Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital
[2013] FWC 3711
•19 JUNE 2013
[2013] FWC 3711 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Delwyn Hewitt
v
Topero Nominees Pty Ltd T/A Michaels Camera Video Digital
(C2013/2654)
COMMISSIONER BISSETT | MELBOURNE, 19 JUNE 2013 |
Section 365 - Application to deal with contravention involving dismissal.
[1] Ms Delwyn Hewitt (the Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a contravention of the general protections provisions of the Act involving dismissal. Ms Hewitt was employed by Topero Nominees Pty Ltd T/A Michaels Camera Video Digital (the Respondent).
[2] The Respondent says that the Applicant was not dismissed but rather she resigned her employment. The Applicant says that she was forced to resign by the conduct or course of conduct of the employer.
[3] The Applicant was represented with permission by Mr Addison.
[4] The Respondent was represented with permission by Ms Jardine of counsel.
The Legislation
[5] Section 365 of the Act states:
365 Application for the FWC to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
368 Conferences
(1) If an application is made under section 365, the FWC must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
369 Certificate if dispute not resolved
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect.
Preliminary matter
[6] Mr Addison made a preliminary submission that there is no jurisdictional issue for the Commission to determine. I do not agree with this characterisation of the Act. This is a matter on which varied views have been expressed by members of the Commission. To date there is no Full Bench authority which provides more definitive guidance on the question.
[7] Section 365 of the Act states that if the person has been dismissed (s.365(a)) and alleges the dismissal was a contravention of Part 3-1 of the Act (s.365(b)) then a person may apply to the Commission to deal with the dispute. In my opinion paragraphs (a) and (b) stand separately and must each be considered as part of the conditions necessary to found an application under s.365. If it was only necessary for a dispute that there be an allegation of a dismissal in contravention of the general protections provisions of the Act paragraph (a) would be redundant. Paragraph (a) (that is the dismissal) however stands on its own and exists in addition to the allegation of the dismissal breaching the general protections of the Act. To ignore paragraph (a) is to ignore part of the conditions necessary for the existence of the dispute.
[8] The dispute in s.365 is therefore conditioned by the existence of the dismissal and the allegation that the dismissal is a contravention of Part 3-1 (General Protections) of the Act.
[9] That dispute is then subject to a conference (s.368) and a certificate must be issued if the Commission reaches the requisite satisfaction that further attempts are unlikely to resolve the dispute (s.369).
[10] It is my opinion that if there is no dismissal then there can be no dispute to deal with in a conference under s.368. If there is no dismissal then there can be no dispute on which the Commission can reach the requisite satisfaction and issue a certificate under s.369 of the Act.
[11] A dismissal is a matter of fact that must, in my opinion, be determined prior to a conference and prior to the issuing of a certificate. 1
[12] Mr Addison submits that whether there is a dismissal or not is a matter for the Court and not the Commission to determine. In support of his submission Mr Addison referred me to a decision of Williams C in Leza Howie v Norlisk Nickel Australia Pty Ltd; Dimitry Lafitskiy & Ors 2 (Norlisk Nickel) and a decision of the Full Bench in Ms P Hetherington-Gregory v Harrington Village Motel3(Harrington Village Motel).
[13] Mr Addison submits that each of these decisions stands for the proposition that the Commission is not required to determine if the Applicant was dismissed prior to the issuing of a certificate under s.369 of the Act.
[14] I do not consider that this conclusion can be reached on the basis of the decision in Harrington Village Motel. The Full Bench in that matter did not consider whether or not the Commission is required to make a finding that an applicant’s employment has been terminated by the employer prior to issuing a certificate under s.777 of the Act. 4 That matter was primarily concerned with an application to produce documents in relation to a conference held in accordance with s.776 of the Act. On this question the Full Bench said that a ‘Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties’ (underlining added).
[15] I take this statement by the Full Bench as a reference to the process of the conference itself. In my opinion it says nothing of the need or otherwise of the Commission to determine if the jurisdictional prerequisites have been met to allow the conference to be conducted or the certificate to be issued in accordance with the Act.
[16] The decision in Norlisk Nickel dealt with a jurisdiction objection being taken by the Respondent against the Commission dealing with the application because, it said, the application was made outside the time limit for making an application under s.365 of the Act even though the application was made under s.372 of the Act (a general protections claim not involving a dismissal). What Williams C considered in that decision was whether he would grant the ‘strike out’ application of the Respondent or list the matter for conference. He took the latter course. The decision indicates that, whilst the Applicant said she had no choice but to resign her position, she was not pursuing a claim that included that she had been dismissed. She argued in the ‘strike out’ application that, given the application she had made was not under s.365 of the Act, the Commission had no power to ‘strikeout’ the application on the basis that it was made outside the statutory period for an application made pursuant to s.365 of the Act.
[17] The decision of Williams C goes to the question of the operation of s.372 of the Act. The Commissioner was not required to, and did not, determine if a dismissal was a pre-requisite to the issuing of a certificate under s.369 of the Act. To the extent that the Commissioner endorsed the findings of Cribb C in Hansen v Apex Cleaning & Polishing Suppliers Pty Ltd T/A Apex 5(Apex Cleaning), I do not consider that persuasive of the matter I am required to consider.
[18] As to the decision of Cribb C in Apex Cleaning (to which Mr Addison only referred in the context of the decision in Norlisk Nickel) I respectfully disagree with the conclusion reached by the Commissioner in that matter. In her reasons the Commissioner did not consider the conditions necessary for the existence of the dispute which is to be subject to the conference (s.368 - FWC must conduct a conference to deal with the dispute) and for which a certificate may be issued (s.369 - attempts to resolve the dispute have been, or are likely to be, unsuccessful). Whilst I appreciate the basis on which the Commissioner reached her conclusion I cannot agree with her conclusion that in the absence of a positive requirement to determine if a jurisdictional prerequisite is met the jurisdiction of the Commission to deal with an application should not otherwise be considered by the Commission.
[19] It is my opinion that the jurisdiction of the Commission is not attracted unless the conditions precedent have been met to allow the Commission to deal with the dispute. Further I note a number of decisions of the Commission where the existence of a dismissal has been determined as a prerequisite to issuing a certificate in accordance with s.369 of the Act.
[20] For this reason I conclude that, prior to issuing a certificate under s.369 of the Act, I must be satisfied that the dispute to which the certificate relates does, in fact, exist. To reach such a conclusion I must be satisfied that there has been a dismissal. For clarity I am not required under s.365(b) to be satisfied that the dismissal relates to a contravention of the Act. This is because the wording of paragraph (b) is clear — it only need be that it is alleged that that the dismissal is a contravention of Part 3-2 of the Act.
Was Ms Hewitt dismissed?
[21] Ms Hewitt says that she was forced to resign because of the conduct of the Respondent.
[22] Mr Addison for the Applicant submits that the Applicant was employed by the Respondent to undertake a specific role. She complained to her employer about her wages. This matter was ultimately referred to the Fair Work Ombudsman (FWO). As a result of this complaint the Applicant says she was subject to bullying such that she had no choice but to resign. This is evidenced by her letter of resignation. 6
[23] In her letter of resignation the Applicant states that she feels like she has been forced to give up her job. She says:
...I am really distressed and upset with recent discussions, meetings, negotiations and emails regarding my employment conditions and the way I have been treated. I have been directed to do work of substantially changed duties from the job I accepted, and have been threatened with termination of my employment...On top of this I have been subject to bullying and threatening behaviour by my manager which all started after I asked about my pay being reviewed...I have been asked to record a log of every activity I perform on an hourly basis for every day I work...During the course of recent meetings, I have been mislead regarding the pay rates of other employees which perform the same job as me...[Y]ou had previously confirmed in writing that we could alter days of work by mutual agreement. On Saturday I e-mailed you saying I wanted to change from 3 to 2 days a week which you have rejected...I think it is really unfair on me.
...The amount of force and pressure being placed on me to change the nature of my job is insistent, and causing me a great deal of anxiety...I have raised on a number of occasions the way in which my manager has been behaved extremely unprofessionally towards me and has been verbally antagonistic and aggressive towards me. The situation has increasingly escalated and has become really unbearable for me...I have discussed with you on numerous occasions over many months about my manager’s appalling, unprofessional & amateurish behaviour...I have been in tears on numerous occasions both at work and at home as a consequence of this. (sic)
[24] In essence it appears that the Applicant says she was forced to resign because of:
a. The behaviour of her manager;
b. A requirement that she record a log of her work activities;
c. A direction to undertake changed duties; and
d. Being denied a request to reduce the number of days on which she worked.
The evidence
The behaviour of the manager
[25] Ms Hewitt’s evidence is that on 4, 13 and 17 April 2012 Mr Hansen, her manager, was aggressive in discussions she had with him over her pay (she had queried if she was being paid the right amount and/or under the correct award). She says he yelled and was verbally aggressive and she felt frightened, threatened and intimidated. 7 Whilst she raised this with Mr Michael she says that nothing came of it and Mr Hansen did not apologise to her. She says that on 13 April she was ridiculed in front of a class8 and on 2 May 2012 Mr Hansen said to her, “‘Haven’t you got anything better to do than to come in?”9 She says that on 26 May 2012 Mr Hansen berated her in front of a class because of what she was wearing,10 on 29 May she was blamed for the cancellation of a class by Mr Hansen and Mr Michael,11 on 13 June she was told by Mr Hansen she was ‘not needed’ when she commenced work at 1.00pm to deliver a night photography class which commenced at 5.00pm even though it was a day she regularly worked a full day,12 and on 7 September Mr Hansen blamed her in front on entire class for a student not having the required camera lens for the class.13 Ms Hewitt also says that Mr Hansen sabotaged her work training preparation statistics.14
[26] Whilst there are other matters she mentions in her witness statement to do with Mr Hansen it is not clear that these are put forward as evidence of Mr Hansen’s bullying behaviour.
[27] It is not clear from the Applicant’s evidence exactly when she first raised the behaviour of Mr Hansen with Mr Michael. It appears it was sometime in April 2012. She says she also complained of his behaviour in meetings with Mr Michael on 24 July and 18 October 2012. 15
[28] Mr Michael’s evidence is that the Applicant first raised the issue of her pay with Mr Hansen in December 2011. He became aware in April 2012 that Mr Hansen had behaved inappropriately to the Applicant. He says he spoke to Mr Hansen who admitted the conduct had occurred. Mr Michael’s evidence is that Mr Hansen apologised to the Applicant. 16
[29] In Mr Michael’s written evidence he includes a file note dated 18 October 2012 in which he had noted the ‘She then started - well - her manager insulted her and is bullying.’ 17
Requirement to log activities
[30] In a meeting with Mr Michael on 16 May 2012 the Applicant says that she was instructed by Mr Michael to log all of her activities. She says this was done for ten successive weeks and no other employee was subject to this requirement. 18 She also says she was instructed to do this again by Mr Michael on 24 October 2012.19
[31] Mr Michael’s evidence is that, as a result of the Applicant making a compliant to FWO with respect to her rate of pay and the award she was being paid under, and, in accordance with a request from the FWO, he requested the Applicant to keep a record of the work she performed. This was provided to the FWO. 20
Direction to undertake changed duties
[32] Ms Hewitt’s evidence is that on 25 September 2012 Mr Michael told her that as well as doing her media school work she would be doing sales in the (camera) bags and accessories area of the retail store. She considered this to be a breach of her contract. 21 On 25 September, she was given a ‘Role Outline’ which included instructing classes and associated administrative work and sales in bags and accessories.22 Her evidence is that she did not want to do the sales work on the basis that it was a breach of her contract and that ‘while we were in dispute with Fair Work Australia (FWA), I didn’t believe that it was appropriate he try to not only change my duties but fundamentally change the nature of the job that I was employed to do.’23 This view was reiterated in an email to Mr Michael on 17 October.24 Ms Hewitt says that, because he failed to respond to a question she asked with respect to her pay, she concluded that his intention was to reduce her pay.25
[33] Mr Michael’s evidence is that when he reviewed the record of work performed by the Applicant he noted that there was a substantial period of time when she was not being utilised. 26 On 25 September 2012 he advised the Applicant that, once she had completed the necessary training she would be required to undertake sales duties when she was not required to attend to her role in the media school.27 On 17 October 2012 the Applicant advised Mr Michael that she would not commence performing any other duties until the matter before FWA with respect to her claim for underpayment of wages was resolved. In an email of 17 October 2012 Mr Michael confirms that the Applicant is required to teach classes, undertake administrative work associated with classes and conduct sales, and states that ‘Fair Work Australia (sic) made an award determination for you. I do not anticipate that this will change.’28
[34] On 22 October 2012 Mr Michael sent an email to the Applicant with a subject line ‘Proposed Termination of Your Employment.’ In that email Mr Michael said that he was concerned about the failure of the Applicant to follow instructions to fulfil her assigned duties, including undertaking sales. He indicated that he was proposing to terminate her employment but that, prior to doing so he wished to give her an opportunity to respond to those concerns. The Applicant was directed to attend a meeting for this purpose the next day. She was invited to bring a support person to the meeting. 29
Request to reduce hours
[35] On 27 October 2012 the Applicant requested that she be able to reduce her days of work from three days to two days per week.
[36] On 28 October 2012 Mr Michael responded in writing that, given she had lodged an application on 19 October 2012 with FWA to deal with a dispute he would ‘halt all discussions/processes related to any aspect of conditions related to your employment until subsequent to the FWA determination.’ 30
Dispute re wages
[37] The evidence of Mr Michael is that in late April 2012 when he met with the Applicant about the behaviour of Mr Hansen she raised with him the question of her rate of pay and award coverage. They did not agree as to which award covered her. He said to her that if she had a query about her award coverage she should raise that with the FWO. 31 On 9 August 2012 the FWO advised Mr Michael that the correct award with respect to the Applicant was the Education Services (Post Secondary Education) Award 2012. The letter from the FWO stated that the Applicant should be classified as a Level 2 Tutor/Instructor and attached the relevant rates of pay. The letter also required that Mr Michael review the Applicant’s employment records and consider whether she had received her minimum entitlements under that Award. The rate of pay for the period ending 1 July 2012 was advised by FWO as $19.83 per hour.32
[38] Mr Michael’s evidence is that on 11 October 2012 the Applicant emailed him and advised that the FWO had advised her she was entitled to be paid $24.79 per hour for course work delivery and that she sought an increase in her hourly rate to $27.32 per hour for all hours worked. Mr Michael asked for a copy of the correspondence the Applicant had received from the FWO. The Applicant sent to him part of correspondence from the FWO but refused to send the entire letter as it was ‘private.’ 33 That part of the correspondence of the FWO the Applicant forwarded to Mr Michael said:
• Time spent delivering course - $24.79 per hour.
I understand that you are currently paid for each hour worked, regardless of the duties being undertaken at the time, at a salaried rate of $22.77 per hour.
The Fair Work Ombudsman has notified your employer of the details of the award and classification identified under the award and advised them to review your employment history to ensure they are meeting their obligations under the modern award in relation to your employment.
The Fair Work Ombudsman will be taking no further action in relation to your complaint and this matter has now been finalised.
Contact details
Should you wish to discuss this matter, please contact me on...
Yours Sincerely
[Signed] 34
Application to Fair Work Australia to deal with a dispute
[39] On 19 October 2012 the Applicant made an application to Fair Work Australia (now the Commission) to deal with a dispute in accordance with the dispute settling procedures of an Award. In that application the Applicant sought to have the matter of her correct rate of pay resolved.
[40] On 30 October 2012 the Applicant withdrew that application.
Consideration
[41] In Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) the Full Court of the Industrial Relations Court held that:
[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. 35
[42] Further, they found it 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as
“... a termination of employment at the instance [of] the employer rather than of the employee.”
And at p 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”
...
When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. 36
[43] In Rheinberger v Huxley Marketing Pty Limited Moore J 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. 37
[44] In ABB Engineering Construction Pty Limited v Dounit a Full Bench of the AIRC found:
Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary. 38
[45] In O’Meara v Stanley Works Pty Ltd a Full Bench of the AIRC said:
In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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. 39
[46] I have considered the evidence before me and considered whether the employers’ conduct was of such a nature that the resignation of the Applicant was a probable result. In the circumstances of this case it is not a single act of the employer that the Applicant says caused her to resign but rather a course of conduct and multiple types of conduct over a period of time.
[47] The evidence of Ms Hewitt is clear - she did not consider it reasonable to have her duties altered so that she should undertake sales work whilst issues associated with her employment were subject to a dispute before the Commission. Mr Michael agreed with this and reiterated this in a meeting with the Applicant and again in an email to her after she requested a reduction in days of work from three to two days.
[48] The Applicant was employed by Topero Nominees T/A Michaels Camera Video Digital. Whilst she was specifically engaged to work in the media school there is nothing to indicate that she was engaged to work exclusively in the media school. It was Mr Michael’s view that her workload in the media school provided capacity for her to undertake sales work. He indicated no intention to have the sales work reduce her rate of pay. In any event however it would appear that, if she did have some concern with respect to what she would be paid, the Applicant had an application before FWA to deal with just that matter.
[49] Mr Michael, as the Managing Director of the company, has a right to deploy his staff within the context of their skills and experience, taking into account the basis of their employment. It would be a quite different picture if Mr Michael sought to have the Applicant only undertake sales work and not the media school work for which she appears to have principally employed.
[50] The Applicant’s claim that the request to undertake some sales work was a breach of her contract is not supported by any evidence of the contract entered into by her and the Respondent. The request that the Applicant undertake some sales work by Mr Michael does not seem unreasonable and in any event, was to be dealt with in the application to FWA.
[51] There was no obligation on Mr Michael to agree to the reduction in the number of days of work sought by the Applicant. As Ms Hewitt said in her request she could reduce her days ‘by mutual agreement’. There was no ‘mutual agreement’. Mr Michael had not agreed pending the resolution of her FWA application.
[52] Mr Michael’s decision to not proceed with any changes to the Applicant’s employment arrangements pending the finalisation of matters before FWA was a reasonable and fair approach to the issues between the Applicant and Respondent. The Applicant had instigated the application. It was reasonable to expect that the range of employment matters at issue at that time be dealt with in that forum. The Applicant was unreasonable in seeking to have some proposed changes to her conditions that she wanted occur immediately but have others not to her liking not occur until the FWA hearing.
[53] There is no evidence that the Applicant was required detail her work on an hourly basis ‘for every day’ she worked. In any event, I consider it a reasonable and lawful direction for an employer to make of an employee as long as it was not for a protracted period or was, in itself, an onerous task. It is reasonable because an employer has a right to know how its employees are utilising their work time and ensure the most efficient deployment of its resources. Asking staff to detail how they fulfil their work day is not unreasonable. There is no evidence the task was onerous. There is no suggestion that the request was unlawful.
[54] The dispute over the rate of pay to which the Applicant was entitled seems to be an integral part of all of those things that she says caused her to resign. This was a matter that she sought to have resolved at FWA though her dispute notification. There was a process in place that the Applicant had chosen to pursue. The Applicant resigned on 29 October 2012 giving two weeks’ notice so that the final day of her employment would be 10 November 2012. Her application to FWA was listed for conference on 1 November 2012, three working days after she handed in her letter of resignation but whilst she was still working. Despite this the Applicant withdrew her notice to FWA on 30 October 2012.
[55] It is apparent there was ongoing disagreement between the Applicant and Mr Michael as to her rate of pay. When Mr Michael sought to clarify her statement as to her rate of pay, the Applicant did not provide the totality of the advice she had received from the FWO. Instead the Applicant provided Mr Michael with a third of a page of a letter signed by the FWO. Had the Applicant provided the totality of the letter from the FWO to her, or at least all of the letter with respect to rates of pay and loadings this matter may well have been resolved but, for some reason only known to the Applicant, she decided the letter was ‘private’ and should not be disclosed. Why the Applicant thought the Respondent should be required to accept only what she was prepared to tell him of the FWO advice is unclear to me.
[56] The request of Mr Michael that she provides the advice on which she based her claim that she had ‘received correspondence from the Fair Work Ombudsman that says that I am entitled to pay rate of $24.79 per hour for course delivery’ was a reasonable request, particularly in circumstances where there appeared to be some divergence between the rates put in the letter to the Respondent and those in the letter to the Applicant. In any event the statement by the Applicant says nothing of what she was entitled to be paid for ‘course preparation’ or ‘administration’ duties.
[57] Whilst it is unfortunate that the matter of resolution of the Applicant’s correct rate of pay dragged on for some time, appropriate steps had been taken to seek advice from the FWO and, given the ongoing disagreement, to seek assistance from FWA.
[58] This leaves one outstanding issue and that is the behaviour of Ms Hewitt’s manager.
[59] The evidence of the Applicant is that, on a number of occasions, her manager said things to her which made her feel bullied or threatened. She says she raised these issues with Mr Michael in April 2012 and again on two other occasions. The evidence of Mr Michael confirms that the Applicant did raise this issue in April and that she attempted to raise the matter in the meeting between them on 18 October 2012. The Applicant also says that at she raised the issue with Mr Michael in July 2012 and at one stage she may have informally raised an issue with ‘Deb’, the internal grievance officer for the Respondent, although she apparently did nothing to formalise this.
Conclusion
[60] The evidence indicates that the Applicant did raise issues associated with the behaviour of her manager with Mr Michael at least two times. I am satisfied that Mr Michael, on the first occasion did address the issue with the manager. Unfortunately there is no evidence of how the Applicant raised the issues (although it is clear it was not in writing) or how Mr Michael responded on the second and third occasions. The Applicant gave no evidence of this and Mr Michael was not asked about it.
[61] The incidents in relation to her manager of which the Applicant complains occurred over a five-six month period with the last incident in early September. 40 I accept that these incidents occurred on a number of occasions and that they may have had a cumulative effect on the Applicant. I have, however, been given little evidence of this cumulative effect and the extent to which it was the behaviour of her manager that contributed to the Applicant’s belief that she had no choice but to resign.
[62] Whilst I accept that the Applicant may have been frustrated by the lack of progress on her wages matter she appears to have had this in hand with her application to FWA to deal with a dispute. Her complaint with respect to the work she was asked to do and the rejection of her request to reduce her number of days could have been dealt with at this time.
[63] The Applicant resigned her employment the day after her application to reduce her number of days was put to the side by Mr Michael pending the resolution of her claims in FWA, scheduled to occur in three days time and some five to six weeks after she was advised she would be required to do some sales work.
[64] It appears to me that it was the decision of Mr Michael to reject the Applicant’s proposal to reduce her number of days at work that was the critical incident that led the Applicant to provide her resignation. Again, however, this was a matter in hand. As I have found above the Applicant had no absolute right to reduce her working days — her employment arrangement allowed changes if mutually agreed. There was no mutual agreement and Mr Michael proposed that all matters associated with the Applicant’s employment be considered in the context of the outcomes of the FWA matter. This seems a logical course for the Respondent to take. There were many matters of disagreement about aspects of the Applicant’s employment. Her days of work was one of them.
[65] In this case it appears to me that it is truly a narrow line that distinguishes conduct of the Respondent that leaves the Applicant with no real choice but to resign employment, from conduct that cannot be held to cause a resignation to be a termination at the initiative of the employer. This is a finely balanced matter with competing contentions.
[66] Viewed objectively, whilst some aspects of the Respondent’s behaviour, in particular in not following up at least one further complaint of Mr Hansen’s behaviour, could legitimately leave Mr Michael open to criticism, the lapse in time between the Applicant’s last complaint and her resignations suggests that her resignation was not the probable result of the behaviour of her manager.
[67] As to other complaints of the Applicant, including the number of days she was to work and her rate of pay, these were in hand with a conference scheduled to be occur at FWA some two days after the day that Applicant gave notice of her resignation.
[68] In all of the circumstances I find that, whilst the Applicant did resign from her employment, the conduct of her employer was not such that her resignation was the probable result.
[69] I therefore find that the Applicant was not dismissed from her employment. A dispute of requisite kind for an application under s.365 of the Act therefore does not exist. The Commission therefore has no power to issue a certificate as required under s.369 of the Act.
[70] In making this finding I should stress that I make no finding as to the alleged breach of the general protection provisions of the Act as set out in the Applicant’s application.
COMMISSIONER
Appearances:
M. Addison for the Applicant.
G. Jardine of Counsel for the Respondent.
Hearing details:
2013.
Melbourne;
30 April.
1 I note that there are circumstances where parties, in good faith, agree to participate in a conference even where some jurisdictional objection is raised and prior to this objection being resolved.
2 [2012] FWA 2853.
3 [2012] FWAFB 2104.
4 Note that while that matter was an application in relation to an alleged unlawful termination, the language of section is relevantly the same.
5 [2011] FWA 1566.
6 Exhibit DH1, attachment DH1.
7 Exhibit DH1, paragraph 5.
8 Exhibit DH1, paragraph 23.
9 Exhibit DH1, paragraph 24.
10 Exhibit DH1, paragraph 26.
11 Exhibit DH1, paragraph 28.
12 Exhibit DH1, paragraph 29.
13 Exhibit DH1, paragraph 36.
14 Exhibit DH1, paragraph 44.
15 Exhibit DH1, paragraph 32. See also exhibit TN1, attachment PM8.
16 Exhibit TN1, paragraph 5-6.
17 Exhibit TN1, attachment PM8.
18 Exhibit DH1, paragraph 25.
19 Exhibit DH1, paragraph 47.
20 Exhibit TN1, paragraph 10.
21 Transcript PN273.
22 Transcript PN315.
23 Transcript PN317. There does appear around this time to be some confusion as to whether either Mr Michael or the Applicant are referring to the application made by the Applicant to FWA to resolve a dispute or to correspondence between the FWO and each of them. At this point in time there was no determination of wages by FWA although there was by FWO. It was not until 19 October 2012 that the Applicant made her application to FWA to deal with a dispute.
24 Transcript PN365.
25 Transcript PN366.
26 Exhibit TN1, paragraph 13.
27 Exhibit TN1, paragraphs 13 and 15.
28 Exhibit TN1, attachment PM7.
29 Exhibit TN1, attachment PM10.
30 Exhibit TN1, attachment PM11.
31 Exhibit TN1, paragraph 7.
32 Exhibit TN1, paragraph 9 and attachment PM2.
33 Exhibit TN1, attachment PM6.
34 Exhibit TN1, attachment PM6.
35 (1995) 62 IR 200,205.
36 (1995) 62 IR 200, 205-6.
37 (1996) 67 IR 154, 160-1.
38 AIRC, Print N6999, (9 December 1996).
39 AIRC, PR973462, [23] (11 August 2006).
40 Whilst the Applicant witness statement suggests that her manager corresponded with her in respect of timetabling matters after early September it is not evident that these constituted bullying as the Applicant gave not additional evidence on these matters.
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