Deena Quayle v SAA Management Pty Ltd
[2023] FWC 883
•8 MAY 2023
| [2023] FWC 883 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deena Quayle
v
SAA Management Pty Ltd
(U2022/11782)
| DEPUTY PRESIDENT LAKE | BRISBANE, 8 MAY 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – applicant not dismissed – resignation – applicant argues redeployment not genuine – jurisdictional objection upheld - application dismissed.
Mrs Deena Quayle (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that her redeployment during her employment with SAA Management Pty Ltd (the Respondent) was not genuine and therefore constituted a dismissal which was harsh, unjust and reasonable.
The Applicant commenced employment with the Respondent on 16 December 2019 and her employment came to an end on 12 December 2022. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that she voluntarily resigned on 12 December 2022.
It is not in dispute that the application was made within time (s.396(a)); the person was protected from unfair dismissal (s.396(b)); the Small Business Fair Dismissal Code does not apply (s.396(c)); and the dismissal did not involve a genuine redundancy (s.396(d)). These matters were not raised by the parties, and I find that these issues are not a point of contention.
The pertinent question is whether the Applicant was dismissed within the meaning of the Act, in circumstances that constituted constructive dismissal.
Directions were set for the filing of material and the matter was dealt with by way of Hearing on 14 February 2023. The Respondent filed their submissions on 30 January 2023. The Applicant filed their submissions on 4 February 2023.
The Applicant appeared on her own behalf. The Respondent was represented by Mr Matthew McNaughton, Chief Executive Officer of the Respondent.
SUBMISSIONS
Applicant’s submissions and evidence
The Applicant was working in the Super Paraplanning Department with the Respondent as a Team Leader – who was on a Level 4 band as of 28 September 2022. The Applicant insisted, in giving her evidence, that she would have been paid as a Level 5 in July of that year. However, the business declined to remunerate her at that level. The Applicant was informed that two employees from her team would retain their positions and everyone else in this team would be made redundant. The Applicant states that the Human Resources Manager, Ms Renae Withoos would address the retained employees upon her return from leave. However, Ms Withoos did not return.
The Applicant did not receive any communication or guidance between 28 September 2022 to 11 October 2022. All direction came from the National Advice Network (NAN) and the Financial Industries Australia (FIA) Management team.
The Applicant was not one of the two employees that were retained in the Paraplanner team. The Applicant was redeployed into a series of different positions between 28 September 2022 and 12 October 2022:
(a)Mortgage Department from 29 September 2022 to 5 October 2022;
(b)Paraplanning for External Advisor (conflict of interest) from 5 October 2022 to 11 October 2022; and
(c)Paraplanning Support Officer (Insurance) from 12 October 2022 to resignation.
The Applicant had received a new contract as a Planning Support Officer (Insurance – Level 1) on 21 October 2022. The Applicant raised concerns regarding the lower grading with Mr Liam O’Neill (HR Generalist) on 25 October 2022. The Respondent had noted the error and the Applicant agreed that she should be a Level 4 in the new role. She purports that she should have been promoted to a Level 5 role in her previous role but the Respondent had not done so.
The Applicant states she was led to believe that she could not remain on the same level due to being transferred to a different department and requiring some training. She acknowledges that her remuneration would remain unchanged.
On 26 October 2022, the Applicant received a Level 4 contract. Until 14 November 2022, she tried to continue to settle into the new department. However due to the events arising from the redeployment, along with issues with her health and well-being, she was advised by her doctor to take leave from work. She provided medical certificates from 16 November 2022 to 18 November 2022.
On 17 November 2022, the Applicant learnt that another employee who was redeployed as a Planning Support Officer (Insurance) was remaining on her current band of Level 3 despite being in the same situation as the Applicant. The Applicant states she sought advice from a Fair Work Commission appointed legal advisor and from the Financial Services Union that she requests a mutual separation from the Respondent. She sent an email to the Respondent requesting mutual separation.
On 24 November 2022, the Respondent emailed the Applicant advising her that they would not agree to a mutual separation.
On 28 November 2022, the Applicant resigned effective on 12 December 2022.
The Applicant submits she was forced to resign within the meaning of s.386(1)(b) of the Act. She asserts that her redeployment was conducted in a harsh, unjust, and unreasonable manner, feeling that she had no alternative but to resign. She submits her health and wellbeing were impacted due to the Respondent’s lack of communication and consultation as well as not following recognised procedures. She suffered a two-month period which was fraught with insecurity, uncertainty, and an unstable working environment.
Ms Vanessa Weber (Manager) and Ms Angelica Gonzalez (Data Entry Clerk) provided support regarding the Applicant’s assertions. Ms Weber and Ms Gonzalez were both made redundant as a result of the restructuring process.
Respondent’s submissions and evidence
It was submitted by the Respondent that the Applicant was not dismissed within the meaning provided by s.386(1)(b) of the Act. The Applicant voluntarily resigned her employment by written notice on 5 December 2022.
The Respondent acknowledges that there was a miscommunication with the Applicant regarding her initial redeployment contract at a Level 1 Band. The Applicant had raised her concerns with the Respondent on 25 October 2022. Mr Matthew McNaughton from the Respondent states in his witness statement that he asked the Applicant’s input on what the appropriate level she should be placed on to which the Applicant stated that she should be on a Level 4 band.
On 26 October 2022, Mr McNaughton checked in with the Applicant. He thought that she seemed more at ease and eager to return to work. He reiterated to the Applicant the Respondent’s appreciation of her being a member of the team and again emphasised that his door was always open for any further discussions. The Applicant acknowledged this offer and seemed to be happy.
After the meeting, the Respondent states that the Applicant expressed that she felt better about having her concerns addressed and that offered her the option to take the remainder of the day off if she wished. Mr McNaughton emphasised his availability for any future concerns or issues she may have, which she acknowledged.
Prior to the restructure that is the subject of this matter, the Respondent had to close their Marketing Department. This had a large negative effect on income. The Respondent attempted to find positions and keep employees where possible. The Respondent submits that they never wanted the Applicant to resign. She had been a good employee and would continue to be a good employee for the business.
The Respondent confirmed that sixty employees were made redundant across multiple departments. Ms Emma Wilson acknowledged that the Applicant was identified as a high performer in the business and the Respondent wanted to retain her. Her movement was not well coordinated, but the Applicant was always intended to be a Paraplanning Support Officer in the Insurance Department.
LEGISLATION
Section 386 of the Act states:
“386 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.”
Meaning of dismissed
Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal” and has created two clear grounds on which a claim could potentially proceed.[1] The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan provided clarity as to these two distinct grounds:[2]
“[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:
“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.”
[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’
[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.”
[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that “the applicant was constructively dismissed” because she had accepted the Appellant’s repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.”
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:
[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 probable (sic) 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.
(emphasis added)
The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 considers what is classified as a ‘forced resignation’:[3]
“In these proceedings 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.”(emphasis added)
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:
[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”
[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:
“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill…
(emphasis added)
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[4] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”[5]
The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd provides instruction on how to interpret the term “forced”:[6]
“[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).
[15] Relevantly, the Macquarie Dictionary defines “force” as:
… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …
[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.
[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:
· That she did not voluntarily resign her position or employment;
· But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present.”
(emphasis added)
In determining whether the Applicant was left with “no effective or real choice but to resign”, there are numerous case law examples from which to draw. In Boulic v Robot Building Supplies, it is held:[7]
“[16] From the many authorities on this subject it appears that there must be a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship” to an end and perhaps action which would on any reasonable view probably have that effect. In identifying both the critical action of the employer and its intent “it is a matter of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” The examination of the employer’s conduct must also take into account that the employer is under an implied obligation that it “will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”
In Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera, Senior Deputy President O’Callaghan stated that there must be consideration of all alternative options available to the employee:[8]
“[28] Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.”
In NSW Trains v James[2022] FWCFB 55 at 45, the majority of the Full Bench have stated the following regarding demotion and dismissal:
[45] We agree with the proposition 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. Contrary to the Deputy President’s view at first instance, on this construction, unless the circumstances in s.386(2)(c) apply, an employee may be dismissed within the terms of s.386(1)(a) if the employer has repudiated the employee’s contract of employment by demoting the employee and the employee has accepted that repudiation but has continued to be employed by the employer under a new employment contract.
The Full Bench further elaborated the meaning of dismissed in the context of demotion stating:
[72] In the context of a demotion, in Charlton the Full Bench of the AIRC held that if the repudiation of the contract of employment is accepted, either expressly or by conduct, then the contract of employment is terminated: ‘[34] … If, in such circumstances, the demoted employee then remains in employment with the employer, this occurs pursuant to a new contract of employment in respect of the demoted position. It may be noted that where the employment continues with the employee allegedly acquiescing in a reduction in salary or other terms of employment, difficult questions may arise as to whether the continued employment involves the continuation of the original contract of employment (but with the employer breaching that contract by paying the reduced salary), a consensual variation of the terms of the original contract or the termination of the original contract and a substitution of a new contract of employment.’ [references omitted, emphasis added]
[73] We agree with this observation.
[76] The question of whether a demotion constitutes a dismissal for the purposes of s.386(1)(a) must be considered in its statutory context and common law principles applied in this context. It is clear from the legislative history and previous consideration of the provisions by the Commission and its predecessors that Parliament did not intend s.386 to exclude all demoted employees who remain employed after their demotion from accessing the unfair dismissal provisions in the FW Act. Section 386(2)(c) proceeds on the premise that a demotion where employment continues can amount to a ‘termination of employment’ (and then clarifies that particular demotions fall outside the scope of s.386(1)). As a general proposition, provided the employee makes clear their objection to the demotion, they should not be taken to have affirmed their original contract of employment merely by continuing to work in the demoted position and being paid for that work whilst challenging the alleged dismissal before the Commission. Of course, it will be a question of fact in each case as to whether the conduct of an employee constitutes an affirmation of their contract.[9]
[161] We agree that the expression ‘significant reduction [in remuneration or duties]’ takes its ordinary meaning as being a reduction that is ‘important; of consequence’. Previous AIRC and Commission decisions give an indication of the magnitude of a reduction that may constitute a significant reduction. We also agree that whether a reduction in remuneration or duties is ‘significant’ is an objective test, having regard to all the circumstances. [references omitted]
CONSIDERATION
The decision turns on whether the employer’s conduct intended or had the probable effect or result of bringing the employment of the relevant employee to an end, such that the employee effectively had no choice but to resign.
Repudiation is not a question of law but fact.[10] Repudiation occurs when there is absence of readiness or willingness to perform their contractual obligations. It is important to regard all the circumstances when claiming there was repudiation and a significant reduction in her duties per NSW Trains v James. It is a question of fact as to whether the conduct of an employee constitutes an affirmation of their contract.
It is acknowledged that the Respondent’s redundancies and restructuring would have caused the Applicant and its other employees additional stress arising from the redeployment. This may have been exacerbated through the Applicant’s submission that the Respondent had not communicated with her. However, I am not satisfied that there was no repudiation from the Respondent’s conduct which forced the Applicant to resign.
The company was going through a restructuring resulting in sixty redundancies during the 2-month time period which the Applicant submits that the Respondent did not consult with her about the major workplace change or was not provided any information about the changes regarding her position. The Applicant was eventually consulted about redeployment opportunities on 12 October 2022.
The Respondent provided steps of redeployment by providing a role to the Applicant as a Planning Support Officer.
The employer was unable to perform their existing contractual obligation during the restructuring and did not keep the Applicant in her previous role. The Respondent identified the Applicant as a high performer and had provided redeployment opportunities to which she could have declined.
However, the Applicant did accept the new terms of her redeployment. She was offered a Level 4 – Planning Support Officer role and accepted the Level 4 role on 25 October 2022. The Applicant accepted the new terms of contract on 26 October 2022 and acknowledged she would require further training in her new role. The Applicant states that she would have been eligible for Level 6 later in the year, and that she did not receive a pay increase for attaining Level 5 although she had met all expectations. No evidence was presented to confirm this assertion. The Respondent did not have an obligation to increase the Applicant’s renumeration as the Applicant had accepted the new role at this point.
On balance, I am satisfied that the Applicant accepted a consensual variation of the terms of the original contract or had accepted a new contract with her redeployment.
I do not find the Respondent was unreasonable in redeploying the Applicant in another role. There were only 2 employees retained in her team, and her requests were considered. For instance, she was retained by SAA instead of being transferred to NAN, her duties may have changed but she had accepted them by accepting her new contract and had been working in the role for 3 weeks when she received a text message from her co-worker. The Applicant’s salary was maintained, and she was able to keep her flexible working arrangements. I am not satisfied that the redeployment resulted in her significant reduction of her duties or renumeration.
The Applicant provides evidence regarding another co-worker on 17 November 2022 at Annexure 8 where that co-worker maintained the same band prior to redeployment. It fails to take into account that the Applicant was at a higher band than the co-worker and does not provide much support or context that the Applicant was demoted as it was only one circumstance.
The Applicant was unsatisfied with the Level 4 role only when she was communicated with other another employee on 17 November 2022 regarding maintaining her level. This was three weeks after she had accepted the new contract. The Applicant then sought to seek a mutual separation on the same day asking 10 weeks of pay. The Applicant had chosen to repudiate the employment relationship when the Respondent refused.
As a result, I am not satisfied that the Applicant was forced to resign because of conduct, or a course of conduct within the meaning of s386(1)(b) of the Act. The Respondent had tried to maintain the Applicant’s employment and had paid her the same rate and at the same level as she was prior to her redeployment. Her duties were not a significant reduction, but a change because of operational requirements of the Respondent. The Applicant does not meet the criteria of a person protected from dismissal pursuant to s.386(1)(b) of the Act.
Therefore, this Application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
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[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].
[2] City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, [9]-[13] (Balgowan).
[3] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).
[4] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
[5] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[6] PR 973462, 11 August 2006.
[7] Boulic v Robot Building Supplies [2010] FWA 6905, [16].
[8] Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera [2013] FWC 3941, [28].
[9] Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSC 163, [72]
[10] Woods v W.M Car Services (Peterborough) Ltd [1982] ICR 693
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