s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Whether the Applicant was dismissed- Found that the Applicant was dismissed.

• [1] This decision determines a jurisdictional objection made against an application commenced by Mrs Romy Barrett (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against her former employer, DJR & RAR Sports Pty Ltd (the Respondent).

• [2] That jurisdictional objection being whether the Applicant has been dismissed within the meaning of section 386 of the FW Act. In summary, the Applicant contends that she has been dismissed. The Respondent contends that the Applicant resigned her employment and has not been dismissed.

• [3] On 13 August 2025, the question of whether the Applicant has been dismissed was the subject of a hearing before me. The Applicant appeared for herself. Ms Katherine (Kate) Russell appeared for the Respondent. Ms Russell is the Operations Manager Director of the Respondent.[1] The Applicant gave evidence and was cross-examined. The Applicant also called Ms Louise Littlefield as a witness. Ms Littlefield was the Store Manager of the sport and toy shop owned and operated by the Respondent in the town of Orange, New South Wales. Ms Littlefield is also the Applicant's sister. Ms Littlefield was cross-examined. Ms Russell and Mr Peter Russell gave evidence for the Respondent. Ms Russell was cross-examined. Mr Russell is the owner of the Respondent and the brother of Ms Russell.[2] Mr Russell was not required for cross-examination. There were no other witnesses called by either party. All the evidence and submissions made by the parties has been considered.

• [4] For the reasons explained below, I have determined that the Applicant has been dismissed within the meaning of section 386 of the FW Act.

• [5] Section 386(1) of the FW Act provides that a person has been dismissed if:

(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.

• **[6] [**While not put in these terms, the effect of the Applicant's argument was that she had been dismissed within the meaning of section 386(1)(a). Section 386(1)(b) was irrelevant to the facts of this application.

• [7] The Applicant commenced employment with the Respondent in approximately March 2022. Throughout the Applicant's period of employment with the Respondent, the Applicant worked as a Sales Assistant.[3] The Applicant was engaged as a casual employee.[4] There was a dispute between the parties as to the shifts and hours worked by the Applicant. It is presently unnecessary to resolve that dispute. It does appear from the material put before me that the Applicant tended to work three shifts per week between Monday to Friday.

• [8] The Respondent operates a sports shop, which trades as SportsPower, and toy shop, which trades as Toyworld, in Orange. The two shops are next to each other. Up until her resignation, Ms Littlefield was the Store Manager of both shops in Orange. The Applicant worked in both the sports shop and the toy shop, however, it appears that the Applicant worked mostly in the sports shop. In addition to those shops in Orange, the Respondent operates 8 other retail shops across New South Wales and an online shop.[5]

• [9] On 5 May 2025, Ms Littlefield sent a text message to Ms Russell. In that text message, Ms Littlefield said that she was resigning her employment.[6]

• [10] On 6 May 2025, Ms Russell spoke to Ms Littlefield by telephone. There is a factual contest between the parties concerning this conversation.

• [11] In advance of the hearing, Ms Littlefield provided a written statement. Ms Littlefield's account of telephone conversation that she had with Ms Russell on 6 May 2025 is reproduced below:

I told her that I was leaving as I was sick of being bullied and disrespected. Kate asked me if I had another job to go to and I replied "no" (I didn't find another job until June 9). She then asked, "is Romy leaving too as I understand it would be awkward for her?" I replied "I'm not sure, you'd have to ask her".

• [12] The Respondent's cross-examination of Ms Littlefield about this disputed telephone conversation was very brief. It was put to Ms Littlefield during cross-examination that Ms Littlefield told Ms Russell during the telephone conversation on 6 May 2025 that Ms Littlefield said that the Applicant would be leaving if Ms Littlefield left her employment. Ms Littlefield denied that any such words were said.

• [13] In advance of the hearing, Ms Russell provided a written statement. Ms Russell's account of telephone conversation that she had with Ms Littlefield on 6 May 2025 is reproduced below:

I said: "Hi Louise, I was hoping we could talk about your resignation?

She said, "No, I am sick of how you are speaking to me"

She said: "You rang me yesterday and asked why I was in the toy store and not in the sports store on Friday afternoon"

I said: "We have had a number of conversations and email messages about you being more present in the sports store particularly in the lead up to winter sports starting"

She said: "I am the manager and should not have to be told which shop I should be working in. You can't tell me what to do."

I said: "So you don't think communication is important between us"

I said: "Okay, if you are leaving, what does this mean for Romy? I see that Romy has already left 'The Big Outlet chat"

She said: "Romy has told me that she is leaving too."

I said: "Okay, I see that it may be awkward for Romy to remain when you are also leaving. Are you able to help me to find replacement staff before you finish up?"

She said: "So you are not going to talk me out of it."

I said, "Louise, you have resigned, and you don't consider that communication is important between us. I'm not sure where we go from here"

Louise said, "Romy, can you take over here, I have to go out the back."

• [14] The Applicant's cross-examination of Ms Russell about this disputed telephone conversation was also very brief.

• [15] The crux of the factual dispute is whether Ms Littlefield - who is both the Applicant's Manager and Sister - said to Ms Russell during the telephone conversation on 6 May 2025 words to the effect that the Applicant would also be leaving her employment. The Respondent says that such words were said. Consequently, the Respondent submitted that the Applicant resigned her employment and has not been dismissed. The Applicant denies that such words were said.

• [16] The conversation took place at work. The Applicant was working in the shop with Ms Littlefield when the conversation took place. In cross-examination, the Applicant said that she may have overheard a little bit of the conversation, however, that she could not remember the conversation. Under cross-examination, Ms Littlefield said that the Applicant was present during this conversation. Ms Littlefield said that she had her phone on speaker throughout this conversation. Ms Littlefield said that the Applicant was working around the shop throughout this conversation and within a couple of metres to 20 metres away. The conversation ended with Ms Littlefield asking the Applicant to take over. The evidence of Ms Littlefield suggests that the Applicant may have heard more than a little bit of the conversation. However, the Applicant did not put on any evidence as to her recollection of this conversation. As such, the factual dispute is between Ms Littlefield's evidence and Ms Russell's evidence.

• [17] With the benefit of observing all the witnesses give evidence, I prefer the evidence of Ms Russell. Although the cross-examination was brief, I am satisfied that Ms Russell was the more reliable witness. One, Ms Russell gave a far more comprehensive written account of the conversation than Ms Littlefield. In cross-examination, Ms Littlefield agreed with at least some parts of Ms Russell's written account of the conversation that were not included in Ms Littlefield's written statement (i.e. that Ms Littlefield said to the Applicant can you take over, I have to go out the back and then the phone call was terminated). Such corroboration of at least that part of Ms Russell's written account suggests that Ms Russell's evidence is more reliable than Ms Littlefield's, which was plainly incomplete. Two, I do not accept the reliability of some of the answers given by Ms Littlefield in cross-examination. For example, both the Applicant and Ms Littlefield worked several shifts together in the shop in Orange after the conversation between Ms Littlefield and Ms Russell on 6 May 2025. On Ms Littlefield's version of events, she had notified Ms Russell of her resignation, was waiting on Ms Russell to come to Orange to discuss her ongoing employment face to face and ultimately had a panic attack and needed time off work when Ms Russell did not come to Orange to have those discussions. Moreover, on Ms Littlefield's version of events, there was uncertainty around the Applicant's ongoing employment. In that context, I asked Ms Littlefield at the hearing whether she had any conversations with the Applicant about the Applicant's ongoing employment in that period. Ms Littlefield responded, 'not really, she just expected to stay there'. In the context that I have explained, I do not accept that two sisters who worked together would 'not really' have had such conversations. On following up with further questions, Ms Littlefield disclosed further conversations that she had with the Applicant in this period. The further conversations that were disclosed were conveniently matters designed to assist the Applicant in this case - that, the Applicant wanted to stay to get money before the Applicant went on holidays. In contrast, there was nothing implausible about Ms Russell's evidence, which was not undermined during cross-examination and remained consistent throughout the hearing.

• [18] Consequently, I find that the conversation between Ms Littlefield and Ms Russell on 6 May 2025 to be consistent with Ms Russell's evidence.

• [19] By way of context, Ms Littlefield's resignation was motivated by her view that she had been bullied and disrespected by the Respondent, and especially Ms Russell.[7] Based on answers given by the Applicant to some questions from me at the hearing, it appears that Ms Littlefield was hoping that Ms Russell would talk her out of resignation. The Applicant described this as bluffing. It may well be that Ms Littlefield's comments to Ms Russell about the Applicant's ongoing employment ('Romy has told me that she is leaving to') were also part of such a bluff. Any such bluff was made where it was entirely conceivable that the loss of two staff members (including the Store Manager) at the same time may result in difficulties for the Respondent in operating the shops in Orange.

• [20] Ultimately, Ms Russell did not attempt to talk Ms Littlefield out of her resignation. Rather, Ms Russell's evidence was that she accepted what was conveyed to her as a resignation by both Ms Littlefield and the Applicant without trying to persuade one or both to remain employees of the Respondent.

• [21] On 6 May 2025, the Applicant removed herself from a group chat called 'The Big Outlet' chat. The group includes senior staff members across the Respondent's entire business, not just the shops in Orange. It appears that the group chat is used to communicate across the business. For example, the group chat is used to identify whether there is particular stock at a particular store. The Applicant gave evidence that she accidentally deleted herself from this group chat and was only trying to silence that chat.[8] I do not accept that evidence. There is a strong temporal connection between Ms Littlefield sending the text message to Ms Russell on 5 May 2025 and the Applicant removing herself from this group chat. Moreover, the Applicant was quite equivocal when asked at the hearing when she removed herself from this group chat, and sought to suggest that Ms Littlefield had resigned one week prior to the Applicant deleting herself from this group chat. Such evidence causes me to reject the Applicant's evidence that her removal from this group chat was accidental.

• [22] The Applicant and Ms Littlefield worked several shifts following 6 May 2025. Ms Russell's evidence was that she accepted Ms Littlefield's resignation on 27 May 2025 and Ms Littlefield's employment came to end on that day.

• [23] In the period from 6 May 2025 to 27 May 2025, the Respondent did not communicate with the Applicant. Ms Russell's evidence was that the Applicant's manager (Ms Littlefield) had told her that the Applicant was resigning and therefore there was no need for any communication or contact with the Applicant. Ms Russell said that this was a normal procedure for the Respondent with casual staff. The effect of Ms Russell's evidence was that the Applicant's resignation would be effective from the same date that Ms Littlefield's resignation was effective.

• [24] On 27 May 2025, Ms Russell deleted Ms Littlefield, the Applicant and another employee from a group chat called the 'Sportspower staff chat'. This chat group appears confined to the Respondent's employees based in Orange. It appears that the availability of staff to work in the upcoming week is posted on this chat. The staff that are available for shifts indicate their availability on the chat. It is clear that no further shifts would be offered to Ms Littlefield or the Applicant after they were deleted from this chat.

• [25] On the evening of 27 May 2025, Ms Littlefield sent a text message to Ms Russell.[9] In that text message, Ms Littlefield said that the Applicant had been fired. In her response, Ms Russell stated that the Applicant had not been sacked.

• [26] Also on 27 May 2025, the Applicant sent two text messages to Ms Russell and Mr Russell.[10] In that text message, the Applicant said that both Ms Littlefield and herself had been fired. The Applicant's characterisation of Ms Littlefield as being fired was plainly incorrect. Ms Russell did not respond to that text message. Ms Russell explained that she did not reply because she felt that the text message was abusive.

• [27] The Applicant relied upon her deletion from the 'Sportspower staff chat' on 27 May 2025 as evidencing that she has been dismissed. On the Applicant's argument, she did not resign her employment and wanted to remain employed by the Respondent. On the Applicant's version of events, she knew that Ms Littlefield and Ms Russell had spoken on 6 May 2025. On the Applicant's version of events, she knew that Ms Littlefield had resigned and that Ms Russell had questioned whether she wished to remain employed. The logical thing for the Applicant to have done in those circumstances and after being deleted from the 'Sportspower staff chat' would have been to seek to clarify any misunderstanding about her ongoing employment with Ms Russell. Instead, the Applicant sent the text message discussed above.

• [28] A Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[11] (Bupa) stated that "the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment".[12] I add that where the conduct of an employee unambiguously evidences a resignation that the employer is entitled to treat such conduct as an effective resignation which operates to terminate the employment.[13] I further add that unambiguous words and / or conduct evidencing resignation can be used by the relevant employee to the employer direct or by an intermediary.[14]

• [29] The Full Bench in Bupa went on to consider the law concerning whether there are 'special circumstances' that renders an apparent indication of resignation on the part of the employee ineffective unless the employer obtains confirmation of the employee's intention to resign after a reasonable period.[15] Those 'special circumstances' include a resignation given in the 'heat of moment' or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign.[16]

• [30] This case does not require consideration as to whether any such 'special circumstances' exist.

• [31] That is because there is simply no evidence whatsoever of the Applicant by her words and / or conduct unambiguously resigning her employment. I have made a factual finding that I prefer Ms Russell's evidence of the telephone conversation with Ms Littlefield on 6 June 2025. However, Ms Russell's evidence does not evidence an unambiguous resignation by the Applicant. At its highest, Ms Russell's evidence reveals that Ms Littlefield told Ms Russell that 'Romy has told me that she is leaving to'. There was absolutely no evidence before me that the Applicant told Ms Littlefield that she was resigning her employment and / or that the Applicant told Ms Littlefield to advise her resignation to Ms Russell. There was no evidence before me concerning the Applicant's conduct that unambiguously evidences a resignation. I have found that the Applicant intentionally removed herself from 'The Big Outlet' group chat. I am unable to find that such conduct unambiguously evidences a resignation. That is because the Applicant worked several shifts after engaging in such conduct. The Applicant working those shifts clearly puts to rest any suggestion that her intentionally removing herself from

'The Big Outlet' chat unambiguously evidences a resignation. Furthermore, the Applicant's conduct in deleting herself from this group chat did not mean that the Applicant could not perform her duties. The Applicant's conduct did have at least the potential to cause inconvenience and inefficiency to the Respondent's operations. It is entirely possible that the Applicant engaged in such conduct to signal her dissatisfaction with the Respondent and / or to cause inconvenience and inefficiency to the Respondent's operations.

• [32] In the absence of any evidence that the Applicant by her words and / or conduct unambiguously resigned her employment, I reject the Respondent's argument that the Applicant resigned her employment.

• [33] A dismissal within the meaning of section 386(1)(a) of the FW Act refers to a termination of employment that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[17] I have found that the Applicant did not voluntarily cease employment with the Respondent. I am satisfied that the principal contributing factor that resulted in the termination of employment was the actions of Ms Russell in deleting the Applicant from the 'Sportspower staff chat' on 27 May 2025. The deletion of the Applicant from that group chat meant that no further shifts would be offered to the Applicant. Clearly, that directly resulted in the termination of the Applicant's employment. As such, I am satisfied that the Applicant was dismissed within the meaning of section 386(1)(a) on 27 May 2025.

• [34] My findings should not be misunderstood to mean that any resignation on the part of the Applicant had to be conveyed to Ms Russell herself. A legally effective resignation could have been provided by the Applicant to her Manager, Ms Littlefield. As explained, there is simply no evidence of the Applicant herself unambiguously through her words and / or conduct resigning her employment to Ms Littlefield, Ms Russell or anyone else. The prudent thing for Ms Russell to have done on being told by Ms Littlefield on 6 June 2025 that 'Romy has told me that she is leaving to' was to follow up with the Applicant - either through Ms Littlefield or herself directly. Such follow up could have included a request that the Applicant confirm any resignation in writing. A prudent employer would take such steps to avoid this very argument between the parties that fell on me to determine. Ms Russell took no such steps. Rather, several weeks after that telephone conversation with Ms Littlefield and after the Applicant had worked several more shifts at the shop, Ms Russell deleted the Applicant from the 'Sportspower staff chat'. I find that this amounts to a dismissal within the meaning of section 386(1)(a) of the FW Act.

• [35] Consequently, I reject the Respondent's jurisdictional objection.

• [36] The merits of the application will be considered. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.

[1] Digital Hearing Book (DHB), page 109.

[11] [2017] FWCFB 3941.

[17] Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

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