Charmaine Jackson v Insurance Australia Group Services Pty Limited
[2023] FWC 2491
•27 SEPTEMBER 2023
| [2023] FWC 2491 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Charmaine Jackson
v
Insurance Australia Group Services Pty Limited
(C2023/3288)
| DEPUTY PRESIDENT EASTON | SYDNEY, 27 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed from her employment – forced resignation – complaint by the applicant of bullying and sexual harassment by co-workers – alleged failure by the employer to take steps to resolve complaints said to have left the Applicant with no choice but to resign – no process failure by the employer – no conduct by the employer that caused the applicant to resign – applicant not an employee who was dismissed – application dismissed.
Ms Charmaine Jackson worked for Insurance Australia Group Services Pty Limited for approximately four weeks. The employment ended on 18 May 2023 when Ms Jackson sent an email to IAG in the following terms:
“Due to bullying in training for NRMA and sexual harassment that I have experienced at IAG and the limited options that were offered to me after reporting said experience’s, it is with deep regret that I feel my hand was forced to resign.”
On 7 June 2023 Ms Jackson made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Jackson claims that she was dismissed from her employment and that the dismissal contravened the general protection provisions of the Act.
IAG maintains that Ms Jackson resigned her employment and was not ever dismissed.
Before resigning her employment Ms Jackson raised allegations of sexual harassment and bullying. IAG began to deal with Ms Jackson's complaints but Ms Jackson resigned shortly after raising her concerns.
For the reasons that follow I find that Ms Jackson was not dismissed by IAG and that her claim cannot continue.
The Evidence
In her written submissions and evidence Ms Jackson said:
“For the reasons set out below, it is clear that the test in Mohazab is satisfied. The Applicant had no intentions of resigning and 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.
a) The adverse action taken against the Applicant was providing no workable solutions to the bullying or sexual harassment complaint leaving the Applicant no option but [to] resign for the Applicant’s psychological safety and mental health
b) Effectively dismissing the applicant by
c) Applicant’s psychological health being affected by the failure to action the bullying complaint.
d) No workable solutions to the sexual harassment complaint.
e) The continuance of bullying complaint not actioned which validates discriminatory treatment of the Applicant during her training.
f) Applicant was offered to have her resignation letter typed for her by the person carrying out the investigation.
g) Applicant did not feel supporting in meeting with staff conducting the sexual harassment investigation.”
Ms Jackson led evidence of alleged bullying conduct and alleged sexual harassment by her co-workers. It is not necessary to describe in detail the nature of the conduct because there is no power to deal with those matters in this present application. The only question to be determined is whether Ms Jackson was an employee who was dismissed. The fact that Ms Jackson made allegations of sexual harassment and bullying is relevant to the question that must be determined, but I do not need to make findings about whether those allegations were properly founded.
To be clear, it is not suggested that the alleged sexual harassment or the alleged bullying itself was the conduct that forced Ms Jackson to resign. Rather, Ms Jackson relies on IAG’s allegedly inadequate response to her allegations. In this context it is necessary to make findings of fact about IAG's response to Ms Jackson's allegations in order to assess whether that conduct forced Ms Jackson to resign.
For the whole of Ms Jackson's four-week employment she participated in an “onboarding” program. Ms Jackson worked in the Newcastle office and attended the program by herself from the Newcastle office. All of the other participants worked in Sydney and attended online in groups from locations in Sydney. Ms Jackson said she was bullied by other participants and a trainer.
During the program, managers in the Newcastle office noticed that Ms Jackson appeared to be disengaged. A meeting was held on 3 May 2023 to explore options to ensure that Ms Jackson continued in the program and did not quit. When spoken to Ms Jackson did not raise any formal complaint of bullying. That said, Ms Isaboh Crowther (Lead, Customer Delivery) said of her discussions with Ms Jackson:
“The Applicant did not use the word “bullying” (although I understood her allegations to be of that nature).”
At this early stage Ms Crowther and Ms Jackson agreed to "address the matter informally.” IAG offered to withdraw Ms Jackson from the onboarding program and instead provide one-on-one training in Newcastle. Ms Jackson did not take up this proposal.
At or around this same time Ms Jackson began exchanging messages with another co-worker, initially on Microsoft Teams within IAG's computer system and then also by text messages on personal mobile phones. The co-worker was based in the Newcastle office and was not a participant in the onboarding program.
These exchanges were the basis of Ms Jackson's sexual harassment claim against that co-worker.
16 May 2023
On 16 May 2023 Ms Jackson did not attend work because she was unwell. Ms Crowther checked on Ms Jackson via WhatsApp in the middle of the day and Ms Jackson and Ms Crowther spoke in the afternoon. Ms Jackson and Ms Crowther do not agree in their evidence about precisely what was said in this discussion: Ms Jackson said that she raised the bullying allegation and then raised the sexual harassment allegation because she was embarrassed about an aspect of the sexual harassment complaint. Ms Crowther said that Ms Jackson only raised the sexual harassment allegation and made no mention of the alleged bullying. As will become apparent, I do not need to resolve this difference of recollection.
It is agreed by all the witnesses that IAG took steps on the same day to ensure that the co-worker alleged to have sexually harassed Ms Jackson worked from home at least until Ms Jackson’s complaints could be investigated. It is also agreed that Ms Jackson was told prior to her resignation that the co-worker had been instructed to work from home.
17 May 2023
In the morning of 17 May 2023 Ms Crowther updated Ms Jackson on developments by telephone. Ms Crowther said that in this call Ms Jackson repeated the allegations/concerns about conduct by other onboarding participants. Ms Crowther said she offered to open a second HR file but Ms Jackson said “no, I just want it to go away.”
Ms Crowther and Ms Jackson spoke again in the middle of the day on 17 May 2023. Ms Jackson’s mother was also in the phone call. In this conversation Ms Jackson raised the possibility that she might resign. Ms Crowther said of this part of the conversation:
“The Applicant said, “I think you should just fire me, at least then I can get Centrelink”. I responded, “I don’t understand how Centrelink works, but regardless, I’m not going to terminate your employment” and “I know this can be uncomfortable, but it’s important that you know that there are protections.
The Applicant said, “I’m going to go and speak to Centrelink, and based on what they tell me I’ll decide what I want to do.”
Ms Jackson’s account of this part of the conversation was not dissimilar:
“The Applicant was stressed and said that her options made her want to quit but could not afford to. The Applicant suggested that she be fired to make it easier to remove her from IAG as she could not quit due to finances.”
18 May 2023
On 18 May 2023 Ms Jackson met with Ms Crowther and Ms Howard (Manager, Customer Delivery) using Microsoft Teams. There is some disagreement about precisely what was said at this meeting however all three participants agree that Ms Jackson raised her bullying allegations. It is also agreed that Ms Jackson asked for a formal investigation into the sexual harassment allegations.
In this meeting Ms Jackson once again raised the possibility that she might resign her employment. Ms Jackson’s account of this conversation was:
“Ms Crowther told the Applicant that she needed to have answers for the following questions:
1. If she wanted to resign
2. If she wanted to make a statement.On 18 May 2023 at 2pm the Applicant attended the Teams video conference with Ms Crowther and Ms Howard.
The Applicant firstly address things that she had forgotten to tell Ms Crowther and broke down. The Applicant said that she still didn’t have the answers for them both as she felt that her options were limited and she did not want to quit.
The Applicant had hoped that Ms Howard would have asked about the bullying and that could be addressed but she did not and left before the Applicant could bring it up with her.
Ms Howard left the meeting and did not return to the Applicants knowledge.
At this time the Applicant felt Ms Crowther change and become frustrated and kept asking if she wanted to stay.
The Applicant said that she did want to stay but was concerned about [the co-worker] taking action at her home or in the workplace. And she still had the bullying in training.
Ms Crowther said that I could not be moved as they were under staffed and nowhere else to put me.
The Applicant felt she had no other option but to resign as there was nowhere to put her away from the bullies or [the co-worker].”
Ms Crowther’s account of the meeting on 18 May 2023 included the following exchanges:
“I asked the Applicant whether she wanted to be interviewed as part of the investigation, and she stated, “I don’t have a problem giving everything over”.
The Applicant stated that she was a “burden” and now “falling behind”. I responded, “that’s not for you to worry about, that’s my job, we need to worry about getting you back into training, you’re missing some critical content, so let’s build a plan”.
The Applicant did not answer my questions about her return to work and whether she wanted to be interviewed as part of the investigation and continued to reiterate her complaints.
The Applicant [made a statement about her interactions with the co-worker].
The Applicant stated, “I feel physical sick”, “I feel depressed” and “I just keep coming
back to I just want to run”.I asked the Applicant again whether she was resigning, and whether she wanted to participate in the formal complaint. The Applicant stated that she would resign, and she wanted to participate. I said “are you sure?” and the Applicant said “no”.
The Applicant said, “I’m not going to be any use to you”. I stated again, “that is what I need to be worrying about., not you. We need to get you back on track. We have removed [the co-worker] from the office, and we are going to investigate your complaints”.
The Applicant said again, “I’ll resign”. I asked, “are you sure?” and she said “no”.
I asked “what can I do to get you through it?”. The Applicant said “I’m just going to leave”.
I stated, “I will need your resignation letter, and I will need your version of events for a formal complaint”.
We then discussed the return of the Applicant’s laptop and computer equipment and ended the meeting.”
Ms Howard’s account is mostly consistent with Ms Crowther’s, and included the following:
“The Applicant said, “have I taken these things the wrong way” “have I overreacted”, “I should just go”, “I should just run”, and “that’s what I normally do”.
The Applicant advised that she did not want to speak to the investigator.
Ms Crowther suggested that she could instead put something in writing, and the Applicant agreed to do so.
Ms Crowther said “going back to our previous discussions, to let you know, we will not be terminating your employment, there is nothing to warrant that”. I understood that to be a reference to a request that the Applicant had previously made of Ms Crowther to terminate her employment, because this would make it easier for her to access payments through Centrelink compared to if she resigned.
Ms Crowther said “let’s discuss you coming back” and the Applicant replied that she was “uncomfortable about going back to the office and facing people”.
Ms Crowther said, “Nobody is aware of the allegations and what is going on. [the coworker] won’t be in the office while this process is being followed”. The Applicant responded, “I just pick up and leave” and “I just pick up and run, that’s what I normally do”.
The Applicant stated that she didn’t feel like she was an “asset to the business”.
Ms Crowther replied, “you are 4 weeks into training, my role is to support you, to help you be the best you can. You don’t need to think about that, that is my job. You need to think about how we get you back to work?”.
The Applicant said “I should just fuck off”, “I should just run” and “I don’t know if I can do this”. Ms Crowther asked the Applicant if she meant she couldn’t do the role, the training, or the investigation? The Applicant didn’t respond.
Ms Crowther said “you need to do what you think is best for you, we are here to support you, you need to make that decision for yourself. If this is still the role you are passionate about, we are here to support you. If you think this is not the role for you, that is a decision you need to make. But we need to know your return to work plans.”
The Applicant said, “I’m just going to leave. I can’t do this, I’m just going to leave”.
Ms Crowther asked the Applicant at least four times over the course of that conversation to the effect of, “are you sure this is what you want to do, Charmaine?” and the Applicant replied, “yup, I’m sure”.
Ms Crowther reiterated that the investigation was going to proceed.
The Applicant asked “so what do I do with all this stuff”, indicating her computer and computer equipment, and Ms Crowther said “we can arrange for it to be collected”.
Ms Crowther said “if you want to resign, we need it in writing”. The Applicant said “I’ll type it up today”.
Ms Crowther asked the Applicant again if she was sure she wished to resign, and the Applicant said “yup”.
Approximately 45 minutes into the meeting, I switched from participating in the meeting using my laptop to participating using my mobile phone until the meeting ended.”
Ms Jackson, Ms Crowther and Ms Howard all gave evidence at the hearing and were cross-examined. No-one deviated from their written statements in any material way under cross-examination.
Resignation email – 18 May 2023
At 3:33pm on 18 May 2023 Ms Jackson sent an email to Ms Crowther in the following terms:
“Due to bullying in training for NRMA and sexual harassment that I have experienced at IAG and the limited options that were offered to me after reporting said experience’s, it is with deep regret that I feel my hand was forced to resign.”
Ms Crowther gave evidence of her response reaction to Ms Jackson’s email:
“My immediate reaction to this email was that it did not reflect what we had just discussed and was not an accurate description of how the matter had been handled. I felt that I had done everything I could to assist Ms Jackson. I had asked Ms Jackson several times whether she wanted me to open a separate case for the bullying and I had already addressed those allegations informally. Ms Jackson had never once said that she wanted to stay, although she had expressed concern about her financial difficulties. At no time had Ms Jackson said anything about wanting to go back to training or said that she needed more time to think about her decision.”
Upon receiving the resignation email Ms Crowther sent an email in the following terms:
“Hi Charmaine,
Thank you for forwarding this through to me.
Can you please confirm that you are comfortable to resign for (sic) your role?
Thanks”
Ms Crowther did not receive a response to this email. Ms Jackson said she never received the email because she had packed up her laptop ready for collection by the time Ms Crowther’s email was sent.
At 4:19pm Ms Jackson sent a text message and a photo to Ms Crowther. The message said “Packed for pick up” and the photo was of her laptop repackaged for collection.
IAG persisted with its sexual harassment investigation and in early June there was an email exchange between Ms Jackson and Ms Gangi (Employee Relations Specialist), in relation to the progress of the investigation. IAG said that it had not completed its investigation by the time of the hearing in August 2023.
The Commission’s Jurisdiction
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine’s School [2016] FCA 790 at [3]).
The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 (Milford) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
(a)The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).
(b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).
(c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
(d)that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).
(e)the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
(f)in so determining the limits of its authority the FWC may determination matters of fact (at [71]).
(g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
(h)the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).
“A person who has been dismissed”
Ms Jackson only has capacity to make a general protections claim under s.365 if she is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in the following terms:
“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.
(2) …
In Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 at 268-9, [2017] FWCFB 3941 at [47]-[48], the Full Bench summarised the relevant tests under s.386 as follows:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”
Consideration
In her materials Ms Jackson refers to resigning in the heat of the moment however I do not understand Ms Jackson’s case to be that she was in such a state of emotional stress or mental confusion that her resignation email did not convey a real intention to resign. Ms Jackson did not resile from her decision to resign, either shortly after sending her resignation email or at any stage. By the time Ms Jackson sent her resignation by email she had been considering whether to resign for at least 24 hours, been off work for almost three days and had participated in a number of conversations and a meeting with her managers. There was no suggestion at the hearing that Ms Jackson ever regretted resigning or ever changed her mind about no longer working for IAG. In these circumstances it cannot be said that Ms Jackson resigned her employment in the heat of the moment. Similarly, there was no evidence of jostling by the employer.
The crucial question is whether the employer engaged in conduct that (1) had the intention of causing Ms Jackson to resign or (2) the termination of Ms Jackson’s employment was the probable result or (3) left Ms Jackson with no real or effective choice but to resign.
Ms Jackson relied on IAG’s alleged conduct by omission. Ms Jackson said that IAG failed to take steps to investigate or resolve her bullying and sexual harassment complaints.
The difficulty with this argument is that there was no process failure by IAG at the time that Ms Jackson elected to resign.
The two complaints made by Ms Jackson were different in nature and were complaints against different groups of employees. There was some disagreement in the evidence as to precisely when Ms Jackson indicated that she wanted to make a formal complaint of bullying, however by the time she resigned she had asked for both complaints to be formally investigated.
In relation to the bullying complaint, none of the alleged bullies worked at the same location as Ms Jackson. There was no likelihood that Ms Jackson would have to work with any of the alleged bullies in the immediate future. At the time that she resigned she was off sick. Two weeks before Ms Jackson made a complaint, IAG had offered to give Ms Jackson one-on-one training so that she would not have to continue the onboarding program with the other inductees. Nobody had suggested this option again before Ms Jackson resigned, but to the objective person in Ms Jackson’s shoes, there was a distinct possibility that IAG would renew its offer. At the time that Ms Jackson resigned, IAG had not failed to take proper steps in relation to Ms Jackson’s bullying claim. IAG had not yet made new arrangements for Ms Jackson’s training because to do so would have been premature.
Similarly, in relation to the sexual harassment claim, it would have been premature for IAG to have made definite arrangements for Ms Jackson to return to work. Ms Jackson was not fit for work when she resigned. The co-worker accused of harassment works at the Newcastle location and so there was a possibility that Ms Jackson would have to work with the co-worker prior to her claim being fully investigated. However IAG took immediate steps to ensure that this would not occur - the co-worker was directed to work from home until further notice. At the time Ms Jackson resigned, IAG had not yet commenced its investigation, or at least was in the very early stages of commencing an investigation, and as such it would have been premature to be putting in place a formal return-to-work plan for Ms Jackson.
The meeting on 18 May 2023 was significant insofar as it took place shortly before Ms Jackson resigned. The competing accounts of this conversation are recited above at [20]-[23]. The common elements from each account are (1) Ms Jackson initiated discussion about her resignation, (2) the Respondent indicated that it would investigate Ms Jackson’s allegations and asked Ms Jackson to provide a statement.
I am also satisfied that in this conversation:
(a)The Respondent asked Ms Jackson a number of times if she was sure she wanted to resign;
(b)There was no substantial discussion about return-to-work plans because (1) Ms Jackson was not fit to immediately return (2) Ms Jackson had indicated that she was likely to resign and (3) the Respondent had not yet investigated Ms Jackson’s complaints; and
(c)Ms Jackson was told that if she wanted to resign then she needed to provide a written resignation.
To the extent that Ms Jackson argued that IAG’s conduct by omission in failing to take proper steps in relation to either a return-to-work plan or in relation to the sexual harassment complaint, I do not find that IAG’s conduct/omission was intended to cause Ms Jackson to resign, nor do I find that IAG’s conduct left Ms Jackson with no option but to resign.
I accept Ms Jackson’s evidence that she thought that there was no option but to resign. I accept Ms Crowther’s and Ms Howard’s evidence that they had no intention at all to dismiss Ms Jackson.
The test I must apply is an objective one – and properly so. My inquiry is primarily directed to the employer’s conduct – in this case Ms Crowther’s and Ms Howard’s conduct as officers of IAG.
Both Ms Crowther and Ms Howard took reasonable steps to keep the door open for Ms Jackson to remain in employment:
(a)Ms Crowther followed up Ms Jackson after Ms Jackson said she was “far from OK” and then several times after learning of Ms Jackson’s complaints and concerns;
(b)after Ms Jackson raised her sexual harassment complaint (1) IAG took the complaint seriously and undertook to investigate it and (2) the co-worker was directed to work from home;
(c)after Ms Jackson formally raised her bullying complaint IAG also took that complaint seriously and did not pressure Ms Jackson to return to the onboarding program;
(d)when Ms Jackson initiated discussion about resigning, Mr Crowther was patient and respectful and made appropriate attempts to dissuade Ms Jackson from resigning; and
(e)Ms Howard let Ms Crowther take the lead when Ms Crowther was speaking to Ms Jackson and also provided appropriate support in the meeting on 18 May 2023. When Ms Jackson cross-examined Ms Howard at the hearing Ms Howard said that she was present in that meeting to support Ms Crowther (rather than support Ms Jackson). I accept this statement to be a truthful response from Ms Howard to her credit. In the context of Ms Crowther being Ms Jackson’s line manager, Ms Howard’s primary role was that of Ms Crowther’s witness/support person. The meeting was not adversarial and Ms Howard did not do or say anything to Ms Jackson’s detriment. Ms Howard supported Ms Crowther while Ms Crowther met with and supported Ms Jackson.
Viewed objectively, IAG (through Ms Crowther and Ms Howard) did not engage in any conduct that could be understood to have intended to cause Ms Jackson to resign, or conduct that would have probably caused her to resign, or conduct that left Ms Jackson with no real or effective option but to resign.
As such, Ms Jackson was not a person who was dismissed for the purposes of s.365 of the Act and her general protections application cannot continue. I will make an order dismissing Ms Jackson’s application accordingly (PR766626).
DEPUTY PRESIDENT
Appearances:
Ms C Jackson, Applicant
Mr M Foran of Counsel instructed by Ms M Cox for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
August 11, 25.
Printed by authority of the Commonwealth Government Printer
<PR766625>