Denise Alves Dos Santos v Ability Action Australia Pty Ltd
[2024] FWC 2640
•25 SEPTEMBER 2024
| [2024] FWC 2640 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Denise Alves Dos Santos
v
Ability Action Australia Pty Ltd
(C2024/3972)
| COMMISSIONER P RYAN | SYDNEY, 25 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant resigned due to conduct of employer – applicant not dismissed – jurisdictional objection upheld – application dismissed
Introduction
Ms Denise Alves Dos Santos (Ms Dos Santos/Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) alleging she was dismissed from her employment with Ability Action Australia Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act (Application).
In its Form F8A Response, the Respondent objected to the Application on the ground that Ms Dos Santos was not “dismissed”. The Respondent contends that Ms Dos Santos resigned from her employment and that she was not forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the FW Act) is a jurisdictional prerequisite to the making of a valid application pursuant to s.365 of the FW Act. Where the respondent to a s.365 application contends, in its response to an application or otherwise, that an application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission exercising the powers conferred by s.368.[1]
The Respondent’s jurisdictional objection was heard on 8 August 2024.
The Applicant sought to be represented by her spouse, Mr R Vrdoljak. Mr Vrdoljak is an employment relations consultant employed by Peninsula Australia but was not seeking to represent the Applicant as a paid agent. Mr Vrdoljak was also a witness in the proceedings.
Although permission pursuant to s.596 of the FW Act is not required in these circumstances, the Commission is conferred with wide power to control the conduct of proceedings before it, including the power to make orders as to who may be present at a hearing.[2] Furthermore, it is generally undesirable that a witness act as an advocate. However, I allowed the Applicant to be represented by Mr Vrdoljak having regard to the following matters:
· Ms Dos Santos is from a non-English speaking background;
· The relevant matters set out in Mr Vrdoljak’s statement are limited to interactions he had with the Applicant who was not giving evidence in the proceedings; and
· The Respondent did not object to Mr Vrdoljak representing the Applicant.
The Respondent was granted permission to be represented by a lawyer as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The Respondent was represented by Mr L Meagher of Counsel.
The following materials were admitted into evidence:
· Witness statement of Mr Adam Stafford, a team leader employed by the Respondent (Hearing Book p.40-59) (Exhibit R1);
· Reply witness statement of Mr Stafford (Hearing Book p.214-218) (Exhibit R2);
· Applicant’s Bundle of Documents (Hearing Book p.64-96 and p.101-207) (Exhibit A1); and
· Witness statement of Mr Vrdoljak (Hearing Book p.62-63) (Exhibit A2).
Mr Stafford and Mr Vrdoljak also gave evidence at the hearing.
For the reasons that follow, I have determined that Ms Dos Santos was not dismissed within the meaning of s.386 of the FW Act.
Relevant Factual Background
The Respondent is part of the Medhealth Group and provides support services to National Disability Insurance Scheme (NDIS) participants which include Allied Health Clinicians, Key Workers, Behaviour Support and Employment Services Professionals.[3]
The Applicant’s nationality is Brazilian and English is her second language. The Applicant has resided in Australia for approximately 10 years and has been certified as a competent to very good user of the English language under the International English Language Testing System.
On 5 February 2024, the Applicant commenced employment with the Respondent in the position of Behaviour Support Practitioner. Mr Stafford was the Applicant’s supervisor.
Part of the Applicant’s role was to prepare case notes and formal reports in relation to the support and treatment provided to NDIS participants. Mr Stafford stated it is crucial that these documents contain clear and correct language.
Throughout the Applicant’s employment, Mr Stafford held weekly one-on-one supervision sessions with the Applicant during which he would check on the Applicant’s wellbeing, discuss the Applicant’s caseload and progress, identify areas for improvement, and provide guidance as to how the Applicant might approach cases. These sessions were mostly conducted over Microsoft Teams and Mr Stafford would take notes that were ‘locked’ in a Microsoft Teams file that could only be accessed by Mr Stafford and the Applicant. Mr Stafford stated that due to his workload, only about 50% of his notes were completed and able to be accessed by the Applicant.
Mr Stafford also facilitated a weekly group supervision meeting which focused on training and clinical case discussion, which the Applicant actively participated in.
In addition to the structured supervisory sessions, the Applicant and Mr Stafford generally had 1-2 impromptu telephone discussions each week.
On 23 April 2024, Mr Stafford sent an email to the Applicant stating:
Congratulations, after a thorough review I’m struggling to identify any areas where you may have missed billing for work you’ve done, this month. Great work
One thing I would like to flag is the language, and the way some things are phrased in
your case notes. We can discuss this in our next supervision session.
During the weekly supervision meeting on 30 April 2024, Mr Stafford provided the Applicant with feedback regarding the terminology used in a SMS text message to the mother of an NDIS Participant.
On 3 May 2024, Mr Stafford met with the Applicant to conduct a three-month probationary period review. During this meeting, Mr Stafford raised concerns with the Applicant’s written case notes and formal reports with respect the Applicant’s use of language and terminology.
On 23 May 2024, Mr Stafford sent an email to the Applicant which attached a document setting out feedback and suggested amendments for a Comprehensive Behaviour Support Plan that was drafted by the Applicant.
On the morning of Friday, 31 May 2024, Mr Stafford met with the Applicant for the purpose of determining the best way to approach addressing the concerns raised in the probationary period review meeting. During this meeting:
· Mr Stafford expressed concerns relating to the Applicant’s verbal and written communication skills. Mr Stafford stated that verbal and written communication skills are essential for effective and thorough provision of Positive Behaviour Support Services and these concerns needed to be addressed;
· Mr Stafford stated that his concerns had been discussed with the Regional Manager, Ms Frances Hyde, to ensure that these concerns could be addressed in the best way possible;
· Mr Stafford invited the Applicant provide information as to how the Respondent might best support her to assist her to develop greater proficiency in her verbal and written communication skills; and
· The Applicant requested time to consider this feedback before responding. The Applicant also stated:
a. That she would consider whether or not the level of formal report writing that is required in her role was a good fit for her; and
b. That she would consider whether or not to focus on her studies at this time in her career.
Later that morning at 10:08am, Mr Stafford sent correspondence by email to the Applicant which stated:
Hi Denise,
Thanks for meeting with me this morning. I am sending this email to confirm issues we discussed where I raised my concerns regarding the language you sometimes use within the reports you have written, case notes within MedeBridge, and text messages you have sent to others.
I outlined your use of language, phraseology, and wording may not be appropriate for the level of formal report writing required to produce easy to read behaviour support plans.
We discussed upon my review of the reports you have written thus far, I needed to re-read some sentences repeatedly to be able to understand your meaning; that as I am familiar with the concepts you wrote of, I was able to decipher your meaning, however others, such as Support Workers, or the layman, may struggle to understand what you have written; that if meaning is unclear due to incorrect wording, and the wording is taken literally, that this potentially may lead to less than desirable outcomes for Participants and those who support them.
I advised you that I had discussed my concerns with Fran.
I asked you, Denise, how [the Respondent] might support you to improve in these areas?
You responded by asking for some time to consider this and that you would also consider if the level of formal report writing required for this role was a good fit for you, at this stage of your career and you may continue your studies, and consider alternatives, before returning to a role which requires such a high level of formal report writing.
We agreed to reconvene on Monday, after you had taken the weekend to ponder these matters.
Kindest regards,
Adam
At 10:12am on Friday, 31 May 2024, the Applicant sent Mr Stafford a response confirming that his email reflected their discussion.
Mr Vrdoljak stated that over the weekend the Applicant “agonised” over what to do next, as she felt Mr Stafford’s criticisms were unfair. Mr Vrdoljak stated that he was aware that the Applicant could initiate a grievance under the Respondent’s grievance policy and encouraged the Applicant to do so. Mr Vrdoljak stated that the Applicant declined to do so as she considered that to be an “antagonising approach.”
On the morning of Monday, 3 June 2024, Mr Stafford met with the Applicant. During this meeting:
· Mr Stafford asked the Applicant if she had had time to consider the matters raised on the previous Friday;
· The Applicant stated that with support, practice and experience she could reach the level of formal report writing required but indicated that it may take up two years;
· Mr Stafford responded that for the level of formal report writing required for the Applicant’s role, two years was likely too long and not practical;
· The Applicant then stated that the role was not for her and that she had decided to concentrate on her studies and come back to this type of work in the future;
· Mr Stafford and the Applicant discussed developing a plan of action that needed to be undertaken during her notice period; and
· Mr Stafford requested the Applicant to provide her resignation in writing and encouraged the Applicant to contact him regarding re-employment in the future.
At 4:49pm on Monday, 3 June 2024, the Applicant sent correspondence by email to Mr Stafford stating:
Hi Adam.
I hereby submit my resignation from Active Action Australia effective from 11 June 2024.
Thank you for the opportunities [the Respondent] has provided me. I appreciate your support throughout my short time here. I really believed that I was ready to meet this challenge and hope that I will be ready in the future.
I wish you and the team the very best.
Sincerely,
Denise Alves Dos Santos
Over the next 24-48 hours, two matters arose. First, the Applicant and Mr Stafford exchanged several email communications as to whether the Applicant’s resignation was effective immediately or upon the expiration of a period of notice. This occurred due to a misunderstanding by Mr Stafford, for which he apologised.
Secondly, at some point after the Applicant submitted her resignation in writing, and upon the advice of Mr Vrdoljak, the Applicant undertook a search of the Respondent’s files and discovered her quarterly performance review for the period of 5 February 2024 to 4 May 2024. This document was completed by Mr Stafford and included the following remarks in the general comments section:
I have noted that when asking for guidance from TL and guidance is provided, Denise may sometimes push back with her own rationale of why she does not agree with that guidance. In one particular instance, when provided direction by another, in a group supervision session of another discipline (Paediatric Occupational Therapy), which TL redirected, Denise chose to follow direction given in that session. Denise has submitted one report to myself for review - a review of an existing Behaviour support plan - to which she has added amendments. Upon review, it is apparent that Denise requires significant development in formal report writing skills and knowledge with regard to developing behaviour support plans. I am surprised at this as Denise has previous experience as a Behaviour Support Practitioner, prior to commencing with [the Respondent] in her current role.
Overall, I am looking for significant improvement in verbal and written communication, receiving feedback and taking direction.
The Applicant took issue with those remarks, which Mr Vrdoljak described as the “proverbial smoking gun”, as they had not been previously raised with her.
This prompted the Applicant to write a letter of complaint to Ms Hyde on 5 June 2024.
In the letter of complaint, although the Applicant was critical of Mr Stafford in relation to his purportedly swift acceptance and misunderstanding of her resignation, as well as the alleged failure by him to provide constructive feedback supported by specific examples of unsatisfactory communication throughout her employment, the primary reason for submitting the letter of complaint was the Applicant’s discovery of her quarterly performance review. The Applicant stated:
The thing that tipped me over the edge and caused me to write this letter was finding new information on my file relating to his observations of my performance, which he never shared with me. The fact that he created such vitriolic content and has not even attempted to engage with me directly confirmed that he was setting me up for failure from the start and I was not given a fair chance at success.
The Respondent subsequently investigated the matters raised in the letter of complaint and, in a meeting with the Applicant on 11 June 2024, advised the Applicant that contrary to her assertions, multiple specific examples as to where her work required improvement were provided to her throughout her employment and that the meeting on 31 May 2024 was a continuation of previous conversations.
The Applicant’s employment ended on 11 June 2024. The Application was made on 12 June 2024.
Summary of Applicant’s Submissions
The Applicant submitted that the feedback provided by Mr Stafford throughout her employment was inconsistent and recorded untruthfully.
The Applicant submitted that Mr Stafford’s feedback failed to provide specific and any constructive content, and his witness statements omitted the Applicant’s requests for Mr Stafford to provide specific examples in support of his concerns, and that he erroneously attributed particular comments to the Applicant.
The Applicant submitted that Mr Stafford’s approach was contrary to:
· The Respondent’s Code of Conduct Policy which states that employees must not engage in dishonest or unfair conduct in dealings with other employees; and
· The Self-Assessment Resource Guide for the Positive Behaviour Support Capability Framework published by NDIS Quality and Safeguards Commission which promotes supervision as a collaborative process based on a culture of continuous improvement.
The Applicant submitted that Mr Stafford’s criticisms of the Applicant were not reasonable management action and were based on racial prejudice and an unwillingness to promote “inclusion and social cohesion” to someone who does not demonstrate the same language indicators.
The Applicant submitted that Mr Stafford singled her out based on her ethnic origin and Brazilian conversation style and treated her differently. In particular, the Applicant submitted that Mr Stafford “isolated the Applicant professionally and gaslit her into doubting herself and her abilities to the point where her only rational choice in the interest of her mental health was to resign.” The Applicant submitted that Mr Stafford’s conduct in this respect constituted direct discrimination.
The Applicant submitted that Mr Stafford’s email to the Applicant on 31 May 2024, which set out in the matters discussed earlier that morning, was indicator that he was consolidating evidence to use against the Applicant.
The Applicant submitted that Mr Stafford’s unreasonable treatment of her resulted in a mental health crisis which forced her to resign from her employment.
Summary of Respondent’s Submissions
The Respondent submitted that the central issue in these proceedings is whether the Applicant was forced to resign because of conduct of the Respondent. The Respondent submitted that it is well established that that issue turns on a consideration of whether the Respondent’s conduct was intended to, or had the probable effect of, bringing the employment to an end, such that the employee had no choice but to resign.
The Respondent submitted in the absence of any direct evidence from the Applicant, the evidence of Mr Stafford ought to be accepted.
The Respondent submitted that the evidence goes no further than Mr Stafford providing feedback to the Applicant and the Applicant deciding to resign. The Respondent submitted that this is not a case where Mr Stafford (or anyone else on behalf of the Respondent) has said resign or we will terminate your employment, and there is no evidence that the Respondent was even considering termination of employment.
The Respondent submitted there was no evidence to support a finding of discrimination, nor was there any evidence of a mental health crisis.
The Respondent submitted that the Applicant had options other than resignation available to her such as raising the matter with Ms Hyde or lodging a formal grievance.
Consideration
As stated above, the requirement for a “dismissal” is a jurisdictional prerequisite to the making of a valid application pursuant to s.365 of the FW Act.
In this case the Applicant contends that she was dismissed because she was forced to resign because of the conduct of Mr Stafford and the impact of that upon her mental health.
Section 386(1) of the FW Act states:
“(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.”
In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli,[4] a Full Bench of the Commission stated:
[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 probably 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.
The ‘test’ referred to by the Full Bench in Bupa Aged Care was summarised by a Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[5]as follows:
[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“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.”
[23] 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.” (footnotes omitted)
Having regard to the materials before me, I find that the Applicant was not forced to resign from her employment because of the conduct, or a course of conduct of the Respondent.
I agree with the submissions of the Respondent that in the absence of any direct evidence from the Applicant, the evidence of Mr Stafford be accepted. I found Mr Stafford to be a reliable witness who gave his evidence openly and honestly and made concessions where appropriate.
I accept Mr Stafford’s evidence that he provided sufficient feedback to the Applicant throughout her employment, notwithstanding that only about 50% of his supervisory notes were completed due to time/workload pressures.
While the Applicant has challenged some aspects of Mr Stafford’s evidence, including contending that there were omissions in his recollection of conversations, the Applicant did not lead any direct evidence to the contrary. Nor is there evidence of any conduct by Mr Stafford that could be described as direct discrimination, or evidence that the Applicant was subject to a requirement or condition that was not reasonable that could give rise to indirect discrimination. The Applicant’s submissions that she was subject to discriminatory conduct by Mr Stafford are unfounded and must be rejected.
I also reject the Applicant’s submissions that Mr Stafford engaged in conduct that was dishonest or untruthful. The basis for this submission was the Applicant’s contention that the notes in the quarterly performance review were not discussed with her. There was no suggestion by the Applicant that matters set out in the general comments section of that performance review did not occur or were inaccurate, only that Mr Stafford had purportedly not shared those views with the Applicant.
Contrary to the Applicant’s submissions, this was simply a case of Mr Stafford identifying concerns with the Applicant’s communication skills, raising those concerns with the Applicant, and inviting the Applicant to provide input as to how those concerns can be remedied with the aim of improving her performance. At no stage did Mr Stafford state, or even suggest, that the Applicant might be dismissed, only that a period of 2 years to improve is likely too long and not practical. By seeking input from the Applicant as to how her communication skills could be improved, Mr Stafford’s approach was consistent with the Self-Assessment Resource Guide for the Positive Behaviour Support Capability Framework.
After considering the issues raised over the weekend, the Applicant’s response was to resign from her employment. Several hours later the Applicant confirmed her resignation in writing. There is no evidence that at the time the resignation was given the Applicant was suffering from a mental health condition or crisis, or that the Applicant was in a state of emotional stress or mental confusion.
In my view, the conduct of the Respondent was not conduct that was intended to bring the employment to an end or conduct that had the probable result of bringing the employment relationship to an end. The Applicant had options other than to resign and she was encouraged to pursue those options by Mr Vrdoljak rather than resign from her employment. That the Applicant chose to remove herself from the workplace does not mean that the actions of the Respondent left her with no real choice but to resign.
Even if the conduct described by the Applicant is taken at its highest, it is not conduct, or a course of conduct that, viewed objectively, gave the Applicant no real choice but to resign.
Conclusion
The Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent within the meaning of s.386(1)(b) of the FW Act.
It follows that the Respondent’s jurisdictional objection is upheld.
The Application is dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr R Vrdoljak for the Applicant.
Mr L Meagher of counsel for the Respondent
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
8 August.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75].
[2] See s.593(3) of the FW Act; Stephen Fitzgerald v Woolworths Limited[2017] FWCFB 2797 at [52].
[4] [2017] FWCFB 3941 (Bupa Aged Care).
[5] [2006] AIRC 496 (PR973462).
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