Fair Work Act 2009

s.365 - General protections

BD Vincentia Pty Ltd T/A Bakers Delight Vincentia

Application to deal with contraventions involving dismissal

• [1] Harish Kumar ("the applicant") has made an application pursuant to s.365 of the Fair Work Act 2009 ("the Act"), being a general protections application involving dismissal. The applicant's former employer, BD Vincentia Pty Ltd T/A Bakers Delight Vincentia ("the respondent") has objected to the application on a jurisdictional ground - namely that there was no dismissal as the applicant voluntarily resigned by text message on 18 October 2021. Against the background of the jurisdictional objection, the respondent declined - as is its prerogative - to participate in the usual conciliation conducted by a staff conciliator, pending the determination by a member of the Commission of its jurisdictional objection to the application. In consequence, the matter was then allocated to me on 26 November 2021 for determination of the respondent's jurisdictional objection: Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

• [2] The matter initially was listed before me on 3 December 2021, for a pre-hearing conference and/or directions proceeding by telephone. The matter did not resolve that day and a further listing was scheduled for 10 December 2021. In the interim, the respondent's representative (Simon Wilmot, a director of the respondent) took the opportunity, as I had suggested, to further consider and/or obtain advice about certain matters I had canvassed in the initial proceeding on 3 December 2021. On 10 December 2021, Mr Wilmot made further submissions about certain matters. Mr Wilmot also relevantly confirmed that the respondent pressed its jurisdictional objection that the applicant had resigned rather than having been dismissed.

• [3] Following my discussions with the applicant and Mr Wilmot on 10 December 2021, they each confirmed they were content for me to determine the no-dismissal jurisdictional objection based on what was contained in the applicant's application form (the Form F8), the respondent's response to the general protections application (the Form F8A) and the oral submissions they made during the two proceedings before me. In this case, the discrete jurisdictional issue of whether there was a dismissal is readily amenable to a determination based on the documentary record of the written communications exchanged between the applicant and Mr Wilmot by way of text messages and emails.

• [4] The applicant commenced working at the Bakers Delight business in Vincentia on 24 November 2011 at a time when the business was owned by a predecessor employer named Prairivale Pty Ltd ("Prairivale"). The respondent purchased the Bakers Delight business from Prairivale effective on or about 1 July 2021. The respondent offered employment to the applicant, which he accepted. Further to the acceptance of the respondent's offer of employment, the applicant continued working at the Bakers Delight business for the respondent from 1 July 2021 as a full-time qualified baker covered by the General Retail Industry Award 2020 and with a contract of employment dated 31 May 2021. That contract of employment between the applicant and the respondent addressed various matters, including the preservation of certain service-related entitlements accrued during the applicant's period of employment with Prairivale.

• [5] Some issues arose between the applicant and a co-worker (or co-workers) who had been recruited after the respondent purchased the business. These issues between the applicant and one of the co-workers first came to Mr Wilmot's attention during a baking team staff meeting on 12 October 2021.

• [6] Mr Wilmot described himself as having been "blindsided" by accusations from the applicant during the meeting about having received allegedly abusive WhatsApp messages from the co-worker. The WhatsApp messages were in Hindi (a language that Mr Wilmot does not read/speak). However, Mr Wilmot understood at the meeting that the messages could be construed as threatening. It is unnecessary to further describe what occurred during the staff meeting, or following it, other than to note that on 15 October 2021, Mr Wilmot sent a text message to the applicant which read:

I am sorry you had to deal with crap from [name of co-worker] yesterday. I had no idea how bad it was. I think you handled it very well. I have spoken to him more about it. I hope you can both find a way to move past. Please do talk to me if anything else occurs.

• [7] That same day, 15 October 2021, there were some further exchanges of short text messages between the applicant and Mr Wilmot which read: "Ok.", "Ok, Thanks." ... "Hopefully that will be the end of the issues" ... "I hope so.".

• [8] On Sunday 17 October 2021, according to an annexure to the Form F8 recounting Mr Wilmot's account of matters, Mr Wilmot attended the workplace for a short period of time. Mr Wilmot said he "could sense the work environment was a little unsettled". Again according to that annexure to the Form F8, Mr Wilmot checked with the applicant whether everything was okay and the applicant advised Mr Wilmot everything was okay.

• [9] On Monday 18 October 2021, the applicant sent a text message to Mr Wilmot which read (as written):

"Hi , Simon. I can't work with [named co-worker] any more, he looks at me very strange way and I m not comfortable with it . I don't want another incident with him.I know you would be upset with me but I am going to resign. I can give you as much time as you need. I hope you don't take it rong way. Harish."

• [10] That same day, 18 October 2021, Mr Wilmot sent a text message to the applicant which read:

"Harish, I am shocked. I thought you had sorted it all out? Please put your resignation in by email. I appreciate your offer to stay on for a bit. Simon".

• [11] I interpose at this point in the chronology of the written communications between the parties to note it is quite clear from those text messages that the applicant did not effect a resignation on 18 October 2021. Rather, the applicant foreshadowed to Mr Wilmot, or forewarned him, that he intended to resign and offered to give to Mr Wilmot as much time as Mr Wilmot needed. It is also quite clear that Mr Wilmot did not treat the applicant's text message as operating to involve a resignation effective on 18 October 2021. Rather, Mr Wilmot's own text message asked the applicant to submit his resignation by email and otherwise indicated that he appreciated the applicant's offer to "stay on for a bit".

• [12] The next day, that is at 5.15pm on Tuesday 19 October 2021, the applicant sent his resignation to Mr Wilmot in an email with the subject line "Hi Simon." The applicant's email to Mr Wilmot read (as written):

"Sorry for not sending emailing earlier, I wish to give you my notice of resignation, my last working day will be the 25th November 2021. I hope that is enough time for you to find a replacement, it sadness me to leave a job that I love but I feel very threatened in the workplace and given the amount of stress that I have been under having my wife and children in another country can not see any other out come to protect my self and my family. I wish you all the best in the future. Harish kumar".

• [13] That is, on 19 October 2021, the applicant gave emailed notice to the respondent of resignation - as Mr Wilmot had requested. The applicant also confirmed to Mr Wilmot in the email that his last working day for the purposes of that pending or prospective termination of employment by resignation would be 25 November 2021.

• [14] At 5.39 on 19 October 2021, Mr Wilmot sent a reply email to the applicant which read:

"Thank you Harish for confirming your resignation that you sent yesterday in a text. The notice period is usually a week in this situation and we welcome your offer in the text of staying on longer if needed.

I suspect you will be able to leave earlier than indicated in your email of today. I will endeavour to make this happen for you.

I am sorry you don't feel safe. I was of the understanding we had resolved the issue at the meeting held in the bakery last week. I would have expected a conversation from you to alert me as I had checked in with since and you had said nothing. Thanks Harish Rebecca and I wish you all the best."

• [15] On Wednesday 20 October 2021, Mr Wilmot sent a further email to the applicant. That email read (as written):

I became aware today via Rebecca that a specific incident occurred in the Bakery between you and another staff member I believe on Sunday 17th October.

I am unaware exactly of the details, I believe this incident may have lead to you resigning.

As previously mentioned in last weeks meeting we aim to provide a happy and safe workplace and take this type of thing seriously, we can only act upon issues once made aware. We cannot act if we do not know.

I am now aware and will investigate further and take appropriate action. If you feel you would like to provide more details to me that would be helpful.

• [16] The applicant and Mr Wilmot exchanged three further emails later that same day of 20 October 2021 related to what was set out by Mr Wilmot about investigating matters further and taking appropriate action. It is unnecessary for the purposes of this decision concerning the jurisdictional issue to reproduce those three emails.

• [17] It appears that at some point on the morning of Thursday 21 October 2021 Mr Wilmot and the applicant had a meeting. That is, at 8.55pm on 21 October 2021, Mr Wilmot sent an email to the applicant referring to a meeting that had been held that same morning and which read (as written):

Further to our acceptance of you resignation tendered by text on Monday 18th October 2021 and in the interests of your personal wellbeing and harmony within the Bakery I can advice you that todays shift (21st October 2021) is the last shift you are required to attend work. We will pay you out for the rest of the required 1 weeks notice period, ending Sunday 24th October 2021.

I wish to further acknowledge your offer of continuing to work past your notice period required under your employment contract of 1 week, I can advice you that we have a replacement starting on Friday 22nd [October] 2021.

I wish to advise that as at 24th October you have an outstanding balance of pre paid Holiday leave of 47.92hrs that were paid to you in good faith during your recent annual leave despite paid entitlement not being accrued.

Please return your laundered unforms to shop prior to next Wednesday Pay run processing, when your entitlements will be processed.

• [18] On Saturday 23 October 2021, the applicant sent an email to Mr Wilmot confirming he had returned the work uniforms to the bakery.

• [19] On Wednesday 27 October 2021, the applicant sent an email to Mr Wilmot which read (as written):

"Hi,Simon. I hope you r going to pay my long service leave(325-46hrs.) Thanks. Harish".

• [20] Not long after the applicant sent his email to Mr Wilmot about long service leave Mr Wilmot replied in an email dated 27 October 2021 which read:

You get paid long service leave after 10 years of service. Your start date which we recognise was 24 November 2011, so unfortunately you are not entitled to Long service leave.

This link may help you understand the rules [hyperlink to an NSW government website with information about, and a calculator for, long service leave entitlements under the Long Service Leave Act 1955 (NSW)].

• [21] The final email before the Commission in the file papers was sent by the applicant to Mr Wilmot on Friday 29 October 2021. The applicant's email read (as written):

"Hi, Simon. How r you? I did not quit that time when you have no bakers left.I worked hard for you that struggling time. I know you r in with your rights not to pay me my long service leaves and Gail [Mottram - the previous owner or director of Prairivale] paid you for that any way. Never know in future I come back and work for you. You have been good to me all the time its just the money. thanks Harish kumar".

• [22] Shortly stated, the following appears to be a distillation:

The respondent's dates regarding the termination of employment:

• the applicant resigned on Monday, 18 October 2021;

• the applicant's last working day was a shift on Thursday, 21 October 2021 (the applicant had not otherwise been rostered to work on Tuesday 19 or Wednesday 20 October 2021) - with these dates appearing to be matters of common ground;

• proceeding on the basis the resignation was effected by the applicant on Monday 18 October 2021, the respondent subsequently paid-out to the applicant "the rest of the required 1 weeks notice period, ending Sunday 24th October 2021".

The applicant's dates regarding the termination of employment:

• on Monday, 18 October 2021, the applicant advised the respondent of his intention to resign;

• on Tuesday, 19 October 2021, the applicant gave the respondent notice of that foreshadowed resignation, including confirmation that his last working day would be just over five weeks later, namely, Thursday, 25 November 2021;

• the applicant's last working day was a shift on Thursday, 21 October 2021 (the applicant had not otherwise been rostered to work on Tuesday 19 or Wednesday 20 October 2021) - as noted above, these dates appearing to be matters of common ground;

• on Thursday, 21 October 2021, the applicant was notified by the respondent of dismissal and that was the date the dismissal took effect, with a subsequent payment from the respondent for rostered shifts that the applicant would have been worked in the three-day period of Friday 22 October to Sunday 24 October 2021 inclusive.

• [23] The applicant foreshadowed to Mr Wilmot on 18 October 2021 that he would be resigning. The applicant then next gave the requested emailed notice on 19 October 2021 of the resignation, including confirmation that his last date of work in connection with the resignation would be some five weeks later, namely on 25 November 2021.

• [24] Before the applicant could work-out the period of notice to 25 November 2021, the applicant was, I find, dismissed by the respondent on 21 October 2021. In connection with that dismissal on 21 October 2021, the respondent subsequently made a payment for shifts that would have been worked over the succeeding three days of 22-24 October 2021 - said by the respondent to be a (proper) payment in lieu of notice.

• [25] Regardless of whatever may have been advanced by the parties about the then otherwise pending termination of employment by resignation on 25 November 2021 constituting (however described) a constructive dismissal or similar for the purposes of this general protections application, I find the applicant was unambiguously dismissed by the respondent on Thursday 21 October 2021 with the respondent's making a payment in lieu of notice to the applicant for shifts that otherwise would have been worked in the period 22 to 24 October 2021.

Conclusion concerning the jurisdictional objection

• [26] Given my finding that the employment relationship was terminated on 21 October 2021 at the initiative of the respondent - that being the day the respondent dismissed the applicant - the respondent's no-dismissal jurisdictional objection to the application is dismissed.

• [27] The respondent had previously indicated it was not prepared to participate in a conciliation with the assistance of a Fair Work Commission staff conciliator until its jurisdictional objection had been determined by a member of the Commission. Given my dismissal of the respondent's jurisdictional objection, the file will now be referred for a staff conciliator-chaired conciliation.

• [28] Having regard to some of the matters that were canvassed in the papers and/or in the proceedings before me, I propose to make the following observations with a view to endeavouring to assist the parties in the upcoming staff conciliator-chaired conciliation discussions.

• [29] The general protections application itself: I do not propose to make any observations in relation to potential settlement areas concerning the substance of the general protections application.

• [30] I do note, however, that the applicant indicated on 10 December 2021 that the general protections application was capable of resolution if, effectively, a settlement could be reached about the matter of a long service leave payment. I turn first to that matter with a view to trying to assist the parties, in circumstances where, respectfully, they each appear to hold the mistaken view that the applicant did not have an entitlement to long service leave in connection with the termination of employment.

• [31] Long service leave payments: The matter of long service leave payments featured reasonably prominently in the papers and in the parties' oral submissions. For the purposes only of trying to assist the parties in the future conciliation discussions, I note that, in connection with the sale of the Bakers Delight business by Prairivale to the respondent, arrangements apparently were made between the two companies concerning the applicant's service-related entitlements. For example, the contract of employment dated 31 May 2021 between the applicant and the respondent identified matters including the following under the sub-heading "Prior Service":

"If you accept this offer of employment, the Employer will recognise your prior service with Prairivale Pty Ltd for the purposes of personal leave and long service leave. Your annual leave balance will be paid out to you by Prairivale Pty Ltd and you will start to accrue annual leave from a 'nil' balance. ..."

• [32] Thus, the contract of employment between the applicant and the respondent recognised the applicant's prior service with Prairivale for the purposes of long service leave entitlements. Matters in the papers also at least suggested that some financial consideration was made between Prairivale and the respondent concerning the applicant's long service leave accruals in connection with the sale of the business.

• [33] The applicant's Form F8 indicated he commenced employment with Prairivale on 24 November 2011 and, as an annexure to the respondent's Form F8A, an email dated 27 October 2021 from Mr Wilmot to the applicant also indicated: "Your start date which we recognise was 24 November 2011 ...". Given it is common ground that the commencement date with Prairivale was 24 November 2011 and the contract of employment between the applicant and the respondent identified recognition of the applicant's prior service with Prairivale, the applicant's unqualified entitlement to long service leave payments under the Long Service Leave Act would have crystallised upon 10 years' service with the Bakers Delight business, that is on or about 23 November 2021. Matters in the papers, albeit not evidence as such, suggest that both the applicant and Mr Wilmot were alive to the significance of the date of termination of employment for the purposes of long service leave entitlements given communications said to have occurred between the applicant, Mr Wilmot and the previous owner. I infer that the applicant selected 25 November 2021 as his last day of work against the background of long service leave accruals. In dismissing the applicant prior to the resignation date the applicant had specified to the respondent, the applicant was deprived of what would have been the full entitlement to long service leave payment on termination of employment.

• [34] In circumstances where the applicant had fewer than the ten years' full entitling service for a long service leave payment when his employment with the respondent was terminated by dismissal on 21 October 2021 with a payment in lieu of notice to 24 October 2021, the applicant had between five and ten years' service. Given the applicant's combined service with Prairivale and the respondent of just short of ten years, a conditional entitlement arose for the applicant to a pro rata (or proportionate) long service leave payment in connection with the termination of employment. That is because the Long Service Leave Act specifies that an employee's entitlement to a pro rata payment of long service leave arises on termination of employment if (relevantly) the employment is terminated by the employer for any reason other than serious and wilful misconduct.

• [35] I have found that the termination of the applicant's employment was not a resignation; the applicant was dismissed by the respondent on 21 October 2021 (with the respondent making a payment in lieu of notice to 24 October 2021) in circumstances where the applicant had otherwise specified his last day of work would be 25 November 2021. There was no suggestion here of dismissal on account of serious and wilful misconduct within the meaning of the Long Service Leave Act. That is, the dismissal letter relevantly read:

"Further to our acceptance of you [sic] resignation tendered by text on Monday 18th October 2021 and in the interests of your personal wellbeing and harmony within the Bakery I can advice [sic] you that todays [sic] shift (21st October 2021) is the last shift you are required to attend work. We will pay you out for the rest of the required 1 weeks [sic] notice period, ending Sunday 24th October 2021."

• [36] Having regard to what I have set out above as to long service leave entitlement under the Long Service Leave Act, I would respectfully say to the parties, for the purposes of the conciliation discussions, that I consider the applicant has an entitlement to a long service leave payment.

• [37] Payment for three rostered shifts on 22, 23 and 24 October 2021, described by the respondent as being a "lawful" payment in lieu of notice: On 19 October 2021, the applicant gave the respondent written notice that, in connection with his resignation, his last working day would be 25 November 2021. If the respondent wished to terminate the applicant's employment before 25 November 2021 (for reasons, I note, expressed in the dismissal letter of 21 October 2021 to be "in the interests of your personal wellbeing and harmony within the Bakery", hand-in-hand with what had unfolded as being the swiftly-implemented arrangements for a replacement baker to start on 22 October 2021), it would have been appropriate, I would think, for the respondent to have paid-out to the applicant the amount he otherwise would have earned to the applicant-specified resignation date (and, I might add, most likely with leave entitlements calculated to that particular date). It just was not properly open to the respondent to dismiss the applicant with a payment, said by the respondent to be a "lawful" payment in lieu of notice, only for what otherwise would have been paid for three rostered shifts on Friday 22, Saturday 23 and Sunday 24 October 2021.

• [38] This matter of payment in lieu of notice might also be the subject of consideration for the purposes of the staff conciliator-chaired conciliation discussions between the parties.

• [39] Given my conclusion that the applicant was dismissed by the respondent, the application will now, as noted earlier in the decision, be referred for a conciliation to be conducted by a Fair Work Commission staff conciliator.

Determined on the papers and the parties' submissions on 3 and 10 December 2021.

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