Bridie Macgillicuddy v Calvary Bruce Private Hospital Ltd
[2023] FWC 3172
•1 DECEMBER 2023
| [2023] FWC 3172 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Bridie Macgillicuddy
v
Calvary Bruce Private Hospital Ltd
(C2023/5881)
| COMMISSIONER MCKINNON | SYDNEY, 1 DECEMBER 2023 |
Application to deal with a general protections dismissal dispute – whether dismissed
Bridie Macgillicuddy was employed by Calvary Bruce Private Hospital Ltd (Calvary) as a part-time Health Professional (Level 1) (Art Therapist) from 18 May 2021 until 14 September 2023. She was covered by the Calvary Bruce Private Hospital Health Professionals and Support Services Enterprise Agreement 2019 (the Enterprise Agreement), which applied to her employment. On 26 September 2023, Ms Macgillicuddy applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act).
The application was made subsequent to Ms Macgillicuddy’s resignation on 15 August 2023 in connection with a dispute about her classification and rate of pay. It alleges contravention of the general protections by Calvary taking adverse action in connection with her exercise of a workplace right. There is no dispute that Ms Macgillicuddy resigned. Ms Macgillicuddy says she had no choice but to resign because of a course of conduct engaged in by Calvary, such that she was ‘dismissed’ in the way described in s.386(1)(b) of the Act. Calvary relies on Ms Macgillicuddy’s resignation and denies that she was dismissed.
An application under section 365 of the Act can only be made by, or on behalf of, a person who has been ‘dismissed’. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of the employer’s conduct.[1] The question is whether Ms Macgillicuddy was dismissed.
I find that Ms Macgillicuddy was not dismissed. Her employment ended by her resignation with effect from 14 September 2023. These are my reasons for the decision.
Was Ms Macgillicuddy dismissed?
In 2021, Ms Macgillicuddy responded to an advertisement by Calvary for the role of Health Professional, Level 3. As she was a new graduate, she was offered employment as a Level 1. Ms Macgillicuddy says that she was told during the onboarding process that accelerated progression to Level 3 would be possible.
In June 2022, Ms Macgillicuddy began making enquiries about how to request a professional level regrade and associated salary increase. A formal request was made by Ms Macgillicuddy for support to advocate for a professional review upgrade to Level 2 on 21 December 2022 by email to Ms Caroline Elderfield, Nursing Unit Manager.
On 6 February 2023, Ms Macgillicuddy was copied into an email from Ms Michele Garner, Director of Clinical Services, which gives the impression that approval had been received for her classification to be upgraded to Level 3 from either the General Manager, Ms Cherie Townsend, or Director of Finance, Mr Pradeep Mucherla. The email said:
“Hi Caroline,
When you are doing the budget for the next financial year, can you please include an upgrade of Bridie’s HP Level from HP 1 to HP 3?
Thank-you,
Kind Regards,
Michele.”
Evidence of such an approval is not before me. Ms Townsend says that her response to Ms Garner made approval subject to the terms of the Enterprise Agreement, and that she had requested further information by Ms Garner which was not forthcoming (Ms Garner’s employment ended 10 days later).
On 7 February 2023, Ms Macgillicuddy wrote to Ms Garner:
“Hi Michele,
Thanks for your email, and that’s great news – thank you. Just to clarify, though, does that mean there won’t be any movement until the start of the new financial year?
Many thanks,
Bridie”
In subsequent emails on 7 and 8 February 2023, Ms Macgillicuddy was advised that her classification could not be upgraded in the current financial year for budgetary reasons. In response to a question about backpay, she was advised that this would need to be further discussed with the Executive team.
Between 10 March and 14 June 2023, Ms Macgillicuddy spoke to other staff about her expectation that she would be reclassified. On 13 June 2023, Mr Justin Vella, the Acting Allied Health Team Leader, circulated confirming that she had been reclassified to Level 2, Year 1 with immediate effect, and that advocacy would continue for further upgrades in her classification with the General Manager to either Level 2 (Year 5) or Level 3. Later that day, Ms Macgillicuddy sent an email seeking confirmation that the “already accepted offer” of acceleration to Level 3 would be honoured from 1 July 2023.
On 14 June 2023, Ms Macgillicuddy was advised by Ms Townsend that she would not be reclassified to Level 3. Her email said:
“Dear Bridie
Thank you for your email. I am assuming you have been given feedback through your managers as to the rationale of decision making. I wish to advise that I cannot honour the statements made in attached by Michelle. Firstly the increase in Salary that would be proposed is outside of Michelle’s financial delegations, this was not discussed with me prior to Michelle leaving or an agreement made to support. We are required when using resources of the company to ensure that we have a strong governance process in relation to the decision making and accountability. I apologise that there has been a misunderstanding associated with the communication that has occurred.
Kind regards
Cherie”
Coincidentally, on or about 23 June 2023, Ms Macgillicuddy was contacted by an external Clinic and asked if she was interested in undertaking contract work. She gave the Clinic a quote and negotiated a significantly higher rate of pay than she was receiving at Calvary to undertake work for the Clinic.
From 27 June 2023 to 7 August 2023, Ms Macgillicuddy took a period of personal leave. Over her leave, she reflected on her predicament in relation to the unresolved pay dispute with Calvary and how this was affecting her wellbeing. She decided to resign from her employment.
On 8 August 2023, Ms Macgillicuddy returned to work. One week later, on 15 August 2023, Ms Macgillicuddy tendered her notice of resignation by email with effect from 14 September 2023. The email said this:
“Hi Caroline and Justin,
Having now spoken with both in person, I’m providing notice to confirm that my last day will be Wednesday 13 September.
Thank you both for all your support during my service, but particularly over the past 8 months. I am so very grateful for the faith and confidence you’ve both had in me from my first day here, and my professional practice has grown exponentially. I will miss working within such a dedicated, skilled and passionate team; it’s been an absolute privilege.
Best,
Bridie”
On 1 September 2023, Ms Macgillicuddy wrote to Ms Townsend seeking an acknowledgment for her service and an upgrade to Level 2, Year 5, with backpay to 6 February 2023. She did not seek to withdraw or resile from her resignation of 15 August 2023. Ms Townsend responded, briefly, the same day to advise that she would not progress a review of Ms Macgillicuddy’s correspondence until 11 September 2023, due to a short notice accreditation assessment.
On 13 September 2023, Ms Macgillicuddy wrote to follow up Ms Townsend in relation to email of 1 September 2023. She wrote:
“Given that today is my last day of service at Calvary, please forward future communication via my Gmail account and if you would kindly copy my HSU representative as well (both Ccd here), I’d be most appreciative.”
On 14 September 2023, Ms Townsend wrote to Ms Macgillicuddy formally declining the reclassification and backpay request and setting out Calvary’s reasons for decision. In summary, Calvary advised that Ms Macgillicuddy did not meet the requirements of the Enterprise Agreement for progression to either Level 2, Year 5 or Level 3 as she did not have the requisite period of experience.
On or about 27 September 2023, the opportunity for contract work that Ms Macgillicuddy had negotiated fell through.
Consideration
In Bupa Aged Care Australia Pty Ltd v Tavassoli[2] a Full Bench of the Commission summarised the approach to dealing with alleged ‘forced’ resignations under section 386(1)(b) of the Act as follows”:
“(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 probable 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.”[3]
The evidence does not establish that Ms Macgillicuddy was forced to resign. I accept that there was an ongoing and unresolved dispute about her classification and rate of pay at the time, and that this caused Ms Macgillicuddy to feel both exhausted and undervalued by the Executive of Calvary. She loved her work, the teams she worked with and the patients, but she was very upset about how she had been treated, and unwilling to accept what she felt were the morally wrong actions of Calvary. She came to view Calvary as an employer “capable of reneging a contractual promise” and doubted whether it would comply with its existing contractual and Enterprise Agreement obligations.
Ms Macgillicuddy says she did everything she could to pursue the reclassification she had come to expect. She did not know that there were remaining options, such as the notification of a dispute to the Commission to deal with her reclassification request. This is surprising both because she had undertaken a detailed review of the provisions of the Agreement in connection with her request for reclassification, and because she had the assistance of the Health Services Union in dealing with the dispute. Nonetheless I accept her evidence in this regard.
That Ms Macgillicuddy did not know what other options available to her does not mean that there were none. It cannot be said that Ms Macgillicuddy had no reasonable choice but to resign. Her role remained with Calvary, and she was a valued member of the team in the area where she worked. There were options available to her to seek to resolve the reclassification dispute, including by lodging a formal grievance directly with Calvary or applying to the Commission to deal with the dispute under s.739 of the Act.
Ms Macgillicuddy’s resignation on 15 August 2023 was not a rushed decision. At the time, Ms Macgillicuddy thought she had secured alternative and better paid work. Over her period of leave in June and August 2023, she reflected deeply on what she needed and came to a decision. That decision was to resign from her employment with Calvary. While the circumstances were regrettable, I am not satisfied that it was the conduct of Calvary that forced her hand. Ms Macgillicuddy had, for some time, held the view that her remaining in employment was contingent on her reclassification to Level 2, Year 5.
I do not agree with Ms Macgillicuddy that her emails with Ms Garner between 6 and 8 February 2023 amounted to a variation to her contract of employment. They indicate no more than that Calvary had approved a future variation (to take effect from the next financial year), and that while Ms Macgillicuddy appreciated the offer, she was not yet clear on its terms. That is to say, the terms of a proposed variation to her contract were by no means settled.
There is no evidence that Calvary’s actions in relation to the reclassification dispute had the intention of bringing the employment to an end. As noted above, Ms Macgillicuddy was a valued member of the team. On the facts, termination of the employment was also not the probable result of Calvary’s conduct such that Ms Macgillicuddy had no effective or real choice but to resign, even if this was how Ms Macgillicuddy felt. It is not established that Ms Macgillicuddy was entitled to reclassification under the Enterprise Agreement, although I do not rule it out. In the circumstances, it was just as likely that Ms Macgillicuddy would remain in the job that she loved and escalate the dispute through the more formal channels available to her.
In summary, Ms Macgillicuddy was not forced to resign. She was not dismissed by Calvary. The dispute is not properly before the Commission.
Order
The application is dismissed.
COMMISSIONER
Appearances:
B Macgillicuddy on her own behalf.
A Moore for the respondent.
Hearing details:
2023.
Sydney (video)
November 15.
[1] Fair Work Act 2009 (Cth), ss 12 and 386.
[2] [2017] FWCFB 3941.
[3] Ibid, [47].
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