Ann Dillon v Hydrera Water Services Pty Ltd
[2024] FWC 1900
•19 JULY 2024
| [2024] FWC 1900 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ann Dillon
v
Hydrera Water Services Pty Ltd
(C2024/3693)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 19 JULY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – resignation – constructive dismissal – forced resignation - jurisdictional objection upheld
Ms Ann Dillon (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 4 June 2024. The Applicant claimed that adverse action was taken against her by Hydrera Water Services Pty Ltd (the Respondent) under ss.340, 343, and 352 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that she was dismissed in accordance with the definition in s.386 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.
The matter was heard by video using Microsoft Teams on 17 July 2024.
Permission to Appear
Section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
The Respondent sought leave to be represented before the Commission by a lawyer and the Applicant objected on the basis that she felt it would be unfair. I shall not traverse the submissions made in any great detail, but I was satisfied that granting leave would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, noting that the legal representative had a duty first to the tribunal (which included assisting the Applicant where appropriate to do so) and that the assistance of legal representation would assist the Commission to deal with the matter more efficiently.
Background
The Applicant commenced employment with the Respondent on or around 4 October 2022, in the position of Quality, Health and Safety and Environment Manager, reporting to Mr Eddie Pigeon, General Manager of the Respondent. In her role, the Applicant was responsible for quality, work health and safety, environment, rehabilitation and return to work co-ordination, the provision of human resources assistance and document management for all sites across Australia.
The Applicant’s Submissions
I do not intend to repeat in detail all of the submissions made and evidence given, however I have nonetheless had regard to all of that information in my consideration.
The Applicant relevantly submitted that:
(a)Around 6 months after commencing in the role, the Applicant recommended that the Respondent automate and streamline their workplace health and safety systems with a new WHS system. The Respondent agreed and the Applicant set about sourcing an appropriate system. In October 2023, the Respondent approved the Applicant’s proposal for the implementation of a new system called “WHS Monitor”.[2]
(b)The Applicant set about implementing the new system although she had some difficulty gaining assistance and input from key stakeholders who were required to provide subject matter expertise in order to finish the project;[3]
(c)In January 2024, the Applicant met with the Respondent for her performance appraisal. During the review the Applicant submits that she again sought support from subject matter experts. The Applicant submits that the Respondent rated the Applicant’s performance as outstanding and provided a copy to demonstrate this which I accept.[4] The Applicant further submits that the Respondent advised her that Mrs Pidgeon would be commencing in the role of human resource manager. The Applicant submitted that she was advised there would otherwise be no impact on her duties;[5]
(d)On 2 April 2024 the Applicant attended a meeting requested by the Respondent to provide a demonstration of the new WHS system and its implementation progress. The Applicant submitted that the Respondent was disappointed in the lack of progress that had been made in the implementation of the project;[6]
(e)On the Applicant’s case, following this meeting, it became clear the relationship had changed and that there were a number of concerns held by the Respondent. The Applicant submits that she raised a number of complaints or enquiries seeking further resources to assist her with the implementation of the project, the first of these occurred two days after the 2 April meeting;[7]
(f)The Applicant contends that in response to the complaints she made, on 1 May 2024 at 9.04am, the Applicant received an email from Mr Pigeon, in which her return to work co-ordination, document control and her oversight of the quality management system duties were removed and her access to those systems revoked;[8]
(g)Later on the same day, 1 May 2024 at 9.44am, the Applicant claims she received a second email which was a written warning from Mr Pigeon for “alleged misconduct” warning that the Applicant had “neglected to maintain the QHSE system and completion of the new WHS System.” The Applicant submitted that this email also alleged that the Applicant had been given previous multiple verbal warnings about her conduct and neglect of the systems since 25 January 2024. The Applicant submitted that these were fabricated and were at odds with her performance review on 26 January 2024 in which the Applicant was rated as “outstanding” in all aspects of her job expectations;[9]
(h)The Applicant received a third email, on 1 May 2024 at 10:00am, directing that the Applicant attend a meeting at the Respondent’s residence, which was also the Respondent’s head office, on 4 May 2024, to discuss the written warning and potential disciplinary action up to and including the termination of her employment;[10]
Later in the day on 1 May 2024 at 10.06am, the Applicant emailed Mr Pigeon and the HR manager Mrs Pigeon advising that she was taking personal leave. This email was accompanied by a medical certificate stating that the Applicant was unfit for work from 1 May 2024 to 10 May 2024. The Applicant advised Mr Pigeon in the email of a rapid decline in her mental health as a result of workplace factors over the previous six months;[11]
(j)Again, on 1 May 2024 at 11:34am, Mr Pigeon emailed the Applicant requesting a second medical certificate which “specifically prescribed that I was unable to perform my regular work from home or office duties and directed that I attend a handover of duties with him that afternoon;”[12]
(k)On 13 May 2024 the Applicant submitted a medical clearance and advised the Respondent that she could return to work on full duties on 14 May 2024. The Applicant submitted that the Respondent directed instead that she obtain a further clearance from her general practitioner, noting the duties under her job description and providing a specific clearance to perform those duties. The Applicant submitted that she provided the second medical clearance as requested and advised the Respondent that she was ready willing and able to return to work on 14 May 2024. The Applicant contended that the Respondent instead placed the Applicant on leave. The Applicant further submitted that the Respondent emailed the Applicant on 14 May 2024 seeking the Applicant’s availability to attend a fitness for work assessment in the week commencing 20 May 2024 to which the Applicant responded, confirming she would attend;[13]
(l)On 14 May 2024, the Applicant submitted that the Respondent emailed her advising that the requirement to undergo a further fitness for work assessment had been waived and directed the Applicant to return to the workplace to attend a meeting at 10:00am on 16 May 2024;[14]
(m)The Applicant submitted that as a result of Mr Pigeon’s treatment threats and conduct up to that point, which she believed had fundamentally breached her employment contract and had irreparably damaged the employment relationship, that she had no other reasonable option but to resign her employment. She emailed the Respondent advising them of such with effect 16 May 2024.[15]
At the hearing, the Applicant gave evidence that she had struggled to obtain adequate resource support from subject matter experts, despite her best efforts and was subsequently unable to make progress on the implementation of the WHS system to the level she expected.
The Applicant gave evidence that on 15 May 2024, despite everything that had happened to date, she was committed to returning to work at the Respondent.
Turning to her resignation, the Applicant claimed that there were no other options open to her but to resign given what had occurred since the 2 April 2024 meeting. Under cross-examination, when asked what had changed between 15 May 2024 when she said she was committed to returning to work and her resignation on 16 May 2024, the Applicant had some difficulty providing a plausible explanation.
Under cross-examination, the results of an IT audit of the Applicant’s laptop were put to her. The Applicant admitted that as early as 25 April 2024 she had been in discussion with other employers about potential alternative employment. There were four that were apparent.[16] when questioned about a role with MPC Kinetic, the Applicant claimed she was the recipient of an unsolicited approach by email about a vacant role. Upon further cross-examination in respect of other material found on her work laptop, the Applicant reluctantly agreed that she had applied for roles. It was only where the email evidence demonstrated no other possible explanation that the Applicant made this concession.[17]
When asked about an employment offer from Moonyah Workforce, the Applicant claimed that the offer was made and accepted, after she had resigned her employment with the Respondent. Further when taken to the signature page of the employment contract for Moonyah Workforce, which showed that the Applicant had signed her acceptance on 16 May 2024,[18] she remained adamant that she accepted the offer only after she had resigned that morning.
When it was put to the Applicant that what had caused her to change her mind between 15 May 2024 when she was happy to return to work at the Respondents and 16 May 2024 when she claimed she had no other option but to resign, was that she had been offered and/or decided to accept the job offer from Moonyah Workforce, the Applicant adamantly denied this proposition.
Following a brief adjournment, the Applicant was taken to an email in the Digital Court Book,[19] sent from herself to the chief executive officer of Moonyah Workforce, dated 15 May 2024 at 6.35pm, in which she states:
“Hi Immodjen,
I hope you have a great day.
I need to go and print everything out and use the personal computer so is it okay if I get everything back to you on Friday?
Also, I do think I will be able to do a few days next week with you and the week after so we could talk through that also Friday if you’re available for a call and see what suits?
Thanks again and can’t wait.
Have a lovely night :-)
Ann”
It was put to the Applicant that this email contradicted the evidence the Applicant just gave under oath. It was further put that this email demonstrated that she had accepted the job offer with Moonyah Workforce before she resigned from the Respondent. The Applicant apologised however this was unfortunately damaging to her credit and did not support her contention, that she had no other option but to resign (given, on her own evidence, her willingness to return to work with the Respondent on 15 May 2024, before accepting that job offer).
The Respondent’s Submissions
I do not intend to repeat in detail all of the submissions made and evidence given, however I have nonetheless had regard to all of that information in my consideration.
The Respondent’s submissions largely match that of the Applicant’s however with a few exceptions. The Respondent raised that the reason the relationship had deteriorated (as had the Respondent’s view of the Applicant’s performance) was what had been discovered by the Respondent in the meeting on 2 April 2024. At the hearing the Respondent gave evidence that they had been attempting for some four months to obtain full access and control of the system to monitor progress. The Respondent gave evidence that the Applicant was directed that she be given Administrator rights and the Respondent be given ownership rights. The Respondent claimed that the Applicant had failed to follow this direction. Mr Pigeon’s evidence was that he had to find another way of obtaining access to the system and it was when he finally did so, that he discovered very little progress had been made on the implementation project. It was apparent that this caused the Respondent to form a different view about the Applicant’s performance that he had previously held. It is from that point that the submissions and evidence of the parties vary in the sense that the Applicant formed the view that her requests for additional support were the cause of adverse action against her and the Respondent formed the view that he needed to manage the shortcomings in the expected performance of the Applicant.
Further, at the hearing the Respondent gave credible evidence that the removal of the requirement to provide human resource support and document management from the Applicant, was done so because the Respondent considered they were peripheral duties to the core role of Quality, Health and Safety and Environment Manager that the Applicant was engaged to perform. The Respondent’s evidence was that in doing so they were attempting to provide additional support to the Applicant to assist her to be able to fulfil her role.
Legislation
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[20] outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[21] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[22]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[23] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[24]
All the circumstances – including the conduct of both the employer and employee – must be examined.[25] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.[26] It is also relevant that where an employee has resigned as a result of performance management it has not been found to have been forced by the employer.[27] I would note that the exception would be where such performance management is found to be unreasonable.
Forced Resignation
A forced resignation is when an employee has no real choice but to resign.[28] The onus is on the employee to prove that they did not resign voluntarily.[29] The employee must prove that the employer forced their resignation.[30] A resignation is forced where the employee can prove that the employer took action with the intent (or which had the probable result) of bringing the relationship to an end.[31] The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative, is a narrow one.[32] The line, however, must be ‘closely drawn and rigorously observed’.[33]
Consideration
It is apparent from the evidence that the relationship between the Applicant and the Respondent reached difficulties at and since the meeting on 2 April 2024. I accept that the Respondent gaining access to the WHS system for the first time, subsequently obtaining a close view of the Applicant’s performance in the implementation project was the significant reason for this. Whether or not this came about partly because of the difficulties in obtaining support from key stakeholders or for other reasons is difficult to tell however it is clear that the Respondent set out to support the Applicant in performing that role. This included by reducing unnecessary duties which unfortunately seems to have been misconceived in a negative light by the Applicant. It is my view that the Applicant had genuine difficulties in overcoming the challenges she faced in the implementation project and it is unfortunate that she did not pursue the Respondent’s support to work closely on overcoming those challenges.
On her own evidence that the day before she resigned, the Applicant believed she could return to work and work with the Respondent to fulfil the requirements of the role, I am not satisfied that the Applicant had no other option but to resign. In considering the material before me I am satisfied that the Respondent genuinely sought to support the applicant’s performance in her role.
It is my view that the Applicant intended to return to work with the Respondent on the morning of 15 May 2024, however after deciding to take the job offer at Moonyah Workforce, the Applicant chose to resign her employment with the Respondent.
On that basis, I find that the Applicant’s employment came to an end on her own initiative and not that of her employer.
Conclusion
I conclude that the Applicant’s employment came to an end as a result of her resignation and not at the initiative of the employer on 16 May 2024, in accordance with s.386(1) of the Act. The Application is therefore dismissed, and I order accordingly.
DEPUTY PRESIDENT
Appearances:
A. Dillon Self-represented Applicant
E. Turnbull of Greenhalgh Pickard Solicitors on behalf of the Respondent
Hearing details:
17 July 2024
Hearing via Microsoft Teams
Brisbane
[1] [2020] FCAFC 152.
[2] Digital Court Book (DCB) p.16.
[3] Ibid.
[4] Ibid p.85.
[5] Ibid p.16
[6] Ibid p.17.
[7] Ibid.
[8] Ibid p.19.
[9] Ibid; see also Ibid p.85.
[10] Ibid p.20.
[11] Ibid.
[12] Ibid.
[13] Ibid pp.21-22.
[14] Ibid p.21.
[15] Ibid p.22.
[16] Ibid pp.383-384.
[17] Ibid p.385.
[18] Ibid p.395.
[19] Ibid pp.396-397.
[20] [2018] FWC 1074.
[21] Ibid.
[22] Ibid.
[23] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200.
[24] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941at [31].
[25] Whirisky v DivaT Home Care[2021] FWC 650at [77].
[26] Mohazab v Dick Smith Electronics (No 2)(1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[ 2017] FWCFB 3941at [28].
[27] Ashton v Consumer Action Law Centre[2010] FWA 2720.
[28] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.
[29] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
[30] Ibid.
[31] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].
[32] Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999, 12.
[33] Ibid.
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