Deidre Michele Tull v Central Queensland Indigenous Development Ltd
[2023] FWC 2168
•15 SEPTEMBER 2023
| [2023] FWC 2168 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Deidre Michele Tull
v
Central Queensland Indigenous Development Ltd
(C2023/2736)
| DEPUTY PRESIDENT LAKE | BRISBANE, 15 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – separation certificate – jurisdictional objection dismissed – matter to proceed to conference.
Ms Deidre Tull (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 12 May 2023. The Applicant claimed that adverse action was taken against her by Central Queensland Indigenous Development Ltd (the Respondent) under ss.344 and 352 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed. The Respondent states that the Applicant is currently on a period of unpaid sick leave and may return to work when fit to do so.
For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that she was dismissed in accordance with the definition in s.386 of the Act.
The matter was heard by video using Microsoft Teams on 15 August 2023.
Background
The Applicant commenced employment with the Respondent on 22 March 2017, initially in the Respondent’s Drug and Alcohol Support team, and then in the position of Placement Support Officer. The Applicant was engaged on a part-time basis.
In January 2023, the Respondent commenced an informal performance review of the Applicant. On 2 March 2023, the Applicant went on a period of personal leave until 10 March 2023.
On 13 March 2023, the Applicant was invited by her supervisor, Ms Melissa Harris, to attend a meeting to discuss concerns relating to the Applicant’s performance. This meeting occurred on 15 March 2023, and was attended by the Applicant, Ms Harris and the Applicant’s manager, Ms Michelle Leggett. At the meeting, the Applicant was issued with a formal performance improvement plan. Following the meeting, the Applicant met with the Respondent’s Acting Chief Executive Officer, Mr Daniel Yasso, and informed him that she was unable to continue working with her manager and was going to go home. Mr Yasso encouraged the Applicant not to resign.
The Applicant stated that she left work at approximately 2:00pm on 15 March 2023. The Respondent contended that this instead occurred at 2:00pm on 16 March 2023. The Applicant did not return to work after leaving on 15 or 16 March 2023. The Respondent contended that around this time, the Applicant informed other employees of the Respondent that she had resigned.
On 17 March 2023, the Applicant submitted a medical certificate to the Respondent. The certificate stated that the Applicant was unfit for work from 17 March 2023 to 5 May 2023.
On 21 March 2023, the Applicant completed a two-day theoretical traffic control course through an entity separate to the Respondent. The Applicant informed Mr Yasso that she had completed this course, and Mr Yasso offered for the Respondent to cover the Applicant’s costs associated with the course.
On 24 March 2023, the Applicant was informed by Mr Yasso that her desk had been cleaned out, and that she would be paid the equivalent of 3 weeks’ wages. The Applicant stated that she informed Mr Yasso that she had not resigned.
Approximately one week later, Mr Yasso called the Applicant to ask if she was going to come to the office. The Applicant informed him that she would not be returning to the office.
The parties agreed that after the Applicant left work on 15 or 16 March 2023, she was using her personal and annual leave, and that the Applicant’s leave would be exhausted on 18 April 2023.
On 21 April 2023, three days after the Applicant’s leave entitlements were exhausted, the Applicant called the Respondent’s Corporate Finance Officer, Ms Deborah Ahmann. The Applicant stated that she contacted Ms Ahmann to enquire about her payslips. During this call, Ms Ahmann informed the Applicant that a separation certificate would be completed for the Applicant. The separation certificate was then issued to the Applicant by the Respondent dated 26 April 2023.
The origin of the separation certificate is a point of contention between the parties. The Applicant submitted that she expressed surprise at Ms Ahmann’s mention of the certificate, and accordingly, asked Ms Ahmann what would be recorded as the reason for the separation. The Applicant stated that Ms Ahmann replied, “the usual reason”. The Applicant submitted that upon being informed that a separation certificate was being prepared, she considered that the employment relationship had ended at the initiative of the Respondent.
The Respondent submitted that the separation certificate was issued at the Applicant’s request. The Respondent maintained that this was consistent with its submission that the Applicant had told other employees that she was resigning when she left work on 16 March 2023. The Respondent rejected that it terminated the employment relationship by referring to or issuing the separation certificate.
Consideration
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
Section 386(1) of the Act relevantly 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4]
All the circumstances – including the conduct of both the employer and employee – must be examined.[5] In other words, it must be shown 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.”[6]
The question as to whether there was dismissal of the Applicant is determined by the party that initiates the creation of a separation certificate.
In Lawson v Environet Australia Pty Ltd T/A ESP – Environmental & Safety Professionals, Commissioner Saunders found that the Applicant’s ongoing refusal to attend work, coupled with his repeated requests for a separation certificate demonstrated, objectively that he no longer intended to be bound by his employment contract.[7]
Similarly, in Myers-Raab v CoreStaff VIC Pty Ltd T/A CoreStaff, Commissioner Mirabella found that in asking for a separation certificate, the Applicant ‘was making a unilateral subjective decision to treat his employment as being at an end.’[8]
In Pope v The Trustee For Macmillan And Company Family Trust, Deputy President Wright found that the issuing of the certificate, in circumstances where it had not been required or requested by the Applicant, resulted in the termination of the Applicant’s employment.[9]
Deputy President Young in Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 notes at [33]:
“a dismissal takes effect when the employment relationship has ended.[10] The termination of the employment relationship is a different concept from the termination of an employment contract.[11]”
It is noted that the Respondent was willing to provide the Applicant her existing role once she was medically cleared to return to work. However, the Applicant did not want to return to her role.
Ms Roberts stated that here had been miscommunication and confusion amongst the internal departments of the Respondent in relation to the Applicant’s employment status, and that it was “common knowledge” within the Respondent that the Applicant had resigned. Ms Roberts stated that the Applicant requested a separation certificate to be completed. The Applicant stated that she did not request a separation certificate.
I find that the issuing of the separation certificate had the probable result of bringing about the termination of the employment by the Respondent even though they may have not intended to. [12] The Applicant was still on sick leave until the separation certificate was issued and this was approved by the Respondent. The issuing of the separation certificate by the Respondent ended the employment relationship. The Applicant would have still remained in the employment relationship had the separation certificate not been provided or established that the Applicant had resigned through providing evidence.
Conclusion
I consider that the communication by the Respondent to the Applicant of the separation certificate on 21 April 2023, and the subsequent issuing of the certificate terminated the Applicant’s employment on the initiative of the Respondent.
The Applicant was therefore dismissed in accordance with s.386(1) of the Act. The exemptions in s.386(2) of the Act do not apply.
The Applicant’s dismissal took effect she was informed by the Respondent of the decision to issue a separation certificate on 21 April 2023. The application was made on 12 May 2023. The application was therefore made within the 21-day statutory timeframe in s.366(1) of the Act.
The Respondent’s jurisdictional objection is dismissed. I order accordingly.
The matter will be programmed for conference in accordance with s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
Ms E. Hansson of Legal Aid Queensland representing the Applicant.
Ms J. Roberts representing the Respondent.
Hearing details:
15 August 2023
Hearing via Microsoft Teams
Brisbane
[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[2] Ibid.
[3] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[4] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].
[5] Whirisky v DivaT Home Care[2021] FWC 650at [77].
[6] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].
[7] Lawson v Environet Australia Pty Ltd T/A ESP – Environmental & Safety Professionals[2017] FWC 838 at [41].
[8] Myers-Raab v CoreStaff VIC Pty Ltd T/A CoreStaff [2022] FWC 835 at [23].
[9] Pope v The Trustee For Macmillan And Company Family Trust [2023] FWC 2130 at [60]–[70].
[10] Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21].
[11] Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50]
[12] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769, [24].
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