Amanjeet Kaur v 3rd Party Labour Solutions Pty Ltd, Lakhwinder Singh, Chashampal Gill Singh [2023] FWC 1902

1 Fair Work Act 2009 s.365—General protections Amanjeet Kaur v 3rd Party Labour Solutions Pty Ltd, Lakhwinder Singh, Chashampal Gill Singh (C2023/1562) COMMISSIONER MIRABELLA MELBOURNE, 4 AUGUST 2023 Application to deal with a general protections dismissal dispute – whether dismissed. [1] On 8 March 2023, Ms Amanjeet Kaur (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections contravention involving dismissal. The Applicant alleges that she was dismissed by 3rd Party Labour Solutions Pty Ltd (the First Respondent), because she exercised workplace rights. She alleges she was dismissed for exercising her right to make a complaint about her pay, to file an anti-bullying application, to take personal leave and to make an internal complaint about alleged bullying. [2] She alleges that Mr Lakhwinder Singh (the Second Respondent), who was the director of the First Respondent when the Applicant’s employment was terminated, and Mr Chashampal Gill Singh (the Third Respondent), a former director of the First Respondent, were involved in the contravention. [3] The First Respondent and Second Respondent raise a jurisdictional objection to the application. They allege that the Applicant resigned from her employment with the First Respondent and was not dismissed. The Applicant seeks a finding that she has been dismissed and terminated at the initiative of the First Respondent. The Third Respondent has not provided any submissions in relation to the jurisdictional matter. [4] The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether her dismissal was in contravention of the general protections provisions.1 [5] This matter was allocated to me for case management on 6 July 2023 and was listed for conference on 11 July 2023. I issued directions on 12 July 2023 for the filing and service of material and conducted a determinative conference regarding the matter of jurisdiction on 3 August 2023 at the Commission in Melbourne. [2023] FWC 1902 DECISION -- 1 of 7 -- [2023] FWC 1902 2 Statutory context [6] An application, such as in the present case, made under s.365 can only be made by, or on behalf of, a person who has been “dismissed”. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of the employer’s conduct.2 [7] The expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer, and which is not agreed to by the employee.3 [8] A termination is at the employer’s initiative when: • The employer’s action “directly and consequentially” results in the termination of the employment; and • Had the employer not taken this action, the employee would have remained employed.4 [9] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.5 The question of whether the act of an employer results “directly or consequentially” in the termination of employment is an important consideration, but it is not the only consideration.6 It is important to examine all of the circumstances including the conduct of the employer and the employee.7 The respective contentions [10] The First Respondent and Second Respondent contend that on 15 February 2023, the Applicant verbally advised Mr Grant Peters, the former General Manager of the First Respondent, that she was resigning after she discovered that the Third Respondent was to no longer be involved in the business. [11] The Applicant contends that she was dismissed by the First Respondent on 15 February 2023 via written notice that her employment was being terminated, and that this was confirmed by Mr Peters in subsequent emails from Mr Peters to the Applicant’s legal representatives. [12] The Applicant’s submission that she had been summarily dismissed on 15 February 2023 was abandoned at the determinative conference. Background and evidence [13] The facts are not contentious except where indicated. [14] On 15 February 2023, the First Respondent issued all staff with a letter sent via email (the 15 February 2023 letter) informing them that: • The Third Respondent would be resigning from the First Respondent; -- 2 of 7 -- [2023] FWC 1902 3 • The Second Respondent would be leading the business as director; • The business would be transferred to a new entity; • Staff of the First Respondent would be given four weeks’ notice of termination of their employment with the First Respondent; and • Some staff may have the opportunity to transition their employment to the new entity. [15] On the same morning and after receiving the 15 February 2023 letter, the Applicant was copied into an email from the First Respondent to their IT provider requesting that the Third Respondent’s access to their systems be suspended (the IT email). [16] It is not disputed that within minutes of the 15 February 2023 letter being sent to staff, Mr Peters went to see the Applicant. There is a dispute regarding the content of the conversation between them. [17] The Applicant says that following receipt of the 15 February 2023 letter, she and Mr Peters said the following to each other: “Mr Peters: “Did you see the email?” Me: “Yes.” Mr Peters: “Now what do you want to do? What’s your decision?” Me: “Give me 2 days. I have been trying to call Gill because I don’t know what’s happening or what I should do. I’m leaving now but I will get back to you in 2 days.” Mr Peters: “Well, if you are leaving now give me your access card and laptop.” Me: “I will give you my access card, but I am not resigning I need 2 days.”” [18] The First Respondent and Second Respondent dispute the Applicant’s version of events and say that the Applicant told Mr Peters on 15 February 2023 that she was resigning. It is the First Respondent and Second Respondent’s submission that the Applicant resigned after receiving the IT email. They submit she was very close to the Third Respondent and was upset at receiving this email. [19] It is Mr Peter’s evidence that the Applicant had resigned on 15 February 2023 in a conversation with him to the following effect: • After reading the IT email, the Applicant said, “What’s this nonsense?”. • Mr Peters then explained to the Applicant that this was a security measure, as the Second Respondent had acquired the business and the Third Respondent was departing the business. -- 3 of 7 -- [2023] FWC 1902 4 • The Applicant then said, “Does that mean that idiot is in charge … I’m not working for that man, I’m resigning straight away, I’m going!” and that she was referring to the Second Respondent. • Mr Peters then said to the Applicant, “If you’re resigning, I will need your company property such as an access card and other gear”. [20] Both parties agree that the Applicant left the office on the morning of 15 February 2023 after Mr Peters asked her to hand in her access card and other property of the First Respondent. [21] The Applicant and Mr Peters met at a cafe on 16 February 2023. Mr Peters says the Applicant told him that she had not resigned and that she had left work on the previous day because her daughter was unwell at school. At the determinative conference, the Applicant says she was informed of her daughter’s accident at school at the same time she received the 15 February 2023 letter. Mr Peters accepts that the Applicant said she had not resigned and also recalls advising the Applicant that if she did not resign, then he would like her to provide her availability to work for the current week. The Applicant disputes this and says that at the cafe, Mr Peters advised her that the Second Respondent did not want her to return on site and requested her company laptop be returned. [22] On 17 February 2023, the Applicant sent a text message to Mr Peters which included a screenshot of a medical certificate that indicated she would be unfit for work in the period of 17 February 2023 to 25 February 2023. [23] On 27 February 2023, the Applicant’s solicitor sought clarification from Mr Peters via email regarding the status of the Applicant’s employment. Mr Peters replied on the same day advising that the Applicant was still employed as this was within the four-week notice period, that the Applicant was welcome to discuss an early departure and that the Applicant’s final entitlements will be paid around 15 March 2023. He also noted that the Applicant’s medical certificate expired on 25 February 2023, advising her that she is expected to return to work. He also stated that the Second Respondent did not wish to engage the Applicant in the new entity. In an email to the Applicant’s solicitor on 2 March 2023, Mr Peters reaffirmed that the Applicant had not been dismissed and that she was expected to be onsite until 15 March 2023 to serve out the four-week notice period. [24] The Applicant attended the First Respondent’s worksite on 3 March 2023 but on arrival found someone else working in her office, and she was directed to leave the worksite. Mr Peters says the Applicant turned up to work unannounced and she insisted on returning to her office and did not want to work in another space. He says that after she refused, she was escorted from the premises. Was the Applicant dismissed on 15 February 2023? The First Respondent and Second Respondent’s submissions -- 4 of 7 -- [2023] FWC 1902 5 [25] The First Respondent and Second Respondent contend that the Applicant provided verbal notice of resignation on 15 February 2023 and that because she has not been dismissed, she is unable to make a s.365 application. The Applicant’s submissions [26] The Applicant submits that she was dismissed by the First Respondent consistent with s.386 of the Act and is, therefore, eligible to make a general protections application under s.365. [27] She submits she received written notice of her dismissal following receipt of the 15 February 2023 letter and that termination of her employment was confirmed when Mr Peters requested that she return company property to him. She disputes that she resigned from her employment. [28] The Applicant alleges she sought to comply with her notice obligations outlined in the 25 February 2023 letter by attending the worksite on 3 March 2023, but she alleges she was directed to leave. [29] In support of the submission that she was dismissed, the Applicant contends that a contract cannot be terminated twice, citing Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 (‘Melbourne Stadiums’) at [112]. In the alternative, the Applicant submits that any resignation occurred in the context of needing to attend to her child at school and receipt of the IT email. She further contends that on the very next day, she confirmed she had not resigned and that the First Respondent did not accept the resignation as confirmed in subsequent email from Mr Peters. Consideration [30] The 15 February 2023 letter detailing the dismissal of all employees of the First Respondent effective 15 March 2023 after a four weeks’ notice period is unambiguous. [31] During the determinative conference, the First and Second Respondents’ witness, Mr Peters, accepted the 15 February 2023 letter was a termination of all staff. The First Respondent and Second Respondent raised the jurisdictional objection that the Applicant had verbally resigned on the morning of 15 February 2023 after receipt of the 15 February 2023 letter and the IT email. [32] Mr Peters said he wanted the Applicant at work because there were no other accountants in the company and that she had the only finance role in the company. Further, in the emails to the Applicant’s legal representative on 27 February 2023 and on 2 March 2023, Mr Peters repeats that the Applicant was still employed during the notice period to 15 March 2023. [33] The First Respondent and Second Respondent contend that the Applicant was upset, she had insulted the Second Respondent and had resigned. At the determinative conference, Mr Peters said that the following day when meeting with the Applicant she did say words to the effect of “I haven’t resigned, I wanted to pick my daughter up from school. She had an accident”. -- 5 of 7 -- [2023] FWC 1902 6 [34] The Applicant disputes that she resigned on the morning of 15 February 2023. During the determinative conference, the Applicant was unapologetically contradictory, and at times her manner and tone lacked an air of credibility. [35] The Applicant says in her witness statement that on the morning of 15 February 2023, she said to Mr Peters, “Give me 2 days. I have been trying to call Gill because I don’t know what’s happening or what I should do. I’m leaving now but I will get back to you in 2 days.” [36] During the determinative conference, the Applicant insisted that she asked for leave instead of telling Mr Peters she was leaving and would get back to him. [37] The Applicant says that at the meeting with Mr Peters the next day, she informed him that she had left work the previous day because she needed to attend to her daughter as there had been an accident at school. According to the Applicant’s evidence, she had been informed of the accident at the same time as receiving the 15 February 2023 letter. [38] When asked why she did not give this reason for leaving work soon after receipt of the 15 February 2023 letter and IT email, the Applicant said words to the effect of it “slipped her mind” and that “she didn’t have time to say the words”. [39] I do not find the Applicant’s version of the conversation believable and prefer Mr Peter’s evidence. I find that, on balance, the Applicant did resign on the morning of 15 February 2023, but the resignation was not legally effective because it was a resignation in the heat of the moment when she was upset at the changes as detailed in the 15 February 2023 letter and the IT email.8 [40] I find that the Applicant withdrew her resignation the next day and that this was accepted by the First Respondent on that day and in subsequent correspondence. [41] The Applicant says that once the First Respondent had dismissed her, she legally could not terminate a contract that had been terminated and relied on the Full Court of the Federal Court of Australia decision in Melbourne Stadiums.9 [42] The Melbourne Stadiums case involved an employer attempting to change the reason for termination of employment by contending that a lawfully terminated agreement can be resuscitated and then re-terminated on another basis that was not known at the time of termination. The Full Court concluded that the employer having made its choice on the basis for terminating the employment contract was bound by that choice. [43] This matter in dispute is distinguished from Melbourne Stadiums in that the employer did not attempt to change the termination reason. Both parties agreed that the termination was contained in the 15 February 2023 letter. That the First Respondent and Second Respondent contend the Applicant resigned at the beginning of the notice period as per the 15 February 2023 letter is not analogous to the facts in the Melbourne Stadiums case. [44] Having regard to all the evidence and submissions and the reasons above, I am satisfied that the Applicant has been dismissed pursuant to s.386(1)(a) of the Act. The 15 February 2023 -- 6 of 7 -- [2023] FWC 1902 7 letter gave all staff notification that their employment would be terminated on the expiration of four weeks’ notice, nominating the final day of employment as being 15 March 2023. Conclusion [45] As I have found that the Applicant’s employment was terminated on the employer’s initiative, the jurisdictional objection is dismissed. [46] Accordingly, the application will now proceed to conciliation before the Commission. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR764804> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152. 2 Fair Work Act 2009 (the Act) sections 12, 386. 3 Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. 4 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. 5 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]; citing O'Meara v Stanley Works Pty Ltd, PR973462 at [23]. 6 Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904. 7 O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999. 8 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2018] FWCFB 2607. 9 [2015] FCAFC 20. -- 7 of 7 --