TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – respondent company owned by father of applicant’s husband – operated by husband’s family – number of issues to be determined by Commission included date of applicant’s commencement of employment, correct classification of applicant’s position, and whether there was termination at initiative of respondent – that respondent was small business employer not disputed – applicant and husband married in April 2005 – initially employed by husband’s father at another Childcare Centre in or around February 2007 – claimed she commenced working with respondent in early 2009 as Director Level 6.4 under Children’s Services Award 2010 (Award) – separated from husband in September 2015 but continued to work with respondent and maintained good relations with husband’s father – reconciled with husband in December 2015 but relationship deteriorated again – husband divorced applicant on 29 July 2016 – applicant claimed respondent dismissed her two days later – version of events included the respondent removing files, changing locks to building and padlocking entry gate with large chain – respondent told applicant not to return to work until marital problems were sorted – later met with husband’s siblings who demanded applicant hand over staff contact details; advise location of staff files, sign in and out sheets and enrolment forms; advise location of staff group certificates and time and wage books; provide details of grant monies; provide login details for security cameras and computer systems; and hand over all keys, reset computer password and delete all personal files – applicant asked for termination letter but this was refused – believed that because respondent did not want her to return to Centre, she was ‘definitely terminated’ – applicant tendered recordings of conversations with various members of the family – since alleged dismissal, applicant submitted she had been under significant financial stress as she is sole carer of five children and was unable to find work after applying for 14 jobs and attending two interviews – moreover, applicant’s husband withdrew $107,000.00 from joint bank account so she was left with monthly mortgage plus interest on the $107,000.00 – also claimed that respondent owed $21,724.48 in unpaid statutory entitlements and underpayments over at least three years due to difference in pay rates between Director Level 6 and Children’s Services Level 4.2 – respondent also failed to pay outstanding entitlements since termination – respondent submitted that because applicant and husband were in ‘heated situation’ it was in best interests for applicant to have a ‘cooling off’ period so that issues could be settled – had not provided applicant a letter of termination as she had not been terminated, and if there was termination of employment, it was brought about entirely by applicant’s own actions and conduct – intended to pay applicant leave pay until things settled down and she could return to work at the Centre – also submitted that applicant had longstanding issues with performance and had received warnings in the past – that she would often start work late and take Fridays off without explanation – claimed applicant was employed as Nominated Supervisor, not as Director, as only the owner was Director – claimed that locks on the Centre’s gate were changed after respondent’s son warned him applicant intended to steal furniture and money as well as hide documents – submitted that applicant convinced staff to leave and parents to take their children out of respondent’s care following alleged termination – Commission profoundly troubled by exchange between applicant and respondent family members on tendered voice recordings in relation to fees paid by parents for children’s childcare at the Centre – exchange appeared to establish existence of a regular practice to create false records of children’s attendances and employment records – incumbent on Commission to refer issue to appropriate Commonwealth/State authorities – in relation to dismissal, Commission observed that exclusive reliance on direct language to dismiss, whether verbal or written, was not decisive as to whether applicant was dismissed – held that words used by respondent in context of the views he held at the time and the actions taken by him and his family evinced clear intention that respondent no longer wished applicant to remain in employment – respondent’s proposed ‘interim’ solution was not a solution as applicant’s employment was ended until marital relationship was ‘fixed’ in circumstances where the marriage was no longer able to be fixed – Commission gave little to no weight to evidence given by witnesses of respondent due to credibility issues – allegation of poor performance relied upon by respondent occurred three years ago, so was too stale to be of any probative value, let alone serve as ground for dismissal – no evidence of performance issues before or after this time – Commission satisfied that actions of respondent had intention of bringing employment to an end or, at very least, had probable result of bringing employment relationship to an end – jurisdictional objection dismissed – parties invited to file further evidence and/or submissions in relation to whether applicant’s dismissal was unfair and what remedy was appropriate. Sirl v HK Group P/L t/a Buzzbee Long Day Care Centre
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