the applicant did not notify her that she would not be attending.[32] The applicant said she missed a call from Ms Chedid at approximately 11:15am on this day but did not return the call.[33]

• [17] The roster for the week commencing 27 June 2022 was issued on or around 26 June 2022. The applicant was again not allocated any shifts by Mr Elkhouri.[34] Ms Chedid gave evidence that the applicant was not rostered shifts because she had not presented at the workplace on 21 June 2022 and did not provide notification of this fact. Mr Elkhouri similarly said that the applicant had not been rostered on account of her failure to present for a shift arranged with Ms Chedid on 21 June 2022 without communicating with either Ms Chedid or Mr Elkhouri.[35] The applicant says that she did not know why shifts were not allocated to her.[36]

• [18] On 26 June 2022, the applicant sent Ms Chedid a text message stating, "We should talk. Just when you can."[37] Ms Chedid responded the same day and said, "Ok call me now,"[38] although there is no evidence of the applicant telephoning Ms Chedid. Ms Chedid sent a further text message to the applicant stating, "What time tomorrow And please bring back the card as well." The applicant proposed a meeting time of 1:30-2:00pm as she had another commitment at 11:30am, but Ms Chedid requested the applicant to "come early," "before your meeting" or if the applicant needed to meet in the afternoon "speak to [Mr Elkhouri]."[39]

• [19] It is not in dispute that the applicant did not attend the workplace to meet with Ms Chedid at any time on 27 June 2022 and did not respond to Ms Chedid's text message sent at 4:46pm that day which stated, "You didn't come".[40]

• [20] Ms Chedid gave evidence that the applicant "stopped turning up for work and had ceased communicating with me. Consequently, I concluded that Alex no longer wished to be employed by Brulee and had resigned. I accepted Alex's resignation and have proceeded on the basis that she did not want to work for Brulee any more."[41]

• [21] On 2 July 2022, the applicant was removed from the respondent's WhatsApp group.[42] Mr Elkhouri gave evidence that he removed the applicant from the group at the same time as he removed three other persons who were no longer employed by the respondent. Mr Elkhouri said, "I remove employees from the WhatsApp group when their employment with Brulee terminates (whether termination be at the initiative of the employer or the employee). I removed Alex from the WhatsApp group in response to Alex's resignation."[43]

• [22] The applicant filed her s 365 general protections application in the Commission on 9 July 2022.[44]

• [23] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.

• [24] The circumstances in which a person is taken to be "dismissed" is set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(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.

• [25] The respondent contends that the applicant does not have standing to make a s 365 application in the Commission because the applicant was not dismissed within the meaning of s 386(1) of the Act.

• [26] The respondent says that the applicant resigned from her employment on or about 27 June 2022. It says that the applicant demonstrated her intent to no longer work for the respondent by failing to attend the respondent's premises on 21 June and 27 June 2022 and communicate with the respondent about her absences.[45] The respondent otherwise rejects each of the applicant's contentions under s 386(1) of the Act.

• [27] The applicant contends that she was dismissed within the meaning of s 386(1) of the Act.

• [28] The applicant's primary position is that the respondent terminated her employment at its initiative within the meaning of s 386(1)(a) by removing the applicant from the WhatsApp group. Alternatively, the applicant submits that even if the respondent genuinely believed that the applicant resigned from her employment, the respondent was still obliged to confirm the applicant's intention. The applicant says that the most basic of enquiries by the respondent would have determined that the applicant intended to remain employed. The applicant contends that the respondent's failure to so enquire, amounted to a termination at the initiative of the employer.[46]

• [29] In the alternative, the applicant submits that she was forced to resign within the meaning of s 386(1)(b):

• (a) by reason of a course of conduct engaged in by the respondent which created an unsafe workplace;[47] or

(b) for financial reasons, on account of not being rostered for work for two consecutive weeks.

• [30] The question for determination in this application is whether the applicant was dismissed by the respondent.[48] This is an antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368 of the Act.[49] In this respect, it is necessary only to consider the applicant's primary position, being that she was dismissed withing the meaning of s 386(1)(a) of the Act.

Was the applicant's employment terminated at the respondent's initiative?

• [31] It is not in dispute that s 386(1)(a) of the Act refers to a dismissal occurring where a person's employment has been "terminated on the employer's initiative." There may be a dismissal pursuant to s 386(1)(a) where the action of the employer is the principal contributing factor leading to the employment termination.[50]

• [32] The applicant contends that the principal contributing factor that led to the termination of her employment relationship is her removal from the WhatsApp group by the respondent.

• [33] The respondent contends that its decision to remove the applicant from the WhatsApp group on 2 July 2022 reflected the respondent's understanding that the employment had ended on account of the applicant's resignation.[51] The respondent says that it had formed the view on 2 July 2022 that the applicant had resigned from her employment because:

• (a) Ms Chedid had arranged paid work for the applicant on 21 June 2022, but the applicant did not attend and did not advise the respondent that she would be absent;[52] and
• (b) Ms Chedid and the applicant arranged a meeting on 27 June 2022, however the applicant failed to attend the meeting without providing notification.[53]

• [34] The respondent submits that the applicant's failure to attend the workplace on each of these occasions, coupled with the applicant's failure to communicate with Ms Chedid or Mr Elkhouri, demonstrates that the applicant no longer intended to be employed. The respondent contends that its actions are no different to an employer completing termination paperwork following a clear and emphatic written letter of resignation by an employee.[54]

• [35] In light of the respondent's contention, it is necessary to consider the events of 21 June and 27 June 2022.

• [36] After spending time with the applicant on 19 June 2022, shortly after the applicant's suicide attempt, Ms Chedid reasonably formed the view that the applicant was not capable of working her usual shifts. Such shifts would have involved dealing with customers and staff, which the applicant had advised Ms Chedid caused her concern. The applicant's text message to Ms Chedid on 18 June 2022 is consistent with this, noting that the applicant regarded herself to be badly injured and unable to speak, and was concerned that she would make customers uncomfortable. Accordingly, I accept Ms Chedid's evidence that the applicant was not rostered to work in the week commencing 20 June 2022 on this basis.

• [37] Ms Chedid arranged the food photography work on 21 June 2022 to provide the applicant with "paid work" that "would not involve dealing with customers."[55] I do not consider the arrangement on 21 June 2022 to be a shift of the kind the applicant would ordinarily undertake as a barista. Rather, it was an invitation from Ms Chedid to undertake alternative paid duties in the workplace.

• [38] In the circumstances, I accept the applicant's evidence that she did not consider it a requirement to attend on 21 June 2022 in the absence of the shift appearing in the work roster issued by Mr Elkhouri via the WhatsApp group on or about 19 June 2022. I also accept Ms Chedid's evidence that she telephoned the applicant at or about 11:15am on 21 June 2022 to clarify whether the applicant would be attending the workplace. The applicant did not answer Ms Chedid's telephone call and did not seek to contextualise her absence to the respondent.

• [39] In the absence of any communication from the applicant, Ms Chedid formed the view that the applicant was not in a fit state to perform work in the week commencing 27 June 2022. The applicant was not rostered to work on this basis.

• [40] I accept the applicant's submission that on 26 June 2022 she sought out a conversation with Ms Chedid. It is apparent from the text messages that passed between the applicant and Ms Chedid that both the applicant and Ms Chedid had availability to meet, subject to limited restrictions. Ultimately however, no agreement was reached in respect of a time that the meeting would occur. The applicant chose not to respond to Ms Chedid's text message at 4:46pm on 27 June 2022 stating, "you didn't come." Nor did the applicant take any steps to communicate with Ms Chedid at any time after 27 June 2022.

• [41] The respondent contends that it was open to it, in these circumstances, to form the view that the applicant had resigned. It says this was the only sustainable position for it to reach given that the applicant had failed to attend the workplace on 21 June and 27 June 2022, did not respond to Ms Chedid's text message on 27 June 2022, or otherwise contact the respondent on any subsequent day to contextualise her absence. The respondent submits that these matters should be considered through the purview of the applicant's employment being casual in nature.

• [42] Having regard to the evidence and surrounding circumstances, I do not consider that it was reasonably open to Ms Chedid to conclude that the applicant had terminated her own employment. The respondent was on notice of the applicant's health issues. The applicant's non-attendance on 21 June 2022 in the circumstances described is not demonstrative of the applicant no longer seeking to be employed by the respondent. Further, the applicant and Ms Chedid had not reached an agreed position in relation to a meeting time on 27 June 2022. While the applicant's failure to respond to Ms Chedid's text message on 27 June 2022 may be unexpected in circumstances where Ms Chedid had devoted care and attention to the applicant, the events of 27 June 2022, taken together with those of 21 June 2022, are insufficient in the circumstances to satisfy me that the applicant had resigned from her employment.

• [43] Rather, the evidence points to a different conclusion.

• [44] Ms Chedid accepted during cross-examination that after the applicant failed to attend the workplace on 27 June 2022, she considered the applicant's ongoing employment to be untenable. Ms Chedid said that from this point, she "stopped defending" the applicant to Mr Elkhouri. Ms Chedid said that she advised Mr Elkhouri to "do what you want to do" in respect of rostering the applicant for further shifts. Ms Chedid accepted that she anticipated that this may result in Mr Elkhouri removing the applicant from the WhatsApp group.

• [45] The evidence before the Commission is that the WhatsApp group is used by the respondent to distribute weekly rosters to its employees. Mr Elkhouri said that WhatsApp is the respondent's "method of communicating rosters to employees."[56] Without access to the WhatsApp group, the applicant could not be notified of the work roster and thereby could not be scheduled to attend the respondent's workplace for a rostered shift. It follows that without access to the group, the applicant was unable to participate in ongoing employment with the respondent.

• [46] Mr Elkhouri gave evidence that after not hearing from the applicant about not being rostered for a two-week period, he assumed that the applicant "wasn't coming back." I accept, in these circumstances, that after seeking guidance from Ms Chedid, Mr Elkhouri removed the applicant from the WhatsApp group and proceeded to allocate shifts to the other employees as instructed. During cross examination, Mr Elkhouri accepted that the applicant's employment with the respondent ended on 2 July 2022 when the applicant was removed from the WhatsApp group.

• [47] I am satisfied, and I find, that the respondent's action in removing the applicant from the WhatsApp group was the principal contributing factor which brought the employment of the applicant to an end on 2 July 2022. Having regard to my findings at [42] of this decision, I do not accept the respondent's contention that by removing the applicant from the WhatsApp group it merely sought to formalise the applicant's resignation.

• [48] In reaching this conclusion, I reject the respondent's contention that the failure by the applicant to contact the respondent in the two-week period commencing 20 June 2022 demonstrates that the applicant did not wish to remain employed and supports its position that the applicant resigned. While there was a reasonable basis for not rostering the applicant in the week commencing 20 June 2022, I do not accept that it was incumbent upon the applicant to contact the respondent before being re-allocated shifts in the week commencing 27 June 2022. Such an approach is inconsistent with the evidence, which Ms Chedid and Mr Elkhouri accepted during the proceedings, that Mr Elkhouri would allocate shifts on a weekly basis and employees were not required to provide advance notice to the respondent of their availability before being rostered. In any event, the evidence establishes that the applicant had sought, on 26 June 2022, to arrange a time to meet with Ms Chedid to discuss her shifts. As I have found, the applicant did not refuse to attend the 27 June 2022 meeting as contended; rather, an agreed time had not been reached.

• [49] I also reject the respondent's contention that the applicant's failure to contact the respondent on or after 2 July 2022 demonstrates that she resigned. Any inaction by the applicant following her removal from the WhatsApp group does not bear upon the conclusion that the respondent's action amounted to a dismissal at the initiative of the employer. Nor do I accept the respondent's contention that by recording the termination as a "voluntary cessation" within its payroll system[57] that this makes it so.

• [50] Having regard to these matters, and the conclusions reached, I find that the applicant has been dismissed at the respondent's initiative pursuant to s 386(1)(a) of the Act on 2 July 2022.

• [51] In light of this finding, it is not necessary to consider the applicant's alternative contention under s 386(1)(a), or the applicant's contentions that she was forced to resign within the meaning of s 386(1)(b) of the Act. It follows that it has not been necessary to consider the evidence of Mr Jackson,[58] which the respondent accepts is not relevant to the applicant's contentions under s 386(1)(a).

• [52] I find that the applicant has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, at the time the applicant made the s 365 application, the applicant was a person who has been dismissed for the purposes of s 365 of the Act.

• [53] The respondent's jurisdictional objection is dismissed.

• [54] The application will be referred for conciliation in accordance with s 368 of the Act.

Ms E. Aitken, solicitor, on behalf of the applicant

Ms J. O'Brien, solicitor, on behalf of the respondent

[1] Court Book, Exhibit 1 (CB) 30 at [1]-[2]

[2] CB 117 at [1]; CB 30 at [6]; CB 146 at [42]

[17] CB 91; CB 50 at [24]

[19] CB120 at [20]-[21]; CB 33 at [28]

[22] CB 120 at [22]; CB 33 at [29]; CB 41; CB 44

[23] CB 41; CB 44

[26] CB 107 at [5(c)]; CB 120 at [22]

[34] CB 122 at [34]; CB 34 at [34] and [37]; CB 50 at [28]

[42] CB 124 at [42]; CB 132; CB 51 at [32]

[45] CB 21-22 at [2], [7] and [10]

[49] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67]

[50] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205, 206; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James [2022] FWCFB 55; 316 IR 1 at [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see Shane John Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 at [33]

[58] CB 96; CB 176

Printed by authority of the Commonwealth Government Printer