Diana Burton v Macleay Options

[2020] FWC 4005

[2020] FWC 4005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diana Burton
v
Macleay Options
(U2020/6476)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 30 JULY 2020

Unfair dismissal – whether applicant was forced to resign because of conduct, or a course of conduct, engage in by her employer – applicant not dismissed – application dismissed.

Introduction

[1] Ms Diana Burton was employed by Macleay Options Inc (MO) from 22 July 2019 until her resignation on 7 May 2020. Ms Burton contends that she was dismissed on the basis that she was forced to resign because of conduct, or a course of conduct, engaged in by MO, and that her dismissal was unfair. MO denies those allegations and contends that Ms Burton chose to resign of her own free will.

[2] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, by video conference, on 27 July 2020. Ms Burton gave evidence in support of her case. Mr Steven Smith, Human Resources Manager for MO, gave evidence for MO.

Dismissal

[3] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):

“(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 hers or hers employer.”

[4] There is no suggestion in this case that Ms Burton was dismissed within the meaning of s 386(1)(a) of the Act. Ms Burton accepts that she resigned from her employment with MO, but says she was forced to do so because of conduct, or a course of conduct, engaged in by her employer.

[5] The test to be applied in a case concerning an alleged forced resignation under s 386(1)(b) of the Act 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. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is the essential element.” 1 The employer’s conduct must be assessed objectively to determine whether it forced the employee to resign.2

[6] The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. 3 The line, however, must be “closely drawn and rigorously observed”.4

Summary of relevant facts

[7] Ms Burton commenced employment with MO in the position of Executive Assistant on 22 July 2020. She was initially engaged as a casual employee on a three month probationary period with the understanding that she would be able to move to part time employment after the initial three month period if MO was satisfied with her performance. That is precisely what happened.

[8] Ms Burton’s contract of employment for her role of Executive Assistant provided that “MO may alter your position, Position Description and responsibilities in accordance with the needs of the business from time to time”. Ms Burton also gave evidence that she was told early on during her employment with MO that her duties were evolving.

[9] In November 2019, MO determined that Ms Burton’s role was excess to its business requirements. MO spoke to Ms Burton about her potentially working in an alternative new role to assist the National Disability Income Support (NDIS) part of MO’s business in relation to compliance and the formulation of policies and procedures.

[10] In about late January 2020, MO identified that it needed a specialist with extensive NDIS experience to carry out the NDIS compliance role. MO formed the view that Ms Burton did not have the necessary experience for this role, so consideration was given to other potentially suitable roles to retain Ms Burton in the business.

[11] In late January 2020, Ms Burton raised an issue with Mr Smith about the award that covered her in relation to her employment with MO and her classification level in that award. Mr Smith sought more information about Ms Burton’s role. Mr Smith then engaged in internal discussions with other managers of MO about the award coverage issue and sought external advice about it. Mr Smith then came to the view that Ms Burton was covered by the Clerks – Private Sector Award 2010 because there are no clerical or administration classifications in the Social, Community, Home Care and Disability Services Industry Award 2010. On 5 February 2020, Mr Smith communicated with Ms Burton by email about the award coverage issue.

[12] In about February 2020, Ms Burton participated in discussions with MO about using her skills to work in a role in relation to quality assurance, policies and procedures. Those discussions included potentially creating a new role for Ms Burton known as Quality Assurance Manager.

[13] On about 5 February 2020, MO provided Ms Burton with a proposed new employment contract. Ms Burton refused to sign that contract because she believed it contained errors, including a reference in the contract to the date of the earlier employment contract entered into by Ms Burton with MO.

[14] On 5 February 2020, Ms Burton made a complaint about Mr Smith concerning a range of matters. 5 On 6 February 2020, Ms Burton participated in a meeting with Mr Michael Milicevic, Chief Executive Officer of MO, Ms Rosalyn Roach, Chief Financial Officer of MO, Mr James Mainey, and Mr Smith to discuss her complaint. At the conclusion of the discussion, Mr Milicevic asked Ms Burton and Mr Smith “how do we move forward with this?” Ms Burton stated that she would work in a “professional manner and for the benefit of the organisation as she was very passionate about making this work”. Ms Burton then shook hands with Mr Smith and Mr Mainey. Ms Burton subsequently signed an amended version of the minutes from the meeting on 6 February 2020 as “a true and correct transcript” of the meeting.6 As a result of this conclusion to the meeting on 6 February 2020, MO considered, reasonably in my view, the concerns raised by Ms Burton to have been resolved.

[15] On about 18 February 2020, MO held a board meeting and one of its directors raised an issue as to whether MO needed a manager in the quality assurance area, as opposed to a clerk or assistant. MO decided that it was appropriate to give the proposed new role the title of Quality Assurance Clerk.

[16] On about 3 March 2020, Ms Burton was provided with a proposed contract for the role of Quality Assurance Clerk. Ms Burton refused to sign the contract because she did not like the title of the new role. As a result, MO changed the title of the role to Quality Assurance Assistant on Ms Burton’s request. On about 11 March 2020, Ms Burton signed a revised version of the proposed contract and the position description for the role of Quality Assurance Assistant.

[17] On 19 March 2020, Mr Alberto Zavasky, Finance Manager of MO, informed Mr Smith that he had received complaints about the length of the breaks Ms Burton was taking during her days at work. Another employee had raised the same issue with Mr Smith. Ms Roach informed Mr Smith on about 19 March 2020 that Ms Burton had contacted the NDIS Commission in relation to a matter that Ms Roach had been dealing with. Ms Roach informed Mr Smith that she believed it was inappropriate for Ms Burton to contact the NDIS Commission about the issue she was speaking to them about.

[18] On 19 March 2020, Mr Smith had a meeting with Ms Burton and Mr Zavasky. They discussed the length of the breaks Ms Burton was taking and her communications with the NDIS Commission in relation to the matter Ms Roach was dealing with. As a result of that discussion, Ms Burton was given an oral warning in relation to the two matters raised with her.

[19] On about 24 March 2020, MO received an email from a client complaining that MO had breached confidentiality and provided personal information about him to a third party. The client alleged that his neighbour had divulged personal information about him which the client believed could only have come from MO’s records. It was alleged in the complaint that the wife of the client’s neighbour worked for MO. Mr Smith discussed the complaint with Ms Roach and Mr Milicevic. They reasoned that the complaint was in relation to Ms Burton’s partner.

[20] On 25 March 2020, Mr Milicevic met with Ms Burton and explained that she would be stood down while MO investigated the complaint.

[21] Mr Smith spoke to the complainant on 25 March 2020 as part of MO’s investigation into the complaint.

[22] On 27 March 2020, Ms Burton was spoken to in relation to the complaint. Ms Burton was informed by Mr Milicevic that the alleged breach of confidentiality was not substantiated and MO considered the matter to be a neighbourhood dispute which would not have any impact on her employment. Ms Burton was told that she could return to work, and she did so on 30 March 2020.

[23] On 31 March 2020, I accept Mr Smith’s evidence that he spoke to the complainant and informed him that MO had investigated his complaint. I accept Mr Smith’s evidence that there is a mistake in the minutes from that meeting, which state that MO “take this very seriously and are investigating”, whereas they should state that MO “take this very seriously and have investigated”.

[24] On about 31 March 2020, Ms Burton requested to work from home due to her compromised health conditions. Mr Zavasky informed Ms Burton that no employees would be working from home. Mr Zavasky also requested that Ms Burton provide a medical certificate of her necessity to self-isolate.

[25] On 4 April 2020, Ms Burton provided a medical certificate stating that she was high risk and should work from home until 1 May 2020.

[26] By letter dated 6 April 2020, Mr Milicevic informed Ms Burton that “as an NDIS provider and [due to the] nature of services provided by Macleay Options Inc. it is not possible for staff to work from home at this time”.

[27] At 7:51am on 29 April 2020, Mr Smith sent an email to Ms Burton in the following terms:

“Hi Diana

Hope you’re feeling well and are healthy.

Just a quick email to enquire about where you are at with the self isolation. Will you be returning to work as per you [sic] certificate at this stage?..”

[28] At 10:42am on 29 April 2020, Ms Burton sent an email to Mr Smith in which she raised an issue in relation to the fact that minutes of a meeting stated that the client had made accusations against her at approximately 11am on 25 March 2020, but she was stood down at 9am that morning. Ms Burton went on in that email to state:

“I am reassessing my employment with Macleay Options as I feel this situation only highlights an embedded practice of not supporting or trusting in your staff.

Consistent misinformation, changes in focus and executive managers who constantly put down their employees. All this makes for a very negative and downgrading place of employment.

I would be happy to discuss this further, but in the meantime, I will take the remainder of my sick leave, as per Drs certificate, to consider my options.

Also, I forgot to add that during the investigation meeting on 27^th, Mick read out the email that accused me, as Barry’s partner and [client’s] next door neighbour. I would again request this be provided to me within 7 days.

I hate to dwell on semantics but for a company’s executive to not be fully truthful in many dealings that I have witnessed does not provide me with a strong sense of trust or commitment.

I realise my position would alter during my employment, it’s a given in such a diverse organisation. But these alterations have mainly been without consultation or advice.

I will advise as soon as possible the outcome of my Drs appointment on Friday.

Regards Diana Burton”

[29] At 11:01am on 29 April 2020, Mr Smith responded to that email by informing Ms Burton that “the stand down decision that morning was made on an email from [the client] the day before. I then investigated the claims with [the client], where the meeting took place”. Later on 29 April 2020, Mr Smith informed Ms Burton that MO would not be providing her with a copy of the email from the client read out to her during the meeting on 27 March 2020.

[30] On about 1 May 2020, Ms Burton provided a further medical certificate extending her inability to work until 15 May 2020.

[31] Apart from the further provision of a medical certificate on about 1 May 2020, Ms Burton did not communicate with MO at any time after her email exchanges with Mr Smith on 29 April 2020 and prior to sending a resignation email to Mr Smith at 7:02pm on 7 May 2020. Mr Smith responded to Ms Burton’s resignation email by thanking her for her email. I accept Mr Smith’s evidence that he responded in that way because it was polite to do so, rather than because he was expecting or pleased to receive Ms Burton’s resignation.

Alleged conduct which Ms Burton says forced her to resign

[32] Ms Burton points to a wide range of conduct which she contends forced her to resign from her employment with MO. However, at the determinative conference Ms Burton explained that her major issues with MO arose after she lodged a complaint against Mr Smith on 5 February 2020.

[33] I will first address the reasons put forward by Ms Burton in her submissions in chief for her forced resignation. 7

Not obeying employment laws

[34] Ms Burton was asked to explain during the determinative conference which employment laws she says MO breached. Ms Burton explained that she believed it was a breach of the National Employment Standards for MO to engage her as a casual employee during the first three months of her employment in circumstances where she was working 24 hours each week on fixed times and days each week. Ms Burton also points to the fact that she was not paid a casual loading.

[35] There can be some complexity in determining whether a particular employee is truly a casual employee. In this case, I do not need to determine that question because there is no dispute that at the end of the initial three month period Ms Burton was converted from a casual employee to a permanent part time employee and she was thereafter afforded the benefits of a permanent employee. Given that the conversion of casual to permanent part time status took place more than six months before Ms Burton resigned, I do not accept that any mistake made by MO in classifying Ms Burton as a casual employee in the first three months of her employment was conduct, or part of a course of conduct, which forced Ms Burton to resign on 7 May 2020. If there was an error in wrongly classifying Ms Burton as a casual employee during the first three months of her employment with MO, I am satisfied on the evidence that the error was not intentional.

[36] I am satisfied that Ms Burton was informed, in writing, of the pay rate she would receive if she accepted the position of Executive Assistant. There is no allegation that MO failed to pay that specified rate or that it was lower than an applicable award rate for a casual employee (including loading) in Ms Burton’s position.

Not providing a safe work environment

[37] Ms Burton alleges that MO failed to provide a safe work environment, but did not particularise or specify this allegation.

[38] I am satisfied that the evidence does not support a finding of an unsafe workplace.

Changes to employment without consultation

[39] It is clear on the evidence that a number of changes were made to Ms Burton’s title, duties and responsibilities during her employment with MO. However, I am satisfied on the evidence that those changes were discussed with her and she was consulted about them. For example, Ms Burton drafted her own position description for the role of Executive Assistant which was accepted and implemented by Mr Smith in about October 2019. MO communicated with Ms Burton about the NDIS compliance role and then the quality role identified for her in 2020. Ms Burton raised concerns with MO about the contract sent to her on 5 February 2020. MO listened to those concerns and did not seek to force Ms Burton to enter into the 5 February 2020 contract. A director of MO then suggested a change to the title of the quality role being considered for Ms Burton. The new title was not agreeable to Ms Burton, so a new title of Quality Assurance Assistant was determined following feedback from Ms Burton. The new contract for the role of Quality Assurance Assistant was signed by Ms Burton, as was the new position description for that role.

[40] Ms Burton also raised concerns about initially being offered a fuel card to pay for her fuel when driving between sites in her new role and later being told that she would be reimbursed for the kilometres she drove in her new role. In my view, this change was reasonable and did not cause any material detriment to Ms Burton.

[41] Ms Burton contends that MO acted unreasonably in relation to the offer it made to pay for Ms Burton to undertake a Diploma of Quality Auditing and MO’s refusal to permit her to undertake that course during her period of self-isolation. MO did not rescind its offer to pay for Ms Burton to undertake a Diploma of Quality Auditing. MO did not accede to Ms Burton’s request to undertake the course during her period of self-isolation, primarily due to monetary concerns. I am satisfied that Ms Burton would have been permitted to undertake the course, at MO’s cost, had she remained employed with MO. In all the circumstances, I consider that MO acted reasonably in relation to the Diploma for Quality Auditing issue.

Not following the employment agreement and organisation’s policies and procedures

[42] Ms Burton did not particularise which provision(s) of which employment contract(s) she contends MO failed to follow. The evidence does not substantiate any material breach of Ms Burton’s employment contracts with MO.

[43] It is clear from the evidence that Ms Burton was frustrated by what she perceived to be a failure on the part of MO to comply with its own policies and procedures. By way of example, Ms Burton says that MO’s policies and procedures required all of its employees, including those with a disability, to have a police check. Ms Burton says she raised this issue a number of times and MO eventually agreed with her position and told her it would be done. I am satisfied on the evidence that MO did not deliberately fail to comply with any of its policies and procedures. I am also satisfied on the evidence that any failure by MO to comply with its policies and procedures did not force Ms Burton to resign, nor was it part of a course of conduct which forced her to resign. Ms Burton’s concerns in relation to those matters caused her some frustration, but she was also successful in having MO ‘see it her way’ and make changes or at least agree to do so.

Subjecting Ms Burton to ongoing barriers which inhibited her from completing her duties as per her role descriptions

[44] The barriers on which Ms Burton relied were not explained in detail. Ms Burton did contend that Mr Smith “repeatedly made gathering information, implementing procedures or discussing position requirements and workflows difficult”. This allegation is not made out on the evidence.

[45] Ms Burton did raise a range of matters in her complaint against Mr Smith on 5 February 2020. MO acted promptly and arranged a meeting with its CEO and other senior managers the following day (6 February 2020) to discuss those issues. Although Ms Burton and Mr Smith did not agree on all matters during that discussion, they did agree at the end of the meeting to work together in a professional manner and for the benefit of the organisation. MO reasonably believed that Ms Burton’s issues with Mr Smith had been resolved in that meeting. Further, Ms Burton did not make another complaint against Mr Smith, or any other employee or officer of MO, during the balance of her employment with MO.

[46] Ms Burton contends that the executive at MO were very hostile towards her and any suggestions she made, constantly blocking her ability to undertake the roles she was put in. This broad allegation is not established by the evidence adduced in these proceedings. The evidence demonstrates that at least some of Ms Burton’s suggestions were adopted (e.g. the police check for all employees) and MO did not have any concerns in relation to Ms Burton’s performance or conduct, save for the two matters Ms Burton was spoken to about on 19 March 2020.

Lack of support or procedural fairness when Ms Burton raised complaints

[47] I consider that Ms Burton was afforded procedural fairness when she made a complaint against Mr Smith. She was given an opportunity to discuss her complaints, hear what Mr Smith had to say about them, and was involved in working out a plan to move forward. In my view, Ms Burton received appropriate support in connection with her complaint against Mr Smith.

[48] No other complaint was made by Ms Burton.

[49] In all the circumstances, I am satisfied on the evidence that there was not a lack of support or procedural fairness when Ms Burton raised complaints.

Disciplinary action without foundation or correct process

[50] The only disciplinary action taken against Ms Burton was to provide her with a verbal warning on 19 March 2020. Ms Burton accepts that she took some longer breaks from time to time. Ms Burton also says that she was permitted to have longer breaks because she did some work after hours and MO did not pay overtime. Mr Smith explained that time in lieu was available for work undertaken after normal hours. I am satisfied that if Ms Burton intended to take some time in lieu by having extended breaks at work it would have been reasonable for her to have cleared that with her manager before taking the extended breaks. In all the circumstances, I consider there was a reasonable basis for providing the oral warning to Ms Burton on 19 March 2020 in relation to taking extended breaks.

[51] I accept Ms Burton’s evidence that she was not told not to contact the NDIS Commission in relation to the issue about which Ms Roach was in communication with the NDIS Commission. However, Ms Burton accepts that Mr Milicevic told her that Ms Roach was looking into that issue. It would have been reasonable for Ms Burton to speak to Ms Roach before contacting the NDIS Commission to speak to them about the issue Ms Roach was dealing with. It was not inappropriate or unreasonable for MO to speak to Ms Burton about that issue on 19 March 2020.

[52] In my view, the procedure in which MO engaged to discuss its concerns with her on 19 March 2020 was appropriate. The matters of concern were raised with Ms Burton. She was given an opportunity to discuss the issues. It was made clear to Ms Burton what was expected of her in the future.

[53] As to Ms Burton being stood down on 25 March 2020, I am satisfied that MO acted appropriately and quickly after it received the complaint from a client concerning a breach of confidentiality. It was appropriate for MO to stand Ms Burton down for a short period during that investigation. MO investigated the matter promptly and then informed Ms Burton on 27 March 2020 that the allegation had not been substantiated and she was free to return to work. I consider that it was appropriate for privacy reasons to read the email complaint to Ms Burton but not to provide a copy of it to her, particularly given the complaint was dismissed.

[54] In all the circumstances, I am satisfied on the evidence that MO did not take any disciplinary action against Ms Burton without foundation or without following an appropriate procedure.

Inconsistent and conflicting information provided following the stand down

[55] At 9am on 25 March 2020, MO told Ms Burton that she was being stood down pending the investigation. At 11am on 25 March 2020, the client who made the complaint met with MO. I accept Mr Smith’s evidence that an email complaint was received from the client the day before and Mr Smith had a meeting with the client to discuss his complaint further at 11am on 25 March 2020.

[56] In all the circumstances, I am satisfied on the evidence that Ms Burton was not provided with inconsistent and conflicting information following her stand down.

No response to request for clarification on inconsistencies

[57] The only inconsistency raised in Ms Burton’s email of 29 April 2020 was her concern in relation to being stood down at 9am and MO speaking to the client who made the complaint at 11am on the same day. Mr Smith responded directly to that alleged inconsistency at 11:01am on 29 April 2020. No other alleged inconsistency was raised by Ms Burton with MO. There was no failure by MO to respond to an alleged inconsistency raised by Ms Burton.

[58] I will next address the additional reasons put forward by Ms Burton in her submissions in reply for her forced resignation. 8

Ms Burton’s change of offices

[59] I am satisfied on the basis of the evidence given by Mr Smith that there were operational reasons for Ms Burton’s change of office location in 2020. In particular, Ms Burton’s new work was with the vocational care side of MO’s business. The change in office location was also permitted by the express terms of Ms Burton’s contract of employment.

Removal of Ms Burton from an executive position

[60] Ms Burton commenced her employment with MO as an Executive Assistant. There was discussion about placing her into a new role with the title of Quality Assurance Manager, however after discussion with MO’s board it was decided that a different title would better reflect the seniority of the role. In the result, the title of Quality Assurance Assistant was decided on. At no time was Ms Burton removed from an executive position at MO.

Lack of assistance to Ms Burton

[61] The evidence does not support a finding that there was any material failure to provide assistance to Ms Burton during her employment with MO. The evidence does not establish that Ms Burton complained of a lack of assistance during her employment. Further, save for two issues about which Ms Burton was spoken to on 19 March 2020, no issues were raised with Ms Burton about her performance or conduct during her employment with MO.

Was Ms Burton dismissed?

[62] I am satisfied on the evidence that MO did not engage in any conduct with an intention to bring its employment relationship with Ms Burton to an end or that termination of the employment relationship was the probable result of any conduct, or course of conduct, on the part of MO. I consider that MO acted reasonably in connection with its employment of Ms Burton. It communicated with Ms Burton in relation to changes to her role and title. Changes were made to draft contracts and position titles to address concerns raised by Ms Burton. MO responded quickly to address the issues raised by Ms Burton with Mr Smith. MO acted reasonably in giving Ms Burton oral warnings on 19 March 2020. It also acted swiftly and reasonably when investigating the complaint made by a client of MO in March 2020. That investigation was completed within two days and the outcome of the investigation was in Ms Burton’s favour. MO also responded without delay to Ms Burton’s concern that the stand down and investigation had commenced before the complaint was even received. When issues were raised by Ms Burton with MO in relation to matters such as her award coverage, MO took reasonable steps to consider relevant material, obtain advice from external agencies and respond to Ms Burton’s queries.

[63] Ms Burton self-isolated from work from 1 April 2020 until her resignation on 7 May 2020. Ms Burton’s conduct in that regard was not subjected to any criticism by MO, either during her employment or in the course of these proceedings. Ms Burton obviously had very good reasons for self-isolating during that period and provided medical certificates to support her absence from work. It was during this period that Ms Burton took the opportunity to “consider her options”. 9 Those options included (a) holding further discussions with MO to deal with any concerns Ms Burton had, (b) making further contact with an external agency such as the Fair Work Ombudsman to receive further information about the modern award that covered her in relation to her employment with MO, (c) filing an application with the Commission for orders to stop bullying, if Ms Burton believed that Mr Smith or anyone else was bullying her, in respect of adverse action, if Ms Burton believed adverse action was being taken against her in connection with her complaint against Mr Smith, or to deal with a dispute under the applicable award, or (d) resigning from her employment with MO. In all the circumstances, I find on the evidence that Ms Burton’s decision to resign on 7 May 2020 was of her own free will, notwithstanding that her decision was causally connected to her concerns about her employment with MO, what she believed was happening in her workplace, and her views about the way in which the business was managed.

[64] I find that Ms Burton was not forced to resign because of conduct, or a course of conduct, engaged in by MO.

Conclusion

[65] For the reasons given, Ms Burton was not dismissed by MO within the meaning of s 386 of the Act. Ms Burton’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms D Burton on behalf of herself

Ms M Tiedeman, Solicitor, on behalf of MO

Hearing details:

2020.
Newcastle:
27 July 2020.

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47]

 2   O’Meara v Stanley Works Pty Ltd (PR973462) at [23]

 3   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996)

 4   Ibid

 5   Ex A5, Court Book at pages 110-111

 6   Ex A5, Court Book at pages 114

 7   Court Book at page 50

 8   Court Book at pages 63-65

 9   Court Book at page 290