WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2016 WAIRC 00211 CORAM :Commissioner S J Kenner HEARD : Tuesday, 9 February 2016 DELIVERED : WEDNESDAY, 13 APRIL 2016 FILE NO. : U 120 OF 2015, U 121 OF 2015, U 122 OF 2015 BETWEEN : Camelia Daphney Clark; Lesley H Tilling; Merredith Wood Applicants AND Johmien Jordaan trading As Perky's Pit Stop Respondent Catchwords : Industrial Law (WA) - Termination of employment - Harsh oppressive and unfair dismissal - Whether applicants were casually employed - Whether circumstances of termination of employment constituted a "dismissal" under the Act - Principles applied - Applicants worked on a regular and systematic basis - Claims within the Commission's jurisdiction - Applicants were unfairly dismissed as they raised concerns about rates of pay and terms and conditions of employment - Compensation awarded - Orders made Legislation : Industrial Relations Act 1979 (WA) Restaurant, Tearoom and Catering Workers' Award 1979 Result : Applications upheld Representation: Counsel: Applicants : In person Respondent : Mr S Venter of counsel Case(s) referred to in reasons: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 Melrose Farm Pty Ltd T/AS Milesaway Tours v Milward (2008) 88 WAIG 1751 Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579 Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611 Robert Gallotti v Argyle Diamond Mines Pty Ltd Trading as Argyle Diamonds (2002) 82 WAIG 3011 RS Components v Irwin [1974] 1 All ER 41 Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 === REASONS FOR DECISION === ¶1 There are three applications presently before the Commission, by former employees of the respondent that allege the respondent unfairly dismissed them from the respondent’s business, a lunch bar in Bunbury called “Perky’s Pit Stop”. Ms Clark was a kitchenhand and she was employed on 11 January 2015 and was dismissed on 10 July 2015. Ms Tilling was a kitchenhand and shop assistant and was employed on 5 June 2012 and was dismissed on 10 July 2015. Ms Wood was also employed as a kitchenhand and shop assistant. Her employment commenced on 24 March 2011 and she was dismissed on 13 July 2015. ¶2 A common issue arises in all three applications. Ms Clark, Ms Tilling and Ms Wood allege that in response to concerns they raised about their rates of pay and terms and conditions of employment, the principal of the respondent, Ms Jordaan, required them to sign new contracts of employment, and if they did not, their employment would be terminated. As a consequence of the three applicants declining to accept the respondent’s offer of a new employment contract, they say they were dismissed by the respondent harshly, oppressively and unfairly. Issues ¶3 Several issues arise in these cases. The first is the question of whether the applicants were casually employed, and if so, whether the circumstances of the cessation of their employment constituted a “dismissal” for the purposes of s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA). If the applicants were dismissed, were the dismissals harsh, oppressive and unfair? Finally, if so, what are the applicants’ losses for the purposes of compensation under s 23A of the Act, given that none of the applicants seek reinstatement? ¶4 A further question arises in these cases, that being whether, if the applicants’ employment should be regarded as ongoing, despite their designation as casual employees, it was open for the respondent to purport to vary their contracts of employment. This issue arises on the basis of the principle that it is not open for an employer to unilaterally vary a contract of employment. ¶5 As to the question of “casual employee”, it is relevant to consider the terms of cl 11(1) of the Restaurant, Tearoom and Catering Workers’ Award 1979 (WA), which provides that “a casual employee is one engaged and paid as such”. Questions arise in this connection, as to whether, on the evidence, the work of the applicants was regular and continuous in the number of days and hours worked per week. Furthermore, whether work arrangements were predetermined in advance, on the basis of some roster or other similar type of arrangement. Finally, whether there was any obligation on the employee to accept work and any duty on the employer correspondingly to provide it. Relevant principles ¶6 As a general proposition, there are two types of casual employment. The first is the short “one-off” engagements where each contractual engagement stands alone. Secondly, there is a type of casual employment which is part of an ongoing relationship between the employer and the employee, where the employee makes themselves available to work subject to the requirements of the employer, often with some notification in advance. In Australian law, the concept of casual employment has no fixed meaning: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545; Melrose Farm Pty Ltd T/AS Milesaway Tours v Milward (2008) 88 WAIG 1751. It will be a matter of fact in each case as to whether the employment arrangement is such that a casual employee, so designated, is dismissed to attract the jurisdiction of the Commission: Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385. ¶7 The Commission should not focus overly on the status of the employment as this can be a distraction. Given there is no dispute that the applicants were employees for the purposes of the Act, the ultimate question for resolution is whether, on the facts, the cessation of their employment satisfies the jurisdictional fact of a dismissal, for the purposes of ss 23A and 29(1)(b)(i) of the Act. A “dismissal” for these purposes, includes “to send away or remove from office, employment or position”: Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611; Robert Gallotti v Argyle Diamond Mines Pty Ltd Trading as Argyle Diamonds (2002) 82 WAIG 3011 per Kenner C at pars 55-62. ¶8 Having made these introductory remarks, I will now consider the evidence. The evidence ¶9 Ms Tilling’s evidence was that she worked on a Monday to Friday basis commencing approximately mid-morning and working until 3.00 pm. Her evidence was that she had no rigidly set hours of work. In terms of working arrangements generally, Ms Tilling’s evidence was that her hours of work were placed on a roster and normally posted about one week in advance. In circumstances where business was quiet, her hours may be reduced. In terms of taking holidays, Ms Tilling’s evidence was that she would normally let Ms Jordaan know when she would like to take a break from work, and normally would take two weeks or thereabouts at Christmas time each year. This time was unpaid. ¶10 After making various enquiries and discussing it with the other applicants, Ms Tilling testified that Wageline information they received suggested that they were not being paid the appropriate Award rate of pay. The applicants wrote a letter dated 10 July 2015 to Ms Jordaan. A copy of the letter was tendered as exhibit A1. In the letter, the applicants said that based on information obtained through Wageline, and the terms of the Restaurant, Tearooms and Catering Workers’ Award, the applicants had been paid incorrectly. A request was made in the letter that the applicants receive back pay for the Award entitlements not provided. The letter referred to attached information obtained from Wageline. ¶11 The next significant event was on 10 July 2015. Ms Tilling testified that she, Ms Clark and Ms Wood went to see Ms Jordaan after they finished work at 3.00 pm that day. According to Ms Tilling, Ms Jordaan told the applicants that she would pay them what she wanted and referred to the Award. Ms Tilling said that Ms Jordaan told them they could ‘not get blood out of a stone’. Ms Tilling said Ms Jordaan told them that they were part-time employees. According to Ms Tilling, Ms Jordaan was upset that the three applicants had approached her after work. After the initial conversation, Ms Tilling testified that Ms Jordaan told both Ms Clark and Ms Tilling that ‘you’re sacked’. Ms Tilling said she was in a state of shock. Ms Clark walked away. According to Ms Tilling, the applicants then left the premises. ¶12 Sometime later, Ms Tilling said that she received two Employment Separation Certificates, copies of which were tendered as exhibit A5. The first certificate dated 25 July 2015 refers to Ms Tilling as a casual worker who ‘resigned’. Ms Tilling attached a Statutory Declaration made on 30 July 2015 to this certificate. It stated that the certificate declared that Ms Tilling had “resigned” which shocked her. She referred to being “sacked” for asking to be paid Award rates of pay and that she had sent a message to Ms Jordaan, asking for the certificate to be rectified. The second certificate, dated 2 August 2015, in relation to the reason for separation, refers to ‘other’ and states ‘Casual Work Terminated’. ¶13 After ceasing employment with the respondent, Ms Tilling said she did not seek alternative work straight away as she wanted to spend some time with relatives and at home. There was a period of some months where Ms Tilling was not actively seeking work. In fact, as at the date of the hearing, Ms Tilling had only applied for two jobs since 10 July 2015. Ms Tilling maintained her dismissal was unfair because she was dismissed as a result of making a request for proper Award entitlements from the respondent in the letter from herself and the other applicants. ¶14 Ms Clark testified that she worked regularly Monday to Friday from 3.45 am until 10.00 am each day. She was not on a roster as her hours were regular and continuous. Ms Clark tendered a bundle of payslips for the months of June and July 2015. These payslips reflect Ms Clark in the main working 6.25 hours per day, Monday to Friday inclusive, at the hourly rate of $17.35 per hour. The payslips were tendered as exhibit A3. ¶15 Ms Clark also gave evidence about the meeting that took place on 10 July 2015 after work with Ms Jordaan. She testified that the three applicants and Ms Jordaan met at the back of the respondent’s shop after the shop had closed. The applicants asked about their pay rates and conditions. According to Ms Clark, when she queried Ms Jordaan about the Award rate of pay, and that the applicants were being underpaid, Ms Jordaan went to her car and retrieved some documents which she said were new contracts for the applicants. Ms Clark further said that Ms Jordaan told them that when they came back in on the following Monday, they could look at them and sign them. If they did not want to sign the contracts they would have to leave. According to Ms Clark, Ms Tilling then started talking to Ms Jordaan. Shortly after, Ms Clark said she heard Ms Jordaan tell Ms Tilling that she was ‘sacked’ and she then turned around and told her in words to the effect “she was sacked too”. Ms Clark testified that Ms Jordaan was pointing her finger at her when she said this. Ms Clark took this as her dismissal. ¶16 Ms Clark then said she walked away and waited for Ms Wood to join her in the carpark. After about five to 10 minutes, Ms Wood arrived and they both left. About one week later, Ms Clark said she dropped off her work shirts and picked up her final pay from the shop. The next day, Ms Clark said she started looking for work. After about six weeks she found a similar job and was earning $23 per hour as a casual employee. As with Ms Tilling, Ms Clark received two Employment Separation Certificates, which were exhibit A6. The first stated Ms Clark had resigned, and the second being changed to “Casual Work Terminated”. ¶17 In summary, Ms Clark said that she never had any complaints about her work performance. She always attended work on time and completed her work and the employer had no reason to complain. She said that the only reason she was dismissed was because she questioned her rate of pay and she had lost about six weeks of income as a result. ¶18 Ms Wood worked on a Monday to Friday basis and was on the work roster. Her hours were generally from 5.20 am to 1 – 2.00 pm, although she accepted there was some variation to this. Ms Wood said she would have a rostered day off once per week or sometimes once per fortnight. As with Ms Tilling, when the respondent’s business was slow, sometimes her hours would be reduced. As with Ms Clark, Ms Wood testified that her payslips had her noted as a casual employee. As to her hours of work each week, Ms Wood testified that she worked on average between 28 and 32 hours per week. Sometimes if business was quiet the hours may be about 20 to 24 per week and if busy, the hours could be up to 36 or 38 per week. ¶19 As to the events of 10 July 2015, Ms Wood testified that she and the other two applicants agreed that they would speak to Ms Jordaan regarding their wage rates. Ms Wood said that the three of them approached Ms Jordaan after work and gave her the letter they had written about their Award entitlements. Ms Wood said that Ms Jordaan told them that she had a new contract for them that she was going to give them out on the following Monday. According to Ms Wood, Ms Jordaan said that if they did not sign the contracts, they no longer had a job. Ms Wood said this was the first time she had heard anything about new contracts. ¶20 In relation to what then happened, Ms Wood said that she heard Ms Jordaan telling both Ms Tilling and Ms Clark that they were ‘sacked’ and not to bother coming back to work on the following Monday. Ms Wood said that Ms Jordaan did not direct these comments to her. Ms Wood said that she told Ms Tilling and Ms Clark that she would go back to work on the following Monday and have a look at the contract. ¶21 She did so. Ms Wood went into work about an hour early. She said that she got a copy of the contract from Ms Jordaan and started to read through it. After having read it, she said that there were some things in the document that she did not agree with and she was not going to sign it. She said she went back into the shop and told Ms Jordaan ‘No, I’m not signing it’. According to Ms Wood, Ms Jordaan then replied in words to the effect, ‘Okay, the lawyers can deal with it’. Ms Wood said that was the end of the conversation. She said she understood that to mean that given what Ms Jordaan had said the previous Friday, that if the contracts were not signed the applicants would no longer have jobs, that she was no longer employed. As a result of all this, Ms Wood then left the premises. A copy of the proposed contract, under a letter dated 10 July 2015 to Ms Wood, was tendered as exhibit A4. ¶22 On the following Friday, Ms Wood said she returned her work uniform and picked up her final pay. She then started looking for other work. Within a few weeks she found similar café work as a casual employee working about 20 to 25 hours per week at a pay rate of $23 an hour. Ms Wood said she had that job for about six weeks and then was no longer put on the roster. She then found other work in about mid-November 2015 at a service station working 24 hours per week on a part-time basis earning approximately $21 per hour. ¶23 As with the other two applicants, Ms Wood maintained that her dismissal was unfair because she had queried her rate of pay and refused to sign the contract given to her by Ms Jordaan and as a result, she lost her job. ¶24 Despite being advised of the possible consequences of doing so, the respondent elected to call no evidence. Consideration ¶25 I found all three applicants to be credible witnesses who gave their evidence in a forthright manner. I have no reason to doubt their evidence and I accept it. ¶26 In the case of Ms Tilling, Ms Clark and Ms Wood, they were designated as casual employees but on the evidence I am satisfied that they worked on a regular and systematic basis. They generally worked consistent hours. Except in the case of Ms Clark, their working hours were generally rostered about one week in advance. Their hours of work did vary somewhat, according to the demands of the business. In the case of Ms Clark, she worked consistent hours each week and was not rostered. Her hours of work did not generally change and her work pattern was more consistent with that of a part-time employee under cl 12 of the Award. ¶27 There was also, on the evidence, an expectation that the employees would work once rostered. In fact on the evidence in this case, the three applicants were expected to work on the Monday following the incident on Friday 10 July 2015. It was also clearly the case that for both Ms Tilling and Ms Clark, they were “sacked” by Ms Jordaan. It is difficult to imagine a more definite “dispensing with services or sending away”, in terms of the general meaning of a dismissal: Swan Yacht Club at 583. As the respondent elected to call no evidence there was nothing before the Commission to contradict the evidence of Ms Tilling, Ms Clark and Ms Wood that Ms Jordaan told both Ms Tilling and Ms Clark that ‘they were sacked’. ¶28 Therefore, on the basis of the evidence, while I accept that Ms Tilling and Ms Wood were employed on a casual basis for the purposes of cl 11(1) of the Award, on the facts of this case, their employment and the circumstances in which it came to an end, are amenable to the Commission’s unfair dismissal jurisdiction. ¶29 The respondent made a submission that the events which took place on Friday afternoon on 10 July 2015, were events occurring in the ‘heat of the moment’. It was submitted that neither Ms Tilling nor Ms Clark sought to later clarify whether Ms Jordaan really meant to dismiss them. There was a further submission that the three applicants chose to confront the employer collectively and it was understandable that Ms Jordaan became upset by this. I do not accept the ‘heat of the moment’ submission of the respondent. The respondent, as the employer, was in a superior position and was able to exercise the power of dismissal unilaterally. It was also the case that, having prepared contracts previously for the applicants to sign, the inference is open and I draw it, that the respondent had made up its mind to change the employment arrangements of the applicants or to no longer employ them. That inference is consistent with the actions of Ms Jordaan, as described on the evidence of the applicants, that they either sign the contracts or not have jobs. ¶30 Furthermore, there was no evidence or suggestion that the respondent made any endeavour to contact the applicants after the meeting on Friday, 10 July 2015, to clarify what she had said and that she had not really intended to terminate Ms Tilling’s and Ms Clark’s employment there and then. It was plainly within Ms Jordaan’s ability to clarify her actions if that was her intention. ¶31 I am satisfied on the evidence that both Ms Tilling and Ms Clark were dismissed, and the reason for their dismissal was that they had prepared a letter jointly with Ms Wood and sought to discuss their rates of pay with Ms Jordaan, and tell her that they were being underpaid. Irrespective of whether that was ultimately correct or not, an employee is entitled to raise such matters with their employer. It is certainly no basis to terminate an employee’s employment without warning. I therefore find that the dismissals of both Ms Tilling and Ms Clark were harsh, oppressive and unfair. ¶32 In relation to Ms Wood, a question arises as to whether she was dismissed by the respondent or whether she resigned. In these matters, context is important. Ms Wood was told on Friday, 10 July 2015 by Ms Jordaan that along with the other two applicants, the employees had to sign new contracts or they would not have a job. This was plainly a threat of termination of employment. ¶33 Ms Wood looked at the proposed contract on Monday, 13 July 2015 prior to commencing her normal shift. She objected to some of the contract and informed Ms Jordaan that she did not want to sign it. Additionally, the covering letter to Ms Wood from Ms Jordaan attaching the proposed revised contract made it clear that in signing the proposed contract, Ms Wood would be waiving her rights to any claims in respect of her previous service with the employer. Ms Wood was simply not prepared to accept the offer. Whilst, as the respondent submitted, there may have been some beneficial terms in the contract document, Ms Wood was not obliged to agree to them. She was employed at that time and the respondent could not unilaterally vary the contract: RS Components v Irwin [1974] 1 All ER 41. In the event that the employee refused to accept any proposed variation to the contract, the alternative for the employer could be to terminate the contract and offer a fresh contract on revised terms. That would however, of course, not insulate the employer from a claim of unfair dismissal. ¶34 On the evidence, the respondent did not give notice or dismiss Ms Wood on Friday, 10 July 2015. Ms Wood assumed this would be the position, from the conversation she had with Ms Jordaan that afternoon. However, the weekend intervened and Ms Wood went to the respondent’s premises early the following Monday, prior to her start time, to view the contract as she said she would. Having viewed the contract, she told Ms Jordaan that she would not sign it. When Ms Jordaan said “OK the lawyers can deal with it”, Ms Wood had not told Ms Jordan what it was she did not like about the contract. Her evidence was also that Ms Jordaan did not ask. ¶35 It is therefore difficult to construe Ms Jordaan’s statement about “the lawyers dealing with it”, as directed to resolving any specific concerns with the proposed contract, because Ms Wood had not said at that time, what it was about the contract that she did not like. As I have just mentioned, neither did Ms Jordaan ask. Thus, in the context of all of these events, and in particular the “sacking” of both Ms Tilling and Ms Clark the Friday before, and Ms Jordaan’s unequivocal statement that if the new contracts were not signed, then none of the applicants would have a job, Ms Wood’s interpretation of the events of that Monday morning are readily understandable. ¶36 Additionally, Ms Jordaan did not mention anything about Ms Wood continuing with her work that day. There was no attempt made by Ms Jordaan to contact Ms Wood later that day, to clarify her intentions about her ongoing employment. This conduct is entirely consistent with Ms Jordaan’s statement made to Ms Wood on the previous Friday that if the new contract was not signed, she would no longer be employed. I am not able to therefore conclude on the evidence that Ms Wood resigned of her own free will. I consider that on balance, the statement about lawyers made by Ms Jordaan, was more likely than not, directed to any subsequent dispute between the parties arising from the cessation of the applicants’ employment. On balance, having regard to all of these circumstances, I conclude that Ms Wood’s departure also constituted a dismissal and moreover, as with Ms Tilling and Ms Clark, I consider her dismissal to also be harsh, oppressive and unfair. Remedy ¶37 In the case of a finding of unfair dismissal, s 23A of the Act provides that the primary remedy is reinstatement or reemployment. In this case, none of the applicants seek reinstatement. In all of the circumstances, I am satisfied that reinstatement or reemployment would be impracticable. The issue then becomes compensation for loss. The relevant principles in this respect are well settled and I only need refer to the decision of the Full Bench in Ramsay Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8. This involves a finding as to the loss caused by the unfair dismissal and the award of compensation in respect of the loss as found. ¶38 In the case of Ms Tilling as I have found, she took few steps to seek other employment, and hence to mitigate her loss, in the seven months after her dismissal to the date of the hearing, for the reasons she stated in her evidence. This is a factor to be taken into account by the Commission under the Act in the finding of loss and the determination of compensation and also as a matter of general principle: s 23A(7)(a) Act. In these circumstances, I am not persuaded, because of Ms Tilling not taking any meaningful steps to mitigate her loss that any such loss was caused by her unfair dismissal: Curtis v Ausdrill Limited (2006) 86 WAIG 3133. I will not award any compensation to Ms Tilling. ¶39 In the case of Ms Clark, she took approximately six weeks to find alternative work, and was actively seeking jobs in this period. I find, based on the 11 full payslips in evidence at exhibit A3, and having regard for s 23A(9) of the Act, that Ms Clark’s average earnings were $515.77 gross, over this period. Accordingly, I will compensate Ms Clark for six weeks loss at this average weekly rate of pay in the sum of $3,094.62 gross. ¶40 As to Ms Wood, her evidence was that her hours varied somewhat, depending on the level of business at the time. In the main she said they ranged from 28 to 32 hours per week. I therefore propose to take an average of 30 hours per week at her wage rate of $20.15 per hour for the purposes of assessing compensation. From Ms Wood’s evidence I will take a period of two weeks approximately as the period of time it took her to find other work, as she was not certain on this point. I therefore find Ms Wood’s loss to be $1,209.00 gross and I will compensate her accordingly. Conclusion ¶41 The dismissal of all three applicants by the respondent was harsh, oppressive and unfair. Declarations and orders will now issue.