In this week’s article we take a look at two recent employment law cases that were heard concurrently by the Fair Work Commission. The central issue in these cases was whether the two employees were “dismissed” under the Fair Work Act 2009 (Cth) (‘Fair Work Act’) and therefore entitled to bring their respective general protections claims against their shared employer in respect of the dismissals.
The cases can be viewed here:
In these matters, the Fair Work Commision was required to rule on whether two employees of an NDIS provider were dismissed for the purpose of section 365(a) of the Fair Work Act. Despite both employee’s claims arising from the same set of circumstances Deputy President Millhouse found that only one of the employees was dismissed whilst the other had resigned.
The Respondent in this matter Gallawah Pty Ltd (Gallawah) is a registered provider with the National Disability Insurance Agency who predominantly provides services to persons approved for support on the NDIS, specialising in persons who are in the justice system, including those detained in prison and persons referred by the Department of Families, Fairness and Housing (Vic). Gallawah’s head office is in Shepparton Victoria, however many of their employees either work from home or from the homes of their clients.
The Applicants in this matter Ms Fathalla and Ms Lemana were both casual employees, neither of whom had a written employment contract. Ms Fathella was employed as a support coordinator and Ms Lemana was a Manager/Team Leader responsible for the supervision of, and training for, certain employees. Both employees worked from a property in Dandenong North, Melbourne that was leased in Ms Lemana’s name. The Applicants along with another employee were a part of the ‘Melbourne Team’.
A major dispute between the parties arose in the middle of December 2022 when both Applicants had a meeting with Ms Powney to discuss concerns they had about being underpaid. The alleged underpayments were contested by Ms Powney and were not ruled on by the Deputy President. In an email exchange following this meeting the Applicant’s informed Ms Powney that they had contacted the Fair Work Ombudsman and Ms Powney said that she will address the matter with her lawyers.
The Applicants alleged that from 5 January 2023 they were advised by a fellow employee that Gallawah would be closing the Melbourne Team down, which they claimed was a result of their complaints regarding the alleged underpayment.
It was Ms Powney’s position that after a search of Gallawah’s email system she had discovered that the Applicants had been referring clients to another business that was being run by a former employee of Gallawah. It was this discovery that Ms Powney says led to her sending an email to the Melbourne team on 20 January 2023 informing them that she would be shutting down the Melbourne office and taking steps to wind up Gallawah’s melbourne operation by transitioning participants to new supports. (‘Melbourne Shutdown email’)
The legal question that the commission was required to determine was therefore whether this email constituted a dismissal, and for the purpose of section 365(1) were Ms Fathalla and Ms Lemana people who had been dismissed.
In determining that the Melbourne Shutdown email was a termination at the employer’s initiative the Deputy President considered the nature of casual employment meant there was no firm advancement of work and in the absence of any express contractual provision no notice of termination was required.
Before reaching a decision, the Deputy President examined text messages between Ms Fathalla and Ms Powney and determined that up until receiving the Melbourne Shutdown email, she was still an employee of Gallawah, and could reasonably expect ongoing work.
In the end, the Deputy President was satisfied that a reasonable person with the knowledge and background of the dealings between Ms Fathalla and Gallawah would regard Ms Powney’s email as terminating the employment relationship between the Gallawah and Ms Fathalla with immediate effect. As a result, Ms Fathalla was found to be dismissed and permitted to pursue her general protections claim.
Despite also receiving the Melbourne Shutdown email on 20 January 2023 the Deputy President found that Ms Lemana was not dismissed. This was found as prior to the Melbourne shutdown email Ms Lemana had sent an email to Ms Powney titled ‘Thank you’. In this email Ms Lemana expresses her concerns about the direction that Gallawah is going in, thanked Ms Powney for what she does for the community but that it had become “too difficult to stay”. In evaluating whether this was a resignation letter the Deputy President examined another email sent by Ms Lemana the previous day to a real estate agent in which she described Gallawah as her “old employer”. On an objective reading of the email, this was found to be a resignation.
Ms Lemana sought to argue that if this was a resignation that it was either forced by the conduct of the employer or in the alternative that it was conditional upon her completing handover period. Both of these arguments were rejected by the Deputy President.
In conclusion the Deputy President found that at the time of receiving the Melbourne Shutdown email Ms Lemana had already resigned from her employment and was therefore not dismissed.
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