Denise Lovett v Victorian Department of Education and Training

[2021] FWC 4581

[2021] FWC 4581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denise Lovett
v
Victorian Department of Education and Training
(U2021/4460)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JULY 2021

Application for an unfair dismissal remedy – resignation – applicant not forced to resigned – application dismissed.

[1] This decision concerns an application by Ms Denise Lovett for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Lovett claims that she was forced to resign from her employment at the Victorian Department of Education and Training (respondent) where she worked as a liaison officer for the Koorie Academy of Excellence (Koorie Academy). Ms Lovett says that the respondent acted unreasonably in requiring her to continue to work as the only liaison officer for the Koorie Academy in the ‘Wimmera South West’ region (WSW) during a colleague’s extended absence on secondment, in particular, by requiring her to service the Warrnambool area alone. Ms Lovett contends that she had no choice but to resign and was therefore dismissed within the meaning of s 386(1)(b) of the Act, and that her dismissal was unfair.

[2] The respondent contends that its requirements of Ms Lovett during her colleague’s secondment were not unreasonable and that Ms Lovett chose to resign. It submits that the Commission has no jurisdiction to determine the merits of Ms Lovett’s application because she was not dismissed.

[3] Ms Lovett’s application and the respondent’s jurisdictional objection were listed before me for determination on 28 July 2021. Ms Lovett represented herself and gave evidence. Ms Emma Miller, the respondent’s service support manager for the WSW area, gave evidence for the respondent.

Background

[4] Ms Lovett commenced employment with the respondent in October 2019. She was employed to work as a liaison officer for the newly established Koorie Academy in the Department’s WSW region, which covers Portland, Hamilton, Heywood and Warrnambool. Ms Miller was responsible for the day to day management of the Koorie Academy’s program. She gave evidence that the position description for the liaison officer role made clear that the role required travel across the WSW region, including to Warrnambool. The position description was tendered in evidence. The ‘location’ of the role is stated to be ‘South West Victoria Region, Wimmera South West, Warrnambool’.

[5] Ms Miller gave evidence that she encouraged Ms Lovett and the other liaison officer for the region, Mr Joe Chatfield, to share the travel requirements of their roles. Prior to the Victorian government ‘work from home’ directives issued in 2020 in connection with the response to the COVID-19 pandemic, Ms Lovett would regularly work in the Portland office, close to her home, and Mr Chatfield would regularly work in the Warrnambool office. Both liaison officers had access to a fleet vehicle for regional travel, as well as accommodation whenever they were required to travel over 100km.

[6] In late October 2020, Mr Chatfield was seconded to another region for an eight week period. Ms Miller arranged for a replacement position to be advertised internally but no expressions of interest were received. In late December 2020, Mr Chatfield’s secondment was extended for four months. Ms Miller said that there were certain administrative delays in preparing the advertisement for a temporary replacement for the period of the extension, and by the time these were resolved, it was considered that there was not enough time to recruit a replacement. The Department arranged for an education support officer to assist Ms Lovett on a full-time basis throughout the month of January 2021. The support officer continued to assist Ms Lovett on a casual basis in the following months.

[7] In mid-April 2021, Mr Chatfield’s secondment was extended for a second time, for a period of six weeks. Ms Miller gave evidence that before supporting the extension of Mr Chatfield’s secondment, she considered the impact it would have on the Academy and on Ms Lovett. She believed that the Academy could continue to function temporarily with only one liaison officer, and that Ms Lovett could continue to act as the only liaison officer, because the Academy currently had only 13 of the 80 students for whom it was designed to cater. Ms Miller’s evidence was that much of the work that Ms Lovett was required to perform at this time was occurring via WebEx rather than in person, and that the travel requirements of the liaison officer role were much reduced.

[8] Ms Lovett’s evidence was that because of Mr Chatfield’s absence on secondment, she was left as the only liaison officer for the entire region, and that from the start of the school year in early February until the end of her employment in early May 2021, she was required to travel to Warrnambool on several additional occasions, which would not have been the case if Mr Chatfield’s position has been covered by a replacement. The travelling time from Ms Lovett’s home to Warrnambool is one hour and ten minutes.

[9] On 4 May 2021, Ms Miller had a video meeting with Ms Lovett and told her that Mr Chatfield’s secondment had been extended by six weeks. Ms Lovett was upset to learn of the extension and asked why Mr Chatfield had not been replaced. Ms Miller said that she was prepared to speak with Ms Lovett further about the issue, and told Ms Lovett that Mr Chatfield’s secondment would not be extended again. Ms Lovett then told Ms Miller that she intended to resign. Ms Miller suggested that Ms Lovett take time to consider her position. The meeting then ended. Later that day, Ms Lovett sent Ms Miller an email stating: ‘Please accept this as my formal letter of resignation from the KAELO position effective immediately.’

[10] On 5 May 2021, Ms Miller sent Ms Lovett an email, stating that she had not yet processed the resignation, and asking whether it remained Ms Lovett’s intention to resign. Ms Miller also proposed that for the following four weeks Ms Lovett service Heywood, Hamilton and Portland, but not Warrnambool. Ms Miller did not receive a response to her letter.

[11] Ms Lovett said that she resigned from her position because her job had changed, and that she had become the only liaison officer for the region, requiring her to service the Warrnambool area alone. She said that Mr Chatfield’s position could have and should have been filled during his absence, and that she had been told that a replacement position would be advertised, but that this did not occur. Ms Lovett said in her application that the various explanations given to her as to why a replacement was not found were ‘constructed lies’. Ms Lovett also said that no one had ever explained to her that it was because the Academy only had 13 students that the Department considered it appropriate for her to continue as the only liaison officer during the second extension of Mr Chatfield’s secondment. Ms Lovett also said that in or after December 2020 she had informed Ms Miller that she felt that she was being treated unfairly because Mr Chatfield’s position had not been filled.

[12] Ms Miller denied that either she or the Department had lied to Ms Lovett about the initial steps taken to cover Mr Chatfield’s absence. Ms Miller did not recall Ms Lovett saying that she believed the Department was treating her unfairly, although she was aware that Ms Lovett was dissatisfied about the lack of a replacement to cover Mr Chatfield’s absence. Ms Miller said that at no stage during their regular meetings had Ms Lovett ever raised a concern about being overworked, nor had she requested additional support during Ms Chatfield’s absence on secondment.

Findings

[13] I make the following factual findings. First, I accept Ms Miller’s evidence about the steps taken by the Department to advertise Mr Chatfield’s position and fill it on a temporary basis. Ms Miller denied that she or the Department had been untruthful in their explanation of these matters. I believe her.

[14] Secondly, I accept Ms Miller’s evidence that during Mr Chatfield’s secondment, Ms Lovett did not raise with her any concern about being overworked or request additional assistance. Ms Lovett did not claim to have done so. Thirdly, I accept Ms Lovett’s evidence that in or around December 2020 she told Ms Miller that she believed that she was being treated unfairly. I also accept Ms Miller’s evidence that she cannot remember this statement but that she was aware that Ms Lovett was dissatisfied that Mr Chatfield’s position had not been filled. I find however that Ms Lovett’s remark about unfair treatment did not entail a complaint about being overworked or a request for assistance.

[15] Fourthly, I find that it was a requirement of Ms Lovett’s position that she service the WSW area, including Warrnambool. The position description identifies this as the location of the job. It is not in dispute that travel was a requirement of the role and of critical importance. Ms Lovett said that she had not understood that this was what the role required, however I find that, objectively, this requirement was clear. Fifthly, I find that it was reasonable for the respondent to expect Ms Lovett to work as the only liaison officer for the WSW region during Mr Chatfield’s continuing secondment, because if two liaison officers were sufficient to cater for 80 students, one should have been sufficient to service 13 students, even taking into account additional travel that might be involved. I also find that it was reasonable for the Department to continue to require Ms Lovett to service and travel to the Warrnambool area during Mr Chatfield’s absence. Finally, I find that there is no evidence that Ms Lovett’s workload or travel requirements increased to any significant extent during the period of Mr Chatfield’s absence on secondment.

Consideration

[16] In light of these findings, I now consider Ms Lovett’s contention that she was forced to resign by the conduct of the Department.

[17] In Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, a Full Bench of the Commission considered the authorities on resignation and their application to s 386 of the Act, and concluded that, in considering whether a resignation is ‘forced’ for the purposes of s 386(1)(b), the test 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 result of the employer’s conduct such that the employee had no effective or real choice but to resign.’ (at [47])

[18] Ms Lovett presented several arguments in support of her contention that she was forced to resign. First, she said that she had in effect been required to perform two jobs during Mr Chatfield’s absence on secondment, and that this gave her no choice to but to resign. I reject this contention. Ms Lovett was not required or expected to do two jobs. She was required to do her own job, which involved travelling around the WSW area, including to Warrnambool.

[19] Secondly, Ms Lovett submitted that her job, or her contract, had been changed without her knowledge, because she was required to work as the only liaison officer in Mr Chatfield’s absence, and in particular to service the Warrnambool area alone. In fact, Ms Lovett’s job and contract remained the same. She was employed as a liaison officer for the WSW area. The substance of her duties had not changed. The position description plainly states that the location of the role includes Warrnambool. She was required to service the entire region.

[20] Thirdly, Ms Lovett submitted that it was unreasonable of the respondent to require her to shoulder the burden of travelling to Warrnambool during Mr Chatfield’s absence. I reject this submission. Ms Lovett’s evidence was that throughout the period of Mr Chatfield’s secondment she was required to make only several additional trips to Warrnambool beyond what would otherwise have been required. I do not consider this to have been an onerous requirement. It was certainly not a consideration that gave Ms Lovett no choice but to resign.

[21] I find it difficult to see how in the circumstances of this case Ms Lovett could genuinely have believed that she had no option but to resign. If she did hold this belief, I consider that there was no sound basis for it. The question of whether a person has been forced to resign is to be considered objectively. Even if it were accepted that Ms Lovett’s workload and travel requirements had increased significantly and become unreasonable (which is not the case), the obvious first option for Ms Lovett would have been to discuss the problem with the employer and try to resolve it. But Ms Lovett did not seek to discuss and resolve her concerns. She did not ask for assistance. She did not respond to Ms Miller’s letter of 5 May 2021, which gave her an opportunity to reconsider her resignation. Further, it must be remembered that Mr Chatfield’s secondment was to last a further six weeks and would not be renewed. Whatever difficulties Ms Lovett had been experiencing, they were temporary.

[22] Ms Lovett said that the job she was expected to perform during Mr Chatfield’s absence was not the one that she applied for, and that no one had asked her whether she agreed to be the only liaison officer servicing the WSW. I accept that Ms Lovett may not have expected to be working as the only liaison officer for the region, and that she was disappointed that Mr Chatfield’s secondment was extended without a replacement being found for his position. But Ms Lovett had no legal right to have a second liaison officer working with her. And the Department’s requirements of her during the period of the secondment of Mr Chatfield were reasonable. On no view of the facts could it be said that Ms Lovett’s resignation was the probable result of the employer’s conduct, or that Ms Lovett had no effective choice but to resign. And it is not the case that the respondent intended to bring the employment to an end. On the contrary, at the meeting on 4 May 2021 Ms Miller encouraged Ms Lovett to reflect on her decision to resign, and Ms Miller’s letter of the following day effectively invited Ms Lovett to reconsider the decision. It was Ms Lovett’s choice to resign. She was not forced to do so.

Conclusion

[23] Ms Lovett resigned of her own volition. She was not forced to resign because of the conduct of the respondent, nor was she dismissed on the initiative of the employer. The respondent’s jurisdictional objection is upheld and Ms Lovett’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. Lovett for herself
P. Knowles of counsel for the respondent

Hearing details:

2021
Melbourne
28 July

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