Annisa Renehan v Jasper Entity Pty Ltd [2023] FWC 554

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Annisa Renehan v Jasper Entity Pty Ltd (U2022/12399) DEPUTY PRESIDENT COLMAN MELBOURNE, 7 MARCH 2023 Application for an unfair dismissal remedy – no dismissal – application dismissed. [1] This decision concerns an application for an unfair dismissal remedy made by Ms Annisa Renehan under s 394 of the Fair Work Act 2009 (Act). Mrs Renehan contends that on 11 December 2022 she was unfairly dismissed from her employment with Jasper Entity Pty Ltd (company). The company objects to the application on the ground that Mrs Renehan was not dismissed. Alternatively, it submits that any dismissal was not unfair. The application was listed before me on 2 March 2023 in relation to the jurisdictional objection and the merits. I conducted the proceeding as a determinative conference. Mrs Renehan gave evidence, as did Ms Jessica Lapira, the company’s manager. [2] Mrs Renehan was employed by the company in May 2022 as a full-time barista and administrative assistant. On 29 November 2022, Mrs Renehan sent Ms Lapira an email stating that she was trying to save her marriage and needed to spend time with her husband, and that therefore she would not be available to work on Saturdays. Mrs Renehan said that she would ‘go hourly’ if that would assist in having her request granted. Ms Lapira replied the same day, stating that Mrs Renehan could work ‘hourly’ on a part-time basis, and without any administrative duties, so that she could find the balance that she was seeking. Shortly afterwards, Mrs Renehan responded to Ms Lapira, thanking her for her understanding, and stating that this would help her a lot. Mrs Renehan asked if she could be engaged as a casual. That evening, Ms Lapira replied, stating: ‘Your request for a casual contract has been denied, the company is not taking on any casual employees at this stage. Based on your request, we can offer you a PT contract with the intention to revert you back to FT when you are ready and can commit to the role.’ [3] On the evening of 29 November 2022, Mrs Renehan sent Ms Lapira an email, stating: ‘Understood. Thank you.’ The part-time arrangements were then implemented. The next week, Mrs Renehan worked some 27 part-time hours over 3 days. [2023] FWC 554 DECISION -- 1 of 6 -- [2023] FWC 554 2 [4] On 9 December 2022, Mrs Renehan sent Ms Lapira an email stating that she would not be available to work on Christmas Day. Ms Lapira replied, stating that she was required to do so, and that her move to part-time work did not mean that she would not work on public holidays. Rather, the arrangement was that she would not work on Saturdays. Mrs Renehan replied, stating that she had not received a roster for Christmas Day and had assumed that she was not working. She confirmed that she was unable to work that day. [5] On 10 December 2022, Ms Lapira sent Mrs Renehan an email in which she stated that: Mrs Renehan had previously requested to ‘go hourly’; the company had agreed to support her during a period of personal hardship by placing her in a part-time role with reduced responsibilities; Mrs Renehan had been told that she would be required to work on Christmas Day; by now refusing to do so she had ‘voided’ her obligations as a part-time employee; and that the company had no choice but to approve her earlier request of 29 November 2022 to change to casual employment. Ms Lapira said that Mrs Renehan would be paid a casual rate and that her leave entitlements would be paid out to her. Ms Lapira concluded by stating that she would continue to support Mrs Renehan during her period of hardship and that she hoped that approving her earlier request for casual employment would assist. [6] On 11 December 2022, Ms Lapira asked Mrs Renehan to end her shift early in order to have a discussion about her employment. Mrs Renehan recorded the conversation, without Ms Lapira’s knowledge. The recording was submitted to the Commission. The conversation lasted for some twenty minutes. On the audio file, the following can be heard: • Ms Lapira says that she wants Mrs Renehan to continue as a casual, and she agrees. • Ms Lapira tells Mrs Renehan that if she needs time off work this is OK, but that she needs to go about it the right way and not simply announce that she cannot work, as she had done in relation to Christmas Day. Mrs Renehan says that she can see this. • Ms Lapira says that she wants Mrs Renehan to have the next couple of weeks off, and then says she should take ‘the rest of the year off’, adding that this was meant ‘not in a bad way’, but because she needs time off. Mrs Renehan agrees. • Ms Lapira says that Mrs Renehan can then come back ‘as a casual or whatever’. She then says words to the effect that ‘we can see if the position is still available’. • Ms Lapira says to Mrs Renehan that she should take the time to consider her role. She then says: ‘I’m not going to touch base with you, you can touch base with me’. • Ms Lapira tells Mrs Renehan that her past week’s work would be paid at casual rates. She then says: ‘Enjoy your holidays’. [7] On 13 December 2022, Ms Lapira sent Mrs Renehan an email, resending the email of 10 December 2022, and stating: ‘I am just following up to this email as we spoke about it in person on Sunday 11th December at Juno Eatery and came to the mutual agreement that you would take the remainder of the year off to focus on your personal priorities and decide in the new year if you are capable to commit to a role within the company. Merry Christmas and Happy New Year.’ -- 2 of 6 -- [2023] FWC 554 3 [8] Mrs Renehan did not respond to this message. [9] In her F2 application, Mrs Renehan stated that after the meeting on 11 December 2022, she was ‘locked out’ of her roster. In her response, Ms Lapira denied this, and said that the company’s rostering system was a weekly subscription that is individualised for each employee. As Mrs Renehan was to be absent for several weeks, the system was placed in ‘archived’ mode in order to save on subscription fees. This was the normal process when employees take longer periods of leave. [10] Mrs Renehan’s evidence was that at the conclusion of the meeting on 11 December 2022, she believed that she had been dismissed. She said that, although she had agreed at the meeting to become casual, when Ms Lapira later told her to take time off, she believed that she would not be given casual work. She said that this had happened to other casuals. Mrs Renehan said that she did not agree to take time off; she just said ‘yes’ when Ms Lapira told her that this is what would happen. Mrs Renehan said that the next day, she began looking for work. [11] Ms Lapira’s evidence was that she had no intention of dismissing Mrs Renehan, and that she had hoped that she would continue to work for the company. Ms Lapira said that she thought Mrs Renehan would benefit from a ‘breather’ and that she would come back better for it. Ms Lapira’s evidence was that when she said that they would see in the New Year whether the position was available, she had in mind there would be a few options for Mrs Renehan. Ms Lapira said that having Mrs Renehan take time off was part of her effort to support her. [12] Ms Lapira’s evidence was that sometime later, she was shown a text message that Mrs Renehan had sent to another employee of the company, Jessica Tran, in which Mrs Renehan stated that she had left the company. Mrs Renehan confirmed in her evidence that on 19 December 2022, Ms Tran had sent her a text, asking: ‘Did you leave Juno?’. Mrs Renehan responded: ‘Yess it’s getting not clear how they treat everyone so I leave them for office job but while looking for job I’m doing supp.’ The text was produced to the Commission. Ms Lapira did not say when she saw this text. She said however that on 3 January 2023, having seen the text, and not having heard from Mrs Renehan since 11 December 2022, she concluded that Mrs Renehan had ended her employment with the company. Ms Lapira sent Mrs Renehan an email asking her to return company property. [13] On 6 January 2023, Mrs Renehan replied, stating that she would return the property the next day. On 7 January 2023, she sent Ms Lapira an email confirming that she had done so. Findings [14] I make the following findings. First, I find that on 29 November 2022, Mrs Renehan and Ms Lapira agreed that Mrs Renehan would continue in her employment on a part-time basis. This was a consensual arrangement that was made in order to accommodate Mrs Renehan’s desire for more time to attend to her personal affairs. [15] Secondly, I find that there was a further agreement between Ms Lapira and Mrs Renehan, effective from 11 December 2022, that Mrs Renehan would now be a casual employee. Ms Lapira’s email to Mrs Renehan on 10 December 2022 was somewhat peremptory. It purported to accept Mrs Renehan’s earlier request that she be made casual, when it was not clear that this was still something that Mrs Renehan wanted. However, I find that at -- 3 of 6 -- [2023] FWC 554 4 the meeting on 11 December 2022, Mrs Renehan freely agreed to this arrangement. The audio recording confirms this. The discussion between Ms Lapira and Mrs Renehan that can be heard on the audio recording was frank but friendly. There was no suggestion of coercion. [16] Thirdly, I find that during the meeting of 11 December 2022, Ms Lapira and Mrs Renehan agreed that she would take the rest of the year off. Ms Lapira proposed this arrangement, and stated that it would be best for both parties. Mrs Renehan freely agreed. In her evidence to the Commission, Mrs Renehan suggested that she did not genuinely agree to take time off. She said that she was scared to tell Ms Lapira that she did not want to take time off. I do not accept this. Elsewhere in her evidence, Mrs Renehan said that she had had a good relationship with Ms Lapira. This was also apparent from the audio recording. In my assessment, there was no good reason why Mrs Renehan could not have told Mrs Lapira that she did not want to take a break. She simply agreed to Ms Lapira’s proposal. [17] Fourthly, towards the end of the discussion on 11 December 2022, Ms Lapira told Mrs Renehan that she was to touch base with her following her period of absence. The objective meaning of this statement was that Mrs Renehan should contact the company when she was ready to work. I find that the way things were left at the end of the meeting on 11 December 2022 was clear. Mrs Renehan was now casual. She would take the rest of the year off. She was to contact Ms Lapira when she was ready to resume work. [18] Fifthly, I do not accept that Mrs Renehan believed she had been dismissed at the meeting on 11 December 2022. She had just agreed to become casual, to take time off, and to return as a ‘casual or whatever’. She was told very clearly that Ms Lapira would not contact her, but that she was to contact Ms Lapira. Whatever may have been the circumstances of the other casuals to whom Mrs Renehan referred, her own position was in my view clear. There is no objective basis on which Mrs Renehan could have concluded that she had been dismissed or would not be given work. [19] Sixthly, I find that Mrs Renehan was not taken off the roster or blocked from the rostering system. Ms Lapira’s explanation about her practice of suspending the rostering subscription service for employees on longer periods of absence was convincing. I accept Ms Lapira’s statement that she adopted the same course with Mrs Renehan as she had with other employees. [20] Seventhly, I find that in the context of the discussion on 11 December 2022, Ms Lapira’s statement that Mrs Renehan could come back as a ‘casual or whatever’ conveyed that there may be several options available to her. These might have included a return to full-time employment, which had been raised as a possibility in Ms Lapira’s earlier email of 29 November 2022. I accept Ms Lapira’s evidence that she had in mind for Mrs Renehan to come back and see what role she wanted to take on. The statement did not mean that Ms Lapira would see whether Mrs Renehan had any job at all. Clearly, she did have a job. Mrs Renehan was now a casual. However, she might be able to revert to her previous permanent role, whether full- time or part-time, if it was still available, and if she was able to commit to such a role. [21] Mrs Renehan did not contact Ms Lapira in the New Year. I find that this was because Mrs Renehan had decided not to work for the company anymore. This is consistent with Mrs Renehan’s text to Ms Tran. Mr Renehan submitted that Mrs Renehan had not meant to say in her text that she had left the company, and that this wording reflected the fact that Mrs Renehan is not a native speaker of English. I reject this. For one thing, it was clear to me from the -- 4 of 6 -- [2023] FWC 554 5 proceedings in the Commission, and from the audio recording, that Mrs Renehan speaks good English. Further, when I asked Mrs Renehan what she had meant in her text, Mrs Renehan said that she had not wanted to say bad things about the company, such as ‘I quit’; this was why she had said ‘I leave’. Consideration [22] Section 386(1) of the Act states that a person has been dismissed if the person’s employment has been terminated ‘on the employer’s initiative’ (s 386(1)(a)), or if the person resigned but was ‘forced to do so because of conduct, or a course of conduct’, of the employer (s 386(1)(b)). Based on my factual findings, I conclude that Mrs Renehan was not dismissed on the employer’s initiative. There was an agreement on 11 December 2022 that Mrs Renehan would be employed on a casual basis, and that she would not work for the rest of December. Mrs Renehan was told that she was to contact Ms Lapira at the end of her absence. It was clear that in order to be allocated casual engagements, Mrs Renehan had to contact the company. She did not do so. Eight days after the meeting on 11 December 2022, Mrs Renehan told another employee that she had left the company. Viewed objectively the employment ended on Mrs Renehan’s initiative. [23] Ms Lapira reasonably concluded that Mrs Renehan had decided not to continue working for the company. That is why on 3 January 2023 she sent Mrs Renehan a message asking her to return company property, which Mrs Renehan promptly did. Ms Lapira did not wait long into the New Year to draw the conclusion that Mrs Renehan had left her employment. But that was in the context of Mrs Renehan not having responded to her message of 13 December 2022, and having seen Mrs Renehan’s text to Ms Tran. [24] Contrary to Mrs Renehan’s suggestion, the payment out of accrued leave does not point to the termination of the employment on the employer’s initiative. Mrs Renehan’s employment as a permanent employee had ended. A casual employment relationship was established. This occurred by agreement. It was Mrs Renehan who ended the casual relationship. [25] At the hearing, Mr Renehan contended that, if Mrs Renehan had resigned from her employment, the Commission should conclude that it was a forced resignation. I disagree. There is no evidence to support this contention. Mrs Renehan said that following the meeting on 11 December 2022, she did not feel welcome. If she thought this, I fail to see why. Again, Ms Lapira had told Mrs Renehan that she could return from her break as ‘as a casual or whatever’, and that she was to contact her. I accept that Ms Lapira had used some fairly blunt language in her emails to Mrs Renehan (saying, for example, that she had earlier ‘voided’ her part-time contract). But this is a minor matter. Ms Lapira had tried to accommodate Mrs Renehan’s request for more personal time. Mrs Renehan had expressed her appreciation. The discussion on 11 December 2022 was friendly and polite. There was nothing unwelcoming about it. But even if Mrs Renehan did feel unwelcome, this is not a circumstance of compulsion that forced Mrs Renehan to resign. I reject Mr Renehan’s suggestion that Mrs Renehan was coerced into the arrangements that were agreed at the meeting. There was no coercion. The company’s actions did not lead to the end of Mrs Renehan’s employment. [26] If I had concluded that there was a dismissal in this case, I would have found that the dismissal was not unfair. Mrs Renehan evidently no longer wanted to work at the company. She did not get in touch with Ms Lapira. She did not respond to Ms Lapira’s email of 13 December 2022. Moreover, I consider Mrs Renehan’s conduct in secretly recording her meeting -- 5 of 6 -- [2023] FWC 554 6 with Ms Lapira would have provided the company with a valid reason for dismissal. It is well- established that evidence of an employee’s conduct that emerges after the dismissal may be relied on as a valid reason for dismissal in an unfair dismissal proceeding. This is consistent with the principle that it is for the Commission to determine for itself whether there was a valid reason for dismissal. Generally speaking, unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate. This is so, irrespective of whether it constitutes an offence in the relevant jurisdiction. In this regard, I adopt the observations that I made in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]. Mrs Renehan did not offer any justification for her secret recording of the meeting. She had a cordial relationship with Ms Lapira. There was no critical interest at stake that could only reasonably be protected by a secret recording. [27] Finally, even if I had concluded that Mrs Renehan had been unfairly dismissed, I would not have awarded a remedy. Reinstatement was not sought and would not be appropriate. As to compensation, s 392(2)(c) requires the Commission to consider how long the employment would likely have lasted, had the dismissal not occurred. If there was a dismissal in this case, it occurred on 3 January 2023, when Ms Lapira asked Mrs Renehan to return company property. Had this not occurred, I consider that it is unlikely that Mrs Renehan would have requested to work any shifts, because she did not want to work for the company any longer. In my view, the company would likely have ended the employment relationship soon after. There would have been no loss in respect of this period because I consider that Mrs Renehan would not have worked any shifts. I would therefore not have ordered compensation. Conclusion [28] Mrs Renehan was not dismissed on the initiative of the employer for the purposes of s 386 of the Act. She was not forced to resign. The company’s jurisdictional objection is upheld. The application is dismissed. DEPUTY PRESIDENT Appearances: A. Renehan and D. Renehan for the applicant J. Lapira for the respondent Hearing details: 2023 Melbourne 2 March Printed by authority of the Commonwealth Government Printer <PR760082> -- 6 of 6 --