Catherine Pllu v Healthscope Operations Pty Ltd
[2025] FWC 392
•3 MARCH 2025
| [2025] FWC 392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Catherine Pllu
v
Healthscope Operations Pty Ltd
(U2024/10759)
| DEPUTY PRESIDENT LAKE | BRISBANE, 3 MARCH 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – resignation – jurisdictional objection upheld – matter dismissed.
Ms Catherine Pllu (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work 2009 (the Act) stating that she was unfairly dismissed from her employment with Healthscope Operations Pty Ltd (the Respondent) on 11 September 2024.
A conciliation was held on 27 November 2024 and the matter was not resolved. The matter was listed for a hearing on 9 December 2024. The Applicant was represented by her sister and the Respondent was represented by Mr Troy Spence of counsel. I granted permission for the Respondent to be represented under s.596 of the Act on the basis that there is a complex factual matrix.
At the start of the hearing, I exercised my power under s.586 of the Act to correct the name of the Respondent to “Healthscope Operations Pty Ltd” instead of “Gold Coast Private Hospital (Healthscope)”.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant had resigned and was not dismissed. The jurisdictional objection will be considered before determining the merits of the matter.
Background
The Applicant commenced employment with the Respondent as a casual registered nurse in the Paediatric Care Centre at Gold Coast Private Hospital on 17 January 2022.
The Applicant was employed under the Healthscope – Queensland – Nurses and Midwives – Enterprise Agreement 2021 (The Agreement) and she was paid as a Registered Nurse (Level 1).
On 16 May 2022, the Applicant moved from casual employment to a permanent part-time employee, working 60 hours per fortnight as a registered nurse.[1]
In August 2022, the Applicant reduced her hours of work to 36 hours per fortnight. This was confirmed by the Respondent a change of employment letter dated 6 July 2022:
… Your status will be that of a part-time employee working 36 hours per fortnight in the position of registered nurse… Your salary will be paid at the nurse registered nurse level I year eight rate…[2]
In March 2023, the Applicant applied to work as a registered nurse in the day surgical centre.[3] The Applicant was unsuccessful in that application.[4] She continued to work in the Paediatric Care Centre.
The Applicant changed her hours again in June 2023.[5] The Applicant increased her hours of work to 48 hours per fortnight. This was confirmed in a change in terms of employment letter dated 18 May 2023 which included the following words.
…Your status will be that of a part-time employee, working 48-hour split fortnight in the position of registered nurse… Your salary were paid at the registered nurse level I year eight rate… Reduction in hours – July 23[6]
Change to Paediatric Ward
In August 2023, the respondent undertook a review of its operations at the hospital and proposed to change the delivery of paediatric services by adopting integrated paediatric service model.[7]
Part of this change would involve altering Ward 9, which at the time was a dedicated paediatric ward, to become a mixed ward with some paediatric beds and some adult beds.[8]
The Respondent notified the Queensland Nurses and Midwives’ Union (QNMU) of the proposed change on 15 August 2023 by letter.[9]
The Respondent met with relevant employees on 15 August 2023 and during this meeting Ms Daniele Doyle, General Manager of Gold Coast Private Hospital, indicated that the Respondent was undergoing a consultative process with affected staff and would consider different options for the potentially impacted employees.[10]
The Respondent held individual meetings with employees who worked in the paediatric care centre.[11]
Ms Denise Hartley, Director of Nursing for the Gold Coast Private Hospital, and Ms Kelly Harland, Assistant Director of Nursing, met with the Applicant on 18 August 2023. Ms Hartley’s executive assistant was also present and took notes during the meeting.[12] Ms Harlan made notes in a spreadsheet regarding the meeting on the day of or day after the meeting.[13] In my view, Ms Hartley’s account of the meeting is likely to be accurate. The Applicant was informed that there would no longer be positions caring exclusively for paediatric patients.[14] They also stated some positions may become redundant and stated that redeployment and voluntary redundancies would be considered.[15] The Applicant states that she was told during this meeting that “voluntary redundancy was on the table until 9 October 2023”.[16]
Following the 18 August 2023 meeting, the Respondent sent the Applicant an email with an estimate of a potential redundancy payment and a list of available job opportunities.[17] The Respondent also provided an answer to the Applicant’s question regarding the length of time that she would have to wait if she took a redundancy and wanted to be re-employed by Healthscope.[18]
The Applicant claims that this letter of 18 August 2023 represented a firm offer of a voluntary redundancy payment.[19] The relevant sections of the letter are set out below:
Thank you for meeting with me on Tuesday, 15 August 2023 to discuss the review of our operations at Gold Coast Private Hospital. From this review, Healthscope has identified that your role of Registered Nurse may no longer be required to be performed within the hospital as it is proposing to change in approach to paediatric services to move to an integrated service by altering ward 9 to be a mixed ward incorporating 2 paediatric beds.
As part of our consultation obligations to you, you are invited to provide feedback about any measures to avoid or reduce the adverse effects of these changes on you.
At this stage, we consider the options available include:
·redeployment to ward 9, emergency department or recovery. Necessary training and support would be provided to assist with this transition;
·redeployment to an available role within the Healthscope network. Again, necessary training and support would be provided to assist with this transition; or
·voluntary redundancy.
Enclosed with this letter is an estimate of the redundancy benefits and accrued annual leave and long service leave (if applicable) that will be paid out to you in the event that you elect voluntary redundancy.[20]
On 31 August 2023, the Respondent held a meeting with affected employees who were working in the Paediatric Care Centre and informed employees that a definite decision had been made to transition Ward 9 into an integrated ward.[21] Ms Hartley does not recall if the Applicant attended the meeting.[22] The ward would be a mixed ward incorporating both adult and paediatric beds.[23] The anticipated date for the change was 9 October 2023.[24] Attendees to the meeting would be provided with correspondence requesting them to nominate their first and second preferences of the available options.
The letter sent to the Applicant following the meeting stated:
On further discussion with affected employees basis, we identified a number of options available to them. Some employees have already expressed a preference. However, to ensure fairness for current staff, we are asking paediatric staff to express their first and second preferences in respect of their employment. The options have been updated to include all of the options that have been identified throughout the consultation process to date.
·Transfer to Ward 9
·Transfer to ED
·Transfer to Recovery
·Transfer to SCN / Maternity
·Transfer to Cardiac Ward 2
·Transfer to Cardiac Ward 11
·Transfer to Nurse Bank
·Voluntary redundancy
…
Once we receive affected employees’ preferences, we will consider the responses and contact each employee individually to advise of the ward/ department you will transfer to or whether voluntary redundancy has been accepted. While we will try to accommodate first preferences, where possible, whether we decide to offer voluntary redundancy will depend on a number of things including our business needs and ensuring the remaining team has the required knowledge, skills and attributes to provide outstanding care for our paediatric patients.[25]
(emphasis added)
On 31 August 2023, the Applicant replied indicating that her preference was to take voluntary redundancy, and no other preference was indicated.[26]
The Respondent replied on 7 September 2023 acknowledging the Applicant’s email and stating they would respond in due course once they had received the other employees’ preferences.[27]
On 20 September 2023, the Respondent sent an email to the Applicant advising that she was going to be redeployed to the Recovery Department effective from 9 October 2023.[28]
The Applicant worked her last shift with the Respondent on 20 September 2023.
The Respondent subsequently attempted to communicate with the Applicant.
On 10 October 2023, the Respondent issued an email to the Applicant:
GCPH has previously provided its position that it considers that the redeployment positions that staff have been rostered are suitable; in that, staff are qualified to perform these roles and it is safe to do so with no risk to patient care ...
It is GCPH’s expectation that staff comply with their employment obligations, including that staff attend work as rostered, unless there is a valid reason excusing attendance from work and comply with the requirements of the Enterprise Agreement.[29]
The Applicant claims that in this letter the Respondent was threatening disciplinary action against her if she refused to turn up to work.[30]
The Applicant engaged a solicitor in October 2023, together with other nurses from the paediatric care centre.[31] An application was made to the Commission by the Respondent on 9 October 2023. The matter was conferenced on 30 October 2023 by Commissioner Simpson, with a recommendation published on 1 November 2023.
Commissioner Simpson expressed the view that from the limited material in front of him that the 9 nurses had become redundant at the closure of the paediatric unit and that they had been made redeployment offers.[32]
Commissioner Simpson made the following recommendation:
[97] In the event offers of redeployment are rejected, it is my recommendation that the Applicant then proceed to take the necessary steps to advise employees who have rejected offers of redeployment that their employment is to be terminated on the basis of redundancy, and at that point it would be open for the Applicant to proceed to bring an application under section 120 of the Fair Work Act 2009 to seek to vary redundancy pay on the grounds that they have obtained other acceptable employment. In my view it would not be appropriate to commence a disciplinary process in the particular circumstances.
The Applicant emailed Ms Hartley on 2 November 2023, stating:
I am writing to formally advise that I do not accept redeployment to recovery, as per your letter sent to me and dated 20 September 2023.[33]
Between 20 September 2023 and 11 September 2024, the Applicant did not attend for work in the Recovery Ward.
Emails from the Respondent indicate that they attempted to roster the Applicant to work in the Recovery Ward during this period.
On 3 October 2023, the Manager of the Recovery Ward emailed the Applicant: “Once again I hope that this email finds you well. I emailed you last week and phoned, however unfortunately I was unable to talk to you personally…”[34] The Recovery Ward Manager attached a copy of a “Transition Journey” for the Applicant.[35]
On 6 November 2023, the Manager of the Recovery Ward emailed the Applicant as follows:
Hi Catherine,
I [haven’t] heard back from you from my last email, but to let you know that below is your current roster.
Could you please let me know if you are intending on attending for your shifts, or alternatively could you please send me through a copy of your Medical Certificate if you will not be attending due to sick leave.[36]
The Applicant replied two days later, saying:
Dear Bernadette,
I am confused by your email. I have not accepted redeployment to this ward. I have had discussions with your management team regarding this issue and I would advise you to speak to them.
I respectfully request that you do not directly communicate with me. I have copied Denise and Daniele into this email because they are aware of my circumstances and they should be corresponding with me not you.
Denise and Daniele, I have copied my legal representative into this email. I respectfully request that you direct all communication from the Hospital to me and my solicitor.
I view this communication and behaviour style by Healthscope and now Bernadette to be unacceptable in respect of intimidating and bullying behaviours towards me.[37]
On 14 January 2024, the Applicant wrote to the Respondent requesting payment of her redundancy pay and confirmation of her employment status.[38] The Applicant claims she was put on leave without pay without her consent.[39]
The Respondent replied on 17 January 2024, saying:
Although you expressed a preference for a voluntary redundancy, our position remains
unchanged in that there are reasonable redeployment opportunities for you at GCPH in Recovery. That opportunity remains available to you. As such, we do not consider that a redundancy payment is payable in the circumstances.[40]
It appears that the Respondent made no further attempt to contact the Applicant after January 2024, although she remained their employee. There is no evidence of any further progress of the Applicant’s dispute in this period.
On 11 September 2024, the Applicant wrote to the Respondent resigning from her employment effective immediately. That email states:
Dear Ms. Hartley and Ms. Doyle,
Your on-going and continued failure to pay out my redundancy payment after my many attempts to negotiate with you, has now resulted in me being forced to send this email as a means of forced resignation of my employment with Healthscope. The 11 September 2024 is the date of my forced resignation for your records.
I have been left with no other option now other than to make an application of unfair dismissal (forced resignation) to the Fair Work Commission because of your intimidating and unprofessional conduct thus far. The FWC can now decide on a suitable outcome.
For transparency reasons, I am letting you know that I will be making an application to the FWC today. However, if you pay out the redundancy payment offered to me, I will consider discontinuing with the application.[41]
The Applicant relies on the principles of constructive dismissal, claiming that she was forced to resign due to the Respondent’s conduct.
Was the Applicant dismissed under s.386 of the Act?
Section 394(1) of the Act states that a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.
Section 386(1) of the Act outlines when a person has been dismissed and states 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.”
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[42] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[43]
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.[44] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[45]
All the circumstances – including the conduct of both the employer and employee – must be examined.[46] 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.”[47]
The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.
The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.
The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”[48]
Furthermore, in Pawel v Australian Industrial Relations Commission,[49] the Full Bench noted:
“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
Forced resignation has been interpreted by the Commission in the following ways:
- the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[50]
- a ‘critical action’ or ‘critical actions’ of the employer which was intended to bring the employment relationship to an end;[51]
- as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[52] and
- the employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[53]
Applicant’s submissions
The Applicant argues that there was an unqualified offer of redundancy on 18 August 2023 and this was binding on the Respondent.[54] She indicated that voluntary redundancy was her preference and that she only wished to take the offer of redundancy and not to be redeployed.[55]
The substance of the Applicant’s argument is that the Respondent has acted against the Recommendation of the Commission, and has engaged in a pattern of inaction and intimidation, which has forced the Applicant to resign.[56]
The Applicant has remained resolute that she should be paid a redundancy and that the working in the Recovery Ward was not suitable.[57] The Applicant has a postgraduate qualification in paediatric nursing.[58] Prior to that, she worked in the emergency department.[59] She said that she was a Clinical Nurse in the emergency department which is a higher-level qualification.[60] The Applicant said that any redeployment should reflect that she worked part-time in paediatric and the balance as a Clinical Facilitator. The Applicant maintains that as she had pursued postgraduate qualifications in paediatrics, that it was this field where she wished to deploy her skills.[61]
The Applicant further argues that working in the Recovery Ward was not suitable because of the shift lengths available. She had worked 12 hour shifts, three days a fortnight in the Paediatric Care Centre and the offers of redeployment did not offer 12 hour shifts, late shifts, early or night or weekend shifts, this did not accord with the Applicant’s preferences.[62] The Recovery Ward would not allow the Applicant to receive penalties.
The Applicant was already employed Monday to Friday with another employer.[63] The Applicant has a more senior role with her other employer.[64] The Recovery Ward offer was 4.5 days during the week Monday to Friday.[65] Thus, the offer to work during the week was not acceptable to the Applicant.
The Respondent, in reviewing the preferences of each of the employees and their needs of the organisation, determined that they would place the Applicant in the Recovery Ward. The Applicant was contacted by the manager of this ward with a roster which the Applicant did not view as suitable. The Applicant was followed up by the manager.
The Applicant stated in November 2023 that she would no longer be responding to the Recovery Ward Manager as she felt the Recovery Ward Manager’s behaviour was bullying and intimidation.
Respondent’s evidence and submissions
The Respondent followed a typical and model process when undergoing a review of its business, and in particular, Ward 9. The employer commenced a review of the services in particular the paediatric services and chose to implement an integrated paediatric service model. The Respondent initiated consultation with the QNMU and affected employees in mid-August 2023. The consultation indicated that, following the review, there may be some positions made redundant, and the Respondent was considering how to minimise the impact of any changes on employees.
This was consistent with the Respondent’s obligations under clause 16.1(1) of the Agreement which provides:
“(1) Healthscope highly values its staff as a critical element in the provision of quality service. Healthscope is committed, wherever possible, to retaining the services of and offering ongoing opportunities to, current staff members. Healthscope seeks to avoid job losses through measures including redeployment and voluntary flexible working arrangements.”
The Respondent met individually with employees and asked for their preferences. The options included voluntary redundancy, redeployment to the Recovery Ward or the reconstituted Ward 9. They argue that the Applicant was presented with the typical options when an employer is restructuring and there was no unqualified right to a redundancy, either express or otherwise. They argue that the letter issued by the Respondent on 18 August 2023 reflects these options that the Respondent was exploring and understanding the individual preferences of the affected employees.
The Respondent argues that the letters on 18 August 2023 and 31 August 2023 did not create an unqualified right to accept voluntary redundancy, but that the outcome would depend on a range of factors, including other employees’ preferences.
The Applicant wrote by email that her “preference” was to take voluntary redundancy.
The Respondent says at all times the expression in terms of options for employees used was “preference”. The employer was seeking information from each of the staff in order to redirect staff and ensure the skills and experience were optimally deployed within the new structure. The Respondent argues that no expression of certainty regarding redundancy was ever made to the Applicant.
The Respondent, after receiving all the employee preferences and establishing the requisite skills in each department and ward, indicated to the Applicant that her role as a Registered Nurse (Level 1) was still required and that it would not be offering redundancy. They had determined to redeploy her to the Recovery Department effective 9 October 2023.
The Respondent submits that the Commission should not rely on Commissioner Simpson’s recommendation in circumstances where that Recommendation was made without the benefit of evidence tested under cross-examination.[66] The Respondent submits that, contrary to Commissioner Simpson’s Recommendation, the Applicant was not made redundant because it subsequently determined that “it required the Applicant's role of Registered Nurse (Level 1) to be continued to be performed…”[67] The Respondent submits that the Applicant was given a reasonable and lawful direction to work in a new ward, the Recovery Ward.[68] The Respondent refers to Liu v RPC Food Pty Ltd [2024] FWCFB 309, in which the Full Bench refused permission to appeal a decision of Deputy President Clancy.[69] The circumstances of the original decision are similar to the current matter in that the employee was directed to undertake alternative duties. Deputy President Clancy found that this action of the employer did not leave the employee with no choice but to resign.[70]
During October of 2023, the Respondent attempted to confirm the arrangements for the Applicant’s redeployment to the Recovery Department. No reply was received. On 2 November 2023, the Applicant responded saying that she did not accept the redeployment. The Recovery Ward Manager wrote to the Applicant to attempt to engage with the Applicant regarding rostering her in the ward. The Applicant did not want to be communicated with regarding her redeployment and sought to have all communications through her solicitor. The Respondent no longer communicated with the Applicant after this.
The Respondent states that the Applicant was not engaged on any specific days of the week.[71] She was engaged on a seven day roster on any day of the week from Monday to Sunday. There are both day shifts and evening shifts available in the Recovery Ward on Monday to Friday basis and she could have worked with the Recovery Ward Manager on which shifts would suit her. However, she chose not to engage with the Respondent.
The Respondent argues that the Applicant did not have an exclusive arrangement in her employment contract that meant she could only work in the Paediatric ward, nor that she would only be working weekends or 12-hour shifts.[72] She was a qualified and trained nurse. The Respondent, via the employment contract and the Agreement, had the ability to vary her hours and location of work.[73] There was no contractual right held by the Applicant that she could only work in the paediatric ward on the hours she had worked prior to the restructuring. The contract with the Applicant was to roster the Applicant and pay her for 36 hours per fortnight.
Relevantly, Clause 2 of the Contract provides:
“2. Normal Working Hours
Your status will be that of a part-time employee, working 36 hours per fortnight in the position of Registered Nurse. Your starting times will vary in accordance with roster requirements. The Company may to a reasonable extent vary starting and finishing times on either a permanent or temporary basis.”
Also, clause 26(4) of the Agreement provides:
“Unless the employee/s otherwise agree, if Healthscope desires to change a roster/s shall give the employee/s at least seven days’ notice unless the change is necessary to meet unforeseen fluctuations in patient demand for services, or where another employee is absent from duty on account of illness, injury or in an emergency.”
As a result of the restructuring of the paediatric care centre, the Respondent determined to roster the Applicant into another Department which was a lawful and reasonable direction available to the Respondent. The Applicant refused to comply, stating she had a right to a redundancy, as her previous role no longer existed in the same way thus triggering the movement of staff. The employer asked after the preferences of the affected employees but ultimately determined to reassign the Applicant to a different department. This did not accord with the Applicant’s wishes. After a stand off, the Applicant refused to be redirected to the Recovery Ward and resigned.
Was the Applicant forced to resign?
The Application before me is one of unfair dismissal, rather than a claim for breach of contract or an application to vary a redundancy entitlement under s.120 of the Act. My task is solely to determine whether the Applicant was indeed forced to resign.
The Respondent has stated that the letter of 18 August 2023 was simply a letter canvassing the “options”, however, in my view, they omitted reference to the line in the letter which is written in the language of obligation:
Enclosed with this letter is an estimate of the redundancy benefits and accrued annual leave and long service leave (if applicable) that will be paid out to you in the event that you elect voluntary redundancy.
(emphasis added)
That said, it is not the place of the Commission to determine whether the Respondent letter on 18 August 2023 indicating that voluntary redundancy may be paid was an offer, which when accepted by the Applicant, formed a contract. Clearly, contractual disputes are a matter for a court of competent jurisdiction, as noted by Commissioner Simpson. The Applicant’s contractual claims cannot be determined in the Commission.
Putting the Applicant’s argument at its highest, she is arguing it was either the alleged unlawful conduct of the Respondent in refusing to pay the voluntary redundancy, or their “bullying and intimidation” which left her with no choice but to resign.[74]
Alleged bullying and intimidation
Any suggestion of bullying or intimidation is not made out on the evidence. The Respondent’s communications were entirely benign and professional. It is not bullying to remind an employee that they are obliged to show up at work if they wish to keep their job. Further, after the Applicant requested that the Recovery Ward Manager stop contacting her, the Respondent honoured this request.
The Applicant appears to be under the misapprehension that she has been “forced” into leave without pay. The Applicant was placed on leave without pay because she was absent from the workplace for a year without an explanation and without applying for annual leave. In order to claim sick leave or personal leave, evidence may be required.
Alleged unlawful conduct in refusing to pay a voluntary redundancy
It may be the case that unlawful conduct by an employer could mean the employee is left with no choice but to resign.
However, I am not convinced that the Respondent’s actions in refusing to pay a voluntary redundancy rises to meet the level of egregious behaviour necessary to establish forced resignation.
It is not clear that the Applicant’s role was made redundant, as she was employed as a Registered Nurse, rather than a paediatric nurse. The Respondent still had an operational need for Registered Nurses in other departments of the hospital. In fact, it seems that the Respondent was so low on skilled Registered Nurses that they maintained the Applicant’s employment even after she was absent for almost a year.
Additionally, it is not unlawful for the Respondent not to follow a Recommendation of the Commission. I would expect that parties would have due regard to any Recommendations given by the Commission, but a Recommendation given without all the available evidence will necessarily be given less weight.
The Respondent was clearly allowed to give a lawful instruction to the Applicant to require her to work in the Recovery Department. She was employed Level 1 Registered Nurse and as such could be relocated around the hospital lawfully. I accept the Respondent’s submissions that directing the Applicant to work in the Recovery Ward was not a repudiation of the Applicant’s employment contract.[75]
The Applicant states that the Recovery Ward was not acceptable alternative employment due to the roster.
If the Respondent indeed provided only options that would knowingly not be workable for the Applicant, and did not engage with the Applicant to generate alternative possibilities, then this may be considered in the Applicant’s favour. If, on the other hand, the Applicant refused to engage with the Respondent in working through what might work and how she might continue to hold her other position, then the Applicant would not have been genuinely engaging with the Respondent in the process.
Even if it were a redundancy, which I have not found, a redundancy payment is not a primary remedy when roles become redundant. The obligation is for the employer to first review redeployment options. The Applicant is not owed a redundancy if there are workable redeployment options even if these options are not preferred. A redundancy is a last alternative if the employer objectively cannot offer acceptable alternatives. The Act puts the obligation on the employer to redeploy firstly and to identify and engage with employees in finding redeployment options.
Acceptable alternate employment does not mean acceptable to the employee in the sense that they get exactly what they want. It is assessed on an objective basis.
In this matter, the Applicant refused to engage with the Respondent in working through alternative options. She indicated that she wanted a voluntary redundancy and did not want to consider redeployment in any way.
However, the Applicant is correct that the Respondent made errors in the restructuring process. I note the Respondent changed its legal representatives sometime after making the s.739 application to the Commission. The letter on 18 August 2023 is ambiguous and contradictory in that appears to say redundancy is merely an option and then it elsewhere it says that voluntary redundancy “will be paid” if the employee elects to do so. If the Respondent’s view was that the nurses were Registered Nurses, rather than specialist paediatric nurses, and so could be re-directed to work to any ward, then they should not have included the reference to voluntary redundancy and a possible payout at all. On 31 August 2023, the Respondent appeared to backtrack on the statements made in their letter of 18 August 2023, now saying that affected employees should indicate their “preferences”.
Additionally, the Respondent kept the Applicant as an employee on their books for almost a year while she refused to attend for work. It would have been prudent for the Respondent to remain in contact with the Applicant, rather than simply waiting until she resigned.
However, despite all the failings in the Respondent’s process, I am not satisfied that the Applicant was left with no choice but to resign on 11 September 2024. The Applicant claims that she had spent a year fighting the Respondent. However, I can see no evidence that she took any action to dispute the redundancy payment between January 2024 and September 2024. It appears the situation remained unchanged between January and September 2024. The Applicant made statements during the hearing that she has “been to lawyers” [76] and has met with union representatives however it appears to me that all the appointments for legal advice were from before 2024.
I am not satisfied that, as the Applicant claims, that situation in September 2024 was such that the Applicant had reached a breaking point and was left with no real choice but to resign.
While inaction by an employer may force an employee to resign, especially where an employee reaches out to address the issue and is ignored, here, the situation is different. Both parties were at a standstill.
The Respondent’s inaction with respect to the Applicant, which the Applicant claims is a reason for her resignation,[77] appears to me to be directly linked to the Applicant’s request that the Respondent stop contacting her, claiming that their behaviour is bullying and intimidation. The Applicant must demonstrate that the Respondent’s inaction, viewed objectively, was sufficient to bring the employment relationship to an end. It could not be the case that the Respondent’s failure to contact the Applicant to resolve the issue is attributable to a desire from the Respondent to end the employment relationship. In fact, it appears to be the opposite. They were respecting the Applicant’s wishes to no longer be contacted. They appeared to wish to retain the Applicant as an employee, noting that she is a skilled and experienced nurse. They appeared to hope the Applicant would return to work eventually, even suggesting that she could return as a Clinical Nurse in the Emergency Department.[78]
The choice was available to the Applicant to make an application for breach of contract in a court of competent jurisdiction. If the Applicant believes she has a legal entitlement, the onus is on her to prove her claim. She must be proactive in pursuing her entitlements, through all legal or informal avenues. Alternatively, the Applicant could have met with the Respondent’s representatives to discuss her issues, rather than simply telling them to stop contacting her.
Conclusion
The Applicant’s resignation was not forced by the conduct of the Respondent. Rather, as she was unable to get her desired outcome, she realised that she had to escalate the matter and force the Respondent to the negotiating table by resigning and then making an application for an unfair dismissal. The Applicant refused to attend for work and the employer, no doubt perhaps wanting to retain her in a skill-shortage market, left the matter open for twelve months. The Applicant wanted to bring the matter to a conclusion and resigned in protest of her treatment.
I find that there was no forcing by the Respondent to terminate the employment contract. Rather, the Applicant had predetermined in her mind the optimum outcome for herself and escalated the dispute by making an unfair dismissal application.
The Applicant has failed to convince me that the Respondent engaged in a course of conduct that forced the Applicant to resign in September 2024.
The Applicant was not dismissed in accordance with s.386 of the Act. Therefore, the Applicant is not an employee who is a person protected from unfair dismissal and the Respondent’s jurisdictional objection is upheld.
The Application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
L Pllu for the Applicant
T Spence for the Respondent, instructed by Landers & Rogers
Hearing details:
9 December 2024.
Brisbane.
[1] Denis Hartley Witness Statement [23]
[2] Annexure DH-8 to Denis Hartley Witness Statement.
[3] Ibid [51]
[4] Transcript PN654
[5] Denise Hartley Witness Statement [36].
[6] Annexure DH-11 to Denise Hartley Witness Statement
[7] Denise Hartley Witness Statement [55]-[56].
[8] Ibid [52], [57].
[9] Ibid [58]; Annexure DH-27 to Denise Hartley Witness Statement.
[10] Denise Hartley Witness Statement [62]
[11] Ibid [67]
[12] Ibid [70]
[13] Transcript PN366.
[14] Denise Hartley Witness Statement [78].
[15] Ibid [77]-[78].
[16] Applicant Submissions [5]
[17] Annexure DH-24 to Denise Hartley Witness Statement
[18] Annexure DH-25 to Denise Hartley Witness Statement
[19] Applicant Submissions [18].
[20] Annexure DH-24 to Denise Hartley Witness Statement.
[21] Denise Hartley Witness Statement [86]-[91].
[22] Ibid [91].
[23] Ibid [89].
[24] Ibid [89].
[25] Annexure DH-26 to Denise Hartley Witness Statement
[26] Denise Hartley Witness Statement [97].
[27] Ibid [98].
[28] Ibid [106]; Annexure DH-31 to Denise Hartley Witness Statement.
[29] Annexure DH-34 to Denise Hartley Witness Statement.
[30] Applicant Submissions [10]
[31] Appendix 4 A(2) to Applicant Submissions - Letter from Aylward Game Solicitors to Ms Hartley dated 6 October 2023
[32] Healthscope Operations Pty Ltd T/A Healthscope v Catherine Pllu, Carolyn Nugent, Melina Gerding Faivre, Jodie Lees, Erin Noyes, Aleena Alphy, Belinda Tolman, Michael Jones, Phil Mckay[2023] FWC 2874 at [96].
[33] Annexure DH-35 to Denise Hartley Witness Statement
[34] Annexure DH-33 to Denise Hartley Witness Statement
[35] Ibid
[36] Annexure DH-38 to Denise Hartley Witness Statement
[37] Ibid
[38] Annexure DH-39 to Denise Hartley Witness Statement
[39] Ibid
[40] Ibid
[41] Annexure DH-40 to Denise Hartley Witness Statement
[42] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[43] Ibid.
[44] 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.
[45] 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 3941 at [31].
[46] Whirisky v DivaT Home Care[2021] FWC 650 at [77].
[47] 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 3941 at [28].
[48] (1996) PRN6999.
[49] (1999) FCA 1660 at 58 (Dowsett J).
[50] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[51] Boulic v Robot Building Supplies[2010] FWA 6905, [16].
[52] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206
[53] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
[54] Applicant Submissions [3], [5].
[55] Applicant Submissions [11].
[56] Relevant Background Information
[57] Ibid
[58] Ibid
[59] Ibid
[60] Ibid
[61] Ibid
[62] Ibid.
[63] Ibid
[64] Applicant Submissions [7]
[65] Ibid.
[66] Transcript PN39-PN41.
[67] Respondent Submissions [39].
[68] Ibid [85].
[69] Liu v RPC Food Pty Ltd[2024] FWC 1104.
[70] Ibid at [57].
[71] Respondent Submissions [94]-[96].
[72] Ibid
[73] Ibid [89]-[92].
[74] Applicant Submissions [23]
[75] Respondent Submissions [71].
[76] Transcript PN774
[77] “Relevant Background information”; Applicant Submissions [23].
[78] Transcript PN577
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