Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 6 September 2021, Ms Elizabeth Blyth filed an application for an unfair dismissal remedy (the application) pursuant to s.394 of the Fair Work Act 2009 (the Act).

• [2] Ms Blyth alleges that she was dismissed in contravention of s.385 of the Act by Mr Francis William Penhalluriack and seeks compensation.

• [3] Mr Penhalluriack has raised a number of objections to Ms Blyth's application. Mr Penhalluriack says that Ms Blyth was not dismissed and that she abandoned her employment in March 2021. Ms Blyth denies that she abandoned her employment but alleges that she was dismissed on 17 August 2021 by Mr Penhalluriack. This jurisdictional objection by Mr Penhalluriack needs to be determined by the Fair Work Commission (the Commission) before there can be any consideration of the merits of Ms Blyth's application. That is because only a person who has been dismissed is able to make an unfair dismissal application.[1]

• [4] In responding to the application, Mr Penhalluriack raised other jurisdictional objections, including in numerous correspondence. This was in addition to his Form F3 Response. Firstly, Mr Penhalluriack said that the Penhalluriack's Building Supplies Collective Agreement 2006 (PBS Agreement) contains a dispute resolution clause requiring Ms Blyth to attempt to resolve any dispute with Mr Penhalluriack as per the steps set out in that clause, prior to filing an application for an unfair dismissal remedy, and that she had not done so. Secondly, Mr Penhalluriack said that Ms Blyth's application was filed out of time. Thirdly, Mr Penhalluriack also claimed that Ms Blyth was not protected from unfair dismissal as she was not a regular and systematic casual employee.

• [5] This matter was allocated to me on 3 November 2021. I issued directions for the filing and service of material on 12 November 2021. On 20 December 2021, I issued directions for the filing of additional or updated material.

• [6] Ms Blyth filed two applications for an order requiring Mr Penhalluriack to produce documents to the Commission. On 16 November 2021, I issued an order requiring Mr Penhalluriack to produce screenshots of WhatsApp messages received by and sent from the mobile telephone of Ms Debbie Lamb, a manager employed in Mr Penhalluriack's store, to Ms Blyth's mobile telephone on 11 March, 12 March, 13 March, 14 March, 15 March and 21 March 2021. On 17 November 2021, Mr Penhalluriack responded to my order by stating that the messages sent on these dates were "[n]ot currently available, as Ms Debbie Lamb informs me that she deleted her messages to and from Elizabeth Blyth ,sometime ago". On 6 December 2021, on application by Ms Blyth, I issued an order for the production of screenshots of Ms Lamb's mobile telephone call log showing calls placed by Ms Blyth's mobile telephone to Ms Lamb's mobile telephone on 9 March 2021 and screenshots of Ms Lamb's mobile telephone call log showing calls placed by Ms Lamb's mobile telephone to Ms Blyth's mobile telephone on 24 March, 25 March, 26 March and 27 March 2021. On 8 December 2021, Mr Penhalluriack responded to my order by stating that each call log was "[n]ot currently available, as Ms Debbie Lamb informs me that she deleted her call logs some time ago".

• [7] Neither Ms Blyth nor Ms Lamb have any records of relevant WhatsApp messages or telephone logs attesting to the date and time of messages they say were made in March 2021. Ms Blyth submits that her telephone logs indicate that no telephone calls were made by Ms Lamb on 9 March 2021. Ms Blyth says she deleted the WhatsApp application from her smart phone on or around 13 May 2021.

• [8] I conducted a hearing in the matter via Microsoft Teams which commenced on 24 January 2022 and was adjourned to 8 March 2022.

• [9] The parties provided written submissions.

• [10] Ms Joelle Mayberry, a former employee of Mr Penhalluriack, gave evidence for Ms Blyth. Ms Blyth also gave evidence on her own behalf.

• [11] Ms Lamb and Mr Ravinder Chemay, General Manager at Mr Penhalluriack's store, gave evidence for Mr Penhalluriack.

• [12] Mr Penhalluriack runs a hardware store in Caulfield. Ms Blyth commenced employment with Mr Penhalluriack on 10 October 2019 as a Sales Assistant in the garden centre of Mr Penhalluriack's store. She was employed on a casual basis. Ms Blyth worked her last shift at Mr Penhalluriack's store on 12 March 2021.

• [13] Ms Lamb says that on 9 March 2021, Ms Blyth called her mobile telephone to advise that she was unable to work from 15 March to 21 March 2021 at the store.[2]

• [14] Ms Lamb says that during the 9 March 2021 conversation, Ms Blyth did not offer her any reason as to why she could not work during the following week, nor did she indicate that her absence would be more than one week.[3]

• [15] Ms Blyth says she experienced bullying by Ms Lamb and that this had the effect of increasing her anxiety and making her nervous and tense. Ms Blyth says that in early 2021, Ms Lamb's behaviour towards her began to worsen.[4] She says that she needed to take time away from working. In oral evidence, she said she had medical certificates stating that she had "mental distress because I was also at uni at the same time. So I needed some extensions and things like that."[5]

• [16] Ms Blyth did not produce these certificates as evidence and when asked why she did not include them, she responded:

"I don't have an answer for that. Sorry. Not sure."[6]

• [17] Ms Blyth says that on or around the morning of 13 March 2021, she sent a message via WhatsApp to Ms Lamb. Ms Blyth says that this message stated that she was unwell and that she needed to take some time off work to look after her health but that she did not specify how long she would be unavailable for work. Ms Blyth says that she did not receive any reply to her message but that the WhatsApp application indicated that the message had been received and read.[7]

• [18] Ms Lamb says that she prepared the weekly roster for the week commencing 15 March 2021 without allocating any shifts to Ms Blyth.

• [19] Ms Blyth says that she did not receive the weekly roster on 14 March 2021, despite it being common practice for the roster to be sent out to all staff on a Sunday night. Mr Penhalluriack says that Ms Blyth did receive the roster for the week of 15 March 2021, but that Ms Lamb left Ms Blyth off that roster because of Ms Blyth's call to Ms Lamb on 9 March 2021, as outlined in paragraph [13].

• [20] Ms Lamb prepares the rosters using a smart phone application called "Staff Rosters".

• [21] Mr Penhalluriack says that Ms Lamb published another roster, for the week of 22 March 2021, and that Ms Blyth was rostered to work on 24 March and 26 March 2021. Ms Lamb says that she sent this roster to all relevant staff, including to Ms Blyth.[8]

• [22] Mr Penhalluriack says that Ms Blyth failed to attend work on both 24 March and 26 March 2021. Ms Lamb says that because Ms Blyth did not attend on 24 March 2021, the garden centre was short-staffed. Ms Lamb says that on 24 March 2021, she attempted to call Ms Blyth multiple times using WhatsApp and that she sent Ms Blyth a message. Ms Lamb also says that she attempted to call Ms Blyth on 25 March 2021 but does not specify whether this was using her mobile telephone or via WhatsApp. Ms Lamb says that when Ms Blyth failed to attend her shift on 26 March 2021, she attempted to make contact with Ms Blyth via WhatsApp and a telephone call but did not receive a response. Ms Lamb does not specify whether she made this call via WhatsApp or via her mobile telephone.

• [23] Ms Lamb says that she made one final attempt to call Ms Blyth on or about 27 March 2021 but could not elicit a response.[9] Ms Lamb does not specify whether she made this call via WhatsApp or via her mobile telephone.

• [24] Mr Penhalluriack says that, following Ms Blyth's phone conversation with Ms Lamb on 9 March 2021, he and, to the best of his knowledge, his other employees heard nothing from Ms Blyth until 6 July 2021. This is not disputed by Ms Blyth.

• [25] Ms Blyth says that on or around 13 May 2021, she deleted the WhatsApp application from her mobile telephone as she was receiving messages from other WhatsApp users unknown to her and that she found this distracting and worrying.[10] She says she "had been receiving persistent messages from outside the WhatsApp channel with Debbie Lamb."[11] It is not in contention that WhatsApp was the communications platform that the business used to communicate with staff regarding the roster and their shifts.

• [26] On 6 July 2021, Ms Blyth emailed Mr Chemay, stating that:

I hope you're well. As you know I've been on a break from Pens for a couple of months now, I told Debbie I was unwell and going through a tough time. Which is the truth, however what I didn't tell her is this is a result of the bullying I have endured from her. I really do miss working at Pens and hope to come back soon, and hopefully we can chat arrangements in a few weeks time, I have some ideas I think you'll like.

Just wanted to check in and let you know what's going on, apologies I didn't do so sooner

• [27] In cross-examination, Ms Blyth was asked why she made contact with Mr Chemay. She responded by saying:

"Because I was hoping to end my break and come back to my employment with Pens ... I wanted to discuss an alternative arrangement to what I had previously been working as ... I was hoping to be suggest to Rav that I could do some marketing for Penhalluriack, seeing as at the time I was working towards a marketing degree."[12]

• [28] When further questioned about whether, not having spoken to Mr Chemay for four months, this was her "offer to come and talk", Ms Blyth said:

"Yes. I emailed him to start contact again and propose the arrangements that I had been thinking about."[13]

• [29] After a four-month break, Ms Blyth makes contact with Mr Chemay in order to put forward an offer to undertake marketing work for Mr Penhalluriack. It was clearly not an offer to return to her former role as Sales Assistant.

• [30] On 8 July 2021, Mr Chemay replied via text message to Ms Blyth's email sent to him on 7 July 2021:

"Hey , Got your email . Hope you are better . Lets catch up for coffee and I will fill you in . Am happy to come to your local for coffee or tea or even breakfast (preferred and my shout ) .."

• [31] Ms Blyth on the same day replied to Mr Chemay via text message with the following:

"Sounds great! I am a little but busy with a fast track uni subject for the next couple of weeks but as soon as that is done I'll send you a text and we can catch up, if that works for you :)"

• [32] Mr Chemay replied via text message with "Great!".

• [33] The state of Victoria went into lockdown on 15 July 2021.[14]

• [34] On 17 August 2021, Ms Blyth sent the following text message to Mr Chemay:

Hope you're doing okay despite the lockdowns! I've been preparing a proposal for the hopeful day we can meet in person

In the mean time I've been struggling financially and am not eligible for any of the support payments apart from covid-19 disaster payments available just in lockdown periods (for when movement is restricted). I was hoping to apply for this for the August period as I was hoping to come back to pens around this time (I imagine you're open to some extent but only minimal staff, unlike when I was working three days a week) and just want to double check if you're okay with my applying for this as the website says they may call you to verify my employment.

(Also have a new address as of March, unsure if they will ask about that:

I sincerely apologize for the late night message, just a bit stressed and trying to get this done asap!

• [35] Ms Blyth then sent another text message to Mr Chemay, which read:

"Sorry for another message, just letting you know the details: I'm claiming for 22.5 (7.5 hr work day times my usual 3 days) covid disaster payment as that's how much I normally work but cant at the moment. It's through Centrelink so nothing coming out of the business' pocket, and is just for August lock-down period. just want to keep you in the loop in case they do call you

• [36] On the same day, Mr Chemay replied with the following text message:

"HI Elizabeth . Sorry and appreciate your financial predicament . I cannot support your Covid-19 disaster payment application .. as you are not a current employee . Surely one cannot apply based on 'intentions' to work on a previous employment. Dont mean to sound harsh but .......

• [37] Ms Blyth replied on the same day with the following:

Thanks for letting me know, was unaware I wasn't a current employee.

• [38] On the same day, Ms Blyth sent the following text message to Mr Chemay:

"Hi Rav, I imagine hours are pretty short at the moment, but I was wondering if I could grab just 2 hours next week Wednesday or Thursday maybe in the hardware department or watering plants, just temporary as I am still finishing off my proposal for us to discuss, have some bills to pay"

• [39] Mr Chemay replied by text message on the same day stating that the business was quiet, and that he was having to reduce the hours of other staff. He said that Mr Penhalluriack would not consider any proposals for the garden centre and recommended that Ms Blyth "move on". He offered to forward Ms Blyth some funds privately but confirmed that this would have nothing to do with Mr Penhalluriack's business.

• [40] On the same day, Ms Blyth replied by declining Mr Chemay's offer to forward her funds, stating that she would prefer to earn the money, and requested to undertake "even one shift". She confirmed that she did not expect any arrangement to be regular until the business had recovered. She requested that she remain on the books as an employee because she is planning to return to the business but was aware the business was struggling financially. She also noted that she had received no notice that her employment had ended and was upset as this did not allow her to make other arrangements. She said that she had remained committed to the business and that, as discussed with Mr Chemay and Ms Lamb, she planned to return to the store. She requested confirmation of the date that her employment ended.

• [41] Mr Chemay replied on the same day and said that he would check the business's records to ascertain when Ms Blyth last worked and that he could not see Ms Blyth being employed in future at the store.

• [42] Ms Blyth replied with the following text message:

"My latest payslip was mid March so if you could confirm the actual dates tomorrow that would be great, thank you

As for dismissal date that will be 17/08/21 as that's when I was notified by you"

• [43] Mr Chemay replied with the following:

"Your employment was casual. You last worked as per your payslip . Not sure what you mean by dismissal date .....am not going to comment further . This is a first for me.... Will confirm dates , as per your request, tomorrow."

• [44] On 23 August 2021, Mr Chemay sent another message to Ms Blyth, as follows:

"Good Morning , You last worked at Pens on Friday the 12th. March according to my records . Trust that is the information you need . Rgds"

• [45] Ms Blyth replied that same day to Mr Chemay with "Thank you".

• [46] At the time of the hearing on 8 March 2022, Ms Blyth was working for Roy Morgan. She had been working at Roy Morgan since April 2020 and worked for them whilst she was also working at Mr Penhalluriack's store.

• [47] The principles regarding abandonment are well established and were considered by the Full Bench in 4 Yearly Review of Modern Awards - Abandonment of Employment [2018] FWCFB 139 (Abandonment of Employment). The Full Bench considered clauses in several awards that related to employment abandonment by an employee. The clauses discussed at paragraphs [23] to [27] are substantially similar to those in the PBS Agreement.

• [48] Clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), considered in Abandonment of Employment, provided as follows:

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21 - Abandonment of employment operates as from the date of the last attendance at work or the last day's absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later."

• [49] Clause 18 of the PBS Agreement provides as follows:

a. The absence of an Employee from work for a continuous period exceeding three (3) working days, without the consent of the employer, or without notification to the employer in accordance with sub-clause (c), shall be prima facie evidence the employee has abandoned their employment.

b. If within a period of 14 days from the employee's last attendance at work, or the date of the employee's last absence in respect of which notification has been given, or consent has been granted, the employee has not established to the satisfaction of the employer that the employee was absent for reasonable cause, the employee shall be deemed to have abandoned their employment.

c. Termination of employment by abandonment, in accordance with this clause, shall operate from the date of the last attendance at work, or the last day's absence in respect of which notification was given to the employer, whichever is the later."

• [50] In relation to the Manufacturing Award provisions 21.1 and 21.2, the Full Bench said that "neither provision operates to automatically terminate the employment."[15] In relation to clause 21.3, they said, "[c]lause 21.3 would effect a modification to the common law principle that a termination of employment cannot take effect unless it is first communicated to the employee...".[16]

• [51] In applying the Full Bench decision_,_[17] Mr Penhalluriack cannot rely on clause 18 of the PBS Agreement to contend that Ms Blyth abandoned her employment and that she was not dismissed. Of assistance in this matter is the consideration of the concept of abandonment of employment within the context of an unfair dismissal application.

• [52] In addition to the consideration of the award provisions, the Full Bench considered the meaning of abandonment of employment:

"[21] "Abandonment of employment" is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee's conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee's fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.5 Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee's renunciation of the employment obligations.6"

• [53] The Full Bench's discussion regarding possible consequences of the termination of the employment relationship by the employee, included "if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b))."[18]

• [54] Ms Blyth submits that she did not abandon her employment and was merely taking leave. She says that on or around 13 March 2021, she had messaged Ms Lamb that she "needed to take some time off as she was unwell."[19]

• [55] Ms Blyth submits that it is not possible for her as a casual worker to either fail to attend shifts for which she was not rostered or for shifts that she had no knowledge had been allocated to her.

Was Ms Blyth's conduct such that to a reasonable person it would convey a renunciation of the employment contract?

• [56] There is a dispute regarding key facts. Ms Blyth says that she informed her employer that she would be "taking a break" for an indefinite period and that after sending a WhatsApp message to Ms Lamb on or about 13 March 2021, she did not receive any further rosters. Mr Penhalluriack says that Ms Blyth specified that she would be absent for a week and did so via a telephone call on 9 March 2021.

• [57] Ms Blyth says she needed to take time off from working for Mr Penhalluriack and that she had medical certificates to attest to that need. She did not produce these certificates, nor could she provide an explanation of why she did not.

• [58] Ms Blyth says that she deleted the WhatsApp application from her phone in May 2021 because:

"I was receiving random messages from other WhatsApp users not related to my employment with Pens. Every time I received a message my phone would notify me and it was distracting. It also made me worry where these people were getting my number. I intended to download the application again when I returned to Pens. In the meantime, I had other ways of contacting Pens should I need to (e.g. via email or text)."[20]

• [59] Ms Lamb says her son deleted the WhatsApp application from her phone because:

"I had a lot of suspicious calls from Asia, and I get very frightened, so I tell my son about it and my son starts removing all whatever is not necessary is there. So apparently, all the calls - all the stuff that is not on the job anymore has been removed."[21]

• [60] In weighing up the evidence of Ms Blyth and Ms Lamb, I prefer Ms Lamb's evidence. Ms Blyth was at times not forthcoming in her evidence. In contrast, I found Ms Lamb earnest in her responses.

• [62] I find that Ms Blyth did contact her manager, Ms Lamb, on 9 March 2021 and that she informed her that she would be absent for a week. I accept Ms Lamb's evidence that she was not given a reason by Ms Blyth for her absence.

• [63] Following the week of absence from 15 March to 21 March 2021, I find that Ms Blyth was rostered to work for two days in the week of 21 March 2021, that she received notification of her shifts and that she did not attend at work. I also find that Ms Lamb did attempt on multiple occasions, and certainly in excess of four occasions, to make contact with Ms Blyth in the week of 21 March 2021.

• [64] It is not in dispute that after the early March 2021 communication, Ms Blyth did not attempt to make contact with Mr Penhalluriack or his staff until 6 July 2021. Ms Blyth did so by emailing the General Manager, Mr Chemay, not her direct manager, Ms Lamb.

• [65] I find that Ms Blyth made contact on 6 July 2021 in order to pitch a proposal that she perform marketing work for Mr Penhalluriack's store.

• [66] Whether a person has abandoned their employment is to be considered objectively, in light of all the circumstances. By her conduct, Ms Blyth conveyed to Mr Penhalluriack a decision to end her employment. I consider that Ms Blyth abandoned her employment. After her communications with her manager in early March 2021, Ms Blyth did not communicate with Mr Penhalluriack or his staff regarding the shifts allocated to her in the week of 21 March 2021. She had been rostered to work on 24 March and 26 March 2021. She did not turn up to work on either day, and she was unresponsive to multiple attempts by Ms Lamb to contact her. She deleted the WhatsApp application from her mobile telephone in May 2021, changed residential address, and did not communicate with Mr Penhalluriack or his staff for four months and, when Ms Blyth did make contact, it was by way of an email to the General Manager with a proposal to do marketing work for the business. I consider that Ms Blyth should have reasonably known that if she did not make contact with Mr Penhalluriack or his staff, he would soon consider her to have abandoned her employment. Ms Blyth tried to explain her lack of communication over four months by saying that she had told Ms Lamb that she was unwell and was taking a "break". Ms Blyth says that she did not specify the length of the break. Even if this is accepted, which it is not, it is reasonable to expect Ms Blyth to have made contact with Mr Penhalluriack or his staff at a significantly earlier time than when she did.

• [67] Mr Penhalluriack regarded Ms Blyth's conduct as an abandonment of her employment. Because Ms Blyth abandoned her employment, her employment was not terminated "on the employer's initiative", nor was she forced to resign because of the conduct of her employer, and she was, therefore, not dismissed within the meaning of s.386 of the Act.

• [68] Ms Blyth's application is dismissed.

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

[2] Witness statement of Debbie Lamb at paragraph 9.

[4] Applicant's outline of submissions filed 19 November 2021 at paragraph 11.

[5] Transcript of hearing on 8 March 2022 at PN203.

[7] Witness statement of Elizabeth Blyth dated 19 November 2021 at paragraph 12-13.

[8] Witness statement of Debbie Lamb at paragraph 12.

[10] Witness statement of Elizabeth Blyth dated 19 November 2021 at paragraph 17.

[11] Applicant's outline of submissions filed 19 November 2021 at paragraph 11.

[12] Transcript of hearing on 8 March 2022 at PN155-157.

[14] Department of Health and Human Services (Vic), "Coronavirus update for Victoria - 15 July 2021" (media release, 15 July 2021), accessed at: .

[15] 4 Yearly Review of Modern Awards - Abandonment of Employment [2018] FWCFB 139 (Abandonment of Employment), [23].

[16] Abandonment of Employment, [24].

[18] Abandonment of Employment, [22].

[19] Applicant's outline of submissions filed 19 November 2021 at paragraph 37.

[20] Witness statement of Elizabeth Blyth dated 19 November 2021 at paragraph 17.

[21] Transcript of hearing on 8 March 2022 at PN837.

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