Deena Quayle v SAA Management Pty Ltd - [2023] FWC 883

[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…

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.

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Details

Case: [2023] FWC 883
Decision Date: 8 MAY 2023

CaseChat Overview and Summary

The applicant, Deena Quayle, filed an unfair dismissal application under section 394 of the Fair Work Act 2009, claiming that her redeployment during her employment with SAA Management Pty Ltd was not genuine and constituted a dismissal which was harsh, unjust and unreasonable. The respondent, SAA Management, objected to the application on jurisdictional grounds, submitting that Ms Quayle voluntarily resigned on 12 December 2022, and was not dismissed within the meaning of the Act. The primary issue before the Court was whether Ms Quayle was dismissed within the meaning of the Act, in circumstances that constituted constructive dismissal. After considering the submissions and evidence presented, the Court found that the applicant did not meet the criteria of a person protected from dismissal pursuant to section 386(1)(b) of the Act. The Court held that the respondent had attempted 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. The applicant's duties were not a significant reduction, but a change due to the operational requirements of the respondent. The applicant had accepted a consensual variation of the terms of the original contract or had accepted a new contract with her redeployment. Therefore, the Court dismissed the application.

Orders