Dushanthi Jayamaha v Amelie Housing

[2021] FWC 2848

[2021] FWC 2848

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dushanthi Jayamaha
v
Amelie Housing
(U2021/1458)

DEPUTY PRESIDENT BOYCE SYDNEY, 25 MAY 2021

Application for an unfair dismissal remedy. Applicant resigned from her employment in writing. Whether Applicant forced to resign by her employer. Evidence does not support a finding of forced resignation. No “dismissal” within the meaning of s.386(1)(b) of the Fair Work Act 2009. Unfair dismissal application dismissed.

Introduction

[1] This decision was made on an ex tempore basis on transcript on 12 May 2021. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An Order giving effect to this decision was published on 15 March 2021 in PR729741.

[2] On 22 February 2021, Ms Dushanthi Jayamaha (Applicant) filed an application for an unfair dismissal remedy. She alleges that her employment was terminated at the initiative of the Respondent unfairly on 9 February 2021. The Respondent is Amelie Housing, a social and community housing provider, and the Applicant’s employer.

[3] The matter was heard on 28 April 2021. Mr Thomas Duffy of Unfair Dismissals Australia appeared with permission for the Applicant. Mr Warwick Ryan of Hicksons Lawyers appeared with permission for the Respondent.

Applicant’s evidence

[4] The Applicant was employed by the Respondent on 19 December 2016. At the time of her cessation of employment with the Respondent, she held a National Accounts Payable position. The Applicant's employment contract relevantly states in relation to her work location:

“The location of your employment will be 470 Church Street, Parramatta or such other location as you may be required to attend to discharge your duties.”

[5] The Applicant resigned from her employment in writing on 9 February 2021, which she says was a resignation as a result of conduct engaged in by the Respondent. The Applicant says she felt she had no choice but to resign, consistent with the decision in Mohazab v Dick Smith Electronics Pty No 2 [1995] 62 IR 200 at 206.

[6] The Applicant’s letter of resignation relevantly states:

“Dear Mr Tobias Yates, please accept this letter as official notification of my intent to resign from my position as assistant accountant effective two weeks from today.”

[7] The Applicant sets out a number of reasons going to her decision to resign, being reasons she says identify that she had no choice but to resign.

[8] In a witness statement, not tendered as evidence, but marked “MFI-1”, the Applicant says that she resigned because “management at Amelie Housing, including Li Ming and Colleen Casey did not consult me before making significant changes to my employment.”

[9] In this regard, the Applicant says that on 1 March 2019 she was informed that her position was changed by email. Supported by evidence of that email, the Applicants says “I then sent Li Ming a reply email saying that I would do the work, but that I was not happy with the change in my position.” An offer of a private meeting was made by the Respondent to discuss the Applicant’s concerns, but the Applicant says that nothing changed afterwards.

[10] There is no evidence of any further objection by the Applicant to her changed position. Indeed, the evidence is that she continued to perform the changed role for a period of almost two years thereafter.

[11] The Applicant also states that “[o]n 16 April 2019, I was told by Bernie Murphy that I would be relocating to Amelie Housing's Lewisham office for a one-month trial.” She states that “Bernie Murphy reassured me that the travel would only be a trial for a one-month period”, however, this was not the case and her work location at the Lewisham office became permanent.

[12] I note that the Applicant was originally located at the Respondent’s Parramatta office. The Applicant says that she found working at the Lewisham office particularly challenging because there were so many steps at the office, and she had a bad knee.

[13] The Applicant further states that she was wrongly performance managed, commencing in about October 2019 for the changed position she never agreed to (see paragraph [9] above). She says that there was no clarity as to her new role from the beginning, she never received a new job description, her employment contract was not updated, and no new KPIs were communicated to her. Because of all this, the Applicant says that she felt victimised by the performance improvement plans that she was placed upon.

[14] I note that all of these events occur over a period of at least one year and four months. Notwithstanding this lengthy period of time, the Applicant still maintains that she had no choice but to resign on 9 February 2021.

Respondent’s evidence

[15] Ms Colleen Casey is the Finance Manager for the Respondent. Ms Casey gave evidence as to the basis for the performance improvement plan (PIP) that was introduced in relation to the Applicant from October 2019, as follows:

“6. In or around October 2019 I had concerns regarding the Applicant’s performance, in particular with how the Accounts Payable was being managed.

7. I am aware that there had been many complaints from both internal and external stakeholders regarding the length of time for payments to be made and also for invoices to be processed. There were also complaints that invoices were not being processed at all. Exhibited at pages 1 to 14 of “CC1” is a copy of complaints made by internal stakeholders. Exhibited at pages 15 to 21 of “CC1” is a copy of complaints made by external stakeholders.

…

10. Due to the complaints, Ms Ming and I decided to put the Applicant on a PIP to improve her working performance. Ms Ming and I had a discussion with Human Resources, where words to the following effect were said:

“How can we help Dushy [the Applicant] understand the implications of the lack of control/ownership of the AP module and as a finance team together the mitigate the complaints.”

11. The Applicant was placed on a Performance Improvement Plan (“PIP”) commencing 21 October 2019. Exhibited at pages 22 to 27 of “CC1” is a copy of the first PIP.”

[16] Ms Casey identifies that on 24 January 2020, the Applicant's PIP term was complete, however, the Applicant did not improve in a number of key performance areas. Hence, the Applicant was issued with a warning letter on 30 January 2021, and her PIP was extended by a further six weeks.

[17] Ms Casey also gives evidence as to the issues surrounding the Applicant's performance when she was working from home during COVID-19 lockdown from March 2020, as follows:

“25. Due to COVID-19, Amélie required employees, including the Applicant, to work from home from March 2020.

26. The Accounts Payable issues, as described above, continued to occur whilst the

Applicant was working at home.

27. It was not uncommon for the Applicant to not answer emails and queries during this time. Exhibited at pages 33 to 38 of “CC1” is a copy of an email chain between the Applicant and myself for the period between 28 October 2020 and 6 November 2020.

28. The Applicant also continued to code fees incorrectly on our system. Exhibited at page 39 of “CC1” is a copy of an email from me to the Applicant dated 18 October 2020.

29. On 16 November 2020 I sent an email to Tobias Yates, Senior Employment Relations Partner, setting out the ongoing issues with AP. Exhibited at page 40 of “CC1” is a copy of an email dated 16 November 2020 from me to Mr Yates.”

[18] The Applicant’s second PIP commenced on 4 January 2021. Again, Ms Casey sets out the reasons that this second PIP was commenced, and the performance improvement areas that the Respondent sought to manage, as follows:

“33. The Applicant’s second PIP commenced on 4 January 2021. Exhibited at pages 43 to 49 of “CC1” is a copy of the second PIP.

34. During this time, the Applicant was only attending the office one day a week. This made it extremely difficult for me to performance manage her and assist her in her tasks. However, the Applicant never asked me for any support or training when she was in the office.

35. Before the Applicant’s resignation on 9 February 2021, some of the performance areas in the PIP were being achieved, however there were still a number of performance areas that had no improvement.

36. On two occasions I had to ask the Applicant to cancel a payment and resubmit it due to the Supplier and account number being incorrect. An example of this is exhibited at page 50 of “CC1”.

37. The Applicant was still failing to ensure payments were made on time. Exhibited at pages 51 to 58 of “CC1” are copies of emails from external stakeholders stating that payments were overdue.

38. The Applicant was also not attempting to ensure the operating invoices were coded to correct cost centres. Exhibited at pages 59 to 60 of “CC1” is a copy of an email dated 14 January 2021 from me to the Applicant.

39. I also noticed that payments made by the Applicant were incorrect. Exhibited at page 61 of “CC1” is a copy of an email dated 4 February 2021 from me to the Applicant.

40. Performance areas that had not improved included:

(a) no attempt to ensure that operating invoices were coded to correct cost centres;

(b) prepayments were not posted corrected; and

(c) prepaid invoices were not saved to the correct file.”

[19] Ms Casey further identifies that subsequent to the Applicant being made aware of the foregoing concerns, she received the Applicant’s resignation. She notes that the Applicant's resignation was accepted, and that the Applicant continued on to engage in a handover whilst working out her notice period. Ms Casey states:

“The Applicant's resignation letter states that the Applicant's managers [engaged in] inappropriate behaviour towards their employees; provided no support, and created a hostile working environment. The Applicant never raised or expressed any issue regarding these issues to me during her employment.”

[20] Ms Casey was not cross-examined in these proceedings. I have no basis not to accept her unchallenged evidence.

[21] Ms Bernie Murphy, who is the Respondent’s Housing and Disability Accommodation Manager, also gave evidence in these proceedings. She highlights that she was not the Applicant’s direct manager, however, given that she was located near the Applicant workspace, she was privy to various conversations between the Applicant, Ms Casey and Ms Li Ming.

[22] Ms Murphy’s evidence is that all the conversations she witnessed or overheard were not other than pleasant and supportive of the Applicant. She states that after she read the Applicant’s resignation letter, she voluntarily provided a statement to human resources in response. That statement was tendered into evidence and goes into some detail as Ms Murphy’s understanding of the reasons related to the Applicant’s resignation. Again, Ms Murphy was not cross-examined in relation to her evidence, and I am not aware of any basis not to accept her unchallenged evidence.

[23] Ms Ming is the Respondent’s Chief Financial Officer. She relevantly states in her evidence:

“The Applicant never raised or expressed any issue regarding the issues set out in the resignation letter to me prior to her resignation.

Other than what is detailed in the First Statement and this statement, I do not recall at any point from 1 July 2018 until the Applicant’s resignation on 9 February 2021, did the Applicant ever approach me verbally or in writing to query her role or the content of her job description or ask for a change in role. Nor do I recall being informed by any other employee of the Respondent of any such approach and request.”

[24] Ms Ming was not cross-examined in relation to her evidence, and I am not aware of any basis not to accept her unchallenged evidence.

Legal principles

[25] Helpfully, the Respondent has set out a summary of case law going to the meaning of term “dismissal” under s.386 of the Fair Work Act 2009 (Act), as follows:

“Dismissal

A person is dismissed pursuant to s 386 when:

a) employment with their employer has been terminated on the employer’s initiative (sub-s (1)(a)); or

b) they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (sub-s (1)(b)).

The respondent submits that the applicant does not meet the jurisdictional threshold of meeting this definition, viz. the applicant was not dismissed.

Background to constructive dismissal

The concept of forced resignation in s 386(1)(b) was not introduced until 2005. Prior to this, constructive dismissal was termination on the employer’s initiative.

As such, earlier cases refer to the test of constructive dismissal as termination at the initiative of the employer (s 386(1)(a) however these cases continue to be relied on in relation to both sub-ss (1)(a) and (b).

More recent decisions refer to the Explanatory Memorandum of the Fair Work Bill 2008 regarding the two limbs of dismissal in s 386(1):

‘[Section 386]…is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer,’ (see, e.g., Mohazab…).

[Section] 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

Test for constructive dismissal – forced resignation

The applicant appears to rely on forced resignation (s 386(1)(b)) on the basis of paragraph 6 under part 3.2 of the application, “As a result of the Respondent’s failure to support, the applicant was left with no other choice but to resign,” and her letter of resignation.

Forced resignation is when an employee had no choice but to resign. The onus is on the applicant to prove their resignation was forced by the employer.

The applicant must prove that the employer took action with the intent or objectively probable result of bringing the employment relationship to an end.

Case law

Mohazab v Dick Smith Electronics Pty Ltd remains the authority in relation to constructive dismissal, alongside O’Meara v Stanley Works Pty Ltd. In Mohazab, the IRCA considered the interpretation of termination at the initiative of the employee as:

c) “termination that is brought about by an employer and which is not agreed to by the employee”; and

d) “the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

Further, the Court said:

“…an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

In Rheinberger v Huxley Marketing Pty Ltd the IRCA relied on the above passage in Mohazab and said:

“…it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect… I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

In Pawel v Advanced Precast Pty Ltd the IRC said at [15] that there are circumstances in addition to whether the employer’s actions resulted in the employee’s termination to be considered:

“…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… 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 ABB Engineering Construction Pty Ltd v Doumit the IRC noted that the line distinguishing conduct that leaves an employee no real choice but to resign is narrow but must be “closely drawn and rigorously observed.” Where an employer’s conduct is “a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal,” it may be considered termination at the initiative of the employer. Conversely, 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.”

In O’Meara v Stanley Works Pty Ltd the IRC reviewed the abovementioned authorities and concluded at [23]:

“…[The authorities] 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.” …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.”

In Bruce v Fingal Glen Pty Ltd (in Liq) an employee resigned due to her employer repeatedly paying her salary late and failing to pay superannuation. The FWC adopted the summary of principles in O’Meara in respect of determining forced resignation pursuant to s 386(1)(b). Specifically, the FWC interpreted Rheinberger as qualifying Mohazab as follows:

“…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… 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.”

The FWC found that whilst it was possible and foreseeable (and in many respects a reasonable response) that the employee may have resigned as a result of the employer’s conduct, it was not the objectively probable result, and there were other avenues open to the employee.

Performance management and constructive dismissal

In Ashton v Consumer Action Law Centre the FWC relied on the authorities in O’Meara. The applicant resigned after a period of performance management, which involved supervision of work which the applicant felt was onerous. The applicant was provided a letter inviting him to a performance review meeting and considered the letter indicated he had been dismissed. The applicant emailed his employer in response stating, “I am forced to finish employment… I believe that the termination of my employment in this way is unlawful and unfair.” The employer did not consider they dismissed the applicant but accepted his resignation. The IRC noted:

(e) the existence of additional supervisory arrangements for performance concerns is not unusual and generally for the benefit of the employee, providing them with additional guidance and mentoring;

(f) “The existence of these processes, by themselves or together, is not enough to warrant a conclusion that the employer took action with the intent of bringing the employment relationship to an end”; and

(g) dissatisfaction with management’s decisions or actions does not mean that the employee objectively had no choice but to resign.

It was determined that the applicant was not forced to resign due to conduct by the employer.”

[26] I consider the foregoing submissions by the Respondent a correct summary of the law, and I apply same for the purposes of reaching my determination in this decision.

Respondent’s submissions

[27] The Respondent filed written submissions setting out its position and arguments in these proceedings. 1 Relevantly, those submissions read:

“1.1 The Applicant did not resign as a result of conduct by the Respondent within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth) (the Act).

1.2 The Applicant says she had no real choice but to resign in reliance of Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645. The Applicant, bearing the onus of proof, has failed to establish that the Respondent’s actions resulted directly or consequentially in the termination of the employment.

1.3 The Applicant relies on O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100, however failed to provide evidence that the Respondent’s conduct was such that it objectively had the probable result or left no real choice for the Appellant but to resign.

1.4 The Respondent’s actions in respect of changing the Applicant’s workplace from Parramatta to Lewisham, and her role from Assistant Accountant to Accounts Payable, did not objectively have the probable result, or leave the Applicant no real choice, but to resign. This is evidenced by the Applicant’s continued employment with the Respondent:

(a) From 25 June 2018 (and, in particular, from 1 March 2019) in respect of the change of role; and

(b) From April 2019 in respect of the change of office location, (for about 2 years) until February 2021 when the Applicant resigned. As such, whatever her dissatisfaction with the small role change and title, she acquiesced in it by way of her continued employment.

1.5 The Applicant’s contract of employment with the Respondent dated 6 July 2018 (the contract) states her employment was transferred from Ecclesia Housing to the Respondent from 25 June 2018.

1.6 As an Assistant Accountant, the Applicant’s duties were approximately 80% Accounts Payable.

1.7 The Respondent did not have an equivalent titled Assistant Accountant, and the role Accounts Payable was offered to the Applicant on 23 August 2018.

1.8 The Applicant accepted this role with the Respondent, and continued in this role for several years, from 2018 to 2021.

1.9 The Applicant’s contract states, “The location of your employment will be 470 Church Street, Parramatta, or such other location as you may be required to attend to

discharge your duties,” [emphasis added].

1.10 The Respondent consulted with the Applicant in relation to relocating to Lewisham, to work in the same office as her supervisor.

1.11 The Applicant agreed to relocate to Lewisham, and agreed to stay at Lewisham, when given the option by the Respondent in May 2019.

1.12 The Respondent consulted with the Applicant in relation to accommodating her in respect of recovery from her knee surgery in 2019.

1.13 The Applicant says her concerns regarding working at Lewisham related to recovery from knee surgery. The Respondent denies this. The Applicant has not raised any contemporary issues in respect of working at Lewisham.

1.14 The Applicant’s request to speak with the Respondent about the change in role on the day the finance team was announced (1 March 2019) does not evidence she was unhappy on an ongoing basis. There is an absence of any evidence of subsequent complaints or concerns raised by the Applicant in respect of her position, duties, or office location.

1.15 The Respondent’s clear evidence is that the Applicant’s position requirements were clearly explained to her by Ms Ming and Ms Casey during the two separate Performance Improvement Plan (PIP) processes in late 2019 and 2020. During the meetings associated with both PIP’s, the Respondent’s evidence is that, at no time did the Applicant complain about not having clarity about what her role entailed, or that she was unhappy with the role’s requirements.

1.16 The PIP process was a process to improve the performance of the Applicant’s employment. It was a legitimate device to cure failings in the Applicant’s performance. Such failings were substantive, including repeatedly failing to pay small business creditors within terms.

1.17 The Applicant did have alternatives to resignation, being:

a) The Applicant could have continued in her role and improved her compliance with management performance requirements.

b) If the Applicant believed that she was being bullied, the Applicant could have lodged a complaint with management.

c) If the Applicant’s health was being impacted as claimed, due to her having to work from the Lewisham office, she could have lodged a workers compensation claim.

d) If the Applicant was treated poorly regarding accessing the workplace during her injury, she could have lodged a complaint with management or the AHRC.

The Applicant has adduced no evidence of choosing to action any of those alternatives.”

Consideration

[28] The evidence that I have identified in these reasons is relevant for a couple of purposes.

[29] Firstly, it highlights that the Applicant did not raise concerns or issues of the nature that she advances in these proceedings (purportedly causing her decision to resign) with the Respondent during her employment. In my view, it was incumbent upon the Applicant to raise these issues with the Respondent, to attempt to have them resolved prior to her making her decision to resign, or otherwise asserting that she had no choice but to resign.

[30] Secondly, the evidence concerning the PIPs shows that the Respondent held genuinely founded concerns as to the Applicant’s performance and conduct at work. In my view, the Respondent was entitled to commence the PIPs as part of an effort to bring about change and improvement in the Applicant’s work performance. In this regard, I find that there was nothing inappropriate in relation to the Respondent's conduct in commencing the PIP processes, nor was there any indication, at least as at 9 February 2021, that the Applicant’s employment was on the line. Rather, the evidence discloses that the Respondent was going down a path of continuing to attempt to manage the Applicant's work performance at the time she resigned. In other words, there was no threat of dismissal by the Respondent at the time of the Applicant’s resignation leading to a basis for a finding that she was forced, or left no choice but, to resign.

[31] The fact that the employment contract that applied to the Applicant's employment provided that she may be required to work at another location also highlights that the Respondent was doing nothing unlawful in directing the Applicant to work at its Lewisham office, as opposed to its Parramatta office. There is a driving time of only 20 minutes between these two offices, which cannot be said to be unreasonable. Further, notwithstanding any objection in these proceedings by the Applicant to her changed work location, Ms Ming’s evidence is clear that the relocation issue was not raised as an on-going concern by the Applicant during her employment with the Respondent. If the office relocation was one which gave rise to the Applicant having no choice but to resign, one would have thought that the Applicant would have made some form of on-going objection to the relocation after it occurred. On the evidence, she did not.

[32] All in all, having regard to the evidence and the case law, and the meaning of the term “dismissal” under s.386 of the Act, there is nothing on the evidence that lends support to a finding that the Applicant was “forced to [resign] because of the conduct, or a course of conduct, engaged in by [the Respondent]”. I concur with the Respondent’s submissions as to the choices that were available to the Applicant other than resignation. 2

[33] I find that the Applicant was not “dismissed” by the Respondent. Pursuant to this finding, the Commission has no further jurisdiction to deal with the Applicant’s claim for unfair dismissal. An Order dismissing her Application will be issued.

DEPUTY PRESIDENT

Appearances:

Mr Thomas Duffy of Unfair Dismissals Australia appeared for Ms Dushanthi Jayamaha (Applicant).

Mr Warwick Ryan of Hicksons Lawyers appeared for Amelie Housing (Respondent).

Printed by authority of the Commonwealth Government Printer

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 1   The Applicant submissions in these proceedings merely reflect what has already been said by her in “MFI-1”.

 2   See paragraph [27] of this decision, at paragraph 1.17 of the Respondent’s submissions.