Emma-Louise Gillies v Safe Places Community Services Limited T/A Safe Places for Children
[2023] FWC 3029
•5 DECEMBER 2023
| [2023] FWC 3029 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Emma-Louise Gillies
v
Safe Places Community Services Limited T/A Safe Places For Children
(C2023/4850)
| DEPUTY PRESIDENT LAKE | BRISBANE, 5 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection raised – no dismissal – constructive dismissal – jurisdictional objection upheld – application dismissed.
Ms Emma-Louise Gillies (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 9 June 2023. The Applicant claimed that adverse action was taken against her by Safe Places Community Services Limited T/A Safe Places For Children (the Respondent) under s.340, s.343, s.344 and s.351 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that she was dismissed in accordance with the definition in s.386 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute.
Background
The Applicant commenced employment with the Respondent as a Case Manager on 15 November 2021 on a full-time basis. The background covers the dismissal aspect only.
On 5 June 2023, the Applicant had lodged a complaint which raises complaints regarding the 5/2 on-call system stating that 8 days of being on-call was too excessive. The Respondent addressed these concerns through a meeting on 23 June 2023.
On 23 June 2023, the Applicant raised this issue with the State Manager regarding the 5/2 on-call system and then wrote another complaint regarding the 5/2 on-call system.
On 3 July 2023, Ms Amanda Dunn (Director of Respondent) spoke to the Applicant regarding her concerns. The rostering was addressed on 7 July 2023.
On 3 August 2023, The Applicant had provided complaints to management regarding the working conditions of Case Managers and Youth Workers. The Applicant resigned on 3 August 2023 providing two weeks’ notice to end on 17 August 2023.
The Applicant provided a resignation letter on 3 August 2023 stating:
“Dear Sherah and Lucas,
Please accept this email as notice of my resignation from Safe Places for Children commencing 3rd August 2023 and ending on 17th August 2023.
To ensure the smooth transition of both my teams and young people to the next Case Manager, I am happy to work my remaining 10 days’ notice in line with the EBA, section 16.2 from Monday 7th August once I return from sick leave.
Emma”
On 7 August 2023, Ms Amanda Dunn had contacted the Applicant and the Applicant had requested her permission to start a new job before her notice period elapsed.
The Applicant’s main contention was that she was forced to resign because she was over-worked because of a significant lack of staff and was working excessive shifts. She states that she had been working an average of 59.5 hours a week through shift and non-contact hours, plus an additional 106 hours per week being on-call over a 12-week period.
The Respondent contends that the Applicant was not constructively dismissed and resigned. The Respondent states that Ms Gillies was not required to return to work and would be paid out her notice period.
Consideration
Section 365 of the Act requires a person to be dismissed to be eligible to make a General Protections application involving dismissal.
Section 386(1) of the Act relevantly provides that 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[2] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[3]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[4] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[5]
All the circumstances – including the conduct of both the employer and employee – must be examined.[6] In other words, it must be shown 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.”[7]
The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.
The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.
The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. 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.”[8]
(emphasis added)
In Pawel v Australian Industrial Relations Commission,[9] the Full Bench noted:
“Mere "causation" or "motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
Forced resignation has been interpreted by the Commission though the following meanings:
its actual conduct, forced to do so, such that there was an element of compulsion present[10]
a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship”[11]
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.[12]
The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[13]
Although the Applicant appeared to very dissatisfied with the working conditions of the Respondent, constructive dismissal should not be readily invoked where it is the discretion of the resigning employee, rather than that of the employer that gives rise to the termination.
The Applicant had stated it was the working conditions that had pushed her into resignation. It is noted on the Applicant’s complaint on the day of her dismissal that she states ‘And yet, I am stuck. I am stuck in a role that pays way above any other job, so much so it has become unaffordable to walk away. I am stuck in a situation where I rely on my managers to support me who have previously ignored my cries for help. I am stuck within a role that demands shift cover left, right and centre, and stuck within a position where I am being told to remain, positive embracing and cheerful when I am screaming for help.’
I acknowledge the Applicant’s concerns as the Applicant had notified multiple people in the organisation regarding her views on the shift rostering. However, the Applicant was not forced to resign resulting from the employer’s conduct.
The Applicant had raised complaints regarding the work rostering. However, the allocation of shift hours in this case did not demonstrate a level that was oppressive or repugnant, or impacted the volition of the Applicant that resignation was a reasonable response to the conduct.
The Respondent had attempted to respond to the Applicant’s complaints each time they were raised. The Applicant raised a final complaint regarding the working conditions on her date of resignation and was willing to work through her notice period. The Respondent had followed up with the Applicant seeking to investigating the claim. There was no ‘critical action’ by the employer which forced the Applicant to resign. The claim was being investigated.
It did not appear that the Respondent took critical actions which intended to bring the employment relationship to an end.
The Applicant has not demonstrated constructive dismissal and is not dismissed within the definition of s.386 of the Act. As a result, the jurisdictional objection is upheld, and the Application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
E. Gillies for the Applicant
J. Goodman for the Respondent
Hearing details:
31 October 2023.
Hearing via Microsoft Teams.
Brisbane.
[1] [2020] FCAFC 152.
[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[3] Ibid.
[4] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[5] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].
[6] Whirisky v DivaT Home Care[2021] FWC 650at [77].
[7] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].
[8] (1996) PRN6999.
[9] (1999) FCA 1660 at 58 (Pawel J).
[10] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[11] Boulic v Robot Building Supplies[2010] FWA 6905, [16].
[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.
[13] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
Printed by authority of the Commonwealth Government Printer
<PR768416>
0
0
0