Dairne Smith v Just Property Management Wa Pty Ltd
[2022] FWC 2545
•21 SEPTEMBER 2022
| [2022] FWC 2545 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dairne Smith
v
Just Property Management Wa Pty Ltd
(U2022/3785)
| COMMISSIONER SCHNEIDER | PERTH, 21 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
On 30 March 2022, Ms Dairne Smith (the Applicant or Ms Smith) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy regarding her employment with Just Property Management WA Pty Ltd (the Respondent). The Applicant is seeking compensation as remedy.
The Respondent objects to the application on the ground that the Applicant resigned and was not dismissed. The Applicant submits that the Respondent engaged in conduct that left the Applicant with no choice but to resign from her employment with the Respondent. This decision traverses whether the Respondent forced the Applicant to resign, dismissed the Applicant on its own initiative, or if there was no dismissal. In summary, I have concluded that the Applicant was not dismissed and therefore the Commission has no jurisdiction to hear the matter.
The Applicant filed submissions in the Commission on 26 May 2022. The Respondent filed submissions in the Commission on 12 June 2022. Final written submissions were filed by the Applicant on 22 June 2022.
As contested facts are involved, the Commission considered it appropriate to hold a Hearing for the matter.[1] The Hearing was held on 29 June 2022. At the Hearing, the Applicant was self-represented, and the Respondent was represented by Mr Simon Jacob of Geographe Law.
The following witnesses gave evidence on behalf of the Applicant:
· The Applicant herself.
· Ms Siobhan Nie (Ms Nie), a previous employee (property manager) of the Respondent.
· Ms Zoey Johnson (Ms Johnson), a previous employee (property manager) of the Respondent.
The following witnesses gave evidence on behalf of the Respondent:
· Ms Cara Nash (Ms Nash), a Department Manager at the Respondent.
· Mr Rhys Standley (Mr Standley), the Director of the Respondent.
· Ms Anastasia Ierace (Ms Ierace), an employee (property manager) of the Respondent.
The following witnesses submitted statements on behalf of the Respondent and were not called to be questioned:
· Rhiannon Truss, an employee (property manager) of the Respondent.
· Isabella Donnet-Jones, an employee of the Respondent.
Background
The uncontested factual background of the matter is as follows:
· The Applicant commenced her employment with the Respondent in May 2015.
· The Applicant, at the time of the alleged dismissal, was engaged in the position of Senior Property Manager.
· In January 2022, another property manager resigned and left the business. As a result of the other employee leaving the business, and a decreasing number of rental properties being managed by the business, the Respondent decided not to replace the departing employee.
· The Respondent made the decision to divide the departed employee’s portfolio up amongst the remaining property managers.
· The Applicant resigned from her employment with the Respondent on 17 February 2022.
· The Respondent accepted the Applicant’s resignation with immediate effect and paid out the Applicant’s notice period.
Legislation
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Initial matters
Under section 396 of the Act, the Commission is obliged to determine the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Has the Applicant been dismissed?
A threshold issue to be determined is whether the Applicant has been dismissed from their employment.
Section 386(1) of the Act provides that the 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.
Consideration
Was the application made within the period required?
Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect. The application was not identified as being lodged out of time by the Applicant, Respondent, or the Commission prior to the drafting of this decision. The subject of the lodgement date was not in contention between the parties or discussed during the hearing of the objection and merits.
During the review of matter and the materials while drafting this decision it came to the Commission’s attention that the application may have indeed been filed out of time.
It is not disputed that the Applicant resigned from employment with the Respondent on 17 February 2022. The Applicant, in her F2 application form, stated the final date of her employment with the Respondent was 10 March 2022. However, this was the final day she was paid up to by the Respondent. In the Respondent’s F3 employer response form, the Respondent stated the final day of employment was 17 February 2022, being the day that the Applicant emailed her resignation which was accepted by the Respondent effective immediately. The Applicant filed this application on 30 March 2022. On this material alone, it appears the Applicant filed her application 41 days after her termination took effect. Therefore, it appears, the application was lodged 20 days out of time.
It appears that, in all probability, the Applicant filed her application out of time and the Respondent missed raising this jurisdictional objection at any point throughout the proceedings.
In circumstances where neither party has identified the matter as being lodged out of time, the Commission’s staff would usually bring this issue to the attention of the parties upon lodgement of the application, after receiving the employer response, prior to the matter being allocated to a Commission member, or shortly after the matter is received in Chambers.
As this was only confirmed at the time of decision writing, there has been no opportunity for either party to make submissions on this matter. I do not find it appropriate to hear the matter again in relation to the out of time issue as, even if an extension of time were to be granted, this would not impact the following determination, namely that the application is dismissed on other jurisdictional grounds.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The Respondent initially raised an objection regarding its status as a small business. However, this objection was withdrawn. The Respondent’s representative confirmed that, upon further investigation, the Respondent’s enterprise did not meet the definition of a small business under the Act.
I am satisfied that the Respondent was not a small business employer within the meaning of section 23 of the Act at the relevant time. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.
Primary preliminary issue in dispute - Was the Applicant dismissed?
Central to the consideration in this case is the operation of section 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissal. The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
(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.
This definition contains two elements. The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct. The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[2]
The Respondent submits that the Applicant resigned and was not dismissed. The Applicant agreed that she tendered a resignation. However, the Applicant submits that, as a consequence of the conduct of the Respondent, she was left with no alternative but to resign from her employment. The Applicant also expressed her concern that the Respondent simply accepted her resignation without making further enquiries. Therefore, in this matter, I find it necessary to examine the resignation against both tests.
I have considered the conduct of the Respondent and the decision making of the Applicant. I have ultimately concluded that the Respondent did not force the Applicant to resign nor was the employment terminated at the initiative of the Respondent. The Applicant made a voluntary decision to resign from her employment. My reasons for this are set out below.
Submissions and evidence
In August 2021, the Maintenance Coordinator resigned and left the Respondent’s operation. At that time, there were four property managers in total who oversaw a total of 621 properties, with around 155 properties each. Following discussions between management and the property managers, it was agreed that the Maintenance Coordinator position would not be replaced, and the four property managers would take on these additional tasks. From September 2021, the four Property Managers received an additional $5,000 per annum each for assuming the Maintenance Coordinator’s duties.
Mr Standley outlined that during the COVID-19 pandemic the business had suffered financially due to the impact on the rental market. The income of the business dropped during this period by 25%. The Respondent also submits it did not qualify for Government JobKeeper assistance.
Mr Standley submitted that the Applicant was allowed to work from home and still received her full salary during this period. Mr Standley also confirmed that during her tenure with the Respondent, the Applicant was afforded the following benefits:
· When the Applicant’s niece in New Zealand became gravely ill, the Respondent covered the cost of flights and car hire for the Applicant and her daughter to Auckland, New Zealand.
· On another occasion the Applicant’s grandmother was unwell and the Applicant was required to travel to New Zealand on short notice to assist with care. On this occasion, the Respondent provided the Applicant with a $5,000 loan, interest free to be paid back over 24 months, to assist the Applicant.
· The Applicant received a $6,500 bonus from the Respondent, for winning ‘Property Manager of the year’ in 2018, from the Leading Property Managers of Australia Association.
· On a separate occasion, the Applicant entered another industry award. As the award presentation was in Sydney, the Respondent paid for the Applicant and two colleagues to attend the award ceremony in Sydney.
Portfolio Reallocation
In January 2021, another property manager, Ms Ierace, resigned from the Respondent’s business. The Respondent decided not to replace Ms Ierace and instead continued to run the operation with 3 Property Managers. As a result of this decision, the portfolio of work managed by Ms Ierace would be divided between the three remaining property managers.
Mr Standley explained that, during the four years prior to Ms Ierace resigning from her employment, the total number of properties under management had decreased from around 950 to 600 properties in total. Mr Standley outlined that, despite this downturn, the business had retained all four property manager positions as a sign of goodwill to the employees. However, following the resignation of Ms Ierace and the reduction in revenue, the Respondent determined that it could not financially or operationally justify engaging a fourth property manager.
The Applicant, in her statement, outlined that “a couple of weeks prior to my resignation, Cara Nash had advised that a Property Manager was leaving and that they were not going to employ another”. Ms Ierace resigned in January 2021. The parties discussed the reasons for Ms Ierace’s departure at length; however, these reasons are not entirely relevant to the matters to be considered and will not be relayed in their totality. As is relevant to my current determination, and clear from the materials, there were interpersonal and professional issues between the Applicant and Ms Ierace which contributed to Ms Ierace’s departure.
On 31 January 2022, Ms Nash, sent an email to the Property Managers confirming that Ms Ierace would be leaving the business on 25 February 2022. The email also stated:
“Due to our current number of managements (599 current managements), the decision has been made that we will not be re-hiring for the role, and instead will be dividing the portfolio up among the other 3 property managers. This will likely occur a week or two before Anastasia’s final day to allow for a smooth transition and handover period for questions”
On 8 February 2022, there was further email communication from Ms Nash to the employees of the Respondent confirming the above arrangements were coming into effect.
The Applicant submitted the following:
“…we were not aware of any dates as to when the new structure would be introduced and attended work on the 15/02/2022 and found the roll over properties had taken place. An estimate of 50 new properties each”
I find the above statement inaccurate. The Respondent had communicated when the changes would be occurring prior to the departure of Ms Ierace on 25 February 2022. The Respondent also made clear that there would be a handover period prior to the departure of Ms Ierace.
Ms Nash, who I found to be a reliable witness, outlined that; between the communication being sent to the three property managers on 31 January 2022 and the change taking place on 15 February, she held discussions with all three property managers including the Applicant.
The Applicant’s remuneration at the time of her dismissal was $70,000 per annum. The Applicant was also entitled to various incentive-based bonus payments. The Respondent submitted a document titled “Tiered Pay Scales – Property Manager”. The key data from this document is outlined below:
| Number of managements | PM salary tier |
| Less than 180 | $58,000 |
| 180 – 199 | $65,000 |
| 200 – 219 | $70,000 |
| 220 – 239 | $75,000 |
| 240 + | $80,000 |
The above pay scale was implemented in April 2021. Under the scale, the Applicant’s salary correlated with the 200+ property management tier. Prior to the implementation, the Respondent confirmed that the current employees would not have any reduction in wages. Rather, upon the implementation of the pay scale their existing rate would remain their base rate and the tier would merely affect salary progression. The Respondent submitted that in January 2022, the Applicant had 152 properties under her management and was receiving $70,000 per annum. After the implementation of the change following Ms Ierace’s departure, the Applicant would have 197 properties under her management. Under the Respondent’s pay scale, the Applicant required a further 23 properties in her portfolio before she would qualify for a higher salary tier. The Respondent submitted that the Applicant had previously managed 180-200 properties, including the management over 170 properties just prior to 2022.
The resignation
On 16 February 2022, the Applicant and a fellow employee, Ms Johnson, met with Mr Standley and Ms Nash. It is clear that the meeting did not progress with ease or conclude positively. It appears that the Applicant and Ms Johnson called the meeting to discuss a salary increase from the Respondent in response to the changes and the business made the decision to decline this.
The following day, 17 February 2022, the Applicant emailed the Respondent her resignation which reads:
“After careful consideration I wish to advise that I will be resigning from my position as Property Manager held with JPM. I am unsure of required notice period but am willing to offer 3 weeks notice up front.”
The Applicant submits that the Respondent held intentions to end her employment, inferring that this led them to accept her resignation so promptly. The Applicant expressed her shock at the fact that the Respondent accepted her resignation, stating:
“I then wrote my resignation noted with careful consideration hoping that would prompt him to reach out to me and discuss what were my grounds and why. The Director nor Head of Department reached out and simply responded within about half an hour stating it was accepted and effective immediately and that I return all work-related items to the office no later than close of business on that day. I was shocked and upset as I expected to be asked to meet or have a chat at least.”
The Respondent submits that the Applicant’s resignation was clear and unambiguous. Further, the Respondent adduced evidence in support of its view that the Applicant had been unhappy in her role and pondering resignation for some time.
Other issues in the employment relationship
The evidence of the Respondent, which included email and Facebook Messenger chats with colleagues, reflects that the Applicant was dissatisfied and unhappy with the management team of the Respondent for quite some time and had been considering resigning her employment for several months prior. The Respondent submits this is reflective of the Applicant’s intention to resign voluntarily.
Without going into particulars, the below details were submitted by the Respondent in relation to the conduct of the Applicant and the Applicant’s thoughts about the business prior to her resignation.
· On 26 November 2021 at 10:59am, the Applicant, in a Facebook Messenger chat group with fellow work colleagues, stated the following:
“Guess she hasn’t really thought about how much of a cunt I can become with being dictated to in regards to my smoking”
· On 26 November 2021 at 9:35pm, the Applicant, in a Facebook Messenger chat group with fellow work colleagues, stated the following:
“Anyway for any that wish to relay any of the information noted here. I will be looking for a new job soon. Anyone that has any inside info on who is looking for a smoking old PM, please direct them to pm2 and yes my work email is fine. I don’t give two flying fucks after almost 7 years of loyalty, of who fkn sees my shit!! I’m done!” (sic).
· Immediately after, at 9.36pm, in reply to a colleague she stated: “I’m done Zo!”.
· The Respondent also provided email records that the Applicant had been applying for other jobs and receiving other job alerts to her work email in the period between September 2021 and the week prior to her resignation on 8 February 2022.
Consideration
I will now consider the Applicant’s resignation in the context of both section 386(1)(a) and 386(1)(b) of the Act.
Reduction in pay - change in duties
I do not find that the Respondent acted in a manner whereby they repudiated the Applicant’s contract of employment, demoted, or reduced the pay of the Applicant in any noteworthy way. The allocation of the maintenance work to the property managers was met with a pay increase to mitigate concerns over increased workload. The evidence reflects that the reallocation of Ms Ierace’s properties would raise the Applicant’s portfolio from just over 150 properties to just below 200 properties. The Applicant’s pay was previously above the rate determined in the Respondent’s pay scale, being that she earned the remuneration package usually reserved for property managers with over 200 properties on hand. After the reallocation of properties, the Applicant’s portfolio would still not surpass 200 properties and she would remain on the remuneration that was reflective of a 200+ property portfolio. I note the Respondent’s evidence regarding the additional benefits afforded to the Applicant, confirming that the Applicant was often rewarded for any commendable work.
I find that the increased allocation of properties to the Applicant did not result in any notable or disproportionate reduction in her pay. I also find that the allocation of the properties would not have altered the Applicant’s duties or role in any meaningful way. I do not find that, any increase in the Applicant’s work would be substantial enough to find that her role was considerably altered or that her pay was notably reduced.[3] The increase in allocated properties was merely reflective of fluctuations in the market and a result of the departure of Ms Ierace.
I note that the Applicant resigned immediately after the change took effect and, therefore, her claims regarding overworking to accommodate the increased allocations are merely speculation. The Applicant had not taken time to undertake her role, nor did she attempt to suggest other modifications, after the changes were implemented. These overworking speculations are also at odds with the evidence of the Respondent, who submitted that the property management team currently functions efficiently after the implementation of the changes.
The Applicant had been paid at a significantly higher rate than is outlined in the pay scale and upon the Respondent notifying of the impending increase the Applicant’s workload, which would reflect a workload closer to the relevant pay tier the Applicant received, the Applicant was displeased and ultimately resigned.
Did the Applicant resign in the heat of the moment
An employer is generally able to treat a clear and unambiguous resignation as a resignation.[4] Where a resignation is given in the heat of the moment, or under extreme pressure, special circumstances may arise in which an employer should not immediately accept a resignation.[5]
The Applicant, by her own admission, discussed the matter with her husband prior to finalising her decision. After this discussion, the Applicant drafted her resignation with “careful consideration” and sent it to the Respondent. The wording of her resignation was succinct and clear; the Applicant, after carefully considering the matter, was resigning and offering a notice period to the Respondent. The email was clear and unambiguous. Nothing in the contents of the email or surrounding circumstances would have conferred a duty on the Respondent to not treat this email as a resignation.
The Applicant expressed shock over the Respondent’s acceptance of her resignation without any prior discussion with her. As stated above, the Applicant sent a clear and unambiguous resignation. The email was not a warning of any sorts or an invitation to discuss the matter. Nothing in the email would have given rise to the Respondent contemplating that the Applicant wished for anything except to resign. The Applicant promptly returned her work property and said her farewells, expressing frustration that management did not attempt to engage with her when she did this. However, at no point did the Applicant express this shock or any regret to the Respondent, nor did she attempt to, or express a desire to, rescind her resignation.
I am not convinced that the Applicant would be shocked at the Respondent’s acceptance of such a clear resignation. It appears that the Applicant may have been upset or frustrated that the Respondent did not see her resignation as a bargaining tactic or an attempt to renegotiate her conditions or pay. However, as discussed above, the Applicant did not suggest she was contemplating resignation, she resigned, and the Respondent was not misguided in its acceptance of the resignation.
The Applicant worked from home on the day she tendered her resignation. I do not find that there were any environmental factors, that may have arisen if the conversation was held in person, which could have led her to feel coerced into her decision or clouded her judgement.
I find that the Applicant did not resign in the heat of the moment nor was the Respondent under any duty to make further enquiries after receiving her resignation.
Conduct of the Respondent
The Applicant and her two co-workers, Ms Johnson and Ms Nie, were unhappy with the arrangements that the Respondent had put in place by not replacing the fourth property manager. The management team of the Respondent made a commercial decision, based on the current workload of the team and downward trend of properties under management, to not engage another employee. Whilst it is understood that the Applicant and her co-workers may not have liked this decision, it was a decision that the management team of the Respondent considered necessary. The Respondent then went about a process to communicate and implement this change.
I do not find that the planned changed had the effect of the Respondent bringing the employment relationship to an end. Nor do I find that the planned change would result in an end to the relationship, forcing the Applicant to have no choice other than to resign.
As previously noted, the Applicant resigned shortly after the change took effect. As a result, I am not satisfied there is any evidence to show that the effects of the change in duties had such an effect to bring the relationship to an end or force the Applicant to resign. I also do not find that the changes or conduct of the Respondent in implementing these changes would have led to the Applicant having no real choice but to resign.
The meeting between the Applicant, Ms Johnson, and the Respondent’s management team on 16 February 2022, did not end on a positive note. It is evident that at the end of the meeting there was increased tension between the Applicant and the Respondent. I am not satisfied that, in the meeting or as a result of it occurring, the Respondent’s conduct drove the Applicant to resign or that the Respondent acted in such a way that the Applicant could not have continued to work in the business.
The Respondent submitted evidence regarding the Applicant’s attitude towards her employment in the months leading up to her resignation. It is clear that the Applicant was unsatisfied with several elements of the relationship and her work. It is also clear from the submissions provided by both the Applicant and the Respondent that there were strained relationships between the Applicant and several others within the business. I am not making any determination in relation to the nature of these relationships, however it is clear that by late 2021 the Applicant had several interpersonal issues with management staff and the workplace policies, likely influencing her decision to resign.
Despite the negative attitude of the Applicant in the workplace, it is clear the Respondent remained a supportive and accommodating employer. Over a period of several years, the business provided the Applicant and other team members with flexibility and benefits outside of their standard entitlements (i.e., flights to visit family members, interest free loans, bonus payments for awards, etc.). I find this generosity in the face of the Applicant’s personal and performance issues incompatible with a finding that the Respondent engaged in conduct which would force the Applicant to resign.
Conclusion
In my view, this is a case where quite clearly the discretion of the resigning employee gave rise to the dismissal. The Applicant’s resignation was tendered in circumstances where she had taken the time to consider the workplace changes and her options regarding her ongoing work, held personal discussions with her partner, and consequently made an informed and considered decision to resign. The Applicant may consider that she had not voluntarily resigned, but she did. She may also feel that she had no real choice but to resign due to a course of conduct engaged by the Respondent or that she had resigned in the heat of the moment. However, I have found that this was not the case.
As I have set out earlier in this decision, I am satisfied that the Applicant resigned of her own volition and her resignation was not as a consequence of any conduct from the Respondent. I am satisfied that the Applicant was not dismissed from her employment with the Respondent and that the requirements under section 386 of the Act have not been met.
In consideration of all the circumstances, I have concluded that the Applicant was not dismissed for the purposes of section 386(1) of the Act. The application is therefore dismissed and an accompanying Order[6] is issued to this effect.
COMMISSIONER
Appearances:
D Smith, Applicant.
S Jacob of Geographe Law for the Respondent.
Hearing details:
2022.
Perth (by video):
June 29.
[1] Fair Work Act 2009 (Cth), s 397.
[2] [2017] FWCFB 3941.
[3] PR936527, at [67].
[4] Print R7005, at [12].
[5] Ibid.
[6] PR746107.
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