Dawes v Presbyterian Care - [2014] FWC 4067

[2014] FWC 4067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Dawes
v
Presbyterian Care Tasmania
(U2014/4709)

DEPUTY PRESIDENT WELLS

HOBART, 20 JUNE 2014

Application for relief from unfair dismissal – alleged constructive dismissal – resignation – existence of employer course of conduct – jurisdictional objection – whether termination at the initiative of employer.

Introduction

[1] Ms Pamela Dawes was employed by Presbyterian Care Tasmania (PCT), an aged care provider, from 7 March 2011 until 28 January 2014. Ms Dawes claimed that she had been unfairly dismissed as she was forced to resign her employment because of conduct engaged in by PCT.

[2] PCT objected to Ms Dawes application on the grounds that Ms Dawes had terminated her own employment in a letter of resignation dated 28 January 2014.

The Meaning of Dismissed

[3] The meaning of dismissed is found at s.386(1) of the Fair Work Act2009 (the Act) and states:

“(i) 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.”

[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides 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. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

The Applicant’s evidence

[5] Ms Pamela Dawes gave evidence in support of her case both by written statement 1 and oral evidence. Ms Dawes was an Extended Care Assistant working at Presbyterian Care at Warrane in Tasmania having commenced employment with PCT in March 2011.

[6] In her witness statement Ms Dawes discussed a workplace incident that took place prior to Christmas 2013 involving conflict between residents which had occurred when an employee, Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Dawes v Presbyterian Care and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWC 4067
Decision Date: 20 JUNE 2014

CaseChat Overview and Summary

Dawes sought relief from unfair dismissal, claiming constructive dismissal due to the respondent's course of conduct. The Federal Circuit Court of Australia was tasked with determining whether the respondent's actions amounted to a termination of employment at their initiative, thereby justifying relief. The court had to consider whether the respondent's conduct constituted a repudiation of the contract of employment, and if the resignation was a response to that repudiation.

The central legal issue revolved around whether the respondent's actions constituted a repudiatory breach that warranted the employee's resignation and subsequent claim for unfair dismissal. The court examined the nature and effect of the respondent's conduct to ascertain if it amounted to a fundamental breach of contract. Additionally, the court had to determine if the resignation was a response to the employer's actions or if it was the employee's own decision.

The court found that the respondent's conduct did not amount to a repudiatory breach of the employment contract. The employee's resignation was not a direct response to the respondent's actions but rather a decision made by the employee themselves. Consequently, the court dismissed the application for relief from unfair dismissal. The court concluded that the respondent's conduct did not constitute a fundamental breach of the employment contract, and therefore, the resignation was not due to any action taken by the employer.

Orders