Charlotte Somers v Earthmoving Parts & Service Solutions Pty Ltd, Mr Glen Blakely - [2025] FWC 111

[2025] FWC 111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Charlotte Somers
v

Earthmoving Parts & Service Solutions Pty Ltd, Mr Glen Blakely

(C2024/6144)

DEPUTY PRESIDENT BUTLER

BRISBANE, 13 JANUARY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – applicant not dismissed – application dismissed for want of jurisdiction

Ms Charlotte Somers has applied for the Fair Work Commission to deal with a general protections dispute involving dismissal. Earthmoving Parts & Service Solutions Pty Ltd (“EPSS”), which is the First Respondent, has objected to the application on the basis that Ms Somers was not dismissed. This decision determines that objection.[1]
For the reasons set out below I have decided to uphold the objection and dismiss Ms Somers’s application for want of jurisdiction.

Background

Ms Somers started her employment with EPSS in August 2023.[2]
On Thursday, 15 August 2024 she asked for a payrise. EPSS’s directors, Mr Glen Blakely (who is also the second respondent in these proceedings) and Mr Brad Oats, offered a 10% increase. Ms Somers, who was 19 years at the time, had been expecting an increase of around 10% on her 20^th birthday, 25 August. She was seeking a further increase over and above that.
The next morning, Friday 16 August 2024, Ms Somers provided further information in support of her payrise request, in writing.[3]
Ms Somers says that the directors treated her differently from then until the day her employment ended, and that she found this very upsetting.[4] Mr Blakely says he engaged in less workplace banter with Ms Somers during that period.[5]
It is common ground that Ms Somers asked Mr Blakely, during the week of 19 August 2024, whether Mr Oats was okay, and whether Mr Blakely and Mr Oats were “angry” or “mad” at her.
Around Friday, 23 August 2024, Mr Blakely told Ms Somers they were still working on their response to her request.[6]
Mr Oats and Mr Blakely provided a written response to Ms Somers on the afternoon of Wednesday, 28 August 2024.[7] Ms Somers went home sick. That night she sent them a letter of resignation and of demand, resigning effective immediately and including an underpayment claim.[8]
EPSS’s external human resources advisor, Focus HR, responded, confirming receipt of the resignation and demand letter, and saying they had conducted a reconciliation of a smaller magnitude, which they said had been a mistake, and not deliberate. [9]
At the time her employment ended Ms Somers, Mr Oats and Mr Blakely were three of four people working in the business. The other was Mr Dusty Brown, who gave evidence in these proceedings.

Legislative framework

Ms Somers has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (“the Fair Work Act”). Section 365 relates to contraventions involving dismissal. “Dismissed” is defined in s 386 of the Act.[10] Section 386(1) of the Act provides that an Applicant has been dismissed if:
(a)the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b)the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Relevantly, a person has been dismissed if:
(a)their employment has been terminated “on the employer’s initiative;”[11] or
(b)they were forced to resign because of the employer’s conduct.[12]
If a person apparently resigns, that can in some cases be a termination “on the employer’s initiative.” For example, if an emotional employee “resigns” in the heat of the moment, and the employer simply takes the “resignation” at face value instead of clarifying or confirming the resignation with the employee after a reasonable time, that can fall within the first of the two categories. Employer conduct is not a necessary element.[13] There is no exhaustive description of what constitutes termination “at the employer’s initiative.”[14]
On the other hand, if the person resigns because the employer’s conduct forced them to, then that would fall into the second category. This will arise where the employer took some action with the intention of ending the employment, or that had the probable result of ending the employment, such that the employee had no effective choice but to resign.[15]
In this case Ms Somers argues that the employer’s conduct forced her resignation.

Ms Somers’ general protections application

It is not disputed that the employment ended on 28 August 2024. Ms Somers applied to the Commission on 29 August 2024. The application was made in time. As indicated above, the Respondents raised their jurisdictional objection. On 9 October 2024 I issued directions allowing for, among other things, parties to file and serve witness statements and submissions in advance of the hearing to determine the jurisdictional objection.
Mr Blakely and Mr Oats both supplied witness statements. In addition to those statements, they filed two other documents, which were tendered in the course of Mr Blakely’s evidence in chief.
Ms Somers supplied a document referred to as a submission but which contained both argument and assertions of fact. Bearing in mind Ms Somers’ self-represented status, I took it as constituting a statement to the extent that it contained the latter. After I put this to the parties, Ms Somers adopted the document as part of her evidence in chief to the extent it included assertions of fact. In this decision I have referred to that document as “Submission (statement) of Ms Somers”.
My Directions of 9 October 2024 had allowed for submissions and witness statements in reply. Instead, the Respondents supplied a letter attaching various documents. Some of those documents were tendered in the course of Mr Blakely or Mr Oats’ evidence in chief.
A hearing was held on 11 November 2024. Ms Somers was represented by a friend, a layperson, with no objection from the Respondents. The Respondents were represented by a paid agent. Permission had been granted previously.

Submissions

The Respondents submit that Ms Somers resigned of her own volition and was not forced to do so because of any conduct of theirs.[16] They say that at the time of the resignation Ms Somers was working through a salary review process in a positive and productive manner. They submit their conduct was not hostile, threatening, or anything other than supportive, friendly and constructive. They say that by resigning Ms Somers did not give them time to resolve the salary review matter. They argue that Ms Somers had many options other than resigning including giving them a reasonable time to work through the process, expressing concerns about the way Ms Somers was feeling, and calling another meeting.
Ms Somers says that she was “constructively dismissed” based on her employer’s conduct.[17] She says that conduct included:
(a)after her request for salary review:
(i)making a pay offer below the minimum award entitlement;
(ii)attempting to change her award without consultation;
(b)failing to pay correct wages including overtime, since the commencement of her employment.
She also refers, in her submissions, to her view that Mr Oats and Mr Blakely’s attitude towards her changed, and says that they failed to support her when she raised her concern. She says the employers’ (which I take to be a reference to Mr Blakely and Mr Oats) conduct broke the trust she had with them.
Ms Somers also raised a new issue during cross-examination of the Respondents’ witnesses, about whether her access to the business’s accounting packaged had been changed. This was not pursued in submissions.

Consideration

The parties are at odds about the quantum of the underpayment but agree that there was an underpayment.
Without deciding, Ms Somers may be able to bring a claim for contravention of a Modern Award, elsewhere. That does not necessarily mean that she has been dismissed. The bare fact of an underpayment does not establish conduct that leaves an employee with no effective choice but to resign. Employees can and do pursue underpayment claims while still in employment.
EPSS employed Ms Somers from 29 August 2023, as a Warehouse & Sales Support Person.[18] It indicated, in its letter of offer, that the employment would be covered by the “Storage & Warehousing Award.” There is no award of that name. The name bears similarities to a current Modern Award, the Storage Services and Wholesale Award 2020, and to a previous state award. In her letter of resignation and demand Ms Somers takes this as a reference to the Modern Award.
It is common ground that on 15 August 2024 Ms Somers asked Mr Blakely for a conversation about money, and that Mr Blakely and Mr Oats met with Ms Somers that day. It is also common ground that in the meeting:
(a)Ms Somers requested a pay increase;
(b)Mr Blakely and Mr Oats offered a 10 per cent pay increase;
(c)Ms Somers was visibly upset at this offer; and
(d)the directors offered Ms Somers an opportunity to put forward further information.
Ms Somers says she was upset by the offer because she had been under the impression that her wage would have increased by roughly that much anyway when she turned 20 years old on 25 August 2024.
Ms Somers later asked if she could put her response in writing. EPSS agreed, and Ms Somers wrote to EPSS by email the following morning,[19] 16 August 2024, enclosing a letter dated the previous day.[20] In that letter she:
(a)stated her current role was Senior Warehouseperson;
(b)stated the relevant Modern Award was the Vehicle Repair, Services and Retail Award 2020;
(c)compared her current pay rate to the rate under the Modern Award for a 19 year old unapprenticed junior, and discussed how that pay rate might apply to time worked beyond the ordinary hours provided for in the award;
(d)referred to her forthcoming 20^th birthday (on 25 August 2024) and how that would affect her entitlements under the Award;
(e)discussed whether the pay increase offer that the company had put forward would exceed her award entitlement once she turned 20; and
(f)made a case for payment above the minimum entitlement, having regard to her duties, market rates for similar roles in the region, and asked that her pay be increased to $65,000 per year.
Mr Blakely says that he contacted Focus HR, which is a human resources firm, on Monday 19 August 2024.[21]
In or around the week of 19 August 2024, Ms Somers located a copy of her employment contract and made inquiries of the Fair Work Ombudsman.[22] Ms Somers says that after obtaining her employment contract she had noticed that she was being underpaid.[23] She says she understood mistakes happen, and that she decided to wait for Mr Blakely and Mr Oats’ response to her request, as she thought it would “spark a realisation of this mistake.”[24]
Mr Blakely says that on 23 August 2024 he told Ms Somers that they (presumably the directors) were still working on their response.[25]
Mr Blakely and Mr Oats wrote to Ms Somers by email at 2.55 pm on 28 August 2024.[26] In their email they:
(a)said Ms Somers’ role was Warehouse & Sales Support, not “Senior Storeperson;”
(b)referred to the Vehicle Repair, Services and Retail Award 2020, Level 4;
(c)offered an annual rate of $48,810.06 on the basis of a forty hour working week plus breaks; and
(d)offered to discuss the proposal in more detail.
Ms Somers went home shortly after 3.30 pm that afternoon, saying she was unwell.[27]
She says she had trusted the employer “with her whole heart” to fix her concerns, but when she received their response of 28 August 2024, they had not done so. She says that on receiving that letter:[28]
(a)she believed she was going to be underpaid again;
(b)she could not say yes;
(c)she was distraught; and
(d)she had no choice but to leave.
That night, Ms Somers wrote to Mr Oats and Mr Blakely with the subject “Letter of Demand & Letter of Resignation.”[29] Mr Oats and Mr Blakely say they received the letter by email at 8:49 pm on 28 August.[30] In that letter Ms Somers discussed her pay rates and advice she had received from the Fair Work Ombudsman, and made a demand for backpay of $14,269.10 less applicable tax. As to resignation the letter stated:[31]
I appreciate this is a difficult situation and these conversations are hard, and I thank you for your patience. I also thank you for providing me with the opportunity to work for your business however, this situation and the behaviour shown towards me over the last week and half has unfortunately brought me to the end of my employment with you. Therefore, please take this letter as my formal resignation. I will not be returning to work and will not work out a notice period, therefore my last day of employment is 28/08/2024.
In that letter Ms Somers went on to refer to the provision in a Modern Award for deduction where notice is not given, invited EPSS to set off any deduction against her accrued annual leave, and indicated she would return all property immediately.
Ms Jessica Pasfield of Focus HR wrote to Ms Somers on behalf of Mr Blakely and Mr Oats on the evening of 29 August 2024. In her email Ms Pasfield:[32]
(a)confirmed receipt of Ms Somers’ resignation letter of the previous date;
(b)attached a letter from Mr Oats and Mr Blakely confirming receipt of the resignation, and indicated Mr Oats and Mr Blakely were disappointed in the decision to resign and would have liked the opportunity to discuss and rectify Ms Somers’ concerns while she continued to work with them; and
(c)indicated that Focus HR had undertaken a reconciliation of Ms Somers’ wages against the Modern Award, and had found an underpayment of $4,915.91 gross, which was said to be an honest mistake and not intentional.
At around this time Ms Somers’ role was changing, to move away from warehouse work to sales support work. There was no new position description by the time her employment ended.[33]
If an employee asks for a payrise, the employer refuses, and the employee, being dissatisfied, resigns, that is not enough to establish termination at the employer’s initiative.[34] This case goes beyond that example; it relates not only to a request for a payrise but to an assertion that Ms Somers was being underpaid, in contravention of her award entitlements.
Both EPSS and Ms Somers lacked clarity in relation to award coverage. The initial letter of offer referred to a non-existent award which may have been a reference to Storage and Wholesale Award 2020. It was Ms Somers who first asserted, in her letter sent on 16 August, that the Vehicle Repair, Services and Retail Award 2020 applied to her employment. EPSS then referred to that Modern Award in it email of 28 August 2024. Later, after finding her employment contract and making inquiries of the Fair Work Ombudsman, Ms Somers then asserted[35] that it was the Storage and Wholesale Award 2020 that covered the business. Ms Somers now argues that by relying on Vehicle Repair, Services and Retail Award and not the Storage and Wholesale Award, the employer was attempting to “change her award,” and that this formed part of the conduct leaving her with no effective choice but to resign.
It is not necessary for me to decide which Modern Award covered the First Respondent’s business. This is a question of construction of the relevant Modern Awards, and not a question of either party’s preference as to award coverage. It is not necessary for me to determine whether there had been any underpayment or other contravention of a Modern Award, or whether the payrise initially offered was sufficient to meet minimum entitlements under the relevant Modern Award, because bare non-compliance does not leave the employee with no effective choice but to resign. As I stated above, employees can and do seek relief in relation to an employer’s non-compliance while remaining employed.
Ms Somers also argues that because the employer sought advice during this period it knew or should have known that the offer it made in its response of 28 August 2024 was insufficient, and that it deliberately offered less than it should have.[36] The content of any advice that Focus HR provided to EPSS, before it provided its response of 28 August 2024, is not before me. I find that there was some confusion on the part of both parties as to which Modern Award was the relevant one. I also find the parties were not of the same mind as to the title or classification of Ms Somers’ role. The employer was taking advice, and the parties were canvassing the issues between them, in writing. Ms Somers had formed a view about her entitlements after obtaining her contract and seeking advice, but she did not communicate that view to her employer at the time, deciding to wait for their response instead. I do not accept that EPSS’s conduct left Ms Somers with no effective choice but to resign.

Directors’ attitude

Ms Somers says that during the period between her written request and EPSS’s written response, Mr Blakely and Mr Oats’ attitude toward her “completely changed,” and that Mr Oats’ change “was more directed and noticeable” as he ignored her, did not greet or talk to her, and when he did talk to her, he was “very direct and somewhat rude.” She found this very upsetting.[37]
It is common ground that in the week of 19 August 2024 Ms Somers asked Mr Blakely if Mr Oats was okay, and asked if Mr Blakely and Mr Oats were “angry” or “mad”.
Mr Blakely says he said they were not angry but were taken aback, which was why they were taking a bit of time to respond professionally.[38] Ms Somers says Mr Blakely “responded with a generic answer and assured [her] that they “will have a response to [her] letter shortly they are just making sure they have all their facts straight’.”[39]
Mr Oats says that while he admits that he personally refrained from “a certain level of workplace banter” during the period between Ms Somers’ claim and her resignation, he “remained professional, positive & kept clear lines of communication open” both verbally and by email. He also says Ms Somers continued to use positive nicknames (“love” and “pookie”) and banter up until 3 pm on the day of her resignation, also verbally and by email. He says that at no stage was he “hostile, rude or dismissive” toward Ms Somers or any other employee “regardless of workplace or personal pressures.”[40]
Mr Oats also points to evidence suggesting the relationship had not broken down, including Ms Somers’ use of friendly language and a message she had sent to Mr Oats late on the night of his son’s 18^th birthday.
Ms Somers says she had wanted to continue to work with EPSS and was not going to change her own demeanour.
Under cross-examination Mr Blakely said that Mr Oats was quieter than normal during this period. He attributed that to “personal and professional things that were going on amongst the business and that [Mr Oats] was going through personally.”
Mr Oats was asked why he did not wish Ms Somers a happy birthday on 25 August, a Sunday. He responded that it was his son’s 18^th birthday the same day, that he had sixty people coming to the house, and that he was mowing, cleaning, hanging lights and otherwise preparing, and he was not thinking about Ms Somers’ birthday.[41]
In re-examination Mr Oats said that in the relevant period he was less jovial and more professional. He maintained he was not dismissive or rude. He also said that in addition to his son’s 18^th birthday, he was dealing with some “personal things”, and some “contract things”.
Mr Brown said there was less banter between all parties involved during the relevant period. He said previously there had been banter between everyone, including Ms Somers and the two bosses (Mr Blakely and Mr Oats), but it was minimised after the meeting between Ms Somers, Mr Oats, and Mr Blakely.[42] He referred to this as a dynamic change. He says that during this time he saw Ms Somers in her office and saw that she had been crying. He says she told him it was because Mr Blakely and Mr Oats were “distant.”[43] In re-examination he was asked if there was anything else happening in the business that might have caused the dynamic to change. He said Mr Oats had been dealing with some personal things, so that may have had something to do with it.

The parties’ evidence is not very far apart in relation to the question of whether the directors’ demeanour changed. Both attribute a greater change to Mr Oats than Mr Blakely. The Respondents characterise Mr Oats’ demeanour as being less jovial, involving less banter, and being more professional. Ms Somers refers to dismissiveness and rudeness. I accept that at least Mr Oats’ demeanour towards Ms Somers changed somewhat following her written request sent on 16 August 2024. I accept Ms Somers was upset. I do not accept that the change was such as to leave her with no effective choice to resign.

Conclusion

Ms Somers was not dismissed. Accordingly, the Commission does not have jurisdiction to deal with her application made under section 365 of the Fair Work Act.
It is ordered that Ms Somers’ application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Ms K. Owen for the Applicant

Ms J. Pasfield for the Respondent

Hearing details:

11 November 2024 by video.

[1] as required following Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] Exhibit A2.

[3] Statement of Mr Blakely, Exhibit R1, Annexure 1; Exhibit A3.

[4] Submission (statement) of Ms Somers, Exhibit A1, 2.

[5] Statement of Mr Oats, Exhibit R5, 2.

[6] Statement of Mr Blakely, Exhibit R1, 2.

[7] Exhibit R2.

[8] Exhibit A4.

[9] Exhibit R3.

[10] Fair Work Act 2009 s 12.

[11] Fair Work Act 2009 s 386(1)(a).

[12] Fair Work Act 2009 s 386(1)(b).

[13] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47].

[14] Mohazabv Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at [205]-[246].

[15] Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47]; O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [23].

[16] Respondent’s submissions filed 14 October 2024.

[17] Submission of Ms Somers filed 25 October 2024.

[18] Exhibit A2.

[19] Statement of Mr Blakely, Exhibit R1, Annexure 1.

[20] Exhibit A3.

[21] Statement of Mr Blakely, Exhibit R1, 2.

[22] Submission (statement) of Ms Somers, Exhibit A1, 2-3.

[23] Cross-examination of Ms Somers.

[24] Ibid.

[25] Statement of Mr Blakely, Exhibit R1, 2.

[26] Exhibit R2.

[27] Statement of Mr Blakely, Exhibit R1, 1; Statement of Mr Oats, Exhibit R5, 1.

[28] Cross-examination of Ms Somers.

[29] Exhibit A4.

[30] Statement of Mr Blakely, Exhibit R1, 1; Statement of Mr Oats, Exhibit R5, 1.

[31] Exhibit A4, 2.

[32] Exhibit R3.

[33] Cross-examination of Mr Blakely.

[34] Pawel v Advanced Precast Pty Ltd [1998] AIRC 643, Polites SDP, Watson SDP, Gay C, [13]; applied in O’Meara v Stanley Works Pty Ltd PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C, and in Victorian Association for the Teaching of English Inc v Debra de Laps[2014] FWCFB 613, per Acton SDP, Hamilton DP and Blair C, [19].

[35] in her letter of demand and resignation, Exhibit A4.

[36] Ms Somers’ closing submissions.

[37] Submission (statement) of Ms Somers, Exhibit A1, 2.

[38] Statement of Mr Blakely, Exhibit R1, 2.

[39] Submission (statement) of Ms Somers, Exhibit A1, 2.

[40] Statement of Mr Oats, Exhibit R5, 2.

[41] Cross-examination of Mr Oats.

[42] Cross-examination of Mr Brown.

[43] Ibid.

Printed by authority of the Commonwealth Government Printer