Gail Jennifer Wang v Oracle Healthcare Pty Limited T/A Oracle Healthcare
[2023] FWC 816
•5 APRIL 2023
| [2023] FWC 816 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Gail Jennifer Wang
v
Oracle Healthcare Pty Limited T/A Oracle Healthcare
(C2022/8572)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 APRIL 2023 |
Application to deal with contraventions involving dismissal – jurisdiction – health care industry – practice manager – whether dismissed – whether resigned – forced resignation not found – jurisdictional objection upheld
On 23 December 2022 Gail Jennifer Wang (Ms Wang or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with her alleged dismissal.
Ms Wang’s application is brought against her former employer, Oracle Healthcare Pty Limited T/A Oracle Healthcare (Oracle, the respondent or the employer).
Oracle oppose the application and raise a jurisdictional issue. It says that Ms Wang resigned and was not dismissed.
Conciliation scheduled for 16 February 2023 did not proceed as the respondent sought that its jurisdictional objection be first determined.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under s 365 of the FW Act before the Commission can exercise powers under s 368 including issuing a certificate under s 368(3).
It is thus necessary to determine the jurisdictional issue if Ms Wang’s application is to proceed further.
I issued directions on 9 February 2023.
Both parties were self-represented; Oracle by in-house legal counsel Ms Jumikis (who was also a witness).
I heard the jurisdictional matter by video on 29 March 2023.
Evidence
Ms Wang gave evidence on statements filed in her name.[2]
For the respondent, I heard from:
· Elizabeth Anne Jumikis (in-house counsel for the Galileo Group including Oracle Healthcare Pty Limited);[3] and
· Isaac Donald Stanley (Zac) Werrett (Melanographer and Executive Director).[4]
The factual narrative relevant to the jurisdictional issue is largely not in dispute. That notwithstanding, it is appropriate to make some observations on the evidence.
Ms Wang gave evidence attentively but displayed some difficulty in recall though when prompted by the written record her memory was refreshed.
Similarly, Mr Werrett was a conscientious witness but also struggled to recall, without reference to the documentary record, details of meetings or conversations. Mr Werrett had general recall of the sequence of events but was not entirely confident in that regard.
Given that the detail of events and in particular discussions in September 2022 occurred some six months prior to giving evidence, the challenge both Ms Wang and Mr Werrett faced in instinctive recall of detail is understandable and does not detract from the overall thrust of their evidence.
Ms Jumikis was more confident in her recall of past events. She made concessions reasonably suggested and her evidence, together with the documentary record and the evidence of others, is generally a reliable basis for fact-finding. Whilst also being advocate for the employer, Ms Jumikis was able to distinguish between evidence and submission when giving evidence.
To the limited extent required, in resolving factual disputes I apply standard tools available to first-instance decision-makers including creditworthiness, plausibility and consistency with the documentary record. The documentary record, and in particular contemporaneous emails, are of probative value.
I note by way of observation that some evidence from Ms Wang included events concerning what she considered to be bullying conduct in the workplace. The jurisdictional matter does not require fact-finding as to whether bullying did or did not occur. However, I have admitted that evidence as the jurisdictional matter in part, at least on Ms Wang’s case, bears on the chronology of events including time frames when Ms Wang either made or had raised bullying concerns. To that extent that evidence is relevant.
Facts
Oracle
Oracle operates in the health industry and provides health assessment services including by imaging. It is based at St Leonards in Sydney, New South Wales.
Oracle is a privately owned family company and has three directors Neil Werrett, Zac Werrett and Dr Lena Attebo. Zac Werrett and Dr Attebo work full time in the business.
Oracle commenced operations in March 2022. Whilst part of the Galileo Group of businesses, Oracle operates independently and is the sole health assessment services business conducted by the group.
Oracle utilises resources as required from within the Galileo Group including legal services and advice (including on employment matters) from Ms Jumikis who is employed by the Galileo Group as in-house counsel.
Ms Wang
Ms Wang commenced employment with Oracle on 6 December 2021 and assisted in business establishment until Oracle commenced operations three months later.
She remained employed until 16 December 2022.
Ms Wang was Oracle’s full time Practice Manager.
Ms Wang had regular day-to-day dealings with Zac Werrett, Dr Attebo and other professionals and staff employed by Oracle, and, from time-to-time, with Mr Neil Werrett.
She was accountable to all three directors but in practical terms reported to Zac Werrett as Executive Director (and Melanographer) and Dr Attebo as a founder and leading clinician.
Bullying concerns
During the course of 2022 Ms Wang developed concerns about alleged workplace bullying conduct of others and then herself. She did not formalise a complaint until 29 September 2022 but in the months preceding, informally mentioned her concerns to at least one director, Zac Werrett.
Notice of intention to travel to France
In September 2022 Ms Wang and her husband decided that they would get away and live in France for three months between Christmas 2022 and March 2023. Their plan was that from France, Ms Wang’s husband would work remotely for his Australian-based employer (Atlassian Corporation).
On 8 September 2022 Ms Wang sent the following email to Oracle’s three directors under the subject line “Moving to France”:[5]
“Hi Lena, Neil and Zac,
I wanted to update you on a decision Ric and I have made.
Atlassian allow their staff to work from anywhere for 3 months a year, as long as there is some cross over in time zones. Luckily, Ric is global head of his division so he has all time zones to contend with. We have decided to take advantage and will move to France on Christmas day for 3 months.
I am happy to discuss an outcome that would be mutually agreeable. Should you decide that the position will be replaced, I will assist with that process. Should remote work be possible, I am also happy to discuss what that would look like.
Let me know when you would like to discuss further, and the outcome you would like.
We are very excited and realise not many people get to have this amazing opportunity.
Kind Regards
Gail Wang
Practice Manager”
Prior to receiving this email Oracle had no knowledge of Ms Wang’s plans.
A director Neil Werrett immediately forwarded the email to Ms Jumikis for consideration and advice.
Between 8 and 21 September 2022 the directors gave consideration to the email including taking advice from Ms Jumikis on what options or obligations Oracle had.
By 21 September 2022 the directors had decided that allowing Ms Wang to work remotely from France was not possible having regard to the operational needs of the business, and that if she travelled to France as planned then business restructuring would occur with the role of Practice Manager no longer being required and certain of Ms Wang’s duties distributed to others.
Meeting 21 September 2022
On 21 September 2022 Oracle called Ms Wang into a meeting to advise of their position. The meeting was attended by Dr Attebo, Zac Werrett, Ms Jumikis and Ms Wang.
The meeting was polite and friendly.
It commenced with the 8 September 2022 email being referred to by Oracle and all present discussing and complimenting Ms Wang on the opportunity Ms Wang had to live in France and the fortunate situation she had where her husband could work for a globally operating Australian business from France.
Dr Attebo advised Ms Wang that working remotely for Oracle from France was not a possibility given business operations, as only a small part of Ms Wang’s work could be done in that way.
Dr Attebo also advised that as Ms Wang intended to leave the business for France for three months then Oracle would not replace her and would cease the role of a Practice Manager. Dr Attebo referred to Ms Wang’s email of 8 September and thanked her for offering to find a replacement but indicated that was unnecessary given the decision not to continue the role.
Ms Wang then said words to the effect “What would you like me to do?”
Ms Jumikis then said “To resign”.
Ms Wang replied “How would you like me to resign?
Ms Jumikis said “By email”.
Ms Wang was then told that the timing of her resignation could be a date of her choosing but that the business needed advance notice for planning purposes.
The meeting concluded and remained friendly.
As Ms Wang and Ms Jumikis walked out, Ms Wang casually said words to the effect “As you’re not replacing my role, you could make me redundant”. Ms Jumikis replied with words to the effect “You’re not getting any money out of us”.
27 and 28 September 2022
On 27 September 2022 Ms Wang sent an email to the three directors and Ms Jumikis under the subject line “Move to France meeting”:[6]
“Hi Partners,
I would like to confirm the meeting outcomes held on Wednesday 21st September regarding my move to France for 3 months in Q l next calendar year.
You advised that the Partners have decided it is not the intention of Oracle HealthCare to replace my role, and that the position of Practice Manager will be forgone for the foreseeable future. You requested that I resign in writing at a time of my choosing, prior to my intended departure from Australia.
I have considered my tenure since our meeting and, to assist with my future planning, could you please let me know the earliest date you would be happy for me to depart from Oracle Healthcare.
Subject to your advice, I can then provide some firm dates for resignation.
Regards
Gail Wang”
On 28 September 2022 Dr Attebo replied:[7]
“Hi Gail
Thank you for your email.
I hope you are feeling much better.
After discussion amongst the partners, we would appreciate it if you could stay until October 21st for an orderly handover to take place.
Warm regards
Lena”
Bullying complaint
On 29 September 2022 Ms Wang met with Dr Attebo, Zac Werrett and Ms Jumikis to formalise a bullying complaint. Ms Wang read a lengthy statement of complaint. Ms Wang did not raise the issue of her departure nor was it raised by Oracle. The meeting concerned only the bullying complaint.
On 6 October 2022 Ms Jumikis met Ms Wang as part of the investigation into her bullying complaint. No discussion of her departure occurred.
18 and 21 October 2022
On 18 October 2022 a staff meeting was held. Ms Wang advised staff that she would be leaving for France at Christmas time where she would be living for three months. Ms Wang spoke happily of the opportunity to live in France.
On 21 October 2022 Ms Wang and Ms Jumikis had a discussion about her departure date. Ms Wang had not advised Oracle of her intended leaving date despite Oracle’s email of 28 September 2022 requesting that Ms Wang stay at least until 21 October.
Ms Wang agreed to advise a final working date before her departure to France.
18 November 2022
By email on 18 November 2022 Ms Wang gave written notice of resignation and advised her final date of employment:[8]
“Hi All,
Following from our discussion regarding my leave to go to France for 3 months, the business has decided not to continue with my position in 2023.
So it is with great sadness I tender my resignation with 4 weeks notice. My last day will be Friday December 16th.
I wish you and the business all the success for the future.
Sincerely
Gail Wang
Practice Manager”
16 December 2022
In the four weeks between Ms Wang’s notice on 18 November and final day on 16 December 2022, Oracle started to put in place arrangements for the progressive re-allocation of some of Ms Wang’s duties to other employees.
Ms Wang worked her final day at Oracle on 16 December 2022.
In the weeks prior to her final day, an issue arose between Oracle and Ms Wang as to whether she would be paid a discretionary bonus for having worked 12 months. Ms Wang had been concerned that Oracle may have wanted her out earlier than 6 December 2022 (the twelve month anniversary date) in order to avoid paying a bonus. As Oracle had agreed to Ms Wang working until 16 December, a service bonus at a level decided by the directors was paid on termination.
Ms Wang travelled to France with her husband on Christmas day 2022. She remained in France for three months as planned, returning in mid-March 2023.
Upon Ms Wang leaving the business, Oracle did not maintain the position of Practice Manager. It did not replace Ms Wang.
A week after her employment at Oracle ended, and two days prior to departing for France, Ms Wang commenced these proceedings. She advised the Commission in her covering email “I will be in Europe till March 15th but will attend any hearings arranged on the phone”.
Submissions
Ms Wang
Ms Wang agrees that she resigned but submits that she was forced to do so because of conduct or a course of conduct engaged in by Oracle, and thus was dismissed within the meaning of s 386(1)(b) of the FW Act.
Ms Wang submits that she was forced to resign because she was told on 21 September 2022 to resign and then required to nominate a resignation date.
Ms Wang also submits that she was forced to resign because of bullying conduct and a failure by the employer to properly manage her concerns about workplace bullying.
Accordingly, Ms Wang submits that her application is within jurisdiction and must proceed to a conference under s 368 and, if unresolved, the Commission must issue a certificate enabling further proceedings.
Oracle
Oracle submit that Ms Wang was not terminated at its initiative, that she resigned, and that she was not forced to resign. Thus Oracle submit that Ms Wang was not dismissed within the meaning of the FW Act or at all.
In particular Oracle submit that Ms Wang gave notice of her intention to resign on 8 September 2022 when advising that she would travel to in France for three months from Christmas 2022, agreed to resign on 21 September 2022 after being told that the business could not have her work remotely from France, and subsequently provided a written resignation and a date of her choosing on which her resignation took effect.
Oracle submit that it did not place Ms Wang in the position where she had no effective or real choice but to resign.
As such, Oracle submit that there was no dismissal. That being so, it argues that the general protections application fails for want of jurisdiction and should be dismissed.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[9] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
“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.”
A full bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli set out the background to s 386:[10]
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 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.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
Termination at the employer’s initiative
Termination at the initiative of an employer within the meaning of s 386(1)(a) of the FW Act arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[11]
It is not contended and nor do I find that Ms Wang’s employment was terminated at the employer’s initiative.
Forced resignation
I now consider whether Ms Wang resigned and, if so, whether she was forced to resign because of conduct or a course of conduct engaged in by Oracle. If this was so, Ms Wang was dismissed within the meaning of s 386(1)(b) of the FW Act.
Did Ms Wang resign and, if so, when did she resign?
Whether an employee has resigned from their employment is a question of fact. A resignation can be oral or in writing.
I find that Ms Wang’s employment ended by resignation.
I find that Ms Wang resigned on 18 November 2022 in writing and gave four weeks’ notice with her resignation to take effect on 16 December 2022.
I make these findings for the following reasons.
Firstly, Ms Wang’s email of 18 November 2022 is clear on its face. Its subject title is “resignation”. It states “…I tender my resignation”. It provides a resignation date.
Secondly, it was not until after receipt of this email that Oracle started making arrangements for the re-allocation of duties to others during the four week notice period and thereafter.
Thirdly, I do not accept Oracle’s submission that resignation occurred earlier via Ms Wang’s email of 8 September 2022 and that her 18 November 2022 email was simply notice of a resignation date. Ms Wang’s email of 8 September left open the possibility of continuing to be employed whilst in France via remote working. As such, it was not notice of resignation. At its highest, this email was a notice of intention to resign if remote working was not permitted by Oracle. Further, that Ms Jumikis advised Ms Wang on 21 September 2022 that she should resign and do so by email, as well as the terms of Ms Wang’s follow-up email of 27 September 2022 (“I have considered my tenure since our meeting…”), create clear inferences that on each of those dates resignation had not yet occurred.
I now consider whether Ms Wang was forced to resign because of conduct or a course of conduct engaged in by Oracle (s 386(1)(b) FW Act).
What is meant by a “forced resignation” is well established.
The statutory test in s 386(1)(b) requires an assessment of “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 (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign.”[12]
Conduct or a course of conduct forcing a resignation is not required to be repudiatory or unlawful. It could, depending on the circumstances, simply be conduct such that, in an objective sense, it forced the employee’s resignation.
I do not find that Oracle’s conduct between 8 September 2022 and 18 November 2022 was “conduct with the intention of bringing the employment to an end” within the meaning of the established authorities on s 386(1)(b).
There is nothing in the evidence that suggests that Oracle intended that Ms Wang no longer be its employee. I find that but for Ms Wang advising Oracle that she intended to travel with her husband and live in France for three months she would have remained as Practice Manager of the business. Oracle’s decision to not employ a Practice Manager was not a decision to make Ms Wang’s position redundant whilst she was the incumbent. It was a conditional decision; a decision to restructure in the event that Ms Wang left for France.
Although there were some tensions between Ms Wang and some of the directors and other professionals arising from Ms Wang’s unresolved bullying complaint, there is no evidence of a decision having been made or conduct exhibited which intended to end her employment on account of those tensions r that complaint. Whilst Ms Wang’s resignation occurred after she had made a bulling complaint, that complaint was at the time of resignation an unresolved issue the subject of an investigation. The evidence clearly points to both Ms Wang and Oracle each dealing with the issue of her employment ending on account of travel quite separately from the bullying complaint.
Further, for reasons set out below, I do not find that what Ms Jumikis said to Ms Wang on 21 September 2022, when viewed in context, is evidence of an intention by Oracle to bring Ms Wang’s employment to an end absent further decisions that she was left to make.
Was Oracle’s conduct in this period conduct, in the language of the established authorities on s 386(1)(b)), “such that the employee had no effective or real choice but to resign”?
I consider this matter noting the caution expressed by an earlier Full Bench in Doumit v ABB Engineering Construction Pty Ltd:[13]
“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 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.”
The conduct by Oracle in this period was:
· it considered and received Ms Wang’s email of 8 September 2022 about her plan to travel and live in France for three months;
· it decided, for business reasons, that Ms Wang would not be granted permission to work remotely from France;
· in answer to a question from Ms Wang, it told Ms Wang on 21 September 2022 that she should resign;
· it told Ms Wang that the resignation date was up to her but should not be prior to 21 October;
· it decided and told Ms Wang that her position would not be replaced if she travelled to France; and
· it commenced an investigation into Ms Wang’s bullying complaint.
For the following reasons I do not consider that this conduct individually or collectively denied Ms Wang an effective or real choice but to resign.
The decision not to grant permission to work remotely from France was based on business reasons and was a considered response to an option raised by Ms Wang in her email of 8 September 2022. Her employer having made that decision, Ms Wang was left with the choice to not go to France or to go to France knowing that she neither had leave of absence for that period nor permission to work remotely from afar.
As aforementioned, the decision to not employ a Practice Manager was not a decision to make Ms Wang’s position redundant whilst she was the incumbent. It was a decision to restructure and not to continue with that role should Ms Wang proceed with her plan to live in France for three months. That decision left Ms Wang with the choice to remain employed without her position being made redundant should she decide not to go to France.
Also as aforementioned, the bullying complaint was unresolved and subject to investigation at the time of Ms Wang’s resignation. Ms Wang had the choice to not travel to France, remain employed as Practice Manager and await the outcome of that investigation. There is no sense in which the bullying complaint or its investigation denied Ms Wang a free choice in resigning.
I now deal with the proper characterisation of what was said and done on and after 21 September 2022 in the context of the resignation that followed some two months later.
The evidence is clear that Ms Jumikis told Ms Wang on 21 September 2022 to resign. Does this mean that Ms Wang’s resignation was forced?
I find that Ms Wang resigned because that was the course advised to her by her employer.
However, whilst an employer telling an employee to resign may, when considered in isolation, be suggestive of conduct that forces a subsequent resignation, all surrounding circumstances require consideration. In this matter, the objective facts do not support a finding that the resignation was forced.
Firstly, the 21 September 2022 meeting occurred in the context of Ms Wang having told her employer of her intention to travel to France for three months with her husband. In her 8 September email, Ms Wang raised an option to work remotely from France “should remote work be possible”. In doing so, Ms Wang acknowledged that this was a decision for the business, not her. The alternative Ms Wang raised in that same email was that someone else may need to be found to replace her (“should you decide that the position will be replaced…”). In raising this, Ms Wang clearly inferred that her employment may need to end and that she would, in that circumstance, offer to assist with finding a replacement Practice Manager. Ms Wang did not couch the prospect of her being replaced as being for a temporary period only during which her employment would somehow continue.
Secondly, Ms Jumikis’s statement that Ms Wang should resign occurred only after Ms Wang had been told that remote working from France was not possible given her role. Ms Wang did not demur from that assessment. Thus, Ms Wang was told to resign only once she was aware that the option of remaining employed and working from France was not possible.
Thirdly, Ms Jumikis’s statement that Ms Wang should resign occurred as an answer to a question from Ms Wang “What would you like me to do?”. In asking this question Ms Wang was seeking information to allow her to make future decisions. She was not being forced to end her employment.
Fourthly, Ms Wang took two further months to decide what to do and notify her resignation and departure date. She did not respond instinctively or in the heat of the moment to what Ms Jumikis had said.
Fifthly, Ms Wang’s two subsequent emails (of 27 September and 18 November 2022) do not suggest that she was denied an effective choice. Whilst Ms Wang stated on 18 November that she resigned “with great sadness” this does not point to being forced or not forced. Ms Wang’s earlier observation in her email of 27 September that her role would not be replaced was made in the context of a decision by Oracle not to replace her should she depart for France, not to remove her from her job should she not go. As Ms Wang stated in that email “I have considered my tenure since our meeting…”. To the extent that Ms Wang infers in her 27 September 2022 email that she was being forced out by a restructuring decision, that is not a finding objectively open on the evidence.
I take into account that the conduct (and in particular the conversations and email exchanges) of both Ms Wang and Oracle were somewhat ambiguous on the critical question of who was ending the employment.
Ms Wang, given her email of 27 September, was clearly of the subjective view that this burden was on Oracle despite at the same time referring to her “intended departure from Australia”. Further, once told by Oracle that once she travelled to France a restructure would result in her position not being replaced, Ms Wang sought to frame her decision around securing a redundancy payment. Oracle did not oblige as the position was not made redundant in advance of Ms Wang deciding whether to resign in order to travel to France and would not have been made redundant had she not done so.
Whilst it may be unusual that an employee who is told to resign is not, as a matter of fact, forced to resign, that is the conclusion to be reached in this matter. As noted in Doumit v ABB Engineering Construction Pty Ltd “considerable caution” should be exercised in treating a resignation as other than voluntary where conduct is ambiguous or based on subjective perceptions.
Ms Wang was told to resign only in the context of having first notified her employer of her plan to leave the country and live in France for three months from where her husband would work. She resigned only after being told that remote working was not possible given her role as Oracle’s Practice Manager. As personally unpalatable as her options from thereon in were, Ms Wang had a real and effective choice. She could decide to remain in her job and not travel to and live in France, or alternatively to go to France and forego her job.
Ms Wang decided to go to France. She resigned knowing that she did not have permission to work remotely from France nor had she sought or obtained extended leave of absence for that period.
The choice was personally unpalatable, but it was, in the context of Ms Wang’s employment obligations, a real and effective choice.
Having not been denied a real and effective choice but to resign, and Oracle not having intended to bring Ms Wang’s employment to an end, there was no forced resignation within the meaning of s 386(1)(b) of the FW Act.
Conclusion
I have not found that Ms Wang’s employment was terminated by Oracle at its initiative within the meaning of s 386(1)(a) of the FW Act. I have not found that Ms Wang’s resignation was forced within the meaning of s 386(1)(b). Accordingly, Ms Wang was not dismissed from her employment as Practice Manager.
The jurisdictional objection by Oracle is upheld. Ms Wang’s application under s 365 of the FW Act fails for want of jurisdiction and must be dismissed.
An order giving effect to this decision will be issued in conjunction with its publication.[14]
DEPUTY PRESIDENT
Appearances:
Ms G Wang, on her own behalf
Ms E Jumikis, of and on behalf of Oracle Healthcare Pty Limited T/A Oracle Healthcare
Hearing details:
2023
Adelaide (by video)
29 March
[1] [2020] FCAFC 152
[2] A1 Statement of Gail Wang (undated); A2 Statement of Gail Wang (in body of application at item 3.1); A3 Statement and Submission of Gail Wang 8 March 2023 (email)
[3] R1 Statement and Submission of Elizabeth Jumikis 8 March 2023; R2 Reply Statement and Submission of Elizabeth Jumikis 15 March 2023
[4] R7 Statement of Isaac Werrett 8 March 2023
[5] R3
[6] R4
[7] R5
[8] R6
[9] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
[10] [2017] FWCFB 3941
[11] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
[12] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941 at [47]
[13] Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 citing with evident approval the Full Bench of the Australian Industrial Relations Commission in Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRC (FB), N6999, 9 December 1996)
[14] PR760876
Printed by authority of the Commonwealth Government Printer
<PR760873>
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