Jamie Taouk-Saade v Drug and Alcohol Multicultural Education Centre (Damec)

[2016] FWC 8752

[2016] FWC 8752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Taouk-Saade
v
Drug and Alcohol Multicultural Education Centre (DAMEC)
(U2016/2444)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 13 DECEMBER 2016

Application for relief from unfair dismissal.

Introduction

[1] On 24 May 2016 Ms Jaime Taouk-Saade (the Applicant) lodged an application pursuant to s.395 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal against her former employer Drug and Alcohol Multicultural Education Centre (DAMEC) (the Respondent).

[2] The Applicant says that she commenced employment with the Respondent on 1 April 2014. The Applicant says that she was forced to resign on 13 May 2016 and the alleged dismissal took effect on that day.

[3] The Applicant says that she had been the subject of harassment and bullying during her employment. This was particularly undertaken by another member of staff, Ms Sandra Eves. It involved alleged malicious and false claims to the Respondent about the Applicant and her work. The Respondent refused to take action despite many complaints. The Applicant says that she had to resign to avoid further deterioration in her “mental health and well-being”.

[4] The Applicant was employed as a Family Worker by the Respondent which is a non-government organisation funded by the New South Wales Department of Health. Its role is to seek to reduce drug and alcohol dependence within ethnically and culturally diverse communities in New South Wales. Its office is in inner Sydney and there is an office at Liverpool.

[5] The Applicant seeks monetary compensation.

[6] The Respondent says that the Applicant resigned of her own free will. The resignation took place by email following an exchange of emails with the Applicant’s immediate supervisor Ms Yasmin Iese. The Respondent denies it received complaints by the Applicant about bullying and harassment.

[7] The Respondent says that Ms Iese had lodged complaints about the Applicant. Further, the Applicant had received written warnings on 12 May 2015 and 27 August 2015 and several informal warnings. The Respondent says that it was seeking to deal with the issues about the Applicant’s performance in a reasonable manner.

[8] On Thursday 12 May, Ms Iese questioned the Applicant’s work hours at an agency called Headspace at Bankstown, which the Applicant was required to attend. The exchange continued on Friday, 13 May with Ms Iese questioning whether the Applicant had limited her work hours without authorisation. Ms Iese decided to organise a meeting with Headspace to clarify what had occurred and the future hours. The Applicant then said that she would no longer work at Headspace. Ms Iese responded that she would because it was part of her role/job description and she was required to attend the meeting. In reply, the Applicant resigned by email “as of today, no one talks to me in that manner, not you, not anyone”.

Commission Proceedings

[9] Conciliation took place on 21 June 2016 but no settlement was reached.

[10] Deputy President Clancy held a telephone mention on 29 July in relation to the Applicant’s notice to produce. The order related to performance records of the Applicant. Orders for confidentiality were also made.

[11] I conducted a telephone programming conference on 30 August 2016.

[12] The hearing took place on 19 September 2016 in Sydney.

[13] The Applicant was represented by Mr P. Lavac, of counsel together with Mr T. Taouk, solicitor. The Respondent was represented by Ms M. Doyle. Both were granted permission to appear pursuant to s.596 of the Act.

[14] The Applicant relied on a written submission and the Applicant’s witness statement (Exhibit L1).

[15] The Respondent relied on written submissions and witness statements of:

● Mr Kelvin Chambers

CEO of the Respondent

(Exhibit D1)

● Ms Yasmin Iese

(The Applicant’s Clinical Manager) (Exhibits D2 and D3)

[16] The evidence was dealt with on 19 September, but written submissions were then made as follows:

● The Applicant, 3 October 2016.
● Further witness statement of the Applicant, 6 October 2016.
● Respondent, 18 October 2016.
● Applicant in reply, 20 October 2016.

Protection from Unfair Dismissal

[17] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[18] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[19] The Applicant was employed under the Social, Community, Home Care and Disability Services Industry Award 2010. She was paid $66,355 per annum. Consequently, I am satisfied that the Applicant was protected from unfair dismissal.

[20] Section 396 provides that certain matters must be determined by the Commission before proceedings to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order Under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[21] The Respondent says that it had only 11 employees. This was denied by the Applicant. In any event, given the nature of the case, it appears that the Small Business Fair Dismissal Code does not need to be considered.

Was the dismissal unfair?

[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal

Code; and

(d) the dismissal was not a case of genuine redundancy.”

Was the Applicant dismissed?

[23] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3-2 of the Act. Section 386 of the Act provides that:

“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 because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[24] There was a dispute in this case as to whether the Applicant was dismissed or resigned. In the event I am satisfied that the Applicant was forced to resign, I must consider the matters contained in s.387. I note also that s.385 (d) has no application.

Harsh Unjust or Unreasonable

[25] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person-whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Approach of the Commission

[26] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[27] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

The Applicant’s case

[28] The Applicant submits that her resignation was a constructive dismissal because the Respondent unreasonably failed to prevent the bullying of the Applicant by Ms Evers. It is further said that the Applicant’s duties did not involve work with Headspace. She was therefore entitled to say that she would not carry out these duties.

[29] The Applicant submits that the two written warnings she received were part of the harassment of the Applicant.

[30] The Applicant has suffered financial and emotional hardship as a result of the alleged dismissal.

[31] The Applicant, in her evidence details the alleged harassment by Ms Evers. It allegedly involved:

● A complaint to Ms Iese, in March 2015, of the Applicant not completing questionnaires properly.

● Warnings about time keeping.

● A warning in August 2015 arising from a complaint by Ms Evers about the Applicant’s treatment of another employee.

[32] The Applicant says that she accepted the assignment to Headspace, although it was outside “the parameters of” her employment duties because she was intimidated.

[33] In February 2016 the Applicant says she complained to Ms Iese about her excessive workload. She was then allegedly forced to give up her car space in favour of Ms Evers, despite the fact that the Applicant had back problems.

[34] By May the Applicant says that the conflict in the workplace was affecting her health. She says that she complained to Ms Iese on 12 May but was told: “my hands are tied”.

[35] The email exchange which led to the Applicant’s resignation then took place. She says Ms Iese disregarded her explanations and she had to resign “to preserve my health and wellbeing”.

[36] The Applicant referred to an email exchange between Ms Iese and Mr Chambers, which was obtained on discovery. Ms Iese is critical of the Applicant’s attitude. She also says: “she started off trying (to) bullshit her way through but I stomped on her face and she quickly stopped it and retracted and then apologised for causing drama”.

The Respondent’s Case

[37] The Respondent denies that the Applicant’s resignation was a constructive dismissal and that she had no other alternative but to resign.

[38] The Respondent submits that the Applicant’s role as Family Worker came with a broad job description. As well, the Applicant was required to follow reasonable instructions made on behalf of the Respondent. She was not able to limit her hours without authorisation from her supervisor. She refused a reasonable instruction to attend a meeting by a supervisor then resigned when she was instructed to do so. She made no attempt to retract her resignation.

[39] The Respondent concedes that the Applicant and Ms Evers did not have a good working relationship. Ms Evers had made complaints to the Respondent about the Applicant’s rudeness. The Applicant never made any complaints about Ms Evers’ alleged bullying conduct.

[40] Ms Iese acted reasonably to attempt to resolve the workplace conflict, to treat both employees fairly and ensure the Respondent’s services were provided to its clients.

[41] The Applicant’s resignation was because of the instruction given to her by Ms Iese and not to some alleged bullying by Ms Evers.

[42] In the event that the Commission was to find that the Applicant’s resignation amounted to a dismissal, the Respondent submits that it was not harsh, unjust or unreasonable bearing in mind the Applicant’s two warnings, her work performance, her time keeping and refusal to follow a reasonable instruction.

[43] Kelvin Chambers, as CEO, confirmed that no formal complaint had come to him about Ms Evers’ alleged bullying of the Applicant. He had issued a formal warning to the Applicant about her lack of paperwork and proper recording. He makes the point that the Applicant’s job description specified that the list of duties could be added to and change over time. He required that she undertake the Headspace work. It did not increase her current work hours. The Applicant consistently failed to meet her client workload targets. She unilaterally reduced her hours without approval from him or Ms Iese.

[44] Ms Iese’s evidence referred to the two written warnings given to the Applicant on 12 May 2015 and 27 August 2015. She says that she provided counselling and support to the Applicant so that she might succeed.

[45] Ms Iese states that the Applicant had commenced work with Headspace in November 2015. It was their Manager that made Ms Iese aware that the Applicant had limited her hours. The Applicant’s resignation came as a result of Ms Iese attempting to clarify the situation.

[46] Ms Iese’s evidence was that the Applicant and Ms Evers, who was the psychologist, found each other difficult to work with. The Applicant never made any formal complaint about Ms Evers. She did receive two written complaints from Ms Evers on 4 May which were appropriately investigated. They both involved the Applicant allegedly behaving contrary to the agreed arrangements over the parking spot and being loud and aggressive towards Ms Evers.

[47] Ms Iese also says that she had numerous complaints from co-workers about the Applicant’s attitude and behaviour.

[48] Ms Iese, in her second statement, detailed the medical reasons for Ms Evers being provided with the car space.

[49] Ms Iese also provided the communications with Headspace to demonstrate that they had raised the issue of the Applicant’s hours and attendance at their site.

Was the Applicant Dismissed Pursuant to s.386?

[50] Cases such as Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 (Mohazab) and O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (O’Meara) deal with s.386(1)(a). A termination is at the employer’s initiative when its action “directly and consequentially” results in the termination of employment, and the employee would have still been employed but for that action. An analysis of all the circumstances is required. The Full Bench states in O’Meara:

“[23] 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 to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 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.”

[51] Where an Applicant claims they were forced to resign they must show they had no real choice, Mohazab. The onus is on the employee to prove that they did not resign voluntarily and that the employer forced them to do it, Australian Hearing v Peary (2009) 185 IR 359. An employer is generally able to treat a clear and unambiguous resignation as such, Ngo v Link Printing Pty Ltd (1999) 94 IR 375 (Ngo).

[52] Deputy President Wells in Dawes v Presbyterian Care [2014] FWC 4067 provides the following useful summaries of the approach to be taken:

“[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of dismissed

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.”

. . .

[59] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine on the evidence whether Ms Dawes was dismissed at the initiative of PCT or whether she was forced to resign due to the conduct engaged in by PCT.

Consideration

[53] There was a conflict in the evidence of the Applicant, as compared to Mr Chambers and Ms Iese in respect of the incidents which led up to the Applicant’s resignation. Generally, I found Ms Iese, in particular, to be a credible witness. Her written witness statements were detailed and plausible and supported by extensive relevant documentation. Where there was a conflict between her evidence and the Applicant who appeared to be evasive and argumentative, I have preferred Ms Iese.

[54] There was undoubtedly conflict in the workplace between the Applicant and Ms Evers, and Ms Iese was frustrated by this. This is evidenced by the private email between her and Mr Chambers which was brought into evidence. She used an inappropriate expression in that email. However, overall, I am satisfied that Ms Iese acted appropriately as a Manager towards the Applicant. She investigated the issues and gave instructions to the Applicant which were reasonable in the circumstances.

[55] Mr Chambers’ evidence was that although he was aware that there had been some issues between the Applicant and Ms Evers, he was not aware that they were ongoing. There had never been any formal complaint by the Applicant which required action in accordance with the Respondent’s bulling and harassment policies. (PN973 – PN1001)

[56] Mr Chambers’ evidence was also that once Ms Iese told him that the Applicant had resigned he told Ms Iese to “give her time to think about it”. (PN1358)

[57] Mr Chambers’ evidence, in answering a question from me, clarified the Respondent’s relationship with Headspace and why that work was properly part of the Applicant’s role:

“PN1505 Where you deal with the workload issues, this is in paragraph 19 and 20 of your statement, can you just expand on that?  I mean, essentially what you're saying is that the applicant wasn't carrying out the same level of duties as other employees.  Can you expand on that?---Well, I think in previous testimony we were talking about how we see certain KPIs for case load limits and we keep a monitoring of that for each individual staff member.  When we made some decisions about pick up some extra coverage work because we didn't have the staff there at that point in time, we looked at who was in the best position to do it but also who had some free time to do it.  And what was happening was it fairly clear to us from the reported case load limits that Jamie was fairly much under those targets.  And so we thought that if she was under those targets that we could get her to do a little bit more work for both Transitions and for the Headspace project.

You maintain that the Headspace role was part of the job description?---It wasn't written down as a job description, but you can't predict everything that occurs.  We had signed an MOU with Headspace.  I don't know how much your Honour knows about head space and whether it's worthy of me to - - -

Only what I was told when I asked the question before?---Yes, Headspace are funded through the old Medicare Locals which are now the Primary Health Networks and basically they were an intervention designed to address young people basically.  They are given a bucket of money, an admin bucket of money, and then they have to fly in service and one of the things New South Wales Health especially is pushing for its drug and alcohol agencies to do is to form strategic partnerships while providing that service.

So I had long conversations with Tom about how we could do that and service that agency provide a specialist drug and alcohol counsellor with that agency.  That relationship has been working so well that we are now partnering with them in the Campbelltown initiative as well as they submit to run that.  It was a good - it was a good fit for us to be able to access Arabic youth.  It was a good fit for them to be able to get some drug and alcohol specialty in there.  It was unfortunately lost.  A bilingual Arabic speaking counselling during that time had resigned and this is the one thing, I guess, that's difficult for me, is recruitment of staff into DAMEC.  To get a bilingual drug and alcohol skilled personnel is very, very difficult which is why we try and work within the agency at all to try and retain staff as much as we can because it just costs us so much to do it.  It took us a while to fill that bilingual drug and alcohol position.

So I had to look at how we could deliver those services to Headspace in that period.  I looked at which staff had the language skills, naturally enough, and which staff member had the lowest case load.  And at that point in time it was a family worker.  We reserve the right, perhaps wrongly, in terms of job descriptions to be able to direct staff reasonably for duties that come up that were not so much expecting when they first apply for the position.  That's done in negotiation (indistinct).  Jamie necessarily didn't have a problem in terms of going out to Headspace initially.  The difficulty came into it that we got feedback from Headspace that the hours were being reduced and we were trying to work out why that was the case.”

(Transcript PN1505 – PN1509)

[58] I am satisfied that the work at Headspace was properly part of the Applicant’s duties. I am also satisfied that she had varied her hours without authorisation from the Respondent. Ms Iese was entitled to question her about this and require her to attend a meeting so that the issue could be discussed. This was a reasonable request and the Applicant was required to comply.

[59] Overall, the evidence shows that there was conflict in the workplace between the Applicant and Ms Evers. Ms Evers made some formal complaints about the Applicant but the Applicant did not do the same. I am not satisfied that Ms Evers’ conduct amounted to bullying and harassment. Certainly there is no evidence that it led to a situation where the Applicant had no alternative but to resign.

[60] The Applicant was critical of the fact that there was no witness statement from Ms Evers. I do not believe that this detracts from the Respondent’s case. There was no action by the Respondent which was intended to bring the employment of the Applicant to an end or had the probable result of doing so. Even if Ms Evers had bullied, and I am not satisfied she had, it is the relationship between the Applicant and the Respondent which is crucial. The question is whether the Applicant was left with no choice but to resign as a result of the Respondent’s actions or lack of action in respect of the alleged harassment of the Applicant by Ms Evers. I am satisfied that the Respondent, and in particular, Ms Iese acted appropriately to try to manage the situation. This is especially so as there was no formal complaint by the Applicant although she was well aware of the Respondent’s policies and procedures.

[61] The Applicant did receive a generally positive staff review in 2015 but it is apparent that there were issues with her performance. She had received written warnings on 12 May 2015 and 27 August 2015 about her performance and conduct at work.

[62] I am also satisfied that there is nothing in the events of 12 and 13 May 2016, and in particular the email trail between the Applicant and Ms Iese, that points to a constructive dismissal. The work at Headspace was properly part of her duties. It did not constitute an excessive workload. She had varied the hours without authorisation. Ms Iese was entitled to query this and require the Applicant to attend a meeting to discuss it. The Applicant’s resignation at this point was not an act which she was forced into. It was also not an act which was linked, on its face, to any alleged bullying by Ms Evers. The Applicant simply refused to carry out a reasonable instruction from her manager. She had a number of choices open to her but decided to resign.

[63] The fact that there is workplace conflict does not mean that the Applicant had no choice but to resign.

Conclusion

[64] Therefore, I find that the Applicant was not dismissed pursuant to s.385(e).

[65] It follows that the Applicant’s claim for a remedy for unfair dismissal must fail and it is therefore dismissed. An Order [PR588460] to that effect will accompany this decision.

DEPUTY PRESIDENT

Appearances:

P. Lavac of counsel with T. Taouke, solicitor for the Applicant;

M. Doyle, solicitor for the Respondent.

Hearing details:

2016

Sydney:

September 19.

Final written submissions:

Applicant, 3 October 2016;

Further witness statement of the Applicant, 6 October 2016;

Respondent, 18 October 2016;

Applicant 20 October 2016.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588257>