Genevieve Laura Kinchin v Verve Lounge Pty Ltd
[2025] FWC 694
•12 MARCH 2025
| [2025] FWC 694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 – General protections
Genevieve Laura Kinchin
v
Verve Lounge Pty Ltd
(C2024/5819)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 12 MARCH 2025 |
Application to deal with contraventions involving dismissal – Applicant resigned from her employment in writing – whether Applicant was ‘forced’ to resign by reason of employer conduct – resignation in the overall circumstances premature - choices or options available to the applicant other than resignation - no “dismissal” within the meaning of s.386(1) of the Fair Work Act 2009 – application dismissed for want of jurisdiction.
Introduction
Ms Genevieve Kinchin (Applicant) has filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by her employer, Verve Lounge Pty Ltd (Respondent), in contravention of Part 3-1 of the Act.
The Respondent has raised a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act. The Applicant asserts that despite resigning in writing, she was ‘forced’ to resign by the Respondent, in the sense that she had no other reasonable choice but to resign because of conduct, or a course of conduct, engaged in by the Respondent (which is a “dismissal” within the meaning of s.386(1)(b) of the Act).[1]
A hearing took place to resolve the jurisdictional objection (i.e. as to whether or not the Applicant was “dismissed” by the Respondent under s.386(1)(b) of the Act).[2] At the hearing, the Applicant appeared for herself, and the Respondent was represented (with permission) by Ms Charlotte Sawyer, Kan Kulture Pty Ltd.
Summary of evidence
The Respondent is a skin and beauty clinic located on Racecourse Road, in Brisbane, Queensland.
The Applicant commenced work for the Respondent in around April 2024 as a casual beautician and therapist providing skin and related treatments to clients who attend upon the clinic.
As a casual employee, the Applicant had no firm advance commitment to continuing and indefinite work, and was engaged (or rostered) based upon the business (including operational) needs of the Respondent from time to time.
The Applicant resigned from her employment in writing on 27 July 2024, giving one hour’s notice.[3]
The Applicant suffers from a long term health condition that impacts upon her overall health and well-being, more or less significantly from time to time. Whether or not the Applicant’s health condition is a disability in and of itself, can lead to a disability, or has led to a disability in the case of the Applicant, is unnecessary to resolve for the purposes of these proceedings.
In May 2024, the Applicant twice raised concerns with the Respondent around the absence of formal breaks (as required by the Hair and Beauty Industry Award 2020 (Award)) on Saturday shifts of more than 5 hours.[4]
On 17 July 2024, at a regular one-on-one meeting with Ms Feriel Ali (Feriel), Director, conducted via Instagram video call whilst Feriel was working in Fiji, the Applicant says that after again raising concerns as to insufficient breaks in the context of her health condition, Feriel stated to her (words to the effect of):
“We don’t usually hire someone with your kind of issues, but we saw the potential in you, so we ended up hiring you”.
The Applicant says that she responded to the foregoing statement of Feriel by immediately ceasing the video call and attending upon the clinic’s bathroom and cried. Whilst in the bathroom, the Applicant started hyperventilating. She was able to calm herself down enough to then serve another client. After this, she went to the reception area to wait for another client. Whilst in reception, the Applicant became lightheaded, lost consciousness (passed out), and collapsed on the floor. She woke up with Ms Nubayesha Ali (Nubayesha), Manager, and two clients standing over her. They attempted to get the Applicant to move to the kitchen (and out of the public reception area). The Applicant was also asked if she wished to call her mother to immediately come and pick her up. The Applicant’s mother attended the clinic around 20 (or so) minutes later and took the Applicant home.[5]
The Applicant considers that the reason she lost consciousness was connected to Feriel stating to her “we don’t usually hire someone with your kind of issues”, which caused her to subsequently (or shortly thereafter) have a panic attack and lose consciousness.[6]
Nubayesha subsequently texted the Applicant that evening (17 July 2024) and the next day (18 July 2024) inquiring about her health. Nubayesha also texted the Applicant about her work availability the next week in terms of available days. The Applicant responded by advising that she was better and good to work, but did not wish to work Saturdays (or did not feel she could work Saturdays) due to her concerns around the non-provision of formal breaks on Saturday shifts (especially because of her health condition).[7]
Nubayesha’s text message response to the Applicant reads:
“Hi Genevieve,
Glad to hear that! As I didn’t hear back from you in time I have had to allocated the team already to certain days.
Your next working day is:
[Friday] 26th of July from 9am to 5pm with a 30 min break allocated
Have a great day!”[8]
The Applicant agreed to work this shift with a 30 minute unpaid meal break.
The Applicant was then contacted by Ms Debra (Debbie) Todd, Supervisor, on Wednesday, 24 July 2024 to see if she could work a shift in the clinic that day. The Applicant was unavailable that day, but agreed to come into the clinic and work a four hour shift the next day (Thursday, 25 July 2024). The Applicant had been cleared medically to return to work to perform the full range of duties that her job required of her.
Whilst attending her shift on Thursday, 25 July 2024, the Applicant became aware that her shift the next day (on Friday, 26 July 2024) had been cancelled and she had not been told. She also noticed that she had not been allocated any shifts for the coming weeks.[9] Ms Todd advised her that she had been taken off the scheduled shift on Friday, 26 July 2024, because there were now not enough clients coming into the clinic to sustain her shift.[10] I note that as the Applicant is a causal employee, the Respondent has the ability to cancel her shifts at short notice for business (operational) reasons (e.g. not enough clients (or work) to justify a shift being worked).
The Applicant states that she subsequently:
“called the Fair work commission on the 25th of July to enquire about how much notice I am required to give as there is a clause in my contract stating I must give 2 weeks notice and I was told that I am able to resign if I give the employer 1 hours notice as I am employed on a casual basis. Considering the emotional distress and the financial predicament I had been forced into I felt as though I had no choice but to resign with 1 hours notice and handed in my resignation on the 27th both in person and via email.”[11]
The Applicant also received legal advice from a lawyer in a community legal centre about resigning on Friday, 26 July 2024.
The Applicant’s letter of resignation, dated and provided to the Respondent in hard copy and electronic form on Saturday, 27 July 2024, reads:
“Dear Feriel
Letter of resignation
I am writing to you to tender my resignation from the position of Skin Specialist with The Verve Lounge. As I am employed as a casual, I am providing you with 1 Hour of notice, in accordance with the Hair and Beauty Award, with my last day of contractual employment on 27/07/2024.
During our 1:1 meeting on the 17 of July, we discussed the ongoing issue of me not being allocated designated breaks during working hours. You made discriminatory comments regarding my disability towards me when discussing my fibromyalgia, siting that “you don’t usually hire people with issues”, which we discussed at length during my interview and at the commencement of my work.
Furthermore, I have not seen or discussed with you a workplace health and safety incident report after fainting in the workplace, where I hit the back of my head on way down and clients found me unconscious in Reception. I have decided to seek legal advice in regard to your lack of duty of care and misconduct and all communications moving forward will be through my lawyer or
the Fair Work Ombudsman.Yours sincerely,
Genevieve Kinchin”[12]
The Respondent chose not to cross-examine the Applicant at the hearing.[13]
On the issue of the Applicant not appearing on the (moving forward, or following weeks) roster as at Thursday, 25 July 2024, Nubayesha gave the following evidence:
“I confirm that rosters are completed usually on Saturday and Sundays for the week ahead. The roster has not been completed [on Thursday, 25 July 2024] for the week ahead at this point in time, and there was no intention of not providing the Applicant with no shifts.”[14]
…
“So what has happened was when I contacted you after your day that you weren't coming into clinic, obviously after you got unwell. I contacted you quite a few times, just to ask you when I'm going to see you back in, how you're feeling, so I could organise everything. The reason why you were closed for the future was only because I was unsure and I had to get my clients pretty much booked in and ready to go, before I was flying out on my trip [on 24 July 2024]. That's why the other girls, I had to get one of my other girls to like pretty much fill in on the days that she wasn't meant to be working, to be able to fit those clients and those days, because I was unaware when you were going to be back into clinic. There was no sort of instance of you not coming back into clinic. We were actually readily like going to have you booked in whenever you were ready to get back into clinic. We were just unsure of like what was happening at the time, until you sent me a message on Sunday evening, just to let me know. But because I was away for almost like a week and a half, I had to organise my books to make sure that I had no issues when I had come back from my trip. Unfortunately, can't enjoy a holiday, so my whole entire trip was pretty much, yes, gone to waste. So I hope I answered your question.”[15]
Nubayesha’s evidence that rosters are usually or ordinarily completed on a Saturday or Sunday for the week ahead is consistent with the text message exchanges between her and the Applicant in the past.[16]
The Applicant does not give any evidence that prior to resigning on 27 July 2024, she first checked to see if the rosters had been updated on 26 or 27 July 2024 for the week following. Nor did she call or text Feriel or Nubayesha about same.
‘Dismissal’ under s.386(1) of the Act
Section 365 of the Act reads:
“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.”
Aside from consent arbitration, the Commission’s only role in a general protections involving dismissal application made under s.365 of the Act is to conduct a conference between the relevant parties (so as to assist them in attempting to resolve their dispute by agreement), or issue a certificate if a resolution is unable to be agreed (a certificate is a prerequisite to being able to progress a claim onto an eligible court for judicial determination). That said, the power to conduct such a conference and issue a certificate is provided for under the Act, and the Commission has no jurisdiction to conduct a conference, or issue a certificate post that conference (where resolution is unable to be reached), unless a ‘valid’ (or within jurisdiction) general protections involving dismissal application has been made. It is for the Commission to resolve any disputes or issues as to its jurisdiction in this regard for itself.[17]
Consistent with case law, I agree that the meaning of the term “dismissed” under s.365(a) of the Act is to be defined in accordance with the meaning of that term under s.12 and s.386(1) of the Act, and the applicable case law authorities in respect of same.[18]
Section 386(1) of the Act reads:
“(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.”
The Full Bench majority in NSW Trains v James[19] determined that the expression “employment … has been terminated” (in s.386(1)(a) of the Act) refers to termination of the employment relationship and/or termination of the contract of employment.[20]
The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.[21] Further, a communication of a resignation may not be legally effective (or constitute a “dismissal” within the meaning of s.386(1)(a) of the Act) where it is made by an employee is in a state of stress (or in the heat of the moment), and accepted by an employer without confirmation of the employee’s intention after a reasonable time. [22]
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately accept the resignation (without further question) and act (or move on) accordingly.[23] Once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn prior to its acceptance by an employer – the employer must always consent to its withdrawal.[24]
Under s.386(1)(b) of the Act, a forced resignation essentially occurs where an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was ‘forced’ by their employer.[25] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[26] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the “objective”[27] probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee (i.e. other than resignation).
In relation to case law principles that apply when considering whether or not a resignation falls within s.386(1)(b) of the Act, the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli[28] (Bupa) stated:
“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.”[29]
In Rheinberger v Huxley Marketing Pty Ltd[30], Justice Moore stated:
“However it is plain from these passages [in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200] that 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 leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. 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”.[31]
In Doumit v ABB Engineering Construction Pty Ltd[32], the Full Bench of the Australian Industrial Relations Commission (AIRC) stated:
“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.”[33]
Whilst in O’Meara v Stanley Works Pty Ltd[34], the Full Bench of the AIRC stated:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require 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. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. 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.”[35]
After examining in detail the case law underpinning s.386(1)(b) of the Act, the Full Bench in Bupa stated:
“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 probabl[e] 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.”[36]
As to the issue of s.386(1)(a) or (b) of the Act encompassing the concept of “constructive dismissal” (essentially based upon the acceptance of repudiatory conduct) the Full Bench in Bupa said:
“[49]We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia”, the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:
‘If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.’
[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal,that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.”[37]
Consideration – Forced resignation
I make the following findings that I consider are available on the evidence before me:
a) no one at the Respondent asked the Applicant to resign, or indicated to her that her employment was to be terminated;
b) the Applicant accepts that if there was no work for her on Friday, 26 July 2024, her shift was not required, and it was appropriate for the Respondent to cancel her shift that day on that basis;[38]
c) the Respondent’s rosters are normally completed on Saturday and Sundays for the following week, not a month or more in advance as asserted by the Applicant (albeit there may be some exceptions);
d) the Applicant did not clarify with Feriel or Nubayesha as to the status of her shifts or roster (moving forward) prior to resigning on 27 July 2024. In other words, the Applicant contacted the Fair Work Commission Helpline, and an independent lawyer, for advice on both 25 and 26 July 2024 about resigning (and the terms of her employment contract), but could not take the time to first telephone Feriel or Nubayesha as to the specific status of her shifts and roster as at the time she resigned (which is the testing time);
e) it was a common form of communication between the Applicant and Feriel and/or Nubayesha to text message. There is no evidence that the Applicant was unable to text Feriel and/or Nubayesha about her rostered shifts moving forward prior to resigning on 27 July 2024;
f) the Respondent’s evidence that the Applicant’s shift allocations were in abeyance (as at 24 July 2024) because of the combined effect of Nubayesha going overseas,[39] lack of clarity around the Applicant’s availability in the week commencing 29 July 2024, and a need (on that basis) to communicate with the Applicant prior to further allocating her shifts, is a reasonable and credible explanation for the Applicant not appearing on the roster as at 25 July 2024 (when she viewed the roster whilst working in the clinic).[40] This is especially so in the context of the manner in which the Respondent’s business operates (i.e. client bookings made on a planned and short notice basis), and the Applicant’s medical incident on 17 July 2024 (with her on leave (or not requesting to be rostered as casual) for the week (or most of the week) after.[41] Again, the Applicant never communicated with Feriel or Nubayesha as to the status of her shifts or her roster (moving forward) prior to resigning on 27 July 2024;
g) the manner in which the Respondent intended to deal with the provision of rest and lunch breaks to the Applicant on future long Saturday shifts (i.e. post 17 July 2024) had yet to be determined by the Respondent or communicated to the Applicant.[42] In view of this fact, the Applicant’s contention that the Respondent’s conduct “implied” that she would not be receiving rest or lunch breaks at all moving forward cannot be sustained. As at 27 July 2024, the Applicant had received no confirmation from the Respondent to that effect, and the Applicant was yet to be rostered on or perform another Saturday shift.[43] Importantly, when the Applicant had agreed to work her shift on 26 July 2024 (that was ultimately cancelled due to a lack of work), she was advised that it would contain a meal break.[44] This is consistent with the Applicant being provided meal breaks going forward, or at least points strongly against the Applicant prematurely resigning for reasons of not being provided rest or meal breaks (i.e. on an anticipatory basis, or otherwise).
h) the Applicant in her closing submissions alleged that her timesheets had either been falsely created, or amended retrospectively, to show that she had been allocated rest and lunch breaks during her shifts. She submitted that no matter what the timesheets might say, she never got rest or lunch breaks as required by the Award. As I pointed out to the Applicant at the hearing, these (new) submissions or allegations (about timesheet changes) are not supported by any evidence, and the Respondent has not had the opportunity to defend such allegations as it was not a matter that they were put on notice of prior to the hearing (or prior to the Respondent closing its case at the hearing);
i) the Applicant says that her conversation with Feriel on 17 July 2024 was one of the core reasons she resigned some ten days later. However, this awkwardly rubs up against the fact that the Applicant returned to work for the Respondent on 25 July 2024, prior to resigning on 27 July 2024. The Applicant’s explanation for returning to work on 25 July 2024 is framed as after “discussions with my legal team”, “the only reason I returned to work on [25] July 2024 was because I had no other form of income”.[45] The difficulty with this evidence is that it appears to be evidence (or a position) that the Applicant has been told by her legal team to take, and it is not evidence found in the materials filed by the Applicant. From a common sense perspective, an employee goes to work to get paid (or get money). In the circumstances of this case, however, I do not accept that it was the basis upon which the Applicant’s attendance back at work post 17 July 2024 is fully explained. Rather, I find that the Applicant returned to work post 17 July 2024 because she was willing to continue working at the Respondent, and that the real impetus for the Applicant resigning was her (as it turns out premature) view (opinion or conclusion) that she had been permanently removed from casual rosters moving forward and was not going to be allocated any further shifts at the Respondent.
Whilst I accept that the evidence discloses that the Applicant had a health condition, and that she made the Respondent aware of that health condition, most likely at the commencement of her employment with the Respondent, I do not accept that her conversation with Feriel on 17 July 2024 forced her to subsequently resign on Saturday, 27 July 2024 (noting that the Applicant returned to work on Thursday, 25 July 2024).[46]
The Applicant’s contentions around her contractual provisions with the Respondent causing her apprehension about resigning,[47] whilst part of the factual matrix, do not assist the Applicant’s case to the extent that they might be said to create some form of foundation upon which she was forced to resign. There is no suggestion that the Applicant did not agree to be bound by such contractual provisions when she signed or otherwise entered into her employment contract with the Respondent.[48]
Having regard to the findings in paragraphs [39] to [41] of this decision, and on the evidence before me, I make the following four ultimate findings:
a) the Applicant’s employment with the Respondent ended at the hand of the Applicant herself. It was the action of the Applicant in resigning in writing that brought her employment to an end (i.e. the ending of the Applicant’s employment was at her own personal initiative, and a choice that she made for herself);
b) consistent with case law authority (Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245; Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279, and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680),[49] on the evidence before me, and in the facts and circumstances of this case, the Applicant’s resignation was not forced or coerced, nor did it have any kind of compulsory element to it whatsoever. There is no basis on the evidence before me to suggest (let alone make a finding) that the Respondent sought, in any way, to procure the Applicant’s resignation from her;
c) there was no conduct, or course of conduct, engaged in by the Respondent that objectively (on the evidence) can be said to have ‘forced’ the Applicant to resign at the time she did (i.e. on 27 July 2024), or gave her no other choice (or option) but to resign at that time. The failure of the Applicant (prior to resigning on 27 July 2024):
i) to obtain any (or any proper) clarity from the Respondent as to her shifts and roster moving forward, and/or
ii) obtain a specific answer as to what the provision of rest or lunch breaks on long Saturday shifts would be (post 29 July 2024),
is fatal to her contention that she was forced by the Respondent’s conduct (or course of conduct) to resign. The Applicant had choices open to her other than resignation. One of those choices was to not resign prior to engaging in further communication with the Respondent about her roster moving forward. She also could have filed a dispute with the Fair Work Commission under clause 32 of the Award, or filed a general protections not involving dismissal application under s.372 of the Act;[50] and
d) on the basis of (a) to (c) above, the Applicant was not ‘forced to resign’ or otherwise “dismissed” by the Respondent within the meaning of s.386(1)(b) of the Act. The Applicant carries the onus to prove on the balance of probabilities to the contrary.[51] She has not done so on the evidence in this case.
For completeness, I find that the Applicant’s cessation of employment with the Respondent does not fall within the scope of s.386 of the Act. Given that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no further jurisdiction to deal with the Applicant’s Application. An Order [PR785084] has been issued contemporaneously with this decision dismissing the Applicant’s case.
DEPUTY PRESIDENT
Appearances:
Ms Genevieve Laura Kinchin, appeared on her own behalf.
Ms Charlotte Sawyer, Kan Kulture Pty Ltd, appeared with permission on behalf of the Verve Lounge Pty Ltd (Respondent).
[1] Transcript, 9 December 2024, PN237-PN239. But compare Applicant’s Submissions, at [5], CB, p.55.
[2] As per Directions issued on 4 June 2024. Hearings were conducted on 18 November 2024 (adjourned due to a lack of evidence filed (see Transcript, 18 November 2024)), and on 9 December 2024.
[3] CB, pp.87-88.
[4] Applicant’s Statement, at [2]-[3], Digital Hearing Book 2 (or Court Book) issued 9 December 2024 (CB), pp.93-94. See also Applicant’s Submissions, at [5]-[8], CB, p.57, and Transcript, 18 November 2024, PN34.
[5] Applicant’s Statement, at [4], CB, pp.94-95. See also Applicant’s Submissions, at [9]-[12], CB, p.57. See also Safety Incident Report at CB, pp.100-107 (albeit unsigned and completed by the Respondent only).
[6] Transcript, 18 November 2024, PN35.
[7] CB, p.76. Relevant rest and meal break provisions are set out under the terms of clause 16.1 of the Hair and Beauty Industry Award 2020 (Award).
[8] CB, p.109.
[9] Applicant’s Statement, unnumbered, CB, p.95.
[10] Transcript, 18 November 2024, PN25.
[11] Form F8, p.17; CB, p.33.
[12] CB, pp. 87-88. The Applicant has not raised, or further pressed in any substantive sense, her resignation being caused by the conduct of the Respondent in respect of the “incident report” not being provided to her (CB, pp.70-75). Whilst I have considered the incident report for the purposes of the factual matrix in these proceedings, I deal with it no further in determining whether or not the Applicant was dismissed within the meaning of s.386 of the Fair Work Act 2009.
[13] Transcript, 9 December 2024, PN172-PN177. I have not taken into account the Witness Statement of Ms Georgina Kinchin (CB, pp.90-92) as it is, in the substantive sense, hearsay and opinion evidence of the Applicant’s Mother.
[14] Ms Nubayesha Ali Affidavit, at [11], CB, p.97.
[15] Transcript, 9 December 2024, PN193. See also CB, p.111 (plane tickets for Ms Nubayesha Ali, overseas trip, departing 24 July 2024, returning 31 July 2024).
[16] CB, pp. 69, 79, 81-83, and 113-114. See also Ms Feriel Ali Affidavit, at [6], CB, p.115-118 (i.e. including shift time allocations per Staff Timesheet), and CB, pp.67-68. Note, rostering in advance for casual employees is not required: see clauses 11, 14, and 15 of the Award.
[17] See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75], and Lipa Pharmaceuticals Ltd v Mariam Jarouche[2023] FWCFB 101, at [3]-[4], and [23].
[18] In relation to the application of s.386 of the Fair Work Act 2009 (Act) to general protections involving dismissal claims, see Coles Supply Chain v Milford (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].
[19] [2022] FWCFB 55; (2022) 316 IR 1.
[20] Ibid, at [45].
[21] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[22] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [47] (see also at [35]-[46]).
[23] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16]. See also Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370, at [44], citing Sovereign House Security Services Limited v Savage [1989] IRLR 115, at 116.
[24] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[25] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279, and Australian Hearing v Perry[2009] AIRCFB 680; (2009) 185 IR 359, at 367-368.
[26] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at [44] and [47]; Kylie Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279; Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000).
[27] McGregor v Melbourne Equine Veterinary Group[2012] FWA 6712, at [37]; Morley v Intelitec Pacific Pty Ltd[2015] FWC 3168, at [40].
[28] [2017] FWCFB 3941; (2017) 271 IR 245.
[29] Ibid, at [34], footnotes omitted.
[30] (1996) 67 IR 154.
[31] Ibid, at 160-161.
[32] Unreported, Print N6999 (Munro J, Duncan DP, Merriman C, 9 December 1996). This print does not contain page or paragraph numbers.
[33] Ibid.
[34] AIRC Print PR973462 (11 August 2006).
[35] Ibid, at [23].
[36] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245, at 269, [47(2)].
[37] Ibid, at 269-270, [49]-[50], footnotes omitted. See also Phillip Knight v Wattyl Australia Pty Ltd, PR974876, Deegan C, 8 December 2006, at [47]-[49], noting that s.386(1)(b) is intended to reflect case law applying prior to the Work Choices amendments, and MariamJarouche v Lipa Pharmaceuticals[2023] FWC 493, at [106] (upheld on appeal in Lipa Pharmaceuticals v Mariam Jarouche[2023] FWCFB 101).
[38] Transcript, 9 December 2024, at PN131-PN133. See also Transcript, 18 November 2024, PN30-PN32, and PN50-PN51.
[39] CB, p.111.
[40] Transcript, 9 December 2024, PN193.
[41] Applicant’s Statement, at [4], CB, pp.94-95.
[42] Transcript, 9 December 2024, PN222-PN223.
[43] Applicant’s Submissions, at [22], CB, p.59.
[44] CB, p.76. Under the terms of clause 16.1 of the Award, a meal break for a shift of more than 5 hours can be 30 minutes “by agreement”. There is no evidence that the Applicant, in agreeing to work the shift, did not agree to the proposed shift on 26 July 2024 containing a 30-minute unpaid meal break.
[45] Transcript, 9 December 2024, PN146 and PN150.
[46] I also apply my reasoning and findings at paragraph [42](c) of this decision to the issue of the Applicant’s health condition (or disability) in the context of her health condition and rest break concerns.
[47] Requiring the Applicant to not work for a competitor of the Respondent (whilst employed by the Respondent), and to possibly pay back to the Respondent costs incurred by the Respondent in respect of training.
[48] See the decision of Latham CJ of the High Court in Wilton v Farnworth (1948) 76 CLR 646, at 649. Endorsed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, at [38]-[47].
[49] See also Tanaya Kar v Action Drill & Blast Pty Ltd [2023] FWCFB 204; Moore v Woolworths Group Limited T/A Big W[2020] FWC 963; Davidson v Commonwealth[2011] FWA 3610, at [97]-[98], and [104]; Davidson v Commonwealth[2011] FWAFB 6265; Love v Alcoa of Australia Limited[2012] FWAFB 6754; (2012) 224 IR 50; McGregor v Melbourne Equine Veterinary Group[2012] FWA 6712, at [40]-[41]; Pacific National (NSW) Limited v Bell [2008] AIRCFB 555; (2008) 175 IR 208.
[50] The provisions of the Fair Work Act 2009 in relation to being able to raise disputes during employment exist for employees to choose to use. This is not a question of an employee’s subjective knowledge or ‘awareness’ of such provisions. Rather, it is an objective fact that such provisions are available to be utilised. The provisions of the Act in relation to being able to raise disputes during employment cannot be disregarded, excluded or otherwise discounted as an option available to any employee when assessing all of the objective circumstances (and available options) open to that employee to utilise or engage with (i.e. as an alternative to resigning). This is especially so in circumstances where the Act also contains protections (or workplace rights) for employees who utilise such provisions (see s.340 and s.341 of the Act). Indeed, the presence of these vast array of statutory provisions and protections for employees to utilise, and be protected by statute when utilising, points strongly against an employee not availing themselves of such provisions, but then asserting that they had no other option but to resign. As at the time that she resigned on 27 July 2024, there is no evidence of anything at all preventing the Applicant from making an external claim to the Fair Work Commission.
[51] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279, and Australian Hearing v Perry[2009] AIRCFB 680; (2009) 185 IR 359, at 367-368.
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