Alysha Marshall v Kingsley’s Chicken Pty Limited [2023] FWC 3458

1 Fair Work Act 2009 s.365—General protections Alysha Marshall v Kingsley’s Chicken Pty Limited (C2023/6311) COMMISSIONER MCKINNON SYDNEY, 22 DECEMBER 2023 Application to deal with a general protections dismissal dispute – whether dismissed [1] Ms Alysha Marshall was employed as a casual Fast Food Employee Level 1 by Kingsley’s Chicken Pty Limited (Kingsley’s) from January 2018 until 23 September 2023. For most of this time, she worked 3-4 regular shifts each week with largely predictable hours. However, over the course of 2023, Ms Marshall’s workplace participation was significantly disrupted for reasons related to pregnancy. In September 2023, she was removed from the roster. [2] On 13 October 2023, Ms Marshall applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The application alleges that Kingsley’s took adverse action against her because she exercised a workplace right to take personal leave and because she mentioned speaking to a lawyer about her concerns, as well as by subjecting her to coercion and discriminating against her on the grounds of pregnancy. [3] There is a dispute about whether Ms Marshall was dismissed. An application under section 365 of the Act 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.1 The allegation of dismissal in this case relies on section 386(1)(a) of the Act on the basis that there was a termination at the initiative of the employer. [4] The question is whether Ms Marshall was dismissed, and in short, the answer to the question is ‘Yes’. Ms Marshall was dismissed [5] The relevant facts are these. On 13 September 2023, Ms Marshall provided Kingsley’s with a medical certificate restricting her ability to lift more than 2 kilograms for an 8-week period from Wednesday, 13 September 2023. [2023] FWC 3458 DECISION -- 1 of 8 -- [2023] FWC 3458 2 [6] On 14 September 2023, Mr Milovan Scepanovic, Operations Manager, reviewed the tasks required of Ms Marshall’s role against a 2-kilogram lifting restriction. He formed the view that Ms Marshall would be unable to complete a significant proportion of her duties. He rang Ms Marshall and told her of his assessment. Although Ms Marshall agreed with some of what he said, she did not agree with the assessment overall. Mr Scepanovic told Ms Marshall that she would be removed from the roster until she had a medical certificate that cleared her to perform her duties. [7] At 4.00pm on 14 September 2023, Mr Scepanovic sent an email to one of Kingsley’s Directors, Ms Jenny Stead: “Hi Jenny , Can you please send this check list to Alysha Marshal [sic]. I have spoken to her because she has a certificate that says she is not allowed to carry more then [sic] 2 killos [sic]. I have covered the list with her and told her that because she can not do any of those we will have to remove her from a roster until she can get certificate that says she can do those things. \thank you” [8] At precisely the same time on 14 September 2023, Ms Marshall sent a message to Mr Scepanovic: “Hi milovan if I get a certificate stating I can lift 4kilos [sic] can I come back to work? Just so I can ask my doctor. I just don't think I can lift 5 kilos. And it might take a few months and I don't want to be out of work for months over this. If I can do the chips, the trays, pack chickens and just do them separately for customers I am okay. I just can't do the drink fridge. I have told the managers for over a month that I can't do the drinks and the gravy. But I have still been able to work.” [9] There is a dispute about whether it was Mr Scepanovic or Ms Marshall who brought up the need for a second medical certificate. Although little turns on it, Mr Scepanovic’s email to Ms Stead indicates that he made the suggestion and that Ms Marshall then sought clarification about what the certificate might need to say to enable her to continue working. I prefer the evidence of Ms Marshall on this matter because it is more consistent with the documentary evidence. [10] Ms Marshall proceeded to organise a telephone consultation with her doctor for 14 September 2023. She obtained a further medical certificate advising that from “Friday, 15/09/2023 for another 8 weeks” Ms Marshall was “not to do the drinks fridge and not to lift the gravies”. She sent it to Mr Scepanovic on 15 September 2023 and asked him to confirm if she was working that night. He replied to say “Yes you are thank you”. [11] Later in the evening of 15 September 2023, Ms Stead forwarded the email from Mr Scepanovic to Ms Marshall. [12] Ms Marshall worked without incident on 15, 16, 20 and 21 September 2023. -- 2 of 8 -- [2023] FWC 3458 3 [13] On 23 September 2023, there was an incident involving Ms Marshall’s decision not to lift a customer’s chicken order. Ms Marshall had assumed that the order, which was in a yellow bag, was heavier than her 2-kilogram weight restriction. She decided not to lift the bag, but did not check inside to see if her assumption was correct. When he became aware of the issue, Mr Benjamin Lauron, Supervisor, came over and showed Ms Marshall that the order had been split into more than one foil bag inside the yellow bag, and that it would not be too heavy for her. [14] Mr Lauron reprimanded Ms Marshall for not checking inside the bag or asking a manager right away if she could lift something. When she explained that she was a bit sore because of her medical condition which she did not want to exacerbate, he replied that “they could not really do special treatment to anyone” and he was being fair to everyone. Ms Marshall then asked if she could just get some help and have her needs accommodated for 8 weeks. Mr Lauron suggested that she not come to work and rest instead, and Ms Marshall explained that she needed the money. She told Mr Lauron that she had been writing things down for a lawyer, and Mr Lauron responded that this was her right. [15] The conversation made Ms Marshall cry. She said “I can’t do this anymore”, heated up her heat pack, walked out of the store and called her mother, still crying. She felt embarrassed about having felt the need to explain the detail of her pregnancy-related medical issues to Mr Lauron. After about 20 minutes, Ms Marshall returned and spoke to Mr Lauron. She said: “I apologise if this is an inconvenience, but I’m not doing well, and I really need to go home and put myself first”. [16] Mr Lauron replied: “No worries, I am trying to find someone to replace you.” [17] In this conversation, Ms Marshall’s advice that she would go home, and Mr Lauron’s response that he was trying to find someone to replace her, were in the context of needing to replace Ms Marshall for the remainder of her shift that day. Neither was contemplating some form of finality to the employment relationship. Ms Marshall said “Okay, I will be in tomorrow”, and left the store. [18] Mr Lauron subsequently spoke to Mr Scepanovic about the incident. He was asked to make an incident report. The report refers to Ms Marshall’s medical certificate, her lifting restrictions and Mr Scepanovic’s instruction to the effect that “picking up 10 pieces of chicken per foil bag is not that heavy to cause/effect her medical condition.” [19] The incident report made its way to Mr Kingsley Varr, Director. On review of relevant documents, including the email of 14 September 2023, Ms Marshall’s medical certificates and the incident report, Mr Varr formed the view that Ms Marshall had ‘reneged’ on an ‘arrangement’ for her to abide by her medical restrictions. He decided that Ms Marshall should not be working but did not speak to her, as he relied on Mr Scepanovic to liaise with Ms Marshall directly as her manager. He asked Mr Scepanovic to write to Ms Marshall to say that she would not be allocated any more shifts for the period of her medical certificate. -- 3 of 8 -- [2023] FWC 3458 4 [20] When Mr Scepanovic wrote to Ms Marshall as requested, he omitted an important detail. The message said this: “Hi Alysha Since you walked out of the shop today mentioning layers [sic] and have not informed us what are tour [sic] plans I have removed all of your shifts . If you want to get in touch with us please contact us via email to [email protected].” [21] The message made no mention of any time limit on Ms Marshall’s removal from the roster. [22] Ms Marshall was not expecting to receive this message, and when she read it, she thought that she had been fired. On 25 September 2023, Ms Marshall wrote to Kingsley’s at the email address provided by Mr Scepanovic in his message of two days earlier. She wrote: “Dear Management, My name is Alysha Marshall and I work at the Lanyon store. I have a number of medical limitations on my work at the moment due to a miscarriage I had in July. I have provided my managers with medical evidence for the adjustments that I require, which will only be in place for the next 8 weeks. On Saturday, my manager Benji told me these adjustments were "not fair on everyone else" and that I should not come to work if I needed these adjustments. This made me very upset, and I left the store to calm down. When I returned, I apologised for the inconvenience caused and he said it was fine and that he was trying to replace me. I confirmed that I would be in the next day, Sunday, for my shift. On Saturday night I received a text from my manager Milovan informing me that he had removed all of my shifts and that if I wanted to get in touch to email this address. Could you please confirm whether I will be getting my shifts back? Thankyou” [23] No response was received by Ms Marshall to her message of 25 September 2023, and on 13 October 2023, she filed this application. [24] On Friday, 10 November 2023 (the day after Kingsley’s had filed its response to the application), Ms Marshall received an email from Kingsley’s Director, Ms Jenny Stead. The email was headed “Your return to work” and said: “HI [sic] Alysha The medical cert that restricted the work that you could perform for 8 weeks in Kingsleys, expired today. If you wish to be reinstated on the roster, please inform by replying to this email and we will inform Milovan, that you would like to return to work. -- 4 of 8 -- [2023] FWC 3458 5 To be provided shifts, you will have to see your doctor and get a certificate stating that there are no work limiting restrictions and you can resume work. Of course, we would not be able to roster you on if the doctor states that your ability to work is restricted. After you present this certificate in Lanyon store,,[sic] and request recommencing work, we will as is usual with long layoffs, organise a refresher session and carry out some training just to make sure you catch up with any system changes that may have occurred while you have been away, As we had to keep running the business, all your shifts have been covered some by crew from Erindale so we should be able to accommodate you, should you wish, by allocating at least 2 shifts to you. As next week's roster has been finalised shifts for you would be only available in 2 weeks' time should you complete the refresher sessions successfully. We have no doubt that you will fly through the dry runs and the refresher session ... We look forward to putting you back on the roster.” [25] Ms Marshall did not reply to the email from Ms Stead. Consideration [26] Section 386 of the Act deals with the meaning of “dismissed”. Under section 386(1)(a), a person has been dismissed if the person’s employment with their employer has been terminated on the employer’s initiative. [27] In Mohazab v Dick Smith Electronics Pty Ltd2 (Mohazab), the Industrial Court of Australia considered the concept of termination at the initiative of the employer and made the following observation: “In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” [28] The decision in Mohazab informs how section 386 of the Act is to be applied. In this case, the critical actions3 that constituted a termination of the employment at the initiative of Kingsley’s were the removal of Ms Marshall from the roster on 23 September 2023, and Kingsley’s subsequent failure to respond to her message of 25 September 2023 which sought clarification about the status of her employment. [29] I do not accept that it was, or should have been, clear to Ms Marshall that when Mr Scepanovic advised of her removal from the roster on 23 September 2023, it was only for the period covered by her medical certificate(s). Although Mr Scepanovic had advised Ms Marshall on 14 September 2023 that her medical restrictions meant she could not be rostered on for work, a subsequent medical certificate had been provided to Kingsley’s and Ms Marshall had resumed work. -- 5 of 8 -- [2023] FWC 3458 6 [30] The message from Mr Scepanovic makes no mention of any possibility of further shifts. It simply says he has “removed all of your shifts”. It explains (as the word “since” shows) that the reason for removing her shifts was that Ms Marshall had “walked out of the shop”, mentioned lawyers and not told Kingsley’s about what her plans were. This was an unfair characterisation both of the incident of 23 September 2023 and Ms Marshall’s conduct more broadly. Although Ms Marshall had walked out for about 20 minutes, she was crying at the time because of what Mr Lauron had said to her. She had then come back, apologised, and said she would be in the next day for her shift. [31] Ms Marshall had been more than upfront with her managers at the Lanyon store about her “plans” – including her need to work for financial reasons, the difficulties she had experienced in relation to pregnancy, miscarriage and mental health, as well as her commitment to the job and a request for short-term adjustments to her duties while she recovered. Her mention of lawyers was no reason to remove her from the roster. As Mr Lauron acknowledged at the time, she had the right to seek legal advice. [32] Returning to the message from Mr Scepanovic, it represented a departure from the usual channel of communication between Ms Marshall and Kingsley’s in relation to rostering. Rather than asking her to contact Mr Scepanovic about further shifts, a “formal” email address was provided with no information about who the contact person associated with that email address would be. As noted above, the email address is monitored by Kingsley’s Director, Mr Varr. The available inference is that one purpose of this change in communication channels was to remove local managers from further contact with Ms Marshall in anticipation of potential legal action, rather than only for the purpose of ensuring that she could be returned to the roster when she was able. [33] The lack of any response to Ms Marshall’s subsequent request for clarification about whether she would again be rostered for work is telling. If the truth of the matter was that Kingsley’s intended to provide Ms Marshall with further shifts when her medical certificate expired, it was on notice from 25 September 2023 that Ms Marshall did not share in this knowledge. Kingsley’s had a duty to clarify its position. Its failure to do so in the context of Mr Scepanovic’s earlier advice to her that she had been removed from the roster indefinitely was a tacit endorsement of both the advice from Mr Scepanovic and Ms Marshall’s understanding of what it meant. [34] The email sent to Ms Marshall on 10 November 2023 does not alter my conclusion that by this time, Ms Marshall had been dismissed. The timing of the email is remarkable given its coincidence with the filing of Kingsley’s response to the application. But it is the content of the email and its relationship to the evidence of Mr Varr that tends against a finding in favour of the jurisdictional objection. [35] The email begins by referring to the end of the medical restrictions that day – which can only be a reference to the end of the medical restrictions certified on 15 September 2023 (no drinks fridge, and no lifting the gravies). Mr Varr gave evidence that by 23 September 2023, he considered Ms Marshall to have reverted to the earlier medical certificate of 13 September 2023 (no lifting more than 2 kilograms). If so, the restrictions would have expired two days earlier. -- 6 of 8 -- [2023] FWC 3458 7 [36] The suggestion that Ms Marshall could be returned to the roster was attached to conditions that were likely to operate as a barrier to her successful return to “pre-injury duties”, at least from the end of the 8-week restrictions period. These were: 1. That Ms Marshall see her doctor and obtain a medical certificate that there are “no work limiting restrictions”, 2. That any restriction on her ability to work at all would mean she could not be rostered on, 3. That she present this certificate in the Lanyon store, and request to recommence work, 4. That due to her 7 week “long layoff” she attend “a refresher session” and some training to catch up with any system changes (recalling that she had worked at Kingsley’s for more than 5.5 years), 5. That she would only likely be given 2 shifts (a reduction from 3-4 shifts), and 6. That she could only be placed on the roster again 2 weeks after successful completion of the refresher sessions described above. [37] Apart from anything else, the email tends against a finding that Kingsley’s was genuinely intending to return Ms Marshall to the roster after the expiry of her 8-week medical certificate. It waited until the last day of what it says was the 8-week period to communicate with Ms Marshall about how she might be able to return to the roster. It set out a series of steps she needed to take to achieve her return, which at the earliest, would have seen her return to work 10 weeks after her medical certificate expired (2 weeks after completion of the refresher training session). This timeframe makes no allowance for any other delays, such as were likely to be caused by Ms Marshall having to wait for an appointment with her doctor or attending the Lanyon site in person, or in connection with Kingsley’s organising and conducting the refresher sessions, or how the roster cycle might align with completion of the various mandated steps. [38] For these reasons, I find that Ms Marshall was dismissed by Kingsley’s on 23 September 2023. Order [39] The jurisdictional objection is dismissed. The matter will now be listed for conference. COMMISSIONER -- 7 of 8 -- [2023] FWC 3458 8 Appearances: S Price of Women’s Legal Centre ACT on behalf of the Applicant. L Bassa of Cube Workplace Solutions on behalf of the Respondent. Hearing details: 2023. Sydney (by video): December 14. Printed by authority of the Commonwealth Government Printer <PR769776> 1 Fair Work Act 2009 (Cth), ss 12 and 386. 2 Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625; 62 IR 200. 3 (1995) 62 IR 200. -- 8 of 8 --