Chris Bailey v All About Property Management Pty Limited t/as Holiday Rental Specialists
[2022] FWC 2462
•15 SEPTEMBER 2022
| [2022] FWC 2462 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chris Bailey
v
All About Property Management Pty Limited t/as Holiday Rental Specialists
(U2022/4531)
| COMMISSIONER MCKINNON | SYDNEY, 15 SEPTEMBER 2022 |
Application for unfair dismissal remedy – whether dismissed.
Mr Chris Bailey was employed as Head of Growth for All About Property Management Pty Ltd (AAPM) in Braemar, New South Wales. He commenced work on or about 24 February 2021 until 4 April 2022, when his employment ended abruptly after an arrangement for him to work remotely from Queensland was called into question.
Mr Bailey submits that he was constructively dismissed by AAPM when it revoked its earlier offer for him to perform the new role of Human Resources (HR) Manager remotely. AAPM says that Mr Bailey was not dismissed and that while no longer agreed that the HR Manager role could be performed remotely, it had proposed going “back to the drawing board” with Mr Bailey to find an arrangement that would suit them both.
Mr Bailey has applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Act). Section 385 defines what is an unfair dismissal for the purposes of the Act. The first limb of the definition is that the person has been dismissed.[1] Section 386 then set out the meaning of “dismissed”. Under section 386(1)(a), a person has been dismissed if their employment has been terminated on the employer’s initiative.
A termination on the initiative of the employer is one that is brought about by the employer and which is not agreed to by the employee. Termination of employment can be at the initiative of the employer even if it is not done by the employer – for example where an employee is forced to resign.[2] The action of the employer must be the principal contributing factor which leads to the termination of the employment relationship.
On the facts, Mr Bailey was not dismissed. He is not eligible to apply for an unfair dismissal remedy and the application will be dismissed. These are my reasons.
Was Bailey dismissed?
In January 2022, Mr Bailey notified the owner of the business, Ms Rebecca Cribbin, that he was planning to move to Queensland in April 2022. He flagged his resignation from employment on a date to be agreed and shared some initial thoughts about arrangements to support the transition.
Ms Cribbin was excited for Mr Bailey but did not want to lose him because he was a valued member of the sales team and business more broadly. She decided to create a new role of HR Manager. Ms Cribbin and Mr Bailey exchanged thoughts about the role and when it was offered to Mr Bailey, he accepted. The offer was made on the understanding that Mr Bailey would be able to perform the role remotely from Queensland. I do not accept that it was to be a ‘trial arrangement’ only, even if that is what Ms Cribbin had in mind. If it were, one would expect to find some evidence to that effect in the correspondence between them.
Mr Bailey commenced working in the HR Manager role from January 2022. As he had not yet moved to Queensland, he continued to work from the Braemar office. Then, on 30 March 2022, Ms Cribbin sent an email to Mr Bailey to express her doubts about his role being done remotely. Ms Cribbin stated:
“Chris
I have been meaning to speak with you about this.
I have always been honest and upfront with you and we have promised each other that
Whilst I think you are the right person for the role we have spotted
Ive been thinking a lot and I'm not convinced that the role can be done from a distance.
I'm sorry
I was excited that we could make it work and perhaps I shouldn't have jumped so quickly to suggest it.
I'm afraid...I feel tge [sic] business needs HR and people/culture person on the ground in peoples faces everyday
I'm not sure where that leaves us but that's where I am at
Have a think and let me have your thoughts
Have a fabulous day
RFC xx”
On 31 March 2022, Mr Bailey responded to Ms Cribbin with some thoughts about how to make the role work, including offering to delay his move to Queensland until mid-June 2022 and to travel between Queensland and the Braemar office for one week each month.
On 1 April 2022, Ms Cribbin replied:
“Hi Chris
Please go ahead and book your flights to Bali and take annual leave for that time. I note that you have 2 and half weeks now and will have 3 weeks by then.
We also agreed that you could take unpaid leave when you started- so that should work I hope
Further to the below, I am sorry but I am not convinced.
If I am going to have a full time HR person for the group of companies then I have decided I need them on the ground in head office.
If you cant be in the office at Braemar full time then the HR role isnt going to work for the business I am afraid.
We will need to go back to the drawing board.”
Later in the evening of 1 April 2022, Mr Bailey sent Ms Cribbin a WhatsApp message. In the message, Mr Bailey said:
“Hi Rebecca I will resign. You’re obviously not happy. I’m flexible with an end date. Please advice.”
Ms Cribbin was on a plane at the time the message was sent. She received the message on 2 April 2022 at 1:30am. It took her by surprise. Ms Cribbin replied:
“WOW It’s 1:30am in the morning here and I just landed after a flight that was really late Obviously you’ve got the shits do whatever you want.”
Mr Bailey replied straight away, saying:
“I’m not sure how to reply. But at 1:30am now isn’t the time”.
Mr Bailey then waited to hear from Ms Cribbin but heard nothing.
On 4 April 2022, Mr Bailey sent an email to all staff of the business, saying:
“Hi team
As you all will know, in January Rebecca announced that I am moving to QLD this month. Rebecca approved for me to continue my role working full time remotely.
4 days ago, Rebecca emailed me to say she is sorry, but she has changed her mind. Today is my last day with HRS.
Farewell and good luck.
Chris”
Later the same morning, Mr Bailey sent a second email to his team:
“Hi team
Further to the below, and not for ‘all users’ email group.
Over the weekend Rebecca and I exchanged messages, I gave notice period of “I’m flexible with notice period. Please advise”. The reply Saturday 10:30am was “do whatever you want”.
I thought she might reach out before Monday morning, she hasn’t. With this in mind,
I have decided to leave today.
As there is no management at Central to discuss matters, I have emailed:
· Jen and Booksitters
· Lizzie and Donna”
He then sent a WhatsApp message to Ms Cribbin:
“Hi Rebecca I left today. If you’d like an exit interview when you’re back, I’d be open to it. Team and Rodin advised”.
Ms Cribbin replied to Mr Bailey as follows:
“Hi Chris I must say I am disappointed that you chose to resign and you left with no notice. I thought we were going to go back to the drawing board in a role for you to do remotely. Felt more like you didn’t like being held to account about the registration stuff. Any way c’est la vie. I do wish you and Kevin the best of luck for the future. Rebecca.”
The emails relied upon by Mr Bailey as evidence of his “constructive dismissal” are the emails from Ms Cribbin on 30 March 2022 and 1 April 2022. I do not agree with Mr Bailey that these emails brought the employment relationship to an end. At the same time as Mr Bailey was told “if you can’t be in the office at Braemar full time then the HR role isn’t going to work for the business I am afraid”, he was also given a period of authorised annual leave and told they would need to go “back to the drawing board”. There was no finality to the exchange, and certainly no clear communication of dismissal. At its highest, Ms Cribbin was foreshadowing a difficult conversation but also asking Mr Bailey to work with her to find a way for them to continue working together, despite his decision to move to Queensland.
It was Mr Bailey who brought finality to the exchange. Immediately, he assumed that Ms Cribbin was not interested in working something out with him and that there would be no way for him to remain in the business while working remotely from Queensland. His reaction is partly explained by Ms Cribbin’s email arriving at or around the same stressful time that Mr Bailey was preparing to move to Queensland. Even so, instead of taking the time to think things through, or at least speak to Ms Cribbin about what she meant by going ‘back to the drawing board’, Mr Bailey resigned. He did so in clear terms by his two emails to the business and his subsequent Whatsapp message to Ms Cribbin on 4 April 2022.
It follows that Mr Bailey was not dismissed. He has not been unfairly dismissed within the meaning of section 385 of the Act.
The application is dismissed.
COMMISSIONER
Appearances:
C Bailey on his own behalf.
B Austin of McCabes on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
August 11.
[1] Fair Work Act 2009 (Cth), s 385(a).
[2] Ibid.
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