Dr Desiree Bergmann v Central Australian Aboriginal Congress Aboriginal Corporation
[2024] FWC 2719
•23 OCTOBER 2024
| [2024] FWC 2719 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dr Desiree Bergmann
v
Central Australian Aboriginal Congress Aboriginal Corporation
(C2024/5277)
| COMMISSIONER RIORDAN | SYDNEY, 23 OCTOBER 2024 |
Application to deal with contraventions involving dismissal
On 29 July 2024, Dr Desiree Bergmann (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, Central Australian Aboriginal Congress Aboriginal Corporation (the Respondent) contravened various provisions of Part 3-1 of the FW Act by dismissing her on 5 July 2024.
In its Form F8A – Response to a general protections application involving dismissal, the Respondent raised jurisdictional objections on the grounds that the Applicant had not been dismissed within the meaning of s.386 of the FW Act and that the application had been filed out of time.
Section 366 of the Fair Work Act provides the timeframe for filing a s.365 application:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Section 386 of the FW Act provides the meaning of ‘dismissed’ as follows:
“386 Meaning of dismissed
(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.”
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s.368 of the FW Act.[1] In the present matter, the company contends that it did not dismiss the Applicant, because she chose to resign of her own volition. The Respondent submits that it accepted the Applicant’s resignation to be effective at the backdated date of 5 July 2024, at the Applicant’s request. If the Applicant was ‘dismissed’ on this date, then her application was filed 3 days outside the statutory timeframe for filing a s.365 application when she filed it on 29 July 2024. I am therefore required to determine:
Whether the Applicant was dismissed;
Whether, if she was dismissed, the application was lodged out of time; and
If the application was lodged out of time, whether to extend time under s 366(2).
Parties’ Submissions
Submissions in relation to whether there was a ‘dismissal’
The Respondent submitted that the Applicant was not dismissed within the meaning of s.386 of the FW Act as there was no dismissal, instead the Applicant resigned via her representative on 9 July 2024. The Respondent submitted that the Applicant had requested that her resignation be backdated to 5 July 2024.
The Respondent submitted that, throughout her employment, the Applicant had expressed discontent regarding the location, remuneration and entitlements of her employment despite her having agreed to those conditions on signing her employment contract. The Respondent submitted that early in her employment with the Respondent, the Applicant had “demonstrated a pattern of behaviour of unreasonable, unrealistic and excessive demands”.
The Respondent submitted that the Applicant had lodged a formal complaint regarding a Congress clinic manager and her direct supervisor, which the Respondent formally investigated. The Respondent submitted that as a result of the investigation, disciplinary action was undertaken, however, “[t]he Applicant was not happy that the clinic manager was not terminated”. The Respondent submitted that the next day, the Applicant went on workers’ compensation leave.
The Respondent submitted that the Applicant, through a solicitor, emailed the General Manager Health Services on 21 June 2024 with a list of demands, including a payment of $50,000, in return for the Applicant’s resignation.
The Respondent submitted that a repeat of the same list of demands and the advice of resignation was sent to the Respondent on 9 July 2024.
The Respondent submitted that in accordance with the decision in O’Meara v Stanley Works Pty Ltd [2006] AIRC 496, the test of ‘constructive dismissal’ requires that there 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.[2] The Respondent submitted that it has invested a “disproportionate amount of time and resources to try to appease the Applicant”, and to maintain a working relationship with the Applicant.
The Respondent submitted that the Applicant had made several demands that could not practically be accommodated, including demands for additional pay outside of her contractual entitlements. The Respondent submitted that it had no intention of forcing the Applicant to resign, nor did it engage in conduct which had the probable result of the Applicant resigning. The Respondent submitted that while it is clear the Applicant was dissatisfied, the ‘termination’ was not at the initiative of the Respondent. The Respondent asserted that the Applicant used her discretion to resign her own employment.
The Applicant submitted that when she first commenced work with the Respondent, she asked to work in Alice Springs rather than remote communities. The Applicant submitted that this request was initially agreed to, however, the Respondent resiled from this agreement after the Applicant had already resigned from her previous employment and arranged to leave Melbourne. The Applicant submitted that the Respondent required her to work in the remote Mutitjulu clinic, near Uluru. The Applicant submitted that when she first visited the clinic, she experienced hostile behaviour, was not provided with appropriate training, and was asked to perform work beyond what had been originally agreed between the parties.
The Applicant submitted that throughout her employment with the Respondent, she experienced a pattern of hostility, bullying and harassment from the Respondent’s employees. The Applicant submitted that when she had tried to raise concerns about these behaviours, they were ignored and no action was taken.
The Applicant set out the circumstances leading to her resignation as follows:
“a. Dr Heard failed to respond to her complaints of an unsafe workplace (for reasons including bullying by Ms Williams and others, and an extreme workload) in an appropriate and timely manner;
b. the Applicant escalated her concerns to the CEO – that is, by going above Dr Heard’s head;
c. at that point, she was directed not to attend on the Mutitjulu clinic;
d. she became unwell due to the treatment to which the Respondent was subjecting and had to go on a period of workers’ compensation;
e. when she returned from workers’ compensation, she was informed by the Respondent that she would continue working under Dr Heard, being one of the people about whom she had complained to the CEO;
f. upon her return, Dr Heard treated her in an intimidating, aggressive and inappropriate manner that caused her to feel unsafe at work;
g. after more than 15 months of complaining, on 21 June 2024, the Applicant finally received a detailed response to her concerns, which stated that the Respondent would not countenance further discussing her concerns; and
h. from this, the Applicant formed the view that the Respondent was unwilling, and would never be willing, to address the legitimate safety concerns of its employees.”
The Applicant submitted that on 21 June 2023, she offered to resign. The Applicant submitted that she did subsequently resign on 9 July 2024, which the Respondent accepted and agreed to backdate to 5 July 2024.
The Applicant referred to the decision in Rocky Bay Limited v Conrad[2024] FWCFB 256 (Conrad), and submitted that, as found in Conrad, in her present case, there was a culmination of factors that caused her distress and caused her to resign. The Applicant submitted that, as in Conrad, one of those factors included a failure to appropriately respond to her grievance, her workers’ compensation claim and her working arrangements.
The Applicant submitted that for these reasons, the Commission should find that she was dismissed within the meaning of s.386(1)(b) of the FW Act.
Submissions in relation to whether the Commission should grant an ‘extension of time’
The Applicant submitted that, as above, her employment was terminated on 5 July 2024. The Applicant submitted that she first instructed her solicitor on 3 July 2024, and on 16 July 2024, she instructed him to lodge a general protections application on her behalf.
The Applicant submitted that 21 days from the date of her termination was Friday, 26 July 2024. However, she submitted that 26 July 2024 was a public holiday in Darwin.
The Applicant submitted that her solicitor’s office and practice are based solely in Darwin, and therefore, his office was not open on 26 July 2024. The Applicant submitted that her solicitor understood that, because of the public holiday, the ‘correct’ final date for filing any general protections application in the Commission was 29 July 2024. The Applicant submitted that her solicitor “did not understand or appreciate that only national public holidays give rise to an automatic extension of the time for filing”.
The Applicant submitted that there is also guidance on the Commission’s website which suggests that “State and/or Territory public holidays can be counted, by reference to Boyd v
MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Boyd).” The Applicant quoted the Commission’s website in relation to the decision in Boyd as follows:
“The applicant’s representative submitted that as Monday, 7 October 2019 was a public holiday in New South Wales, the next business day after 7 October 2019 was Tuesday, 8 October 2019 and accordingly, the time for lodging the application was extended to 8 October 2019, and the application was therefore lodged within that time.
The respondent objected on the basis that Monday, 7 October 2019 was a State public holiday and not a National public holiday. While the Commission’s New South Wales office was closed on that day, other Commission offices nationally were opened and were able to accept applications electronically. The respondent submitted that as the application was lodged electronically by the applicant’s representative on 8 October 2019, there was nothing to suggest it could not have been lodged electronically on 7 October 2019.
The Commission found that the application was made within time, and no extension of time was necessary. Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of the applicant’s representative. The respondent’s premises, where the applicant was based, was located in Crows Nest, NSW. The Commission held that in this case there was no connection with any other state or territory other than NSW, and accordingly there was no requirement for the applicant’s representative to check whether a Commission registry in another state or territory was open in order to lodge an application within time.”
The Applicant submitted that, similarly, the Commission should find that the public holiday in Darwin on 26 July 2024 meant that the application was made within time when filed on Monday, 29 July 2024, and that no extension of time is necessary.
The Applicant submitted that, in the alternative, to the extent that the Commission considers that an extension of time is or may be necessary, the Commission should grant an extension on the basis that there was a representative error. The Applicant submitted that it is established that representative error to which the Applicant did contribute amounts to exceptional circumstances.[3]
Consideration
The parties enunciated the relevant jurisdiction in their submissions:
“In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941 (Tavassoli), a Full Bench of the Commission relevantly said the following, in relation to section 386(1):
[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.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”[4]
…
“18. In the decision of Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, the Full Bench of the Fair Work Commission considering O’Meara v Stanley Works Pty Ltd [2006] AIRC 496, and Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154. The Full Bench explained (at [23]) that:
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient 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”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”[5]
I have taken into account the correspondence from the General Manager of Health Services, Ms Marah Prior, on 10 September 2024. I am satisfied that the Respondent investigated all of the issues that were raised by the Applicant and dealt with them in accordance with the Respondent’s policies and procedures. I accept that the Applicant was not satisfied with the outcome of her grievances. That is unfortunate but not uncommon. An employee who raises a grievance in their workplace is not guaranteed of a positive outcome. I cannot see any intention by the Respondent to reject the Applicant’s complaints in an attempt to bring the employment relationship to an end.
In her correspondence, Ms Prior provided:
“I maintain that there were never any performance concerns around [the Applicant] and we genuinely wanted [the Applicant] to return to work following her workers compensation leave. At no time was she asked to, or forced to resign from her role, in fact Congress would have been open to supporting [the Applicant] to work in any of our twelve clinics across Central Australia. I reiterate that many attempts were made to appease [the Applicant], but unfortunately nothing we did, or were able to do, within the restrictions of our funding were ever good enough for [the Applicant] and she wasn’t able to see outside of her demands.”
(My emphasis)
I am satisfied that the two tests summarised in Tavassoli have been satisfied. The Applicant did not resign in ‘the heat of the moment’ and the Respondent’s conduct was not undertaken with the intent to have the Applicant resign. I have taken this into account.
I do not accept that the Applicant had no choice but to resign. If the Respondent was not prepared to address what the Applicant believed to be her genuine safety concerns, then she could have raised her concerns with Worksafe NT. Every employee has the statutory protections of the Work Health and Safety Act 2011. I have taken this into account.
The decision in Conrad is easily distinguished on the facts of this case. There was no direction from the Respondent to change shift rosters or locations, nor was there a reduction in the Applicant’s hours. It is obvious that the Respondent viewed the Applicant as a very good doctor and wanted her to continue her employment. I have taken this into account.
It is not in dispute that the Applicant resigned on 9 July 2024 and sought to have her termination backdated to 5 July 2024 via correspondence from the Applicant’s solicitor, Mr Perry. I have taken this into account.
Conclusion
I am satisfied that the Applicant has resigned her employment on a voluntary basis. Whilst she was clearly unhappy about her lengthy hours of work, her total remuneration and her work colleagues, the Respondent conducted relevant investigations in relation to these complaints and enquiries. The simple fact that the Applicant was not satisfied with these outcomes does not result in her resignation satisfying s.386 of the FW Act.
For the reasons identified above, I am satisfied and find that the Applicant was not dismissed by the Respondent.
On the basis that I have found that the Applicant was not dismissed, there is no requirement, nor is it relevant, for me to determine whether the application was made within time or whether an extension of time for filing the application should be granted to the Applicant. I acknowledge that issues in relation to local public holidays, for example, would have been relevant to any such consideration.
The Applicant’s general protections application is dismissed.
I so Order.
COMMISSIONER
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365.
[2] O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [23].
[3] Alameddine v Commonwealth Bank Australia[2024] FWC 653.
[4] Applicant’s Outline of Submissions at [5].
[5] Respondent’s Outline of Submissions at [18].
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