Dorine Torres-Carne v Darwin Aboriginal and Islander Women's Shelter (DAIWS) [2020] FWC 4080 (7 August 2020)

[32] Mr R Perry from the Chamber of Commerce NT set out the role of DAIWS in assisting Aboriginal and Torres Strait Islander women and children facing domestic and family violence and personal trauma in regard to matters such as sexual assault/abuse and homelessness. Funding for its work is primarily from the Northern Territory and Commonwealth Governments. In 2019, the organisation's Board recognised a need to reform its workplaces by transforming a largely casual workforce to a permanent one, in order to create efficiencies and improve service delivery and to ensure its funding base continued.

[33] Mr Perry submitted that the applicant had opportunities to apply for three permanent positions, but declined to do so, and although there were limited casual shifts available, the applicant's limited availability could not be accommodated within the new structure. Her position was not redundant and the respondent did not initiate the termination of her employment; rather, it was her own actions which caused the decision to be made; s 386(1) of the Act. In effect, it was the applicant's advice of her changed circumstances which forced the respondent to cease offering her further casual shifts, because it could not accommodate her limited availability; see: Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162. Mr Perry submitted that because the termination of the applicant's employment was not at the employer's initiative, there was no dismissal, and therefore she had no recourse to the Act's unfair dismissal provisions.

[34] Mr Perry put that should the Commission not accept the respondent's jurisdictional argument, the Commission would, in any event, consider the provisions of s 387 of the Act had been satisfied and her dismissal was neither harsh, unjust nor unreasonable. He put that:

• (a) there was a valid reason for the dismissal of the applicant relating to her capacity to undertake work for the respondent, as and when required;

• (b) the applicant was notified of the reason;

• (c) the applicant responded to the reasons for termination in correspondence dated 8 November 2019;

• (d) the circumstances of the matter did not require the need for a meeting in which a support person was required;

• (e) performance was not a factor relevant to the ending of the applicant's employment; and

• (f) the respondent acted in a manner appropriate to the information it received from the applicant, which triggered the respondent's action to cease providing her with casual shifts.

[35] Mr Perry addressed the applicant's submissions that there was a misunderstanding between her and Ms Bobongie on 18 October 2019. He said that either her advice to Ms Bobongie as to her availability was false, or her retraction of this advice on 8 November 2019, was a fabrication. The respondent had acted on the information it had been given and confirmed by her. There were no allegations of poor performance or bad behaviour, and it is disingenuous for the applicant to argue she was not given an opportunity to respond to allegations, which were never raised as the reasons for the decision not to offer her any further shifts.

[36] Mr Perry said the respondent disputed a number of the applicant's alleged background facts, such as:

• (a) The applicant did not work continuously for DAIWS from 2016, as she had two significant breaks in employment of six months and two months respectively.

• (b) Her claim that she rarely dropped an allocated shift was wrong, as she failed to attend two of her last three shifts.

• (c) She was not continuously employed until 18 December 2019. Her last shift was 18 November 2019.

• (d) It was misleading for the applicant to claim she was never offered a permanent position, as she had the opportunity to apply for three permanent positions, but declined to do so.

• (e) She had never made a complaint about her treatment.

• (f) There was no right for the applicant to meet the Board, as the decision not to offer her further shifts was an operational decision taken by the General Manager.

• (g) The evidence of the applicant's witnesses is irrelevant in these proceedings.

• (h) None of the applicant's submissions as to her regular and systematic employment are relevant as this objection is not pressed.

• (i) The evidence as to other proceedings involving Ms Bennett was irrelevant and otherwise misleading.

• (j) The claims of the applicant's 'emotional distress', depression etc. caused by the respondent are not supported by any medical evidence. Further, EAP counsellors were available to all employees. The applicant never accessed these services. Further, such grounds are not permitted under s 392(4) of the Act.

[37] In accordance with the agreed arrangements; see: [5] above, the applicant provided closing submissions which I summarise below.

[38] The applicant sought to rely on the statements of Ms Baird and Ms Carne in their entirety, as the respondent did not seek to cross examine them. She further sought a formal finding that she was a regular and systematic casual employee (notwithstanding this objection was not pressed by the respondent) and relied on a number of Commission authorities on the subject.

[39] The applicant strongly denied that she had resigned from her employment on 18 October 2019. No express or implied words were ever used by her to indicate an intention to resign. The facts were that she was dismissed from the last time she worked on 18 November 2019. The applicant submitted that she had no opportunity to respond to any discussions between Ms Bobongie and Ms Bennett; no opportunity to discuss the intent of her initial request or whether she would be available for other shifts. Ms Bennett simply wrote the letter of 1 November 2019, without any consultation with her; see: Maher v AJ & MT Properties Pty Ltd t/a Belle Property South Brisbane [2013] FWC 7853 ('Maher v MT Properties').

[40] The applicant referred to the email exchange between herself and Ms Bennett on 8 November 2019 and 15 November 2019, to demonstrate that she had no intention of resigning and wished to continue working for DAIWS. The applicant claimed the respondent 'fabricated and wilfully distorted and twisted the circumstances' in order to take an opportunity to dismiss her, when all she did was to make an inquiry to do night shifts instead of day shifts. The applicant referred to Ms Bennett's evidence; see: [25] above, to demonstrate that she took no steps to consult with her about the misunderstanding with Ms Bobongie. The applicant relied on an advertisement in the local paper on 30 November 2019, seeking new employees, to prove there were shifts that she could have been offered.

[41] The applicant submitted that Ms Bobongie's evidence of their discussion on 18 October 2019 was untrue. She denied only turning up for one shift on 22 October, 29 October and 4 November 2019. She had worked two of these shifts and had a doctor's certificate for the third.

The applicant claimed the post-it note relied on by Ms Bobongie as to her available duties referred to dates in 2018 - not 2019. The applicant claimed Ms Bobongie's evidence is not credible because she was not writing anything when she spoke to her and the date is wrong. Her claim of making notes of any discussions with staff is not credible, because no other notes of any other discussions are made in the diary entry for that day.

[44] Mr Perry submitted that the evidence of Ms Baird and Ms Carne was irrelevant to the issues to be determined in this case; namely, whether the applicant was 'dismissed' and if so, was the dismissal 'harsh, unjust or unreasonable'.

[45] Mr Perry disputed the applicant's purported facts demonstrated she had not resigned. Ms Bobongie gave clear evidence that the applicant had advised her of her availability for certain shifts. She and Ms Bennett believed that there was no reason to further discuss the matter, as she had made her position perfectly clear to Ms Bobongie on 18 October 2019. Mr Perry said the decision in Maher v MT Properties was not relevant as there had been no formal or informal notice, whereas in this case, the applicant had not merely 'inquired' as to whether she would be considered for limited shifts. Her instructions to Ms Bobongie were clear and confirmed.

[46] Mr Perry rejected the criticisms of the sworn evidence of Ms Bobongie and Ms Bennett and the Commission would accept their evidence. Mr Perry put that the respondent did not dispute it had advertised for a case worker on 30 November 2019. However, this was for a permanent full-time employee, not a casual employee. Further the applicant had expressed no interest in applying for any of the advertised permanent positions, despite being encouraged to do so.

[47] Mr Perry denied that Ms Bennett accepted the applicant's resignation and there was no misunderstanding of what the applicant told Ms Bobongie on 18 October 2019. Her claim of working two of the three shifts in late October 2019 was plainly wrong, as Ms Bobongie's evidence made clear. Mr Perry said that the applicant's claim of Ms Bobongie's post-it note being related to 2018 rather than 2019, was not admissible as it was new evidence the respondent was not able to respond to. At no time previously had the applicant sought to challenge Ms Bobongie's evidence in this respect.

[48] Mr Perry noted the inconsistency in the applicant's approach to adopt Ms Bennett's evidence as to her good work performance, but then claimed she was not a credible witness.

[49] In summary, Mr Perry submitted that the facts of this matter are akin to an employee submitting a resignation and it being accepted by the employer, and the employer refusing to accept or withdraw that resignation, when the employer had made arrangements to replace the employee and hire new permanent employees in her place. There was no turning back, as it would cause detriment to the other casual and permanent employees.

[53] At the outset, let me say that there is often a tension between the statutory protections from unfair dismissal (s 384) afforded to a regular and systematic casual employee with the ordinary well-understood rights of a casual employee to refuse casual engagements, and alternatively, the employer's right not to offer shifts to a casual employee. That is not to say that an employer cannot refuse to offer further shifts (effectively terminating the employment relationship) for poor performance, misconduct or other valid reasons; see: Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 ('Selvachandran'). That said, each case will turn on its particular facts and circumstances.

[54] On the other hand, the statutory protections from unfair dismissal afforded to a regular and systematic casual employee must include the full gamut of the matters the Commission is required to take into account under s 387 of the Act, including affording the employee procedural fairness when the employer decides to no longer offer the employee further casual shifts.

[55] However, in this case, the respondent argued that the applicant's advice to Ms Bobongie that she was only available for very limited casual shifts which, following a workplace restructure, had been filled by permanent employees, meant her actions constituted the initiation by her of the termination of the arrangement to offer her ongoing shifts, in effect an unforced resignation. This action meant the effective initiator of the termination of the employment relationship was not the employer and therefore there was no dismissal and axiomatically, no unfair dismissal. For the reasons which follow, I do not agree.

[56] The meaning of 'dismissal' in this context has been considered by the Commission and its predecessor entities over many years. The oft quoted authority as to the meaning of 'termination at the initiative of the employer' is that found in Mohazab v Dick Smith Electronics Pty Ltd ; 62 IR 200, where the Full Court of the Industrial Relations Court of Australia said:

'These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment': Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

See also: Nettleford v Kym Smoker Pty Ltd [1996] IRCA 282; (1996) 69 IR 370.

[69] There is ample evidence (largely not challenged by the applicant) that the DAIWS Board and management introduced new workplace staffing arrangements to address the casualisation of the organisation and its poor outcomes for staff morale and discontent by moving towards a more permanent workforce. In my view, this was a sensible and defensible decision, which on Ms Bobongie's evidence has produced the desired outcomes; see: [19] above.

[70] Similarly, there is no doubt the applicant was aware of the changes, given her attendance at the various relevant staff meetings. Further, she had at least three opportunities to apply for permanent positions, which for reasons not immediately apparent to me, she chose not to do. It is safe to assume the applicant preferred the casual work and its flexibilities. However, this was not the direction DAIWS was heading. Given my acceptance of the evidence of Ms Bobongie as to the meeting with the applicant on 18 October 2019, it was inevitable that the two competing imperatives could not be reconciled. Accordingly, I am satisfied that the dismissal of the applicant was for a valid reason, in the sense the decision (albeit procedurally unfair) was sound, defensible, explicable and well-founded.

[71] A not dissimilar set of circumstances was recently considered by Commissioner McKinnon in Madden v Ultra Tune Australia Pty Ltd [2020] FWC 4036, in which the Commissioner found valid reasons for dismissal, but nevertheless found the dismissal procedurally unfair. At [18]-[21] and [26], the Commissioner said:

[73] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay 'lip service' to giving an employee an opportunity to respond to allegations concerning an employee's conduct. His Honour said:

(1995) 62 IR 371

(2000) 98 IR 137

(1995) 185 CLR 410

(1996) 69 IR 370

(1995) 60 IR 1

(1998) 88 IR 21