Alisa Quill v The Trustee for Campbell Childcare Trust
[2024] FWC 2281
•26 AUGUST 2024
| [2024] FWC 2281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Alisa Quill
v
The Trustee for Campbell Childcare Trust
(C2024/3257)
| COMMISSIONER YILMAZ | MELBOURNE, 26 AUGUST 2024 |
Application to deal with contraventions involving dismissal jurisdictional objection - whether Applicant dismissed – no dismissal – resignation – application dismissed.
On 17 May 2024, Ms Alisa Quill lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against The Trustee for Campbell Childcare Trust (the Respondent). In her application, Ms Quill alleges workplace rights contraventions in terms of ss.340, 341, 343 and industrial activities covered by ss.346 to 348 of the Act.
The Respondent objects to the application on the basis that Ms Quill resigned from her employment and was not dismissed. Further it submits that Ms Quill resigned on 3 May 2024 during her probation period, having only commenced employment on 6 December 2023.
Ms Quill contends that she was pressured to resign after allegedly being demoted and because of the treatment by her employer towards her and her son.
Whether Ms Quill was dismissed within the meaning of s.386 of the Act is in dispute. Ms Quill contends that she resigned because of the Respondent’s conduct and relies on s.386(1)(b) of the Act. A s.365 application can be made where a person has been dismissed and alleges that they are dismissed in contravention of their general protections. Before the Commission can deal with the application under s.368, it must determine if Ms Quill was dismissed. This decision considers whether Ms Quill was dismissed within the meaning of s.386 or she resigned voluntarily as contended by the Respondent.
Ms Quill was supported by her union and the Respondent was granted leave to be represented by Carter Newell Lawyers. Ms Quill gave evidence, and for the Respondent the witnesses were:
Ms Mynette Fulmer, Centre Manager, and
Ms Amy Bodel, Operations Manager.
Was Ms Quill dismissed?
The Applicant’s submissions
Ms Quill commenced employment as an unqualified Early Childhood Teacher (ECT) on 6 December 2023. At the time of her commencement, the Centre was managed by a Director who she says fully supported her, but in March with the change to Centre Director she submits that she felt negativity, bullying and manipulation.[1] The evidence bore out that there were disagreements or differing views over the care of her son, her qualification and funding eligibility for the centre. I observe that Ms Quill did not agree with the direction or decisions taken by the new Centre Director or the Operations Manager.
When Ms Quill commenced there were 2 kindergarten rooms, and at interview she was given the option which room she wished to work in. It is apparent that the kindergarten program was intended to deliver a service to 3–5-year-olds. Ms Quill chose the group with the older children 4–5-year-olds preparing for school in 2025. At that time, the other room catered for 3–5-year-olds and it is noted that some children in this room were expected to commence school in 2025.
In March 2024, a new Centre Director commenced employment and observed the spread of children across the 2 rooms. This led to consultation with the objective of bringing all children due to commence school in 2025 to be grouped together. Ms Quill’s son was in the older cohort preparing for school and it was considered by the Centre Manager that it would be preferable that mother and child were not in the same kindergarten room. Some options were presented to deal with the situation, and Ms Quill was not happy with either the options, rationale or the process undertaken to implement the change. Even though she was consulted and agreed to lead the room with the younger cohort, she personally perceived this as a demotion as a number of children had not yet been fully toilet trained. It is observed that the position description or conditions of employment were not changed.
Ms Quill lodged this application purporting that she was demoted, treated poorly and forced to resign.[2] Ms Quill alleges that the Respondent:
Denied her a pay rise that she believed she was promised when interviewed,
Directed that she and her son be in separate kindergarten rooms (Senior Kindy and Pre-School respectively) and she considered it was unnecessary,
Altered her role from ECT to Senior Kindy teacher, because she was required to perform duties relating to the children’s personal care (nappy changes, toilet training etc) to which she submits that she was not employed to do. She further submits that she was not given additional support to manage these duties,
Advised that kindergarten funding would be lost for her son,
Advised that her son ought to go to school the following year, despite her own views,
Failed to comprehend the degree to which her son suffered anxiety and needed her support.
She submits that the poor treatment and an event led to her resignation. The event she refers to concerns the reaction by her employer when she consoled her son. She submits that she was outdoors supervising all of the children when she noticed her son crying. She then comforted her son and brought him indoors with another child and was questioned why she had her son with her. She submits that this was a criticism and an example of double standards as other staff with children at the centre were permitted to spend time with their children.
Ms Quill produced unsworn statements from the former Director and 2 former educators, texts with a staff member and an email from a previous parent of the Centre. None of these individuals presented to give evidence. It is apparent that the former Director was dismissed (by his own admission) and had thought unkindly towards the Operations Manager. The 2 former staff were either unsupportive of the decisions made by the new Centre Director or unhappy with the quality of care to their own children. One former staff member did not provide a statement, but rather the attachment consisted of extracts of text messages with the Applicant. The former parent’s attachment was an email to the Applicant explaining why she removed her child from the Centre. None of these “statements” add any weight to the issue of forced resignation being determined, `nor can any of these “statements” be tested. Rather these documents are presented with an intention to discredit the Centre or certain individuals and accordingly have no evidentiary weight in this matter.
The Respondent’s submissions
The Respondent submits that Ms Quill was not dismissed but resigned. In reference to the letter of resignation, the Respondent points out that the letter thanked her employer for the support afforded to her and expressed excitement for her next adventure.[3]
Ms Bodel gave evidence that when Ms Quill was employed as an Early Childhood Teacher, she was allocated to a room with 4- and 5-year-olds, intended for children entering school in 2025. As Ms Quill was not fully qualified, the Centre was ineligible for funding to deliver free Kindy. In March 2024, the Centre determined to create a single room to meet kindergarten regulatory requirements which required the recruitment of a qualified ECT for the 3 – 5-year-old group of children. This resulted in Ms Quill being allocated to a kindergarten room next door comprising 3–4-year-olds (Senior Kindy). She submits that Ms Quill’s position and title remained unchanged, and an additional support was allocated following Ms Quill’s request. She contends that Ms Quill was not forced to resign, and she was not demoted as all terms and conditions remained the same despite the change in allocation of children to the kindergarten rooms.[4]
Ms Fulmer gave evidence that when she commenced as the Centre Director in March 2024, there were 2 kindergarten rooms, one was called Preschool 1 (with children 4-5 years old) and the other Preschool 2 (with children 3-5 years old). She gave evidence that it was her decision that the children of Preschool 2 that were readying for school in 2025 year would be better served by relocating to Preschool 1 alongside their peers. She further gave evidence of the consultation she had with staff and with Ms Quill including the options discussed - of moving her son to the older room, the preference that they are not in the same room, and of the idea of placement of either mother or son in a local sister centre. The final decision which was accepted was to place Ms Quill’s son in the Preschool room (4–5-year-olds), and she transfer to the room with children 3-4 years old. Ms Fulmer asserts there was no change to the terms and conditions and denies any pressure for Ms Quill to resign. She further addressed allegations made by Ms Quill that there were double standards in terms of other staff. In her situation she explained that she negotiated a flexible working arrangement following a period of maternity leave when her child was 6 weeks old.[5] No flexible working arrangement request was made by Ms Quill.
The Respondent tendered in evidence Ms Quill’s new employee details form which shows training in “Birth to 8 years Bachelor of Early Childhood”, the letter of resignation, position description and payslips.
The legislation
Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly, the Act at s.365 provides:
‘Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.’
The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act.[6] A dismissal is to be at the initiative of the employer, or a person was forced to resign but a dismissal does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:
‘Meaning of dismissed
(1)A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’
The relevant provision in this matter is the application of subsection 386 (1) (b) of the Act. There is no dispute that the exclusions in subsections 386 (2) and (3) do not apply. Both subsections of 386 (1) go to the employment coming to an end because of the employer’s conduct and there is no dispute that the application of subsection 386(1)(b) which Ms Quill relies on is contested between the parties.
Consideration
To make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368[7] of the Act, the Commission must be satisfied that the person was dismissed in fact.[8]
The principle from the authorities is that the employer’s conduct is key to effect the resignation of the employee, and such that the employee had no choice but to resign.[9] A quick acceptance by the employer of a resignation in the heat of the moment may be considered a dismissal, however, Ms Quill does not argue this, nor does the evidence support a heat of the moment resignation. A repudiation of the contract by the employer may also give rise to a termination caused by the employer. While Ms Quill asserts that she was demoted, the evidence does not support this, the position description, pay rate and all other terms and conditions were not altered. The only change that occurred was the reallocation of children in the 2 kindergarten rooms on 8 April 2024. Ms Quill relies on the argument that the conduct of her employer forced her resignation.
The question of whether the employee had no real choice but to resign is not a matter where the employee did not agree with the circumstances, rather the action of the employer must be such that the employee had no real choice but to resign. Therefore, had the action of the employer not occurred, the employee would not have resigned. That is that the conduct of the employer intended to bring the employment relationship to an end. It is important to consider the facts objectively, and where an employee does not like the circumstances, is uncomfortable, finds it difficult or distressing, such characterisations alone would not satisfy the principles in Mohazab.[10]
Since Mohazab, a number of cases[11] have considered forced resignation with the most recent full bench authority being BUPA Aged Care.[12] The Full Bench reviewed the authorities in relation to s.386(1) and (2) of the Act. The relevant summary paragraph follows:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
The evidence does not support a resignation in the heat of the moment. Ms Quill tendered her written resignation on 3 May 2024 with a letter dated 2 May 2024 to take effect after 1 week of notice ending on 10 May 2024. The contents of the letter make no suggestion of a forced resignation or any concerns leading to resignation. The letter states “Thank you for giving me the opportunity to work in this position for the past 5 months. I have thoroughly enjoyed working here and appreciate all of the opportunities you have given me. However, I have decided it is time for me to move on to my next challenge.” The letter also offers to assist with the effect of her transition. The letter further makes no suggestion of conduct forcing a resignation. There was an absence of evidence in support of a forced resignation in the heat of the moment.
The conduct of the employer is to be scrutinised in terms of the application of s.386(1)(b). Following the commencement of the Centre Director in March, an assessment of the make-up of children in the 2 kindergarten rooms resulted in consultation over March and an eventual transfer in April of the older children into one room. Ms Quill was consulted in this process and with her acceptance, her son was placed in the room with the older children which were scheduled to commence school in 2025. Due to the challenges that can arise when young children are placed with a parent in a work environment, Ms Quill was placed in charge of the 3–4-year-old room. I observe throughout her witness evidence Ms Quill made the point she had no objections with being in a room separate from her son provided they were located in the same Centre. While this decision was accepted by Ms Quill, she expressed a view that no conflict arose being the kindergarten teacher in the same room as her son, nor did she consider it necessary that they were separated. Witnesses for the Respondent stated it was perceived that Ms Quill did not focus her attentions on the needs of all of the children equally with those of her son, particularly if he became anxious. However, it was also considered beneficial for Ms Quill’s son to attend a room independent of his mother. These observations and the preference from the Respondent to separate mother and child is not unreasonable and not inconsistent with Ms Quill’s employment conditions.
Ms Quill raised during her witness evidence an objection to having to perform duties that she considered inconsistent with her role as ECT. While she agreed to take responsibility for the 3–4-year-old kindergarten room, she objected to having to perform nappy changes and toilet training. She gave evidence that these duties which she says she previously was not required to perform required additional support that the Respondent failed to provide. The Respondent gave evidence that it did provide additional support and this fact remained in contention during proceedings. Any suggestion that these duties were a demotion or repudiation of the contract was not substantiated.
Ms Quill gave evidence that when she commenced as an ECT at the Centre, she was given the option of which kindergarten room she preferred to work in. The same age cohort of children 3–5-year-olds were the focus of the kindergarten program comprising of 2 rooms. The job description is the same regardless of which room the staff worked in. There was no evidence that nappy changing, or toilet training was not required of an ECT and given the age of children it was reasonable to expect such responsibilities applied. In any event the reallocation of the children occurred on 8 April and Ms Quill resigned on 3 May, even if she was dissatisfied with the frequency of the duties to be performed in her room, her resignation cannot be considered forced. Dissatisfaction with the duties on any reasonable objective assessment cannot be considered conduct by the employer forcing a resignation.
It cannot be reasonably accepted that the reallocation of children resulted in a repudiation of the contract of employment, or that she faced no option other than to resign nor that the conduct can be characterised as forcing a resignation by the employer or an intention to bring the employment relationship to an end.
In terms of the other allegations of poor treatment and double standards, they are better described as differing views rather than evidence of conduct forcing a resignation. Ms Quill tendered with her materials an extract email (original source not tendered) that she sent to the owner dated 29 March 2024 (during the consultation period) expressing her concerns and feelings “about all of the changes.”[13] Despite the effluxion of time following staff changes and reallocation of children in the kindergarten rooms, Ms Quill was evidently still unhappy when she resigned despite agreeing to transfer to Senior Kindy and submitting a positive letter of resignation. This email complaint and resignation is not evidence of a forced resignation instead it is evident of Ms Quill’s dissatisfaction of the changes in the Centre. In addition, the allegation that Ms Quill was denied a promised salary adjustment cannot be found in her favour. On 15 March 2024, Ms Quill sent an email requesting a pay rise on the basis that an adjustment was discussed at interview. There was no evidence of a promised wage adjustment, rather there was agreement to review after 3 months.[14] Again, this is not evident of conduct forcing a resignation.
Conclusion
Having considered the evidence I am satisfied that Ms Quill was not forced to resign and therefore not dismissed within the meaning of s.386(1)(b) of the Act. None of the evidence supports a conclusion that the employer’s conduct forced a resignation or placed Ms Quill in a position that she had no choice but to resign. The evidence does show that Ms Quill was unhappy that the Senior Kindy room, required nappy changing and toilet training which in her view compromised her capacity to focus on educational ECT responsibilities.
For the above reasons Ms Quill was not dismissed from her employment with the Respondent. Rather she voluntarily resigned because she was unhappy with the changes in the Centre. On this basis Ms Quill’s application for general protections involving dismissal is not made in accordance with s.365 and the application is dismissed pursuant to s.587(1)(a) of the Act.
An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Alisa Quill for the Applicant
Lara Radik for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams):
July 24.
Final written submissions:
Applicant, 28 June 2024
Respondent, 12 July 2024
[1] Exhibit A1- Applicant’s statement of Evidence at [7]-[8].
[2] Exhibit A1- Applicant’s statement of evidence.
[3] Respondent’s outline of argument at 1f and letter of resignation dated 2 May 2024.
[4] Exhibit A2- Statement of evidence of Amy Bodel, Operations Manager at [3] – [7] and [10].
[5] Exhibit R1- Statement of evidence of Mynette Fulmer Centre Director.
[6] See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009, which refers to s.386.
[7] Dealing with a dismissal dispute other than by arbitration.
[8] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[9] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; 39 AILR 3-234 at 205 (IR) per Lee, Moore and Marshall JJ and O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528 AIRC 496 at [19] – [23].
[10] Ibid.
[11] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000), O’Meara v Stanley Works Pty Ltd AIRC Print PR973462 (11 August 2006) ABB Engineering Construction Pty Ltd v Doumit Print N6999, (9 December 1996) and Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941.
[13] Email of 29 March 2024 at 8.01pm to Nick Campbell.
[14] Unsworn statement of Thomas Kiely, previous Director.
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