Industrial Relations Commission of New South Wales CITATION: Agostino and Agostino v North Rocks Fresh Pty Ltd [2007] NSWIRComm 1031 APPLICANTS Robyn Joy Agostino (6859/05) PARTIES: Giuseppe Peter Agostino (6860/05) RESPONDENT North Rocks Fresh Pty Ltd FILE NUMBER(S): 6589 & 6860 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal applications - manager and head cashier allegedly dismissed during telephone conversation between manager and owner of business - owner alleges manager resigned - manager and head cashier are husband and wife - manager allegedly tells wife (who is on RDO) that they have been dismissed - LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 24/10/06 DATE OF JUDGMENT: 11 July 2007 APPLICANTS Mr V Galluzzo, Solicitor Galluzzo Andriano Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J Webster, Barrister A B Mezzanotte Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 11 July 2007 Matter No IRC 6859 of 2005 Robyn Joy Agostino and North Rocks Fresh Pty Ltd Application by Robyn Joy Agostino re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 6860 of 2005 Giuseppe Peter Agostino and North Rocks Fresh Pty Ltd Application by Giuseppe Peter Agostino re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1031 1 These are applications by Robyn Joy Agostino and Giuseppe Peter Agostino ("the Applicants") for unfair dismissals against North Rocks Fresh Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matters were set down for Conciliation and Directions on 18 January, 12 July and 6 September 2006. 3 The matter was set down for a Hearing on 24 October 2006 and a filing program for witness statements and evidentiary material was put in place. 4 At the Hearing, the parties agreed that the two unfair dismissal applications be formally joined: IRC 05/6859 - Robyn Joy Agostino v North Rocks Fresh Pty Ltd IRC 05/6860 - Giuseppe Peter Agostino v North Rocks Fresh Pty Ltd 5 At the Hearing, the two Applicants were represented by Mr V Galluzzo, solicitor who called the two dismissed employees as witnesses: Giuseppe peter Agostino - Manager Robyn Joy Agostino - Head Cashier The Respondent was represented by Ms J Webster, barrister who called the following witnesses: John Turano - Manager, North Rocks shop Peter Criniti - Director of the Respondent BACKGROUND 6 Mr Giuseppe Agostino was employed as a Manager to manage the Respondent's business at the North Rocks Shopping Centre. The business, a shop, is called North Rocks Fresh and is a fruit and vegetable shop. He was employed from February 2005. 7 Robyn Agostino, the wife of Giuseppe, was also employed to work in the same shop from February 2005. 8 Peter Criniti is a Director of the Respondent. He claimed that the shop was down on its trading and he arranged for Mr Arcorace (the Manager from the Liverpool fruit shop) to work at the North Rocks shop. Mr Criniti said the adverse trading was turned around through the changed set-up of the shop instigated by Mr Arcorace. 9 On or about 8 December 2006, Mr Criniti had a telephone conversation with Giuseppe Agostino and Mr Criniti said he told Giuseppe not to change the set-up of the shop. 10 This telephone conversation, became the subject of controversy - Peter Criniti said the conversation concluded with Giuseppe resigning his employment. Giuseppe Agostino said that he and his wife were sacked by Peter Criniti. The wife was not at work that day as she was not rostered to work. FINAL SUBMISSIONS For the Applicants 11 Mr Galuzzo, solicitor for the two Applicants made the following submissions about Mr Giuseppe Agostino: (a) Giuseppe Agostino says that he was sacked, over the telephone, by Peter Criniti, on 8 December. (b) The Respondent relies upon the evidence of John Turano to support its claim that Turano heard Giuseppe Agostino say, "I'm leaving", and this constituted evidence of a resignation. However, this affidavit evidence of Turano was contradicted by Turano in the witness box. (c) In the alternate, Giuseppe Agostino was constructively dismissed because of the way that Roy Arcorace was telling Giuseppe Agostino what to do in the shop. He had been demoted from his managerial status because of that. (d) The dismissal of Giuseppe Agostino was unjust and harsh. He was given no warning that his work performance was wrong. (e) Giuseppe Agostino sought compensation as his remedy. 12 Mr Galuzzo put the following submissions about Mrs Robyn Agostino: (a) She was employed as the head cashier and Peter Criniti conceded in his evidence that she and Giuseppe Agostino were employed as a husband and wife team. (b) Mrs Robyn Agostino had made efforts to get her job back but nothing came of these efforts. (c) She was dismissed be Peter Criniti during the telephone conversation between her husband and Criniti who said to the husband, "Well, she's sacked too." (d) Peter Criniti gave evidence that he was of the view that if the husband was no longer employed, then the wife would go too. If Criniti did not say to the husband that the wife was sacked as well, then this was a constructive termination of her services. (e) The termination of her services was unfair. She had been squeezed out without any misconduct on her part. (f) Mrs Robyn Agostino remained unemployed and was seeking compensation. She worked a four day week. For the Respondent 13 Ms Webster, barrister for the Respondent put the following submissions: (a) The question before the Commission is whether the Applicants were dismissed or resigned their employment. (b) The onus is on the Applicants to prove they were dismissed. (c) Mr Giuseppe Agostino resigned his employment. This was so given the context of the events leading up to his telephone conversation with Peter Criniti. If, however, the Commission found there was a dismissal, this was justified because he had disobeyed a reasonable and lawful direction not to change the set-up of the shop as carried out by Roy Arcorace. (d) If the Commission found there was a dismissal and, as well, that it was unfair, then the issue of compensation arose. In that regard, Giuseppe Agostino was only in the employ of the Respondent for ten (10) months. (e) As for Mrs Robyn Agostino, her services came to an end through her abandoning her employment. The Respondent was under no obligation to chase her up. She did not seek to get her job back until after lodging her unfair dismissal application. (f) If the Commission found that there was a dismissal and, as well, that it was unfair, then the issue of compensation arose. In that regard, Mrs Robyn Agostino was in the employ of the Respondent for ten (10) months. Further, she would not have stayed in the employ of the Respondent, in the absence of her husband, and therefore compensation should be limited to a couple of weeks. Applicant in Reply 14 Mr Galluzzo, in reply, put the following: (a) One of the events relied upon by Ms Webster as part of her "context" submission, cannot be relied upon by the Respondent. This is the evidence of Peter Criniti that Giuseppe Agostino had not followed a certain direction that he was not to change the set-up of the shop. This could not be relied upon as this evidence could only be tested on Roy Arcorace and not on Criniti. (b) The "context" submission (to demonstrate that Giuseppe Agostino was unhappy in his job and that was why he resigned) could not be relied upon because he gave evidence that he was happy in his job. (c) Roy Arcorace had changed the set-up of the shop and this was accepted by Giuseppe Agostino. The latter had not disobeyed a direction of Peter Criniti about the set-up of the shop. (d) Roy Arcorace did not give evidence in the proceedings and therefore in the absence of evidence from him that there had been a huge change in the shop set-up and that Giuseppe Agostino had disobeyed an order about that change, then there is no evidence that Giuseppe Agostino has done anything wrong. CONSIDERATION 15 The Commission has before it two unfair dismissal applications for consideration: Robyn Joy Agostino (IRC 05/6859) and Giuseppe Peter Agostino (IRC 05/6860). Both applications were joined by consent of the parties at the Hearing of 24 October 2006. 16 Both unfair dismissal applications named the Respondent as: "Criniti Bros P/L Trading As North Rocks Fresh". In the first Conciliation proceedings before McLeay C on 18 January 2006, Peter Criniti appeared and agreed that the correct name of the Respondent was: "Liverpool Fresh Pty Limited t/as North Rocks Fresh". (p 2) During the Hearing of 24 October 2006, Ms Webster for the Respondent raised a preliminary matter as to the correct name of the Respondent and advised that it was: "Liverpool Fresh Fruit Markets Pty Limited. (pp 2 to 3) The Commission directed the two advocates to confer on this preliminary matter and advise the Commission. It is not clear from the transcript that such a conferring took place on the day. Termination or Resignation? 17 The threshold issue before the Commission was whether the Applicants had been dismissed or had resigned their employment. Given the circumstances of the case, it was necessary to consider that threshold issue separately for both Applicants. This is so, because there was no communication between Mrs Robyn Agostino and Peter Criniti about her employment status. Her position was that she had been sacked because that was what her husband had told her. 18 The first port of call then for consideration is the telephone conversation between Mr Giuseppe Agostino and Peter Criniti, wherein the former claimed he was dismissed by Peter Criniti who, in turn, said Giuseppe Agostino resigned his employment. The Respondent also relied upon the evidence of John Turano to support Peter Criniti's claim of a resignation. Mr Turano, then a new employee (shop assistant) in the North Rocks shop, was present when the telephone conversation took place on 8 December 2005 between Mr G Agostino and Mr Criniti. 19 Before dealing with that telephone conversation, it is necessary to relay certain events that occurred beforehand and which, in the Commission's view, put that telephone conversation in its context. 20 Giuseppe Agostino was employed to be the Manager of the North Rocks shop - a fruit and vegetable shop. Also employed at the same time was his wife, Robyn Agostino, who appears from the transcript to be the Head Cashier. They were employed from February 2005. 21 Peter Criniti deposed that he noticed for some months that the turnover of the shop was down. He arranged for Mr Roy Arcorace (the Manager of the Liverpool shop) to work at the North Rocks shop, in order to try to increase sales. Mr Criniti said he advised Giuseppe Agostino of his turnover concerns and that Roy Arcorace would be working in the shop. (Ex 10 - paras 3 and 5) Giuseppe Agostino confirmed that Peter Criniti told him that Roy would be working in the shop " from time to time to change the layout of produce in the shop ." He disputed any reference by Criniti to the issue of a downturn in turnover. ( Ex 2 - para 4) Peter Criniti deposed that " shortly after Roy commenced working at the North Rocks shop he increased the sales turn over by about $10,000.00 per week ." (Ex 10 - para 5) Giuseppe Agostino disputed the foregoing. His view was that the increase in turnover was due to the Number 2 register not previously being connected in order to show a reading on sales. Once the Number 2 register was linked to the Number 1 register, then the weekly turnover figures increased. (Ex 2 - para 3) For the moment, the Commission emphasises Agostino's evidence that Roy Arcorace's role in the North Rocks shop, would be to " change the layout of produce ." 22 Roy Arcorace again changed the layout of the shop on or around 1 November 2005. (Tr 13, line 23 to 25) 23 Then on Thursday, 1 December 2005, Roy Arcorace came to the shop and (according to Agostino) they had a disagreement and Roy left the shop. Agostino spoke to Triniti and said that Roy was taking advantage of Agostino by telling Agostino what to do. Agostino told Criniti that there cannot be two captains in one shop and Roy should stay in the Liverpool shop (where Roy was the manager) and let Agostino run the North Rocks shop. Criniti agreed and said that as long as the two of them got on, there would be no problem. Agostino rang Roy that afternoon about stock and ordering for the next day and there was no problem. (Ex 1 - Annex B) 24 On Saturday, 3 December, Agostino had his day off. Roy came to the North Rocks shop "and (according to Agostino) changed things and pricing tickets." (Ex 1 - Annex B) 25 On Wednesday, 7 December 2005, about 6.30 am, Mr Criniti telephoned Agostino to say he had hired a new employee (John) who would be starting that morning in the North Rocks shop. Agostino replied that this new employee would not be required because he, Agostino, had told another person (Kevin) that he would be working in the shop. Peter Criniti told Agostino that John would be working there and not Kevin (Ex 1 - Annex B) 26 On Thursday, 8 December 2005, Giuseppe Agostino changed the shop format around. This changing of the shop format was observed on the internal camera monitors installed in the shop. 27 This changing of the shop format caused Peter Criniti to telephone Agostino on 8 December. He rang Giuseppe Agostino and informed him "not to change the set-up of the North Rocks shop." (Ex 10 - para 7) Giuseppe Agostino's evidence is that he had made a change to the set-up of the shop on 8 December but these were " niggly little changes ". (Tr p 16 - line 9 to 11) 28 As to this telephone conversation, there is, at least, an agreement that Peter Criniti had telephoned Giuseppe Agostino and that the reason for the call was the latter's changes to the set-up of the shop. However, that is the end of the agreement. Mr Agostino claimed that he and his wife were dismissed by Mr Criniti during this telephone conversation. (Ex 2 - para 5). On the other hand, Mr Criniti claimed that Mr Agostino resigned his position. (Ex 10 - para 10) 29 Mr Agostino's Affidavit sets out the alleged telephone conversation between him and Mr Criniti on a, "He said" - "I said" basis, and which concludes with his and his wife's dismissal. 30 By contrast, Mr Criniti's conversation is very brief: two quotes as to what Agostino allegedly said. Thus, it is not on a "He said" - "I said" basis. 31 As to these two quotes Peter Criniti deposed that after his (Criniti's) reference to the shop set-up, Giuseppe Agostino said: "If you don't like it (the shop set-up) you'll have to sack me." This was followed by Agostino saying: "I'm leaving." (Ex 10 - para 7) Under cross-examination, Criniti retracted the last statement. He said the former statement ( If you don't like it you'll have to sack me ) was made and this was followed by Criniti responding: " You're leaving me no option ." 32 Mr Criniti also added new evidence that the telephone conversation included Mr Agostino saying: "If I go, I'm taking everyone with me. There's going to be no one left here". Mr Criniti responded: "Like who? Mr Agostino said "Like my brother ..." (Tr 85, line 23 to Tr 87, line 51 The above new evidence came out in questioning of Criniti as to when he first thought that Giuseppe's wife was no longer working for Peter Criniti. As can be seen from above, Criniti's answering is cut short by the Applicant's solicitor who points out to Criniti that this is new evidence. The Applicant's solicitor did not challenge this new evidence and it was not explored any further. 33 To the Commission, it would appear that this new evidence about the Agostino/Criniti telephone conversation, comes after Criniti's response: "You're leaving me no option". Thus Mr Agostino then said: "If I go, I'm taking everyone with me. There's going to be no one left here." Criniti responded: "Like who?" Agostino said: "Like my brother ...". The above then represents Mr Criniti's version of the telephone conversation. The Commission is not clear as to how the conversation ended because Criniti was not asked about this issue in light of his new evidence. Prior to this new, unchallenged, evidence being raised, Mr Criniti agreed that the conversation ended with " You're leaving me no option ." (Tr 86, line 25 to 29) 34 But the new evidence, the Commission has found, would follow on from that last quote. It makes sense that Mr Agostino would respond with the one-up-manship: "If I go, I'm taking everyone with me ..." Further, the opening words of that one-up-manship, "If I go ..." naturally follow on from Criniti's response: "You're leaving me no option." 35 But Mr Criniti was not then questioned on his version as to how the telephone conversation ended in light of this new, unchallenged evidence. 36 The other evidence about this conversation was that given by Mr John Turano. He was a new employee and had only been in the North Rocks shop for the week prior to the telephone conversation of 8 December 2005. (He is now the Manager of the North Rocks shop.) 37 His affidavit stated that he heard what Agostino was saying to Peter Criniti (but not the other way around) during their telephone conversation as he was standing next to Agostino. He said Agostino "was arguing about the changes in the shop" and "wanted it (the shop changes) changed back to the way he had it previously." (Ex 8 - paras 4 and 5) He heard Agostino end the phone call with: " Well I am leaving ." (Ex 8 - para 6) Mr Agostino then turned to the staff and said: " We are all leaving ." (Ex 8 - para 6) 38 Mr Turano was cross-examined about what he heard. He was challenged that the evidence he was giving in the witness box was true and where it differed with his affidavit, was not true. This challenge arose because, when Turano recounted his evidence as to what he heard, he omitted to include that part of his affidavit where he wrote that Agostino said: "I'm leaving." 39 Mr Galluzo then put a scenario to Turano, which omitted "I'm leaving" and only had one piece of conversation given by Agostino: "We are all going" Turano responded: ""Yes, he said, "We're all going", that's correct"" (Tr 76 - line 33 to Tr 79 - line 5) 40 It seems to the Commission that Mr Galluzo would have seen Turano's response as agreement that he had not heard Agostino say: "I'm leaving." However, the Commission does not read Turano's response that way. It seems to the Commission that Turano was confirming the last part of the scenario only (""Yes, he said, "We're all going", that's correct"") and not the implication of the entire scenario. Mr Turano needed to be challenged directly, without any doubt, as to whether he still stood by his affidavit evidence that Agostino said: "I'm leaving". Further to that point, Mr Turano had reiterated his commitment to what he had recorded in his affidavit, only two questions before the above scenario was put to him. (Tr 78 - line 50 to 52) Accordingly, the Commission concludes that Turano's affidavit evidence that Agostino said: " I'm leaving ", at the end of the telephone conversation, still stands. 41 Mr Turano's Affidavit also records that Agostino then said: "We are all leaving." This evidence was not challenged. By contrast, the Affidavit in Reply of Mr Agostino denies that he made that statement. (Ex 2 - para 6) He deposed he went up to his brother (Frank) and another employee and said: " Me and Robyn have just been sacked, I'm out here. " The brother left with Agostino but not the other employee (Ralph). Agostino deposed he said to Ralph: " The keys (to the shop) are on the hook at the back, can you give them to John. " (Ex 2 - para 6) 42 Under cross-examination, Agostino contradicted his Affidavit in Reply wherein he denied saying: "We are all leaving". He agreed he said words to the effect: "Come on, lets go", to his brother, Frank and Ralph. But when it was then put to him that this meant: "Meaning, we're out of here?", he responded , "Meaning, I'm out of here." That is, he was not accepting that he had said "We" but only "I" am out of here. He was questioned on this response and Agostino said he approached his brother and Ralph and said: " I've just been sacked and I'm out of here ." The brother responded: " If you're sacked, I'm gone too. " (Tr 25 - line 17 to Tr 28 - line 29) 43 The Commission notes that this response of the brother is new evidence but it was not challenged, per se. It was, of course, Turano's evidence that Agostino said, "We are all leaving." He deposed that the other employee, Ralph, declined to leave. CONCLUSION - Mr Giuseppe Agostino's Case 44 The Commission has recorded the evidence as to the telephone conversation between Giuseppe Agostino and Peter Criniti to understand their competing claims of dismissal and resignation respectively. The Commission also recorded the evidence of Mr Turano who was present in the shop when the telephone conversation took place. His Affidavit evidence was that: (a) the conversation was about the shop set-up (which was not in dispute from Agostino and Criniti); (b) Agostino's demeanour was one of arguing about the changes in the shop; (c) Agostino said after the telephone conversation, " I'm leaving; " and (d) Agostino spoke to other staff when he got off the telephone. 45 The Commission was given competing claims of dismissal (including constructive dismissal) and resignation (including abandonment of employment) in final submissions. 46 Mr Agostino (and Mrs Robyn Agostino) carries the onus to prove that he was dismissed by Mr Criniti during that telephone conversation. 47 Having considered the evidence, the demeanour of the witnesses and final submissions, the Commission finds, on the balance of probabilities, that Mr Agostino abandoned his employment. 48 The evidence to support abandonment of employment is set out below. The abandonment of employment arises out of certain events that occurred in November and December 2005. (a) Peter Criniti, the owner of the business, arranged for the Liverpool store manager (Roy Arcorace) to come across to the North Rocks shop in order to make changes to the set-up of the shop. Mr Criniti's motive was a downturn in the turnover of the North Rocks' shop. Mr Agostino disputed there was a downturn but that issue is not relevant to the Commission's deliberations. (b) Mr Arcorace made changes to the shop set-up, being the shop of which Agostino was the manager. Mr Agostino disputed that he was not happy about Mr Arcorace coming into his store and making changes. The Commission did not accept his response, " Look, if I wasn't happy, why would I help him?" (Tr 13 - line 15 to 28) - given his demeanour in the witness box arising out of this line of questioning going to an outsider (the Liverpool shop manager) making shop changes to Agostino's own managerial domain. (c) Further to (b) above, Agostino agreed that there was an " altercation " between him and Roy Arcorace in respect of " where pumpkins and melons were placed ." (Tr 13 - line 43 to 45) Mr Agostino's evidence was that Roy Arcorace " threw his hands up in the air and said he's going back to Liverpool and he couldn't give an F about North Rocks and that's it ." (Tr 14 - line 4 to 10) This is further evidence (as to the "altercation") that Mr Agostino was not " happy " about the shop changes to his North Rocks shop. (d) As to this " altercation " incident, Mr Agostino denied he was " upset " with Roy Arcorace. Despite that denial, Agostino telephoned Mr Criniti to say that Roy Arcorace was taking advantage of him, by telling him what to do. Further Agostino said to Criniti, " that you can't have two captains in one ship and that Roy should stay in Liverpool shop and let me run Northrocks " (Ex 1 - Annex B) The Commission finds that the above evidence contradicts Agostino's claim that if he wasn't happy he would not help Arcorace. By saying to the owner of the business that the ship (a.k.a. the shop) could not have two captains, then he was complaining about what he saw as an interference in his role as manager of the shop. 49 There was other evidence on this issue of Arcorace attending the North Rocks shop. Agostino denied it was his preference to manage his store by himself and that he takes everyone's advice. (Tr 14 - line 36 to 54) The Commission does not accept the evidence. He did not accept Arcorace's attendance in his domain. There was an altercation between him and Arcorace on the shop layout in his domain. He then complained to Criniti that his shop could not have two captains. 50 On Saturday, 3 December, Roy Arcorace went back to the North Rocks shop and made some changes to the shop layout. This was done whilst Agostino was on his rostered day off. 51 On Wednesday 7 December, Criniti rang Agostino and gave him advice that he was getting new staff and over-rode Agostino's decision to employ another person. Agostino agreed that having to tell the other person he/she did not have a job " sort of upset me ... " But he then denied that the incidents leading up to the telephone conversation of 8 December, had " upset " him. (Tr 18 - line 5 to 16) The Commission, again, does not accept his denial. He was upset about the role of Arcorace who was making changes to his domain, and he showed how upset, how unhappy he was, by ringing Criniti and stating that the ship (his shop) could not have two captains. 52 The Commission has recounted certain events leading up to the critical telephone conversation of 8 December for a twofold purpose. Firstly, that evidence shows that Agostino's claim that he was happy to have Arcorace operating in his domain and that he was not upset about what was happening, is not correct. Mr Agostino was putting forward a scenario that he was a "happy camper" but he and his wife ended up being dismissed by Criniti during that telephone conversation. The Commission rejects that scenario. Secondly, the rejection of that scenario (based on the evidence) and the observation of Agostino's demeanour in the witness box, causes the Commission not to prefer the evidence of Mr Agostino. 53 As to the telephone conversation, it is not possible for the Commission to conclude that Agostino resigned his employment - for lack of evidence. As already stated above, the Commission does not know how the conversation concluded. 54 As to the format of the conversation, the Commission concludes that it had a tension, one-up-manship building format. Thus, Agostino was not happy arising out of the immediately prior events. The Commission accepts Mr Criniti's version of the conversation which has that one-up-manship context exampled by, "If I go, I'm taking everyone with me. There's going to be no one left here." But it was a one-up-manship context without either party giving a resignation or a dismissal. 55 The tension of this conversation was also evidenced by John Turano who deposed that Agostino was arguing about the changes. This evidence also contradicted Agostino's evidence that he was happy and not upset about the incidents leading up to the telephone conversation. 56 Mr Turano's affidavit evidence that Agostino said, "I'm leaving", when he got off the phone was challenged under cross-examination, but the Commission held that this evidence was still intact. Mr Agostino did leave and he did not come back. 57 Before leaving the shop and after uttering, "I'm leaving", he conversed with his brother (Frank) and another employee. The Commission accepts that Agostino said to these two employees, words to the effect, We're all going". Agostino's brother "pulled the pin", as it were, on his employment but the other employee did not. 58 The Commission also records one piece of evidence against Criniti dismissing Agostino. The Commission found this evidence to be significant. Under cross-examination, Criniti denied he had sacked Agostino and said he couldn't afford to sack anyone at that time of the year (December). (Tr 85 - line 23 to 35) Thus, Criniti was alluding to what would be a busy time (and profit wise) for his fruit and vegetable shop, in the Xmas period. 59 Having considered the evidence, the demeanour of the witnesses and final submissions, the Commission finds, on the balance of probabilities, that Mr Agostino abandoned his employment. CONCLUSION - Mrs Robyn Agostino's Case 60 Mrs Robyn Agostino filed an unfair dismissal application on 29 December 2005. She deposed that her husband said to her on Thursday, 8 December, that he had been sacked by Peter Criniti and so had she. (Ex 4 - para 1) Her Affidavit in Reply advised that she was not at work on Thursday, 8 December. (Ex 5 - para 3) 61 Mrs Agostino's unfair dismissal application is predicated on the basis that she has been dismissed. In that regard, it was put to the Commission, that she had been dismissed because her husband came home and said to her that he and she had been dismissed by Peter Criniti. 62 The issue then for the Commission is whether this communication from the husband (Giuseppe Agostino) to his wife (Robyn Agostino) was effective in bringing the wife's contract of employment with the Respondent, to an end. The Commission phrases the question/issue that way, because there was no communication by Peter Criniti to Robyn Agostino, advising her that she was dismissed. Mrs Agostino confirmed, under cross-examination, that her last rostered day at work was on 4 December and she had no contact with the employer between that date and the date of the filing of her unfair dismissal application, being 29 December 2005. (Tr 49 - line 17 to 39) 63 Having considered the evidence and submissions of the parties, the Commission concludes that Peter Criniti did not give notice to Robyn Agostino, that her contract of employment was at an end. Robyn Agostino was advised by her husband that she had been dismissed by Peter Criniti. But the Commission takes the view that Mrs Agostino should have contacted Peter Criniti, himself, and confirmed that her services were no longer required. She should have done so because her husband is not her employer. Further to that, he gave evidence in re-examination that he had authority to hire staff but his authority did not go any further than hiring. (Tr 33 - line 32 to 44) Thus, he did not have the authority to terminate staff, including his wife. CONCLUSION 64 For the reasons set out in this Decision the Commission finds: (a) That Mr Giuseppe Agostino (IRC 6860/05) was not dismissed from his employment by Mr Peter Criniti, the owner of the business, but abandoned his employment; and (b) that Mrs Robyn Agostino (IRC 6859/06) was not dismissed from her employment by Mr Peter Criniti, the owner of the business, but abandoned her employment. 65 Accordingly, the Commission declines to consider these two unfair dismissal applications any further, given the Commission's finding that both Mr and Mrs Agostino abandoned their employment. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.