Debbie Gay Faulkner v Korbond Pty Ltd
[2024] FWC 1458
•4 JUNE 2024
| [2024] FWC 1458 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections - application for the FWC to deal with a dismissal dispute
Debbie Gay Faulkner
v
Korbond Pty Ltd
(C2024/2390)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 4 JUNE 2024 |
Jurisdictional Objection – employee not dismissed
Ms Debbie Gay Faulkner applies to the Commission under s 365 of the Fair Work Act 2009 (Cth) alleging that she was dismissed from her employment by Korbond Pty Ltd (Korbond) in breach of the Part 3-1 of the Act.
Korbond objects to the application on the grounds that as Ms Faulkner resigned from her employment and there was no dismissal within the meaning of the Act. In Lipa Pharmaceuticals v Mariam Jarouche[1] the Full Bench stated that in s 365 matters where a respondent contends the applicant was not dismissed the objection must be determined prior to the Commission dealing with the dispute.
In the hearing of the jurisdictional objection Ms Faulkner and Korbond were given permission to be legally represented. I considered the matter met the description in s 596(2)(a) and that I would be assisted by the representation.
In support of its application to have the matter dismissed Korbond relied upon a witness statement of Ms Theresa Allen, a director of the company who supervised Ms Faulkner during her employment. In responding to the application to dismiss Ms Faulkner provided a witness statement. Each witness was cross examined.
For the reasons which follow, I find that Ms Faulkner resigned from her employment on 20 March 2024, her resignation was not made in the heat of the moment, and it was not forced by conduct or a course of conduct on the part of Korbond. Consequently, there was no dismissal for the purposes of the Act and the Commission has no jurisdiction to deal with the dispute.
Background
Korbond is a supplier of consumer goods which are distributed and sold in grocery stores Australia wide. Ms Faulkner was employed on 13 March 2023 on a full-time basis as National Sales Manager. This was a senior role and Ms Faulkner answered to Ms Allen who was based in Auckland, New Zealand. Her employment was subject to an employment contract. The contract stipulated that the place of employment was Korbond’s Sydney office. The contract did not provide for a work from home arrangement. The National Sales Manager was also required to travel.
Ms Faulkner had a preference to work from home. In the first seven months of her employment she worked three days per week from home. This arrangement was not in accordance with her contract, and it was not formalised in any way. It was, however, allowed.
In November 2023 issues arose with the Ms Faulkner’s employment. One of the issues was that she had been working from home for 3 days per week. In a series of emails dated 8 November 2023 Ms Allen expressed concern about being unable to contact Ms Faulkner while she was working from home and directed her to only do so on 2 days per week.
A further issue arose in mid-November 2023 relating to complaints about the relationship between Korbond and one of its major clients, Metcash. Metcash purchased products from Korbond for sale in independent retail stores around Australia. A series of emails in January and February 2024 outline the concerns raised by Metcash and the views of Ms Faulkner and Ms Allen about how to best respond to them. The matter was the subject of a meeting in February 2024 attended by Ms Allen and Ms Faulkner and Metcash representatives. In the meeting Ms Allen learned that Ms Faulkner had not travelled to meet key people in Metcash.
During the discussions that followed Ms Faulkner, who is a single mother, informed Ms Allen that she preferred not to travel on trips that involved being away for more than one night at a time.
In a series of emails in February and March 2024 Ms Faulkner and Ms Allen discussed various operational matters associated with Ms Faulkner’s role, including her need to travel to meet clients, and her availability while working from home. The emails describe a trip that Ms Faulkner planned to take to Queensland to meet clients. There were concerns about the trip from Korbond and it did not proceed due to Ms Faulkner becoming ill.
In early March 2024 Korbond employed a Queensland State Sales Manager. Ms Allen’s evidence was that Korbond took the view that it needed to provide Ms Faulkner some assistance in looking after clients in Queensland. The new manager would reduce both Ms Faulkner’s workload and need to travel. So much was communicated to Ms Faulkner in an email on 4 March 2024.
Further concerns arose with Ms Faulkner’s work in March 2024 when Ms Allen sought a full list of client’s stores and pointed out the need for Ms Faulkner to provide weekly reports updating matters relevant to her work.
On 15 March 2024 Ms Faulkner sent Ms Allen an email raising concerns about changes to her working from home arrangement which had been cancelled. Those changes had been communicated to her an email on 11 March 2024 and confirmed in a telephone conversation the day before. Ms Faulkner asked that they be reinstated from 26 March 2024. Ms Faulkner expressed some concern about recent communications and asked that weekly one on one meetings be reinstated to assist with more transparency in those communications.
Ms Allen responded on 18 March 2024 that while she was busy at the time with Easter coming up, she would arrange a meeting after Easter. Ms Allen instructed Ms Faulkner to not work at home in the meantime. I note Easter was over the weekend of 28 and 29 March 2024.
On 20 March 2024 Ms Faulkner sent the following email:
“Hi Theresa,
I feel that I have no choice to write this letter, as their has been a marked change in the attitude and behaviour toward me and the performance of my duties since I shared the Metcash feedback with you on 18 Dec 23. Due the change in the way I have been dealt with I have been left with no choice but to tender my resignation as it is impacting my ability to effectively perform my duties and my ability to manage my mental health.
Thank you for the opportunity, I have enjoyed working in the organisation, it has been very satisfying to see the launch of the new Coles range this week, as this is a significant piece of new business that I was successful in winning and launching.
This is effectively immediately. I will ensure any company property in my possession is returned at my earliest opportunity.
Please forward all necessary paperwork and confirmation on the final payment to this email.
Regards”
Consideration
On 10 April 2024 Ms Faulkner filed with the Commission an application for the Commission to deal with a dispute involving a dismissal under Part 3-1 of the Act.
In the application Ms Faulkner alleges that Korbond contravened ss 340 and 351 of the Act. The essence of the complaint under s 340 is that Ms Faulkner relayed a complaint from Metcash about the business in December 2023 and this was part of the reason for her dismissal. Ms Faulkner that she was discriminated against due to her carer’s responsibilities and inability to travel for long periods for work. The remedy sought in the application is compensation.
The dispute between the parties is whether Ms Faulkner was dismissed. The Full Federal Court in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 summarised such a dispute this way:
“[67] To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply”
Section 12 of the Act defines dismissed by referring to s386. Section 386(1) provides that 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.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
A Full Bench of the Commission considered s.386(1) in Bupa Aged Care Australia Pty Ltd v. Tavassoli.1 After considering in detail the case law associated with expression “terminated on the employer’s initiative” including notions of constructive dismissal and forced resignation,[2] the Full Bench said:
“[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 probabl(e) 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.”
There is no contest that Ms Faulkner resigned. Ms Faulkner contends that she was forced to resign due to the conduct of Korbond. Her submissions rely on the following conduct:
(a) The cancelling of her working from home without notice or consultation.
(b) The restriction of her work duties.
(c) Change in work process – from a direct relation to micromanaging without reason or consultation.
(d) The Respondent giving conflicting instructions to the applicant.
(e) Refusal to meet with the applicant to discuss issues.
(f) Failure to pass on any complaint or issue – the first knowledge the applicant had that the respondent had received complaints or had an issue with her work performance was in the response to the application for general protection filed by the respondent.
(g) Change in role from National Sales manager – the respondent employed a family member to manage Queensland and the applicant was directed to not communicate with the newly appointed manager or Queensland clients.
(h) Threat that her remuneration will be reviewed or decreased.
(i) The Respondent’s attitude toward the applicant in relation to her ability to travel due to care arrangements for her son.
(j) Change in tone and demeanour of the Respondent when dealing the applicant.
(k) Refusal - exclusion to invite applicant to seasonal showcase.
I am of the view that the matters in the applicant’s list of conduct, whether taken together or separately, do not amount to conduct that forced Ms Faulkner to resign. My view of the evidence is that there were issues associated with the way Ms Faulkner performed her role. Those issues became evident during November 2023. Korbond, through Ms Allen, was working with Ms Faulkner to address them. The steps proposed, such as asking Ms Faulkner to work in the office more, provide weekly reports, and appointing a manager in Queensland did not amount to changing Ms Faulkner’s role, micro-managing her, or undermining her position. I do not see in the evidence any refusals to discuss matters with Ms Faulkner. To the contrary Ms Allen’s communications focussed on working issues through and increasing the frequency of communications as a means of improving the way the organisation functioned. There may have been a change in the tone and demeanour Ms Allen used in the discussions with Ms Faulkner. I do not consider that to be a matter that would lead to a conclusion that the company was forcing Ms Faulkner to resign. I do not see a threat to reduce her remuneration. Ms Allen’s evidence was that it was not being considered. I also note that Ms Allen did not take the view that Ms Faulkner was at fault in relation to the issues that arose. She did have concerns about Ms Faulkner’s ability to work effectively when working 3 days per week from her home. At times she seemed frustrated about that issue. She also had concerns about Ms Faulkner not travelling enough to meet the requirements of her national role. However, I do not regard the raising of those concerns as amounting to a conduct that forced a resignation.
I understand that Ms Faulkner had a different impression of what the company was doing. Some of the steps taken may well have led to some trepidation about new arrangements being implemented or suggested that may have an impact on the way Ms Faulkner worked. Given her personal circumstances her preference for working from home and avoiding work trips that saw her away from home for long periods is understandable. Those issues however were still under discussion when Ms Faulkner decided to resign. Ms Faulkner faced a difficult decision, but it was a decision she made on the basis of what she considered the best decision in her circumstances. The company’s conduct played a role in that decision, but I do not consider it was such as to meet the description of forcing her resignation.
Having found that Ms Faulkner’s resignation was not a forced resignation as contemplated by s. 386(1)(b) of the Act I find there was no dismissal. As there was no dismissal Ms Faulkner cannot apply under s. 365 to have the Commission deal with a dismissal dispute.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
K Neville, Solicitor, on behalf of the Applicant.
S Mansour, Solicitor, on behalf of the Respondent.
Hearing details:
2024.
Sydney, in person.
30 May.
[1] [2023] FWCFB 101.
[2] [2017] FWCFB 3941.
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