Chalani Probodha De Silva v KU Children's Services
[2023] FWC 1835
•14 AUGUST 2023
| [2023] FWC 1835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chalani Probodha De Silva
v
KU Children’s Services
(C2023/2831)
| DEPUTY PRESIDENT BELL | MELBOURNE, 14 AUGUST 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – applicant voluntarily resigned – jurisdictional objection upheld – application dismissed.
Ms Chalani De Silva has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act) alleging a contravention of the ‘general protections’ provisions of the Act. The allegations are denied. As a threshold matter, the respondent employer, KU Children’s Services, has raised a jurisdictional objection stating that Ms De Silva was not dismissed.
As Ms De Silva is making an application under s 365 of the Act, a jurisdictional condition of that application is that she was “dismissed”.[1] The term “dismissed” has a meaning defined by s 386 of the Act. The respondent contends Ms De Silva was not dismissed but, rather, she voluntarily resigned. In summary, the respondent says she resigned because she did not want to work a revised roster pattern that was notified in December 2022 and commenced implementation at the beginning of 2023.
Factual background and findings
The respondent is a not-for-profit organisation providing early childhood education services across NSW, Queensland and Victoria.
In Victoria, there are currently five childhood centres and preschools operated by the respondent. One of those, where Ms De Silva worked since 2018, was the KU Craigieburn centre.
Ms De Silva commenced working at the Craigieburn centre in about July 2018, initially in a support role, and was engaged on a fixed-term contract (whose terms were fixed based on school terms). For three years, these contracts were renewed.
In late 2021, Ms De Silva’s role became permanent part-time, upon her successfully applying for a vacancy for a position that arose around that time. Her contract of employment recorded that her hours were “An average of 60 hours per fortnight to be worked” on six hours each day, Monday to Friday.[2] The contract did not limit what particular times were to be worked nor fix any particular roster.
Ms De Silva’s witness statement asserts that, when she was first employed, she did so “under the condition that the working times would accommodate my [caring] responsibilities.” Whatever Ms De Silva’s hopes or expectations about such an unqualified accommodation, it was not reflected in her conditions of employment.
Ms De Silva’s conditions of employment were also affected by the KU Children’s Services and Administrative Employees’ Enterprise Agreement 2013 (Agreement), which was still in force at the time Ms De Silva’s employment ended. As is relevant to hours of work and rostering, the Agreement provides:
“11.7 Terms of engagement
(a) On appointment, the Employer will provide an Employee (other than a casual Employee) with a letter of appointment stating the Employee’s type of employment, classification and rate of pay applicable on commencement.
(b) In addition to the terms of engagement specified in 11.7(a), the letter of appointment for a part-time Employee will include which days of the week the employee will work and the hours to be worked each day.”
The Agreement also provided that ordinary hours could be worked between 6.00am and 7.00pm, in periods not exceeding 8 hours (clauses 20.2 and 20.3). For rostering, clause 20.6 of the Agreement stated:
“20.6 Rostering
(a) The Employer will post a legible roster at a place readily accessible to Employees indicating the rostered hours of work.
(b) The rostered hours of an Employee will only be changed after seven days’ notice has been given. In the absence of such notice overtime will be paid until seven days have transpired from the date the notice was given, unless by mutual agreement between the Employer and Employee the notice period is waived, shortened or due to an emergency outside of the Employer’s control. Where an Employee is required to stay beyond their rostered hours because a parent fails to arrive on time to collect a child will not be regarded as an emergency and will be treated as overtime.
(c) An Employee may be transferred from one location to another within their rostered hours at the direction of the Employer. An Employee transferring from one location to another during a shift will be paid for the time taken to travel from one location to the other.
(d) Subject to the Employer’s obligation pursuant to Clause 9 of this Agreement, where an Employee is required to permanently transfer to another location (other than by mutual agreement) the Employee must be given seven days’ notice of the change or paid overtime until seven days have transpired from the date notice was given.
(e) The transfers referred to in paragraphs (c) and (d) above will not be an unreasonable distance from the Employee’s normal location of work having regard to the availability of transportation.”
Ms De Silva did not have an individual flexibility agreement, under the Agreement.
At least at the time of the hearing, the Craigieburn centre:
· operated from 7.00am to 6.00pm, five days a week over 50 weeks per year.
· had five rooms: one babies room (up to 8 children per day); two toddler rooms (12 children per day each); a 3 year old kinder room (22 children per day); and a 4 – 5 year old kinder room (22 children per day).
· employed about 20 full-time and part-time staff members, including 3 teachers, 6 ‘Diploma team members’, 9 ‘Cert III educators’, 1 chef, and 1 administrative team member.
· employed, in addition to the above, three ‘above ratio support staff’, who were on temporary contracts that are funded for providing extra support for children with additional needs.
The Craigieburn centre is led by a single ‘Director’, which since April 2018 was Ms Pardeep Samra (a witness for the respondent). Ms Samra reports to Ms Lynn Farrell, the Education and Quality Manager in Victoria (another witness for the respondent). In addition to the supervision of Ms Samra, there are Directors of four other centres in Victoria who report to Ms Farrell.
Ms De Silva was engaged as one of the ‘Cert III educators’ described above. As with many other businesses, particularly those in Victoria, the Craigieburn centre was affected by the COVID pandemic and associated government restrictions. While the Craigieburn centre was decreed under relevant Victorian law to be an ‘essential service’, the number of children attending the centre during 2020 until the end of 2021 was reduced.
By 2022, Ms De Silva’s role was to cover “programming and break time for other educators in different rooms”. By this, Ms De Silva was not ordinarily assigned to a particular childcare room but, her role was to cover the employees who did work in those rooms when they took breaks so as to ensure there was desired ratio of staff to children at any point in time. The ‘ratio’ requirements were, at least in part, informed by a regulatory requirement to provide a certain number of employees per child.
Throughout the period described above, Ms De Silva’s ordinary hours were typically rostered from 9.00am to 3.00pm or 9.15am to 3.15pm.
While the events that led to the end of Ms De Silva’s employment primarily concern a change, raised in December 2022, to the start and finish time of her ordinary roster, there was an event in mid-2022 that Ms De Silva appears to rely upon.
The mid-2022 event appeared to initially begin as a safety concern that Ms De Silva reported to the centre’s Director, Ms Samra, in May 2022. Although the timing is not clear about what happened next, there also appears to have been a meeting between Ms De Silva, Ms Samra and also with Ms Lyla Irving shortly after, although about an unrelated matter. Ms Irving was at the meeting in her capacity as Acting Education and Quality Manager (with Ms Farrell being the substantive holder of that position but on leave at the time). According to an email sent by Ms De Silva to Ms Farrell on 3 June 2022, Ms Samra was sufficiently concerned about Ms De Silva’s behaviour (which, I infer, related to different matters) that a performance management plan was mentioned. The events are not described in Ms De Silva’s witness statement but are referred to in some of the documents she included with her material.
The events appear to have no connection at all to the later roster change at the heart of Ms De Silva’s grievance, save that in an email Ms De Silva wrote on 10 February 2023 to the CEO of the respondent, she raised them. While that email was disputing the roster changes that were, at that time, being implemented, Ms De Silva asserted that the roster changes had been made “deliberately knowing I have two children to attend school and makes it an inconvenience.” The events from May and June 2022 (at least as Ms De Silva perceived them) were deployed to support Ms De Silva’s contention that the centre Director and the regional managers were instead acting upon “personal grudges”.
I will describe the roster changes shortly, but I reject that Ms Samra, Ms Farrell (or anyone else for that matter) had introduced the roster changes – announced in around late November and early December 2022 – for any improper purpose, or for a personal grudge, or for any other reason than the changes were needed to better ensure the desired coverage of children and for sound operational reasons.
As to the roster changes, Ms Samra first notified the Craigieburn centre team of changes to staffing for 2023 in an email on 23 November 2022.
On 8 December 2022, Ms Samra sent an email to the same team (including Ms De Silva) regarding changes to the roster. Ms De Silva did not see these before 8 December 2022, as she was overseas from 6 November 2022 to 8 December 2022.
The proposed roster shows the employees who would be rostered in the five rooms in the centre and two employees providing ‘break and programming cover’. For Ms De Silva, the foreshadowed roster change for 2023 would see her regular hours changing to 10.10am – 4.10pm (remaining at six hours). The other employee providing break and programming cover had hours from 9.00am – 5pm, although I note that the centre Director herself, Ms Samra, was listed to provide break cover at 2.00pm to 2.50pm each day in one of the rooms.
All employee’s had a main break for 50 minutes each day. For Ms De Silva, the roster showed that she would be working in 50 minute blocks corresponding with the names of employees working in the other rooms. For example, Ms De Silva’s first break cover was for 10.10am to 11.00am to cover ‘Cathy’. Cathy was working in the ‘Harmony’ room (being one of the two toddler rooms) and her regular roster was from 6.50am to 2.50pm each day.
Ms Samra’s evidence about her reasons for all the foreshadowed roster changes, was that:
· At the beginning of 2022, the number of children attending the centre was lower (than pre-COVID levels) but it steadily increased throughout 2022.
· By late 2022, the number of children began to return to normal.
· Additionally, the composition of students had been changing over 2022, with the centre now supporting more children with additional needs than earlier.
· More generally, Ms Samra had been reflecting upon shift timings, specifically with a view to minimising the switching of team members between rooms, so that there was greater consistency and predictability for children in specific rooms.
· Ms Samra had noticed that there was a small number of team members – about three or four – who were finishing their shifts between 2.50pm and 3.30pm that were not reflective of children going home at those times. As a result, there were periods where the desired ratio of staff to students was either not being met or only just been met.
· Finally, where the desired ratio of staff was not being met, this sometimes meant staff had to stay back and be paid overtime until the relieving staff commenced.
· Ms Samra’s changes were also directed at ensuring that staff would not have to stay back beyond their rostered time and need to be paid overtime.
I accept Ms Samra’s evidence, as just summarised.
The foreshadowed roster changes caused Ms De Silva some considerable alarm. At about 10.00pm at night on 8 December 2022, Ms De Silva called Ms Samra. It is not clear to me why Ms De Silva considered it necessary to call at such a late hour but Ms Samra returned the call. During the discussion that followed, Ms Samra explained the rationale for the changes. A similar discussion occurred in the days following, where Ms Samra sought to explain the purpose of the changes.
On 12 December 2022, Ms De Silva emailed Ms Farrell and Ms Samra. It is not clear why Ms Farrell was contacted but Ms De Silva clearly stated that the proposed roster changes would make school care for her children difficult. Ms De Silva stated that she had already made arrangements for 2023 for her children to attend classes and sport activities, as she did not expect her roster to change. She also noted the 2023 school hours had changed, with school now finishing at 3.30pm. Ms De Silva suggested she could instead have roster times of 9.30am – 3.30pm or 9.40am – 3.40pm or 8.30am – 2.30pm.
Following the above email, Ms Samra’s evidence, which I accept, was that she had numerous informal discussions with Ms De Silva about shift timings. In January 2023, Ms Samra’s evidence was that the centre was quiet with fewer children and she discussed with Ms De Silva accommodating Ms De Silva have a starting time of 9.45am or 9.40am but that it would be assessed week by week. This was only a temporary arrangement and Ms De Silva’s evidence acknowledges Ms Samra made it clear the later starts were not possible to do regularly as it was hard to manage the centre.
On Friday, 3 February 2023, toward the end of Ms De Silva’s shift that day, Ms De Silva and Ms Samra spoke. Ms De Silva raised the fact that she was experiencing difficulties with school pick ups. Ms Samra suggested as an option starting on earlier shifts for Monday, Tuesday and Friday (where fewer number of children were at the centre) but at 10.10am on the other two days. No decision was made but Ms Samra felt – mistakenly as events would show – the conversation ended on a positive note.
On Sunday, 5 February 2023, Ms De Silva sent an email to Ms Samra’s manager, Ms Farrell, titled “Concerns regarding behaviour shown by Pardeep”. It is not necessary to set that email out in detail but it is sufficient to record that:
· Ms De Silva alleges a “behaviour change” by Ms Samra towards Ms De Silva.
· Ms De Silva describes the recent roster changes and that these are causing difficulties for her.
· Ms De Silva said her roster changes “every Friday” and she has no certainty about when she is required to work.
· Ms De Silva offers to work 9am – 3pm, which would involve a room swap with other employees (such that Ms De Silva would no longer work breaks but would work in two of the kinder rooms)
· Ms De Silva said that Ms Samra was “intentionally making [roster changes] knowing that I cant commit to work to due to my commitments with my children” (sic).
· Ms De Silva said it was “unreasonable to expect me to pay fees for 2 kids for afterschool care just for [a] few mins”.
As to the allegation that Ms Samra was “intentionally” making roster changes, knowing that Ms De Silva could not commit to them, I repeat my observation above regarding my rejection of any such motivation. As to the rosters changing “every Friday”, I consider that is a reference to the adjustments made by Ms Samra in January 2023. Those adjustments were designed to assist Ms De Silva during a time when the centre was quiet, although evidently the purpose of those adjustments had been misinterpreted.
In relation to the cost of afterschool care, Ms De Silva repeated the claims she had made through emails with her employer in her witness statement. In her witness statement, she expanded that claim. Based on what appears to be a website extract from a local afterschool provider, she asserted it would cost her $25.30 per day per child or $253 in total per week for her two children to attend. The respondent led evidence, which I accept, to show that that cost would only be the case if (having regard to Ms De Silva’s own income), her husband’s income exceeded $300,000. When asked what her husband’s income was, Ms De Silva said she did not know. If Ms De Silva was entitled to a maximum subsidy, then the respondent showed that 90% of the cost would be subsidised. That subsidy reduced by 1% for every $5,000 of family income above $80,000 to a point where no subsidy was available for a family income of $530,000. On the information shown in Ms De Silva’s own witness statement, the range appeared to be between $25.30 per day per child (with no subsidy) and a more modest $3.80 daily cost per child (with a maximum subsidy).
Ms De Silva had raised the issue of afterschool care cost with her employer, and again in evidence in chief, in part to demonstrate the reasonableness of her requests. The point, however, is ultimately moot, as Ms De Silva changed her position while giving oral evidence, where she explained that she never intended to place her children (or at least one of them) in such care for an unrelated reason. Reflecting that lack of intention, it also does not appear to me that Ms De Silva made inquiries as to what the afterschool care would actually cost her family (which would require knowledge about her husband’s income).
Ms De Silva did have other – more legitimate – reasons for wanting to stay on her start and finish times from 2022, being after-school activities for her children. While it was unhelpful that she exaggerated the reasons for her request, her exaggeration does not ultimately affect my assessment that the employer’s reasons for the roster change were soundly based and not affected by any of the improper motives that Ms De Silva alleged.
The email of 5 February 2023 triggered two immediate responses. First, Ms Farrell made enquiries of Ms Samra about the roster situation at the centre (which Ms Samra responded to in a detailed email that is not necessary to set out but it broadly encapsulates a number of the matters I have described above). The second was that a meeting was arranged between Ms Farrell, Ms Samra and Ms De Silva. Ms Lyla Irving was also in attendance, as she had been involved in managing Ms De Silva during June 2022 (as described above).
Ms De Silva does not describe the meeting in her witness statement in any detail. Her position, however, was that her requests for a different shift pattern were ignored. While I accept that Ms De Silva’s preferences were raised and discussed at the meeting – and they were not agreed to - I am also satisfied that Ms Samra explained why that was the case. Ms Samra’s explanation was broadly to the effect that the operational needs of the service came first.
Ms De Silva alleges at this meeting she was told that if she did not commit to the 10.10am – 4.10pm shift, “I needed to hand in my resignation” and, in her witness statement, says she was told “If you can’t do the job hand in your resignation”. There was a discussion about resignation, but it was not in the manner conveyed by Ms De Silva. Ms Farrell’s witness statement, and confirmed on this point orally, was that that discussion was brief and followed only from a direct question Ms De Silva asked regarding her “options” if she did not agree with the shift timings. Ms Farrell’s evidence was that she responded to the effect that:
· They were unable to accommodate an earlier shift time as this would compromise regulatory requirements in meeting ratios.
· There may be other local services that are looking for part time childcare staff, but this would mean resigning.
· Ms De Silva’s contract hours are not set shifts but were dependent on the needs of the service and if Ms De Silva did not agree to work the shifts allocated she would be in breach of her contract which could lead to termination.
Ms De Silva was evidently upset at this point. After the meeting, she made a request to Ms Samra to have time off from the floor for a while and then asked if she could go home. Ms Samra granted Ms De Silva’s request and she left for the day. As events turned out, Ms De Silva did not return at all after 7 February 2023.
On 10 February 2023, by email, Ms De Silva escalated her complaints to the CEO of the respondent and also to the Manager Human Resources, Mr Scott Price. Her email was titled “Concerns regarding unfair treatment by my Centre Director Pradeep (sic) Samra”. The email largely covers much of the same ground as her email complaint to Ms Farrell, although it was lengthier and dealt in greater detail with the alleged events from mid-2022.
The email reiterated her allegations of “unacceptable” behaviour and alleged a “conscious effort to disrupt my work patterns since the last 6 months and a conscious effort to force a resignation or make it a harsh environment to work in.”
I consider that the escalation of complaints by Ms De Silva to the CEO was unhelpful at best and counterproductive at worst. I consider there was no basis for alleged animus imputed against Ms Samra, let alone that it was influential for a roster change proposed for the entire centre, of which Ms De Silva was one part. Other than the fact that Ms De Silva was unsatisfied with the answer provided by Ms Farrell about Ms Samra, there was no suggestion that Ms Farrell would not approach such a complaint about a staff member other than with an open mind. Nonetheless, in her email to the CEO, Ms De Silva alleges of “both” Ms Farrell and Ms Irving that “both appears to only listen to the Centre directors’ story and act accordingly which at times involve personal grudges”. It is unclear whether the “personal grudges” were said to be held by either of Ms Farrell or Ms Irving – in either case, I reject that allegation.
The email to the CEO ushered in the involvement of Mr Price, the Manager Human Resources. Mr Price gave evidence and I record for completeness I consider he gave evidence candidly and honestly, although much of his involvement related to what he had been told by others (namely Ms Samra or Ms Farrell).
Mr Price commenced investigating Ms De Silva’s complaints. It is unnecessary to set out the detail of that process. It appears at some point during this process, Ms De Silva requested a mediation process of some kind. Mr Price arranged that for 9 March 2023.
On 6 March 2023, Ms De Silva lodged a Workcover claim (according to a timeline of events she included in her Form F8) for “stress and mental health as a result of work”.
On 7 March 2023, Mr Price wrote to Ms De Silva and informed her that her allegations were not substantiated. His letter confirmed the details of a “mediation meeting” on 9 March 2023. The meeting went ahead although it did not arrive at any outcome satisfactory to Ms De Silva. The critical issue discussed was the new roster. Another option discussed to those previously raised was Ms De Silva taking a shorter shift of 5 hours a day, not six, but that was not agreeable to Ms De Silva. According to Ms Samra, Ms De Silva asserted that she only wanted to work 6 hour shifts between 9.00am and 3.00pm. Ms De Silva had her husband present as a support person.
On about 16 March 2023, Ms De Silva made contact for the purpose of taking leave while her Workcover application was being considered. It would appear that Ms De Silva had, in fact, gone overseas at this point and while there was some clarification about what leave could be taken, personal leave was approved to 31 March 2023 and a mix of annual leave and unpaid leave was approved for the period 2 April 2023 to 28 April 2023.
On about 5 April 2023, the workers’ compensation claim was declined. Ms De Silva remained on authorised leave.
On 17 April 2023, Ms De Silva’s most recent medical certificate expired. As noted, other leave was approved. This was confirmed by Mr Price who, on 20 April 2023, wrote to Ms De Silva to confirm that paid and unpaid leave was confirmed until 28 April 2023 and that, from 1 May 2023, she was expected to return in line with her roster. Further emails then ensued. It is not necessary to set them out but, in summary, they covered ground previously discussed about Ms De Silva’s requirements and the centre’s requirements.
On 1 May 2023, Ms De Silva did not attend for work. Mr Price wrote to her that day seeking an explanation. Ms De Silva replied the same day, stating (among other matters) “I have informed you at all discussions that I won’t be attending this shifts and why I don’t agree to the roster change with reasons why”. Mr Price responded to remind her that the new roster “stands” and she will be contacted by either Ms Samra or Ms Farrell relating to the matter.
At this point, Mr Price formed the view (correctly, in my opinion) that Ms De Silva did not intend to comply with her roster and had decided not to attend the shift. On that basis, he directed Ms Farrell to commence an unsatisfactory work performance process on the basis on non-attendance without approved leave.
On the same day, Ms Farrell then made contact with Ms De Silva, following the direction Mr Price had earlier made. The email sent by Ms Farrell stated that Ms De Silva was expected to arrive for work the next day (Tuesday) on her rostered shift. The email separately foreshadowed a meeting at 11.30am in two days’ time to discuss her non-attendance on 1 May 2023.
Ms De Silva did not reply to Ms Farrell’s email. She did, however, send an email directly to the CEO at 8.47pm on the night of 1 May 2023. That email stated (among other matters) “with a heavy heart that [I am] submitting my resignation”. The email further reiterated Ms De Silva’s view that “there seemed to be a direction to force a particular outcome” and urged the CEO to investigate and look into “the behaviours” shown by the individuals.
By a response email dated 10 May 2023, Ms De Silva’s email resignation was accepted. The resignation was never sought to be retracted in the intervening period.
Consideration
Section 365 of the Act provides that a person can apply to the Commission to deal with a general protections dismissal dispute if the person has been “dismissed”. A jurisdictional condition of that application is that the person was “dismissed”.[3]
By s 12 of the Act, the term “dismissed” has a meaning defined by the criteria in s 386. Section 386 is as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from 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.”
There are exceptions to s 386(1) but none are presently relevant.
Section 386(1)(b) is intended to reflect the common law concept of constructive dismissal, as was explained in the following extract from the Explanatory Memorandum to the Fair Work Bill 2008:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
The concept of a “forced” resignation was well established in predecessor legislation to the Fair Work Act and, as noted by the Full Bench in Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2017] FWCFB 3941 (Bupa) at [34], the introduction of s 386(1)(b) (which did not exist in express form previously) was intended to reflect in statutory form the test articulated in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
In Bupa, the Full Bench stated at [47](2) that the test under s 386(1)(b) was:
“ … whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
In Pawel v Advanced Precast Pty Ltd[4] (Pawel), a Full Bench of the Australian Industrial Relation Commission said of Mohazab:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
That Full Bench concluded there was not termination at the initiative of the employer but “different considerations would arise if the instruction was unreasonable or had placed the employee under some sort of unfair pressure.”[5]
Having regard to my findings above, I am not satisfied that Ms De Silva’s resignation was “forced” in any sense that it might be applied under s 386(1)(b) of the Act. The employer was entitled to change Ms De Silva’s rosters, both under her contract of employment and the enterprise agreement. The employer’s reasons for the change were well-founded and reasonable. Despite Ms De Silva’s allegations of ulterior motives, I reject any suggestion that the changes were pursued for those reasons or to otherwise pressure Ms De Silva to leave.
While Ms De Silva’s application was not a ‘flexible work request’[6], there is nothing to suggest that the employer’s refusal of Ms De Silva’s requests was unreasonable, even should it have been necessary for me to make that finding.
Ms De Silva’s case was advanced on the basis that her resignation was forced, but so far as it might be asserted that her dismissal was a termination “at the initiative” of the employer under s 386(1)(a), I reject that allegation. The dismissal was not at the initiative of the employer. It was a resignation at Ms De Silva’s initiative, made in the sense set out above and which I will not repeat. There was no design or purpose by the employer to effect a resignation and it was acting lawfully and reasonably by its implementation of the roster changes. The resignation was also in no way “in the heat of the moment”, so far as that concept applies to an employer’s acceptance of a resignation so as to treat that resignation as being at the initiative of the employer.
Conclusion
Having found that the termination of Ms De Silva’s employment was not “forced” or at the initiative of the employer in the sense of either limb of s 386(1) of the Act, it follows that she was not “dismissed” within the meaning of s 365. Having not been “dismissed”, the employer’s jurisdictional objection must be upheld and Ms De Silva’s application should be dismissed. An order[7] to that effect will be separately issued.
DEPUTY PRESIDENT
Appearances:
C. De Silva on her own behalf with S. Boralessa assisting
M. Doyle of Labour Law for the respondent
Determinative conference details:
2023.
Melbourne:
August 1.
[1] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.
[2] The employment contract contains a table, which is to the effect just described.
[3] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.
[4] Print S5904 (12 May 2000).
[5] Ibid at [14].
[6] Cf, section 65 of the Act.
[7] PR764589.
Printed by authority of the Commonwealth Government Printer
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