Anil Kumar v Life Without Barriers
[2022] FWC 2132
•12 AUGUST 2022
| [2022] FWC 2132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anil Kumar
v
Life Without Barriers
(U2022/5610)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 12 AUGUST 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the applicant was dismissed pursuant to section 386(1).
On 20 May 2022, Mr Anil Kumar applied to the Commission for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Kumar alleges that he has been unfairly dismissed from his employment with Life Without Barriers Pty Ltd (respondent).
The respondent submits that Mr Kumar has not been dismissed within the meaning of s 386(1) of the Act. Accordingly, the matter proceeded to a jurisdictional hearing before me.
For the reasons that follow, I find that Mr Kumar has not been dismissed within the meaning of s 386(1) of the Act. Consequently, Mr Kumar cannot have been unfairly dismissed for the purposes of s 385. It follows that I uphold the jurisdictional objection and Mr Kumar’s application for an unfair dismissal remedy is dismissed.
Background
Mr Kumar commenced employment with the respondent in 2019 following a secondment from the Department of Health and Human Services (Vic).[1] He held the position of Disability Support Worker.[2]
In early December 2021, Belinda Johnson, the People & Culture Business Partner for the respondent was informed of a complaint of inappropriate workplace conduct involving Mr Kumar.[3] On 10 December 2021, following a meeting with Mr Kumar regarding the complaint, a letter was sent by the respondent to Mr Kumar suspending him from work pending an investigation into the matter.[4]
The respondent referred the complaint to an external agency for assessment. As a consequence, the respondent’s internal investigation in relation to Mr Kumar’s conduct was placed on hold.[5] Mr Kumar remained on paid suspension for several months while the external agency conducted its investigation. Mr Kumar engaged the Health and Community Services Union (HACSU) to assist him in responding to these allegations.[6]
On or around 9 March 2022, Ms Johnson became aware of a further issue of concern with respect to Mr Kumar, involving an alleged breach of the respondent’s Code of Conduct, the National Disability Insurance Scheme Code of Conduct and Mr Kumar’s probity requirements for his role as a Disability Support Worker.[7] The particulars of that allegation are that Mr Kumar had been charged with a serious criminal offence relating to a client and failed to notify his manager of the charge.[8] An internal investigation was undertaken by the respondent in relation to the 9 March 2022 allegation.[9] Mr Kumar was represented by HACSU throughout the investigation process.[10]
The investigation process was detailed in a letter from the respondent to Mr Kumar on 9 March 2022. The letter set out the particulars of the allegation and invited Mr Kumar to attend a meeting to provide a response.[11] The letter advised Mr Kumar that the alleged conduct, if substantiated, may constitute misconduct or serious misconduct and notified Mr Kumar of the potential outcomes, which included termination of employment. The letter stated that a “[i]f you do not respond to the allegation, the disciplinary matter may be concluded on the available facts and a determination made accordingly.”[12]
On 16 March 2022, Mr Kumar’s HACSU representative Mr Patrick Faulkner sent an email to the respondent’s Senior People & Culture Advisor, Ms Louise Birnie. The email challenged the probity of the allegation in the letter of 9 March 2022 and requested further information from the respondent.[13] Mr Faulkner also raised a concern with respect to the internal investigation by the respondent prejudicing other investigations in relation to Mr Kumar’s conduct.[14] Ms Birnie advised Mr Faulkner that the respondent had no further information and inquired whether Mr Kumar would attend the disciplinary meeting scheduled to take place on 17 March 2022.[15] Mr Faulkner responded “No, I will be seeking further legal advice on the matter. Anil and I will not be in attendance.”[16] Mr Kumar was copied into this email chain.
On 28 March 2022, Ms Birnie sent an email to Mr Faulkner and Mr Kumar. Ms Birnie stated that given Mr Kumar did not attend the disciplinary meeting or provide a response to the 9 March 2022 allegation, the disciplinary process would proceed with the information that was before the respondent at that time.[17]
On 5 April 2022, Mr Kumar inquired of Mr Faulkner as to the status of his case.[18]
On 21 April 2022, the respondent sent a letter to Mr Kumar stating that the 9 March 2022 allegation had been substantiated, noting Mr Kumar’s failure to provide a response.[19] Mr Kumar was invited to attend a meeting to discuss the findings and proposed outcome. Mr Kumar was told that this would also be an opportunity to respond to the allegation.
On 29 April 2022, Mr Kumar sent an email to Ms Johnson confirming that he would attend the meeting which was scheduled to occur by way of Microsoft Teams.[20] Mr Kumar submits that he was told by HACSU that his attendance at this meeting put at risk his chances of re-employment elsewhere.[21]
On 2 May 2022, prior to the disciplinary process being finalised, Ms Johnson received a telephone call from Mr Faulkner. Mr Faulkner advised Ms Johnson that Mr Kumar would be resigning from his employment with the respondent “either today or tomorrow with 3 weeks’ notice.”[22] Ms Johnson took a handwritten file note of this conversation which included that the resignation would also be accompanied by a statement of service.[23]
At 5:19pm on 2 May 2022, Ms Johnson sent Mr Faulkner a text message inviting clarity as to the specifics of Mr Kumar’s resignation. The text message stated, “Hi Patrick I am speaking with the RD and wanted to be clear if the resignation is dated tomorrow you are seeking 3 weeks in lieu of notice to be paid?”[24] Mr Faulkner responded by confirming his agreement with the matters in Ms Johnson’s text message and requested provision of a statement of service.[25]
On 3 May 2022, Mr Faulkner sent Ms Johnson a further text message which advised that Mr Kumar would resign “today” with three weeks’ pay in lieu of notice. The message stated that a resignation letter would be sent shortly.[26] Ms Johnson responded by text message indicating that she would accept the resignation once received.[27]
At 12:21pm on 3 May 2022, Mr Kumar sent an email to Ms Johnson and Mr Faulkner effecting his resignation.[28] The email stated as follows:[29]
“As discussed, I hereby resign from my position with immediate effect with the payment of 3 weeks wages in lieu of notice.”
At 2:12pm on 3 May 2022, Ms Johnson replied to Mr Kumar’s email, and attached correspondence which the respondent says confirmed acceptance of Mr Kumar’s resignation and set out details including the payment of Mr Kumar’s termination entitlements.[30] This correspondence is not in evidence. Ms Johnson proceeded to notify payroll of Mr Kumar’s resignation and other matters attended to upon the cessation of an employee’s employment in the respondent’s usual practice.[31]
On 18 May 2022, Ms Johnson received an email from Mr Kumar stating as follows:[32]
“Hi ‘ i haven’t got any confirmation regarding my Resignation. I am still employed or not !
How to get my stuff from work place?
Please send me paperwork”
Ms Johnson replied on 19 May 2022, confirming acceptance of Mr Kumar’s resignation and attaching the letter previously sent on 3 May 2022.[33] Ms Johnson also addressed issues concerning the provision of a statement of service to Mr Kumar and the property left at the respondent’s workplace.
Statutory framework
The circumstances in which a person has been unfairly dismissed is set out in s 385 of
the Act as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act, which provides as follows:
“(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 his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 386(1) of the Act operates subject to the exceptions set out in s 386(2), none of which are raised directly or indirectly by either of the parties or otherwise arise on the facts.
Contentions
Mr Kumar contends that he was forced to resign on 3 May 2022.[34] Mr Kumar’s position is two-fold.
Firstly, Mr Kumar submits that HACSU compelled his resignation because he was advised not to attend the first meeting convened by the respondent in relation to the 9 March 2022 allegation.[35] With respect to the second meeting arranged by the respondent to discuss the investigation findings, Mr Kumar says that HACSU told him “that if I attend LWB be sack me and i wont be able to work anywhere” and that he would not receive a statement of service if he attended the meeting.[36] At the hearing, Mr Kumar explained that HACSU advised him that if he did not resign he would be dismissed, but if he resigned he would receive a statement of service allowing him to find alternative employment. Mr Kumar further explained that HACSU had advised him not to contact the respondent’s office and that his representative was uncontactable for two to three weeks over the investigation period.
Secondly, Mr Kumar contends that the respondent forced him to resign because of the two sets of allegations, the subsequent investigation and the disciplinary process. In relation to the 9 March 2022 allegation, Mr Kumar submits that the respondent informed the police about the incident and therefore knew about the charges. It was because of this that Mr Kumar did not inform his manager of the police charges.[37]
The respondent contends that there is no evidence that Mr Kumar was forced to resign by its conduct.[38] Rather, it says that Mr Kumar resigned his employment of his own free will and in consultation with HACSU, and subsequently confirmed his resignation more than two weeks later on 18 May 2022 when he enquired with Ms Johnson about a statement of service and his personal property. The respondent submits that at no stage after 3 May 2022 did Mr Kumar attempt to retract his resignation or dispute the circumstances that led to it. The respondent says that it was first made aware of Mr Kumar’s concerns regarding his resignation when he filed his application for an unfair dismissal remedy in the Commission.
Further, the respondent submits that to the extent Mr Kumar relied on advice from HACSU to resign his employment which he later decided he did not like, that is not conduct which falls within the Commission’s unfair dismissal jurisdiction in circumstances where the respondent was not involved in advising Mr Kumar about the cessation of his employment.
Consideration
In order for a person to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed.[39]
The term “dismissed” is defined in s 12 of the Act by reference to s 386. As noted at [22] of this decision, it includes a person’s employment with his or her employer being “terminated on the employer’s initiative” (s 386(1)(a)) or resignation “because of conduct, or a course of conduct, engaged in by his or her employer” (s 386(1)(b)).
It is not in dispute in the proceedings before me that the respondent is the “employer” for the purposes of s 386(1) of the Act.
I understand that each of Mr Kumar’s arguments are made on the basis that he was dismissed within the second limb of the definition in s 386(1); that is, that he was forced to resign within the meaning of sub-section (b). I turn now to consider Mr Kumar’s contentions.
Forced to resign by HACSU
Mr Kumar’s contention that he was dismissed from his employment with the respondent on account of being forced to resign by HACSU may be readily disposed of. Section 386 of the Act is concerned with the actions of a person’s “employer,” not a third party. The specific enquiry under s 386(1)(b) relates to conduct engaged in by the employer. There is no basis, on the material before the Commission, for concluding that the respondent could be held responsible under s 386(1) for HACSU’s alleged conduct in the manner alleged by Mr Kumar.
Further and in any event, there is no evidence that HACSU was not acting in Mr Kumar’s best interests and on the proper instruction of Mr Kumar in brokering a deal for his resignation. Conversely, the material discloses that the HACSU representative took an adversarial stance against the respondent for the benefit of Mr Kumar.[40] Further, Mr Kumar personally sent the email effecting his resignation on 3 May 2022, not his HACSU representative.[41]
To the extent that Mr Kumar is dissatisfied with Mr Faulkner’s advice (a) not to attend the meeting convened by the respondent in relation to the 9 March 2022 allegation of misconduct,[42] and (b) not to contact the respondent during the investigation period, these matters do not bear upon the question of whether Mr Kumar was dismissed within the meaning of s 386(1)(b) of the Act. Further, Mr Kumar does not explain how his concerns about HACSU’s availability to assist him on account of his representative’s period of leave is relevant to his contention that he was forced to resign.
It follows that I reject Mr Kumar’s contention that he was forced to resign from his employment within the meaning of s 386(1)(b) of the Act on account of the conduct of HACSU or its representatives.
Forced to resign by the respondent
As noted at [26] of this decision, Mr Kumar also contends that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by the respondent.
The Full Bench in Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[43] noted that a resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the meaning of s 386(1)(b) of the Act. The test to be applied 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[44]
The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. Rather, it depends on what a reasonable person in the position of the parties would have understood was the position, based on what each party has said or done, in light of the surrounding circumstances.[45] It is the conduct of the employer that is the essential element.[46] The onus is on the employee to prove that they did not resign voluntarily.[47]
During cross examination, Mr Kumar accepted that there had been no discussions between he and his employer about resigning from his employment, nor had the respondent asked for this to occur. Rather, Mr Kumar’s position was that such discussions were between himself and HACSU and he had been advised by HACSU to resign.
To the extent that Mr Kumar contends that the December 2021 allegations were manufactured to force his resignation, this is not accepted. There is no evidence as to the specifics of those allegations and the respondent did not investigate them. Further, and in any event, there is no evidence before me to substantiate this contention.
I also do not accept that the 9 March 2022 allegation was manufactured by the respondent to procure Mr Kumar’s resignation. The 9 March 2022 letter alleged that Mr Kumar had been charged with a serious criminal offence relating to a client, and that he had failed to advise his manager of this charge.[48] Mr Kumar led evidence in the form of a letter from Victoria Police which demonstrates that he was charged by the police in relation to the incident.[49] Mr Kumar also accepted that he did not tell his manager that he had been charged with that offence.[50] It therefore follows that the respondent did not manufacture the allegation in the sense that it fabricated the facts.
Nor do I consider that the 9 March 2022 allegation was arbitrary or not based on any existing rules, policy or law. In the 9 March 2022 letter, the respondent communicated the allegation in the following terms:[51]
“It is alleged that in your role as a Disability Support Worker, classified as a Disability Development and Support Officer (DDSO1Q), you breached sections 1 (Uphold our Values); and/or section 2 (Behave honestly, courteously and objectively); and/or section 3 (Make sound & ethical decisions); and/or section 4 (Comply with the law and LWB policies and procedures) and/or section 5 (Ensure the safety and wellbeing of our clients); of the Life Without Barriers Code of Conduct; by failing to act honestly and transparently and engaging in unlawful behaviour.”
While the respondent’s Code of Conduct is not before me, I accept that the 9 March 2022 allegation gave rise to concerns on the part of the respondent that necessitated investigation. Mr Kumar did not challenge Ms Johnson’s evidence as to the appropriateness of this investigation by the respondent. While Mr Kumar is now critical of the advice given to him by HACSU not to attend the 17 March 2022 meeting, Mr Kumar ultimately elected not to engage with the respondent in relation to this allegation. It is apparent that the respondent was taking steps to obtain Mr Kumar’s response. Such conduct by the respondent is the antithesis of conduct which could be regarded as forcing Mr Kumar to resign.
It follows that I reject Mr Kumar’s contention that he has been dismissed by the respondent within the meaning of s 386(1)(b) of the Act. There is no evidence of any action on the part of the respondent that could be considered as conduct forcing Mr Kumar to resign. The evidence discloses that the respondent took the appropriate and necessary step of investigating concerns involving Mr Kumar’s conduct which may be in contravention of the respondent’s Code of Conduct, the National Disability Insurance Scheme Code of Conduct and Mr Kumar’s probity requirements for his role as a Disability Support Worker.[52] Upon the conclusion of its investigation, the respondent properly notified Mr Kumar of its findings and invited him to participate in a show cause process. The material overwhelmingly supports a finding that Mr Kumar voluntarily resigned from his employment before the respondent’s disciplinary process was finalised, on terms not unfavourable to him. The proposal that Mr Kumar resign was raised with the respondent by HACSU. I am satisfied that Mr Kumar’s subsequent resignation email was sent to the respondent by Mr Kumar on 3 May 2022 of his own volition.
Accordingly, for the reasons given, I am satisfied that Mr Kumar was not forced to resign because of conduct, or a course of conduct, engaged in by the respondent within the meaning of s 386(1)(b) of the Act.
While Mr Kumar’s contentions were made on the basis that he was “forced” to resign, such that the applicable test is that set out under s 386(1)(b) of the Act, for completeness I have also considered Mr Kumar’s contention as it relates to the respondent by reference to s 386(1)(a).
There may be a dismissal within the meaning of s 386(1)(a) of the Act where, although an 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 distress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign.[53] If the employer treats the ostensible resignation as terminating the employment rather than clarifying with the employee, this may be characterised as a termination at the initiative of the employer.
I reject that Mr Kumar has been dismissed within the meaning of s 386(1)(a) for two reasons. Firstly, the evidence establishes that Mr Kumar resigned by email on 3 May 2022 following a two-month investigation process by the respondent into serious conduct related concerns. The resignation was not given in the “heat of the moment” but rather followed a proposal raised with the respondent by HACSU on Mr Kumar’s behalf. Mr Kumar’s resignation email was expressed in unambiguous terms and made reference to the discussions that had taken place between the respondent and HACSU.
Secondly, Mr Kumar followed up by email to the respondent on 18 May 2022 regarding his statement of service and personal property. Mr Kumar made no mention of regretting his resignation, nor did he seek to withdraw it. Instead, he sought confirmation that the resignation was effective. It follows that Mr Kumar held a consistent intention to resign over a period of at least 19 days. I am satisfied that the 3 May 2022 email wat not a “heat of the moment” resignation.
I find that Mr Kumar’s email to the respondent on 3 May 2022 was a legally effective resignation.
Conclusion and disposition
Having regard to my findings and the conclusions reached, I find that Mr Kumar has not been dismissed within the meaning of s 386(1) of the Act. Consequently, Mr Kumar cannot have been unfairly dismissed for the purposes of s 385.
The respondent’s jurisdictional objection is upheld and Mr Kumar’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Kumar on his own behalf
Mr A Frieberg on behalf of the respondent
Hearing details:
19 July 2022, by Microsoft Teams
[1] Court Book (CB) 5 at 1.1
[2] CB 44 at [3.1]; CB 50 at [4]; CB 55-56
[3] CB 51 at [5]
[4] CB 45 at [3.2]; CB 51 at [6]; CB 55-56
[5] CB 45 at [3.3]; CB 51 at [7]
[6] CB 45 at [3.4]
[7] CB 45 at [3.5]; CB 51 at [8]
[8] CB 6 at 3.1; CB 57
[9] CB 51 at [10]
[10] CB 17-18
[11] CB 19; CB 57-59
[12] CB 58
[13] CB 17-18
[14] Ibid
[15] CB 17
[16] Ibid
[17] CB 16
[18] Ibid
[19] CB 22-23; CB 51 at [10]
[20] CB 25
[21] CB 10
[22] CB 52 at [12]
[23] CB 60
[24] CB 52 at [13]; CB 61
[25] CB 52 at [14]; CB 62
[26] CB 52 at [15]; CB 63 and 64
[27] CB 52 at [16]; CB 64
[28] CB 53 at [17]
[29] CB 66
[30] CB 53 at [18]; CB 65
[31] CB 53 at [19]
[32] CB 53 at [20]; CB 69
[33] CB 53 at [21]; CB 70
[34] CB 5 at 1.3
[35] CB 15
[36] CB 10; CB 16
[37] CB 10; CB 21
[38] CB 48-49 at [5.1]-[5.6]
[39] Fair Work Act 2009 (Cth) s 385(a)
[40] CB 17-18
[41] CB 64; CB 66
[42] CB 17
[43] [2017] FWCFB 3941; (2017) 271 IR 245
[44] Ibid at [47](2)
[45] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[46] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941; (2017) 271 IR 245 at [47(2)]
[47] Australian Hearing v Peary [2009] AIRCFB 680; (2009) 185 IR 359 at [30]
[48] CB 57
[49] CB 11
[50] CB 6 at 3.1
[51] CB 57
[52] CB 51 at [8]
[53] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli[2017] FWCFB 3941; (2017) 271 IR 245 at [47](1)
Printed by authority of the Commonwealth Government Printer
<PR744690>
2