Danielle Hren v Sunraysia Mallee Ethnic Communities Council Inc
[2024] FWC 1129
•2 MAY 2024
| [2024] FWC 1129 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Danielle Hren
v
Sunraysia Mallee Ethnic Communities Council Inc
(C2023/7701)
| COMMISSIONER TRAN | MELBOURNE, 2 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection (not dismissed) – jurisdictional objection dismissed.
On 8 December 2023, Ms Danielle Hren applied to the Fair Work Commission for the Commission to deal with a general protections contravention dispute involving dismissal under s 365 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Sunraysia Mallee Ethnic Communities Council Inc (the Employer/SMECC).
For the Commission to exercise its jurisdiction to deal with a contravention involving dismissal, it must first find – as a matter of fact – that a dismissal occurred.[1]
I find that the Employer did dismiss the Ms Hren within the meaning of s 386 of the Act. My detailed reasons follow.
Representation
Ms Hren was represented by Mr Mark McKenney of Counsel and Masterson Legal.
The Employer was represented by Ms Simone Bingham of Counsel and Maloney Anderson Legal.
I granted permission under s 596 of the Act for both parties to be represented, on the grounds under subsection (2)(a) as I was persuaded that representation would assist me to deal with the matter more efficiently, taking into account the complexity of the legal and contractual arguments raised in this matter. I also granted permission under s 596(2)(b) as I was persuaded that the parties were unable to effectively represent themselves, and s 596(2)(c) having regard to fairness between the parties.
Materials / Evidence / Submissions
Directions were issued and material, including outlines of argument, witness statements and documentary evidence, were filed by both parties in accordance with those directions. My chambers prepared a hearing book from the material filed and provided it to both parties prior to the hearing.
I held a hearing via Teams on Thursday 7 March 2024.
Ms Hren gave evidence on her own behalf.
Ms Akesa Kei, Chief Executive Officer of the Employer, gave evidence on behalf of the Respondent.
Chronology
The facts of this matter were substantially agreed.
Ms Hren commenced her employment with the Employer, SMECC, as Training Lead in November 2016.
On 11 August 2023, a client of the employer provided information to Ms Hren from which she formed the view that she needed to mandatorily report it. Ms Hren took steps to seek advice about doing so. Because of the steps taken by Ms Hren, Ms Kei formed the view that misconduct may have occurred. The view was formed in the weeks after the event on 11 August 2023.
On 24 August 2023, Ms Kei had a meeting with Ms Hren in which Ms Kei informed Ms Hren that she would be suspended pending an investigation into the events of 11 August 2023. There was no one else present at this meeting.
Ms Hren did not return to work after this date.
On 7 September 2023, the Employer via its solicitors sent Ms Hren a letter regarding the suspension and investigation of alleged breaches.
Ms Hren via her solicitors corresponded with the Employer about the investigation. By telephone and in an email, they also raised a complaint about bullying of Ms Hren by Ms Kei.
On 16 October 2023, the Employer via its solicitors sent Ms Hren’s solicitors the outcome of its investigation. It is useful to set out the outcome in the Employer’s words:
“Outcome
We consider that your conduct was not malicious or committed with intent. It appears that you panicked given the difficulty of the situation.
We must, however, impress upon you the seriousness of maintaining and protecting the confidentiality of our clients.
The Board has made the decision to give you a warning in relation to your conduct and the requirement that you attend:
(a)three compulsory EAP sessions; and
(b)training provided by us regarding our privacy and confidentiality policies and mandatory report procedures.
Next Steps
IF you would like to discuss our decision further, you can appear before the Board at our next meeting.
We look forward to your return to work immediately.”
After this outcome, Ms Hren’s and the Employer’s solicitors entered into correspondence regarding her return to work. The exchange of correspondence occurred between 18 October 2023 and 20 November 2023.
On 18 October 2023, Ms Hren through her solicitors indicated that she would provide a response “hopefully by close of business today.”
On 30 October 2023, the Employer sought a response from Ms Hren regarding her return to work.
On 2 November 2023, Ms Hren’s solicitors wrote to the Employer’s board. The letter:
-disputed the outcome of the investigation;
-raised a complaint of bullying and harassment against Ms Kei, the Employer’s then Executive Officer;
-stated that it was Ms Hren’s desire to continue to work with the Employer as soon as possible “in circumstances where she feels safes to do so”;
-asked for a return-to-work safety plan; and
-offered to attend a board meeting to discuss the allegations and a return-to-work plan.
In a letter dated 3 November 2023, the Employer directed Ms Hren to return to work on 8 November 2023 and provided a return-to-work plan. The return-to-work plan was provided directly from the Employer to Ms Hren and appears undated, but Ms Hren agreed under cross examination that she received it around 6 November 2023.
On 9 November 2023, Ms Hren’s solicitors wrote a 4-page letter, concluding with:
“Our client requires that any findings of alleged breach of her employment Contract and or SMECC’s Confidentiality policy(s) be retracted. If SMECC agree to this course of action, our Client is willing to resume her role immediately, providing that SMECC either get external advice and or detail a RTW Safety Plan that ensures Ms Hren is returning to a safe workplace, free from any psychological hazards in accordance with the provisions of the OS&H Act.”
That letter also sought that the Employer conduct an investigation into Ms Hren’s bullying complaint against Ms Kei and, if the Employer did not agree to withdraw the allegation, to conduct a review of the investigation.
The Employer replied on 10 November 2023. In that reply, the Employer:
-explained the investigation into Ms Hren’s conduct was concluded;
-noted her suspension was no longer in effect;
-explained the investigation into Ms Hren’s bullying complaint was concluded and Ms Hren had been invited, but declined, to suggest changes to enable her to be safe in the workplace;
-alleged Ms Hren had repudiated the employment contract by refusing to attend work or facilitate a return to work; and
-indicated it would accept the repudiation on Tuesday 14 November at 9:00am.
Ms Hren’s and the Employer’s solicitors then had a telephone conversation, after which the Employer sent a further letter dated 15 November 2023. That letter:
-reiterated that its investigation into Ms Hren’s bullying complaint against Ms Kei was concluded;
-required Ms Hren to return to work on Friday 17 November 2023; and
-indicated that a failure to return to work would be a repudiation that the Employer would accept.
On 16 November 2023, Ms Hren’s solicitors emailed the Employer’s solicitors to indicate that she would return to work Monday 20 November 2023 and reiterated the request about a return-to-work plan.
On Monday 20 November 2023, Ms Hren did not return to work.
On 20 November 2023, the Employer sent a letter to Ms Hren. I set out the letter in full:
“The suspension of your employment was lifted following the conclusion of our investigation into your conduct.
You were directed to return to work commencing on 8 November 2023. You did not do so stating that you felt that the workplace is unsafe.
We have attempted to work with both you and your solicitor to determine what accommodations could be made to assist you. We have received responses which indicate that you are primarily concerned to have the findings made against you overturned before you return to work. We have taken appropriate steps to ensure that the workplace is safe for you going forward and you have been directed, for a third time, to return to work at 9:00am on 17 November 2023.
You have continued to refuse to return to work.
We have also directed that you are to undergo training on your return to work and you have indicated a refusal to do so.
These refusals of reasonable and lawful instructions constitute wilful and deliberate behaviour which is inconsistent with the continuation of your employment and suggests that you only intend to adhere to your obligations as an employee selectively, if at all.
Given your unwillingness to discharge your obligations as an employee we have elected to accept your renunciation of those obligations and to terminate your employment.
Your employment with SMECC is terminated with effect from Monday 20th November 2023.
You will be paid any outstanding employment entitlements in the next pay cycle.”
Relevant Law
Section 365 of the Act provides:
“Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
(c) the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 368 of the Act provides for the Commission’s role in dealing with disputes as follows:
“Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”
A Full Court of the Federal Court in Coles Supply Chain v Milford[2] has determined that where an application under s 365 is made, the Commission must first find as a matter of fact that a person has been dismissed before it may conduct a conference and issue a certificate as provided for in s 368 of the Act.
The dictionary in s 12 of the Act defines ‘dismissed’ by reference to s 386, which provides:
“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) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(c) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(d) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
While s 386 is contained within Part 3-2 of the Act, which relates to unfair dismissal, it has been applied by the Courts to Part 3-1 of the Act, which relates to general protections.[3]
The Employer argues that it did not dismiss Ms Hren
The clear words of the Employer’s letter dated 20 November 2023 brought the employment to an end. However, the Employer argues that the employment had already ended by the actions of Ms Hren in refusing to return to work unless her conditions were met, and that those conditions were untenable and inconsistent with the continuation of employment.
The Employer’s argument is that Ms Hren’s refusal to follow the lawful and reasonable instructions to return to work amounted to repudiation of the employment contract thereby ending the employment. The Employer says that it accepted that repudiation but did not terminate Ms Hren’s employment on its initiative, as the employment had already been terminated by Ms Hren’s actions in refusing to return to work.
The Employer relied on the decision of Deputy President Anderson in Qureshi v Spotless Services Australia Limited.[4] In particular, the Employer relied on the Deputy President’s observation at [134]:
“[W]here a party engages in repudiatory conduct it is the conduct of the party responsible for the repudiatory breach which causes the employment relationship (though not the contract) to end and not the party accepting the repudiation.”
The Employer submits that Ms Hren’s repudiation was evidenced in her communications where she indicated that she would not perform her duties unless the findings against her were retracted and that she would not undergo training as directed. The Employer submits that objectively the above refusals amounted to a repudiation as it evinced an intention to carry out a contract only if and when it suited the party, rather than as and when. Relevantly, when a party insists on performance of a contract only if and when it suits, this is an intention to not carry out the contract at all if it does not suit the party.[5]
The Employer drew a distinction between the employment relationship and the employment contract, arguing that Ms Hren’s conditions were repudiatory of the employment contract and ended the employment relationship. The Employer argues that the letter of 20 November 2023 did no more than accept that repudiation and end the employment contract. It argued that the relationship itself had already been ended by Ms Hren’s refusal to return to work by subjecting her return to conditions that she could not unilaterally impose.
The Applicant’s arguments
Ms Hren says the Employer terminated her employment by letter dated 20 November 2023, and that this was a termination at the employer’s initiative such that there was a dismissal under s 386(1)(a). Ms Hren says that she was always ready and willing to return to work. She had asked for the Employer to retract the allegations and for a return-to-work plan to be developed in such a way that she feels safe. She further says that this conduct was an exercise of her workplace rights and that it would be a perverse outcome contrary to public policy that an exercise of workplace rights could amount to repudiation of the employment contract.
In response to the Employer’s submissions that her conduct amounted to repudiation, Ms Hren says she had no intention to repudiate her contract of employment. Under cross-examination, Ms Hren said,
“At no time did I ever refuse [to return to work]. I was just wanting to be assured of my safety. I was always wanting to go back.”
Consideration
Ms Hren did not resign. This fact was not in dispute and so s 386(1)(b) of the Act is not relevant. Section 386(2) of the Act, regarding contracts of employment for specified time, task or duration of a specified season, is also not relevant.
The only question to be determined in this matter is whether there was a dismissal within the meaning of s 386(1)(a) – whether Ms Hren’s employment with her employer has been terminated on the initiative of her employer.
The Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2)[6] has interpreted the phrase ‘termination at the initiative of the employer’:
“It is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
The Full Court of the Federal Court decision in Mahony v White[7] and Full Benches of this Commission have affirmed the continued applicability of Mohazab to the current s 386.[8]
While the principles of interpretation of the relevant words in s 386 apply, the facts of Mohazab are different from this matter. In Mohazab, the applicant resigned and the Full Court found that the circumstances of the applicant’s resignation – that it occurred after the employer’s ultimatum that he resign, presentation to him of a resignation letter and threat that if he did not resign, the employer would ask the police to charge him with an offence – was a termination at the initiative of the employer.
This matter is more similar to, but not entirely on all fours with, abandonment of employment cases.
In the award review Abandonment of Employment decision, the Full Bench said:[9]
“‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations (footnotes omitted).”
The Full Bench decision in Bienias v Iplex makes clear that employment does not come to an end after an employee abandons the employment until the other party accepts that conduct by taking some kind of step:[10]
“In truth, once an employee is deemed pursuant to clause 21 of the Award to have abandoned his or her employment, the employment of the employee does not come to an end nor is the employer required to end the employment by terminating it. In order to do so, we consider the employer must take the additional step of terminating the employment and if it does not do so employment continues.”
Bienias was decided in the context of interpreting a specific award clause relating to abandonment of employment in the Manufacturing and Associated Industries Award 2010, which was later the subject of the Abandonment of Employment award review decision.
In Bienias, the Full Bench granted permission to appeal and upheld an appeal against the decision of Senior Deputy President O’Callaghan. At first instance, the Senior Deputy President found that Mr Bienias had abandoned his employment, as he had been absent for more than 14 days without notification to his employer, and that the employer’s letter of termination dated 30 May 2016 to Mr Bienias “must be taken to simply acknowledge that employment abandonment.” So, the Senior Deputy President found that Iplex’s termination of Mr Bienias’ employment was not a dismissal within the meaning of s 386 as it had not occurred on Iplex’s initiative.
The Full Bench granted permission to appeal, allowed the appeal and re-heard the matter. On re-hearing, the Full Bench found that the termination was on the employer’s initiative and therefore a dismissal within the meaning of s 386. The Full Bench said that there was no automatic termination of Mr Bienias’ employment under clause 21 of the Award, but Iplex’s act that brought about the termination.[11] The Full Bench went on to refer to further conduct of Iplex that reinforced that the termination occurred on the employer’s initiative because it took steps to locate and contact Mr Bienias and made a determination that he had abandoned his employment.[12] Finally, the Full Bench referred to the employer’s payment in lieu of notice to be inconsistent with employment being terminated other than on the initiative of the employer.[13]
The circumstances of Qureshi were unusual. In summary, the applicant was a security officer, who did not attend multiple rostered shifts and did not provide the employer with any reason for his absence, as a result of being in custody and not having access to his mobile phone. After 2 weeks of his unexplained absence, the employer sent a letter that ended the applicant’s employment. Deputy President Anderson found that the applicant’s conduct was repudiatory.[14] Although the employment ended as a consequence of the employer’s letter which accepted the applicant’s repudiatory conduct,[15] the Deputy President found that this was not a dismissal within the meaning of s 386 because the employment relationship had already ended due to the applicant’s renunciation of his obligation to attend work when rostered.[16]
I do not consider myself bound by the decision in Qureshi, as it is a decision of a single member of this Commission. I am also of the view that its facts are materially different to this matter. The applicant in Qureshi made no contact at all with his employer. Ms Hren, through her solicitors, was in regular communication with the Employer or its solicitors, and repeatedly stated her desire to return to work, albeit subject to conditions.
The distinction between the employment relationship and the employment contract was discussed in NSW Trains v James.[17] The majority of the Full Bench said that “the expression ‘employment ... has been terminated’ in s 386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.”[18] Deputy President Easton wrote a separate decision, agreeing with the conclusion but disagreeing with the above. The Deputy President said, “the words ‘employment ... has been terminated’ in s 386(1) refer to termination of the employment relationship, but do not refer to termination of only the contract of employment.”[19]
I am of the view that I do not need to determine whether there was a repudiation, and if there was a repudiation, whether it was of the employment relationship or contract.
In this matter, just prior to the Employer’s termination letter of 20 November 2023, Ms Hren’s employment with the Employer was still on foot. She was required by the Employer to return to work but did not. Ms Hren’s actions did not indicate that she did not wish for the employment to continue. She did make her return-to-work conditional, and those conditions were not acceptable to the Employer.
The Employer then took a step that ultimately ended the employment. The letter of 20 November 2023 says two things upon which I find that the Employer terminated Ms Hren’s employment on the Employer’s initiative:
(1) that Ms Hren’s refusals of the Employer’s lawful and reasonable direction to return to work was wilful and deliberate behaviour inconsistent with the continuation of her employment; and
(2) that they have elected to accept Ms Hren’s renunciation and to terminate her employment.
Conclusion
I am satisfied that the Employer dismissed Ms Hren within the meaning of s 386(1)(a) of the Act. Accordingly, the Employer’s jurisdictional objection is dismissed. I will list the matter for a conference under s 368 of the Act.
COMMISSIONER
Appearances:
M McKenney for the applicant
S Bingham for the respondent
Hearing details:
7 March 2024
via Microsoft Teams
Final written submissions:
Applicant, 22 February 2024
Respondent, 29 February 2024
[1] See Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].
[2] (2020) 300 IR 146 at [67] to [68].
[3] Ibid.
[4] [2023] FWC 2411.
[5] See Thalanga Copper Mines Pty Ltd v Cromarty Resources Pty Ltd [2021] NSWSC 640 at [160].
[6] [1995] IRCA 645; (2005) 62 IR 200, at 205 to 206.
[7] [2016] FCAFC 160, 226 IR 221.
[8] See Bienias v Iplex[2017] FWCFB 38 at [44]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [66]; Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [13].
[9] Four yearly review of modern awards – Abandonment of Employment [2018] FWCFB 139 at [21].
[10] Bienias v Iplex[2017] FWCFB 38 at [41].
[11] Ibid at [45].
[12] Ibid at [46]-[47].
[13] Ibid at [48].
[14] Qureshi v Spotless Services Australia Limited[2023] FWC 2411 at [126]-[127].
[15] Ibid at [129].
[16] Ibid at [141].
[17] [2022] FWCFB 55.
[18] Ibid at [45].
[19] Ibid at [176].
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