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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 2848
Decision Date: 25 MAY 2021

CaseChat Overview and Summary

In the matter of Dushanthi Jayamaha versus Amelie Housing, the Fair Work Commission was called upon to determine whether the applicant, Dushanthi Jayamaha, had been unfairly dismissed from her employment with Amelie Housing. Ms Jayamaha resigned from her position and subsequently applied for an unfair dismissal remedy, contending that she had been forced to resign by her employer. The crux of the dispute lay in whether Ms Jayamaha's resignation was genuinely voluntary or if it was coerced by Amelie Housing, thereby constituting an unfair dismissal under the Fair Work Act 2009.

The legal issues at hand centred on the interpretation of the term "dismissal" as defined in section 386(1)(b) of the Fair Work Act 2009, and whether the evidence presented by Ms Jayamaha sufficiently demonstrated that she was forced to resign. The Commission needed to evaluate the credibility of the evidence provided by both parties and assess whether Ms Jayamaha's resignation met the statutory criteria for unfair dismissal.

Upon examining the evidence, the Commission concluded that the applicant had not demonstrated that she was forced to resign. The evidence presented did not support the assertion that Amelie Housing had compelled Ms Jayamaha to resign, nor did it establish any conduct on the part of the employer that would constitute a dismissal within the meaning of the Act. Consequently, the Commission found that the application for an unfair dismissal remedy was not substantiated, and the application was dismissed.

Orders