WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Gek Lian Tan (Appellant) and Paris and Chrissie Kafetzis trading as Gabriel’s Café (Respondents). No. 408 of 1999. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY. CHIEF COMMISSIONER W S COLEMAN. COMMISSIONER P E SCOTT. 10 September 1999. Reasons for Decision. THE PRESIDENT: These are the unanimous reasons for de- cision of the Full Bench. This is an appeal against the whole of the decision of the Commission, constituted by a single Commissioner, given on 12 February 1999 in matter No 1842 of 1998. The appellant appeared on her own behalf on this appeal. There was no appearance by or on behalf of the respondents. We were satisfied that they were served with the Notice of Appeal and the Appeal Book and that they had been duly no- tified of the date of hearing of the appeal. The decision, made on 26 February 1999, was a dismissal of an application by Ms Tan under s.29(1)(b)(i) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), whereby she alleged that she was unfairly dismissed from her employment by the respondents. It is against that decision that the appellant now appeals on the following grounds— GROUNDS OF APPEAL “1. The Learned Commissioner erred in fact and law in failing to find that the applicant was dismissed on grounds of sickness when he did not take into ac- count exhibits Al and A2. This is supported by— a. In Commissioner Kenner’s conclusion, he found the dismissal to be far from unfair in any event (stated page 8, paragraph 3). b. However, the evidence given, namely exhib- its Al and A2 (page 2, paragraph 3), show that I had an absence from 21 September 1998 to 23 September 1998 inclusive for a medical problem. 2. The Learned Commissioner erred in fact and law in his decisions for ruling by not taking in factual ac- counts located in the time and wages records book. This is supported by— a. As to Commissioner Kenner’s conclusion that I had approximately one week of absences, there is an accountability of only two days of absences recorded in the time and wages records book, which the respondent did not bring to court. I had asked to view this book after the court hearing. I was repeatedly de- nied access to view it. b. Also relating to the conclusion of one week of absences, (page 3, paragraph 5) the respond- ent has indeed stated that I had requested to go home as I had felt unwell, but in fact I did remain at work 3. The Learned Commissioner erred in law and went against the weight of evidence when coming to his decision by failing to take in full evidence on the basis of the unavailability of the key respondent. This is supported by— a. Commissioner Kenner observed (page 3, para- graph 6) that Mrs Kafetzis was not present at the proceedings and did not give evidence. To that extent Commissioner Kenner writes that the respondents evidence relating to the tel- ephone discussion on 22 September 1998 was not the best evidence. b. However on the last paragraph of the same page Commissioner Kenner finds that he now prefers the evidence of Mr Kafetzis, even though he was only speaking of (sic) behalf of Mrs Kafetzis, not actually being in any form of conversation between Mrs Kafetzis and myself. c. (Page 6, paragraph 2) Mr Kafetzis says he was standing next to his wife when the telephone call took place and only heard what his wife was saying, therefore he would not have heard what I was saying, therefore only interpreting half of the information. d. Now for Commissioner Kenner to prefer one person’s view of the situation, having no evi- dence, over another person’s view who was actively involved in the two way conversation with evidence, exhibits Al and A2, is purely prejudice e. In relation to Commissioner Kenner’s prefer- ence of evidence to this matter of the telephone call, he found me to be evasive in my answers to questions and reluctant to make concessions that may harm my case. This is indeed a wrong interpretation. I simply did not understand many of the questions asked by Mr Kafetzis, as they were unclear and uninterpretable to me. f. Commissioner Kenner states in his conclusion that acknowledging that the respondent’s evi- dence was not the best of evidence (page 7, paragraph 1), it is accepted by Commissioner Kenner that it was not the respondent’s inten- tion to that the telephone call that morning be of itself a dismissal. g. Commissioner Kenner states (page 7, para- graph 2) that for there to be a dismissal, clear and unambiguous words are to be used and if they are not, there may be a requirement for either party to contract of employment to clarify each other’s intentions. h. Commissioner Kenner states in his findings (page 6, paragraph 3) that there was no fur- ther contact by the applicant with the respondent. In response to that it is in fact that the respondent also did not ring to see if I was well to come in to work, if he so claims that I was not fired. i. In relation to this the respondent, being Mrs Kafetzis, had told me on the Tuesday, “I’m afraid we’re going to have to let you go”. By an employer stating this to an employee over the phone, there is no other interpreta- tion to that other than a dismissal. j. (Page 7, paragraph 3) Commissioner Kenner finds it passing strange that in view of that telephone call I did not seek to clarify the po- sition with the respondent. Wouldn’t it therefore, in the same context, also be passing strange that the respondent did not seek to clarify the whereabouts of myself, if he claims that he did not fire me? 4. The Learned Commissioner went against the weight of evidence in his final decision for he failed to take into account the unavailability of the respondent be- ing Mrs Kafetzis. This is supported by— a. Commissioner Kenner also notes on the evi- dence that at no stage did I attempt to contact the respondent following the events of Tues- day 22 September to provide to the respondent the medical certificate. b. There is no need to contact the respondent with exhibits Al and A2 for Mrs Kafetzis had al- ready dismissed me. If I was not dismissed, then why I ask, is it that the respondent did not attempt to contact me to see if I were well and the day to which I would be returning to work? WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 2988 c. Why? This is because the respondent very well knows that they had dismissed me on the Tues- day. At no time did they attempt to contact me. d. In Commissioner Kenner’s opinion (page 8, paragraph 4) an inference is open on the evi- dence that the applicant herself knew there was an issue regarding her reliability. Commis- sioner Kenner finds (page 6, paragraph 3) that following the telephone conversation which took place on that Tuesday morning that the respondent had made a decision that it was going to replace the applicant because of con- cerns regarding my reliability, and in fact did so on the evidence, about one week later. Also it was the intention of the respondent that af- ter I was expected to return to work on the next day that the applicant would be given notice of the respondent’s intention to termi- nate my employment. e. To that, there is evidence in the time and wages records book that I had only two days of ab- sence prior to the days off due to illness. This book was not brought to the proceedings, and was also denied access to view it by myself on repeated occasions.” On the Notice of Appeal itself, there is a reference to the Workplace Relations Act 1996, which cannot be relied upon in this Commission in this matter, where the Commission ex- ercises, as it does, jurisdiction under state legislation. BACKGROUND The respondents, at all material times, conducted a business called “Gabriel’s Café” in partnership. The appellant, Ms Gek Lian Tan, was employed as a counter hand from 5 August 1998 to about 22 September 1998. The appellant was employed on a full-time basis and her hours of duty on commencement were approximately 15 hours per week, which were, one week later, increased to about 30 hours per week. Mr Kafetzis told her that she would be a “full- time casual” according to the appellant, but Mr Kafetzis said in evidence that she was told that she would be a “part-time casual.” She was paid $11.00 per hour for each hour worked. The appellant’s complaint was that she was dismissed, not for any reason connected with her work performance, but be- cause of her unavailability to continue work commencing on 21 September 1998 and continuing to 22 September 1998 by reason of illness. The appellant’s evidence was that she attended at work on 21 September 1998 at 8.30 am, but left work at about 10.00 am having suffered from stomach cramps. At 7.30 am that morning, she had rung and spoken to Mrs Chrissie Kafetzis and told her that she was ill. Mrs Kafetzis told her to take two panadols, drink some lemon tea and come to work, which the appellant did. She came to work, notwithstanding that she did feel ill. Eventually, having asked the respondent’s permission and having been informed by Mr Kafetzis that it was “not a kindergarten”, she went home, as we have observed, at about 10.00 am. On the morning of Tuesday, 22 September 1998, the appel- lant still remained unwell. She had an appointment with the doctor on that day because the doctor could not fit her in 21 September 1998. She said that at approximately 7.30 am, she telephoned the restaurant and spoke to the respondent, Mrs Kafetzis, to tell Mrs Kafetzis she would not be able to attend work. Mrs Kafetzis asked her why, and the appellant said be- cause she was ill. She adduced evidence, being exhibits A1 and A2, namely medical certificates, which certified an ab- sence by the appellant for “a medical problem” from 21 September 1998 to 23 September 1998 inclusive. The appellant’s evidence was that, in the telephone discus- sion on Tuesday morning, 22 September 1998, the respondent, Mrs Kafetzis, said that the respondents needed someone more responsible and that said she would have to let the appellant go. The appellant gave evidence that she understood that this meant that her employment had come to an end and she had been dismissed. She, therefore, made no further contact with the respondents after the telephone discussion. The appellant also gave evidence that, during the course of her employment, she had time off work to attend to personal matters for a total of about two days, apart from the absences for her illness referred to above. She had not been previously criticised about her work performance. The appellant gave evidence that she did not bring the medical certificates to her employers because “I was fired”. There was some written evi- dence adduced, but no other oral evidence adduced at first instance on behalf of the appellant. The only evidence adduced on behalf of the respondents was that of Mr Paris Kafetzis. Mrs Kafetzis was not called. Mr Paris Kafetzis said, in evidence, that the appellant was employed on a casual basis and the hours worked by the staff were based upon client demand. He agreed, however, that the appellant was paid $11.00 an hour. He said that the appellant had had absences from work for personal reasons on a number of occasions and that, on other occasions, she had asked to go home because she felt unwell and was urged to, but did in fact remain at work because she was concerned she would not be paid if she went home. Mr Kafetzis denied that, at any time, he told the appellant that her employment was terminated as a result of the telephone call between the appellant and Mrs Kafetzis. After the telephone contact, the appellant simply failed to report for duty the next day, as he expected her to do. Mr Kafetzis said he was standing next to his wife when the telephone call took place and heard what his wife said, namely that the respondents needed a person more responsible and, in view of that, the respondents would have to let her go. The appellant did ring the shop and Mrs Kafetzis answered. Mr Kafetzis said that he heard his wife say “I am sorry, but we can’t keep you. You have to be responsible for this position.” Mr Kafetzis did say in evidence that it was the decision of the respondents, but, in any event, by reason of the number of absences the appellant had had in the previous weeks, that the appellant would be replaced. It was the respondents’ evidence that this would occur once the appellant returned to the workplace and she would be given due notice. Mr Kafetzis said that his wife did not tell him that the appellant had said that she was sick. He also said, in cross-examination, that they expected her to return to work, then, on Friday, 25 September 1998, they proposed to give her notice. He said that the words his wife used were not words of dismissal. He emphatically denied that he intended, by the events of 22 September 1998, to dismiss the appellant. ISSUES AND FINDINGS The Commissioner observed that the onus of establishing that there was, in fact, a dismissal lay upon the appellant. He did so correctly. Insofar as there was a conflict in the evidence between the appellant and Mr Kafetzis, the Commissioner preferred the evidence of Mr Kafetzis, observing that he found the appel- lant somewhat evasive in her answers to questions and reluctant to make concessions that harmed her case. The Commissioner found that the appellant had been en- gaged as a counter hand to work on a regular basis, Monday to Friday each week, between 8.00 am and 2.00 pm, 30 hours per week, and had a number of absences from the workplace to attend matters of a personal nature during the six weeks of her employment. The Commissioner observed that it was more likely than not that the appellant was engaged on a casual basis, although a conclusive finding was not necessary for the determination of the claim, and, further, said that it appeared to him that the appellant’s employment would have been more likely than not governed by the terms of the Restaurant, Tearoom and Cater- ing Workers Award, R48 of 1978. The Commissioner found that, on Monday, 21 September 1998, the appellant did telephone the respondents and advised the respondents that she was feeling ill that morning. He found that, subsequently, she attended for work but did not really perform her duties and then left about 10.00 am. He also found that next day, the appellant rang the respondent, Mrs Kafetzis, at about 7.30 am and spoke to her about her inability to attend work that morning. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2989 79 W.A.I.G. The Commissioner found that the appellant said that she was not attending work because she was still feeling unwell. He also found that the appellant said, in the course of this conversation, words to the effect that “this would not happen again”. The Commissioner also found that the respondents expected the appellant to attend for work the next day, which the appel- lant did not do, and that, furthermore, following the telephone conversation which took place on the Tuesday morning, there was no further contact. He found, upon the evidence given by Mr Kafetzis, that, following the telephone conversation which took place on the Tuesday morning, that the respondents had made a decision that they were going to replace the appellant because of con- cerns regarding her reliability and, in fact, did so, on the evidence, about one week later. The Commissioner also found that it was the intention of the respondents that, after the appellant was expected to re- turn to work on Wednesday, 23 September 1998, the appellant would be given notice of the respondents’ intention to termi- nate her employment. The Commissioner then concluded that the respondent, Mr Kafetzis’, evidence was not the best evidence as to what was said on the telephone from the respondents’ point of view. However, he did accept that it was not the intention that Mrs Kafetzis’ telephone call of that morning be, of itself, a dis- missal. There was no attempt to contact the respondents following the events of Tuesday, 22 September 1998 to pro- vide the medical certificates, exhibits A1 and A2. Further, the respondents’ uniform was not returned. In any event, the Com- missioner formed the view that, even if there were a dismissal, it would not have been unfair. The Commissioner found that there was no dismissal. He also found that he preferred the evidence of Mr Kafetzis to that of the appellant. Mr Kafetzis denied that the respondents intended to dismiss the appellant on 22 September 1998. The appellant, of course, at first instance, bore the onus of estab- lishing that there was a dismissal. The Commissioner found correctly that the appellant had come into work while ill to attend to her duties on 21 Septem- ber 1998. The Commissioner quite correctly found that the onus lay on the appellant to establish the jurisdictional facts, namely that the appellant was dismissed in the telephone con- versation, which took place on 22 September 1998. The Commissioner accepted that the words were not words of actual dismissal and it was not the respondents’ intention that the telephone call was a dismissal. The words were “we need someone more responsible, and we can’t keep you on”. The Commissioner found that this was a different proposition from the telephone call itself being a dismissal. The Commis- sioner held that the words were not actually words of dismissal, observing, too, that, for there to be a dismissal or resignation, clear and unambiguous words should be used. The Commissioner also found that it was strange that the appellant, in view of the telephone call of 22 September 1998, did not seek to clarify the position then or subsequently. How- ever, the appellant’s evidence was that she regarded herself as dismissed. There was nothing, in her mind, therefore, to clarify. Equally, it might be said that there was no evidence that the respondents asked her why she had not turned up for work after 22 September 1998. Where plain or unambiguous words of resignation or dis- missal are used, it appears that resort should not be had to the surrounding circumstances in construing them in order to de- cide, for example, whether a reasonable employer (or employee) could have understood them to be words of resig- nation (or dismissal) (see Macken, McCarry & Sappideen “The Law of Employment”, 4th Edition, pages 168-170). However, if the words used are ambiguous, then recourse may be had to the surrounding circumstances and to the par- ties’ understanding of what was said (see B G Gale Ltd v Gilbert (1978) ICR 1148 at 1152-1153). The question as to whether or not an employment relationship continues to exist is a ques- tion of fact (see Byrne and Frew v Australian Airlines Ltd 185 CLR 410 at 485 per Brennan CJ, Dawson and Toohey JJ). In the conversation which occurred between the appellant and Mrs Kafetzis, no notice was given. The appellant assumed that this was a summary dismissal and acted upon it. In our opinion, a reasonable employee would have interpreted the conversation as the appellant interpreted it. The words used, which all of the witnesses agreed were plan and unambigu- ous, were to the effect “we can’t keep you, we need someone more responsible”. She was entitled to regard herself as hav- ing been dismissed. We are satisfied that the words “we can’t keep you” (or simi- lar), coupled with trenchant criticism, were sufficient to be plainly an unambiguous notice of termination. There was no indication that the respondents would see her the next day at work. There was no subsequent attempt to give the appellant notice of termination. There was no inquiry as to why she did not come to work. We would, therefore, firstly observe that there was no need to have recourse to the circumstances surrounding the dismissal. It was an error to so do, in any detail. Further, even if there were, the circumstances were such that one would have to find that the appellant’s opinion that she was dismissed was the right opinion. The circumstances which we have outlined above bear that out. In the light of all those circumstances, notwithstanding the advantage enjoyed by the Commissioner in seeing the wit- nesses, the Commissioner erred in finding as he did. In the light of the actual words used and the events which unfolded, including the fact that no notice subsequent to 22 September 1998 was given, that there was an intention to dis- miss at or subsequent to the use of the words to which we have referred, and that no complaint about her conduct was made before 22 September 1998, it is open to the Full Bench to conclude that, in the light of all of the evidence, there was too fragile a base to support a finding that the appellant was unre- liable. The evidence, as a whole, provided significant support to the allegations made by her and, indeed, much of her evidence was accepted by the Commissioner (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others 160 ALR 588 (HC)). We would, for those reasons, find that the appellant was dismissed when she said that she was. The Commissioner should have so found and erred in not doing. We are satisfied that there was a dismissal. There was juris- diction. The dismissal was unfair, there being no warning or counselling and the Commissioner having found, in fact, that the appellant was ill at the time of the dismissal. No alterna- tive measures were considered. The absences concerned were either justified or so few in total (two days’ absence being incontrovertibly due to illness) that the dismissal was neither substantially or procedurally justified as a matter of fairness. There was sufficient evidence for the Commissioner to find that the dismissal was harsh, oppressive and unfair and he ought to have so found. It is open to this Full Bench to so find, because there was a finding of no unfairness in the alternative. To so find does not involve a de novo hearing, a breach of s.49(4) in any act con- trary to the principle in Walsh v Law Society of New South Wales 164 ALR 405 (HC). It was open to find that the appel- lant was dismissed. For those reasons, we would uphold the appeal. We would find that the dismissal was unfair. We would suspend the deci- sion of the Commission at first instance and remit the matter back to the Commission to hear and determine the question of remedy. Order accordingly Appearances: Ms G K Tan on her own behalf as appellant No appearance by or on behalf of the respondents WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 79 W.A.I.G. 2990