Alicia Quinn v Harbour City Hospitality Pty Ltd [2025] FWC 613

1 Fair Work Act 2009 s.365—General protections Alicia Quinn v Harbour City Hospitality Pty Ltd (C2024/9020) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 28 FEBRUARY 2025 General protections application involving an alleged dismissal – whether applicant was dismissed Introduction [1] On 11 December 2024, Ms Alicia Quinn lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is Ms Quinn’s former employer, Harbour City Hospitality Pty Ltd (Harbour City). [2] Ms Quinn contends that Harbour City contravened s 340 of the Act in dismissing her from her employment. Harbour City raised a jurisdictional objection to the application. Harbour City contends that it did not dismiss Ms Quinn. [3] The Commission must determine whether Ms Quinn was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Quinn was dismissed in contravention of the general protections.1 [4] On 5 February 2025, I issued directions requiring Harbour City to file and serve, by 4pm on 12 February 2025, the witness statements, documents and submissions on which it wished to rely in support of its contention that Ms Quinn was not dismissed. No such material was filed or served by 4pm on 12 February 2025. [5] On 19 February 2025, Ms Quinn filed and served the witness statements, documents and submissions on which she wished to rely in support of her contention that she was dismissed. Ms Quinn filed and served this material in accordance with the directions I made on 5 February 2025. [6] The matter was listed for hearing, by video conference, at 10am on 21 February 2025 in relation to the question of whether Ms Quinn was dismissed. [2025] FWC 613 DECISION -- 1 of 7 -- [2025] FWC 613 2 [7] At 2:16am on 21 February 2025, the solicitor for Harbour City sent an email to the Commission (cc Ms Quinn) to which was attached an affidavit of Mr Brandon Martignano, director of Harbour City. The affidavit was not sworn or affirmed, nor was it signed. The affidavit addresses factual matters relevant to whether or not Ms Quinn was dismissed. It also refers to the fact that Mr Martignano has been in recent discussions with insolvency practitioners regarding a potential administration or liquidation of Harbour City, which Mr Martignano thinks is likely to happen soon. [8] At the hearing, by video conference, on 21 February 2025, Mr D’Netto, solicitor for Harbour City, appeared and sought leave to be excused. I granted that leave. In the result, there was no appearance by or on behalf of Harbour City at the hearing. No application was made for an adjournment of the hearing, notwithstanding that Mr Martignano was apparently flying back to Australia from Los Angeles at about the time of the hearing. [9] I did not admit into evidence at the hearing the unsworn (and unsigned) affidavit of Mr Martignano or the documents attached to that affidavit. Not only was it unsworn and unsigned, it was provided to the Commission and Ms Quinn at 2:16am on the morning of the hearing. Harbour City was directed to file and serve such material by 4pm on 12 February 2025. The very late service of the material on Ms Quinn caused unfair prejudice to her, particularly in circumstances where Mr Martignano’s affidavit deals with contested matters of fact, and he was not present at the hearing to be questioned about it. [10] I admitted into evidence a statement made by Ms Quinn, a statement made by another employee of Harbour City, Mr de la Hay, and documents tendered by Ms Quinn. Dismissal [11] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides: “(1) 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.” [12] There is no doubt that Ms Quinn resigned. The question for determination is whether she was forced to do so because of conduct, or a course of conduct, engaged in by Harbour City. General principles [13] The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end, or whether termination of the employment was the probable -- 2 of 7 -- [2025] FWC 613 3 result of the employer’s conduct such that the employee had no effective or real choice but to resign.2 The requisite employer conduct is the essential element.3 Relevant facts re alleged dismissal [14] On 21 February 2024, Ms Quinn was employed by Harbour City on a full-time basis as a Singer/Burlesque/Player based at The Emerald Room in Sydney. This was a dream job for Ms Quinn, and she hoped to have it for many years. [15] On 20 November 2024, Ms Quinn resigned from her employment with Harbour City due to a lack of superannuation payments, continuous late payment of wages to herself and other staff, and the bullying and harassment directed predominately towards her superior, creative director, Mr de la Hay. Ms Quinn says that the bullying and harassment directed at Mr de la Hay, along with the disorganisation and poor communication regarding delayed or lack of payments from Harbour City, resulted in an incredibly stressful work environment. This took a toll on Ms Quinn’s mental health. [16] The directors of Harbour City mentioned that the venue was likely to change its structure in 2025 from ‘in house’ to ‘externally produced’ shows. Therefore, Ms Quinn was aware that her role may change, or be non-existent, in the new year. Ms Quinn had been preparing for a Christmas show that was to run until the 21st of December 2024 and anticipated that she would have full-time employment until then. The growing tension in the workplace came to a head when Ms Diane Hart (the majority shareholder and mother of Mr Martignano) sent an email to Mr de la Hay accusing him of not doing his job and falsely stating that he had not prepared a Christmas show. Ms Quinn says that Mr Jonathon Holmes (the other full-time performer), Mr de la Hay and herself were ready for the show, but it would not have been complete without the freelance performers who were refusing to work due to unpaid invoices. This made it impossible to rehearse. At this point, Ms Quinn was three weeks behind on her wages and she informed the directors of Harbour City that she would not be coming into work until she had been paid up to date. Harbour City paid half the wages owed to Ms Quinn on 8 November 2024 and the remaining amount on 12 November 2024, two days before the show was scheduled to open. They then attempted to use the payments to Ms Quinn as evidence that all performers were paid on time, even though she was the only one paid up to date. Following Ms Hart’s email, Mr de la Hay resigned and without his directions, costumes, and set, Ms Quinn considers that it was impossible to do her job. Ms Quinn took a week off work for mental health leave and decided to resign the following week. Ms Quinn has since been seeing a physiologist to help process the mental trauma she incurred at this unstable workplace. [17] On 14 November 2024, Ms Quinn sent an email in the following terms to Mr Martignano and Mr Josh Pullen: “Hi Josh and Brandy, Wanted to touch base. Thanks for transferring the final 2 weeks of back pay yesterday. I’m all up to date with wages now. I just haven’t been paid the Burlyflexx show and super. Regarding the Christmas shows this week I’m not sure what’s happening at the moment and I don’t know what’s expected from me. From what I’ve been told, Jono hasn’t been paid his wages up to date and Brendan still hasn’t been paid the amount he was expected either. -- 3 of 7 -- [2025] FWC 613 4 I acknowledge I’m up to date with my wages now but the lack of organisation has put me in a really uncomfortable position where I’m now expected to possibly do a show that I haven’t done a dress or tech run for. Additionally the show we have created relies on other performers that haven’t been able to be rehearsed or booked either due to payments. Jono and I are as prepared as we can be for this show considering the circumstances. We have written a script and know our songs but we have been unable to rehearse with the band as they have not been paid up to date until yesterday. We aren’t able to work in any of the design elements because Brendan hasn’t been paid up to date. He’s also had to take on external work this week because of these circumstances which means we’ve only been able to do work independently. I haven’t been able to tech sitting in the bubble chair as rigging staff apparently hasn’t been paid. There has been no rehearsal with Gemstones as they still aren’t paid up to date. Variety artists also haven’t been paid past invoices and therefore haven’t been booked. At this time of year freelance artists are usually booked weeks in advance. This is all wild to me. I don’t know what’s going on and I don’t know when and if shows are happening. At this stage, the show just hasn’t been properly dress rehearsed and teched because people haven’t been paid. I don’t want to look like a fool getting on stage and I don’t want to do a show without feeling safe and like I will do a performance to the standard I expect from myself and from the venue. I heard from Jono and B you’ve paid off a lot of owed wages yesterday but in all fairness I think it’s too late to then expect and full show ready to go today. The work environment over the last few weeks has been extremely stressful. I haven’t been sure if I would get paid or if I would even still have a job because of all of the issues with the finances. At the moment I’m not ok and my mental health isn’t good. In saying all this I am really looking forward to doing the Christmas show. I believe we will need a week once all the performing staff has been paid to properly tech in the venue. I am doing the best I can in very strange, uncomfortable and unfamiliar circumstance. I hope you understand. Let me know what’s happening on your end.” [18] Later on the same day, 14 November 2024, Ms Quinn sent a further email to Mr Martignano and Mr Pullen. It states: “Also, from my understanding now there is more going on between you and Brendan. These things are out of my control. Brendan has instructed me to come in and sing the songs I know because the show is going ahead. I’m not sure how. At this stage I don’t think I can. It’s too last minute. I am heading to a doctor to get a medical certificate because I’m not ok and I’m not coping. Feel free to call me before or after my appointment. It’s at 230pm.” [19] Mr Martignano responded to these emails with the following email to Ms Quinn: “Thank you for your email. Please do not stress further about this week. Both Josh and I are doing what we can to get caught up with invoicing and reducing the stress to artists going forward. We believe that to do so we cannot cancel services which would result in decreased revenue. As such I have organised external shows to come in this week to allow for us to decrease pressure on our current team and also ensure service continues. -- 4 of 7 -- [2025] FWC 613 5 Your mental health is more important than what ever is happening at the moment. Please make sure you look after yourself and do what is needed. We can talk Monday and see where we are all at? Thanks again for all your hard work and support. Im hoping to make sure we can continue the work we are all doing. Please contact me if you have any questions.” [20] On 19 November 2024, Ms Quinn provided Harbour City with a medical certificate from her general practitioner, stating that she has “mental stress and will be unfit for work from 14/11/2024 to 22/11/2024 inclusive”. [21] In her final meeting with Mr Martignano, Mr Pullen and Ms Hart on 19 November 2024, Ms Quinn considered it to be clear that there was no plan for the future of her role. She felt forced to resign, citing financial reasons, referring to the lack of wages and superannuation paid to staff and the irregular payments to herself. When Ms Quinn asked what their plan was to pay out her accrued but untaken annual leave and superannuation, Mr Martignano informed Ms Quinn that her annual leave payment might be subject to review, as he needed to verify the records. He insinuated that because not all shows went ahead, Ms Quinn had not fulfilled all her required hours, even though Harbour City had approved them in payslips. [22] Ms Quinn communicated her decision to resign in an email sent on 20 November 2024. The email states: “Dear Brandon and Josh, Following our meeting yesterday, I am writing to formally resign from my position as a Showgirl at The Emerald Room, effective immediately, as of 20 November 2024. It has been a privilege to perform at The Emerald Room and work doing something I love with so many incredible people. I have greatly appreciated the opportunities I have had since joining at the start of the year, as well as the support from everyone involved. This decision was not made lightly, and I will always treasure the memories and experiences gained during my time here. Thank you for the opportunity to be a part of this moment in Australian cabaret history. Please let me know if there are any final details or formalities I need to address before my departure. Also, if you could let me know when I should expect my outstanding payment of super, sick/annual leave and Burlyflexx (Invoice 331) I’d appreciate that too. All the best in the future.” Consideration re dismissal [23] While I do not consider, on the evidence before the Commission, that Harbour City engaged in any conduct with the intention of bringing Ms Quinn’s employment to an end, I am satisfied on the evidence that termination of Ms Quinn’s employment was the probable result -- 5 of 7 -- [2025] FWC 613 6 of Harbour City’s conduct such that Ms Quinn had no effective or real choice but to resign. The requisite employer conduct in this case was persistent failures by Harbour City to pay Ms Quinn the wages she was owed in a timely manner, the ongoing failure by Harbour City to pay Ms Quinn’s superannuation, the persistent failures by Harbour City to pay the wages and other payments to persons engaged to work in the show with Ms Quinn, and the persistent disorganisation of Harbour City’s business and the stress it caused Ms Quinn. I accept that all of this had a significant impact on Ms Quinn’s mental health. It is not enough for Harbour City to say that Ms Quinn’s wages were paid up to date at the time she resigned. The persistent failures to pay Ms Quinn her wages on time in the months leading up to 12 November 2024, together with the other matters to which I have referred in this paragraph, was a course of conduct the probable result of which was Ms Quinn’s resignation on the basis that she had no effective or real choice but to resign. Conclusion [24] For the reasons given, Ms Quinn was dismissed within the meaning of s 386(1)(b) of the Act. It follows that Harbour City’s jurisdictional objection is rejected. [25] The application is listed for a conciliation conference, by telephone, at 11am on 6 March 2025. DEPUTY PRESIDENT Appearances: Ms A. Quinn appeared for herself There was no appearance for Harbour City Hearing details: 2025. Newcastle by video conference 21 February. Printed by authority of the Commonwealth Government Printer <PR784851> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67] -- 6 of 7 -- [2025] FWC 613 7 2 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)] 3 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)] -- 7 of 7 --