Jaslene Kundi v PricewaterhouseCoopers Services Pty Ltd
[2024] FWC 1395
•30 MAY 2024
| [2024] FWC 1395 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jaslene Kundi
v
PricewaterhouseCoopers Services Pty Ltd
(C2024/1318)
| DEPUTY PRESIDENT DEAN | CANBERRA, 30 MAY 2024 |
Application to deal with contraventions involving dismissal – whether there was a dismissal – no dismissal – application dismissed.
Ms Jaslene Kundi (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 alleging contravention of the general protections provisions associated with her employment with PricewaterhouseCoopers Services Pty Ltd (Respondent).
The Respondent objects to the application on the basis that the Applicant resigned voluntarily and was not dismissed.
There is no dispute that the Applicant tendered her resignation on 8 February 2024 by way of letter through her lawyers. The Applicant claims that she was forced to resign because of conduct of the Respondent which was intended to bring the employment relationship to an end.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether her dismissal was in contravention of the general protections provision.[1]
The application was listed for hearing on 29 May 2024 to deal with the jurisdictional objection. At the hearing Ms J Jamieson appeared with permission for the Applicant and Ms M Pillay appeared for the Respondent. The Applicant give evidence on her own behalf. Mr Sunam Suri, a former employee of the Respondent, submitted a witness statement and was not required for cross examination. The Respondent adduced no witness evidence.
Background
Briefly, the Applicant commenced employment in October 2023, and says she made numerous workplace complaints regarding her employment from May 2023 onwards.
She was advised on 23 November 2023 that she would be subject to a disciplinary investigation and was asked to attend a meeting on 24 November 2023. On 24 November 2023 she attended her doctor who provided her with regular medical certificates over the following weeks indicating she was unfit to work up to 28 February 2024.
The Applicant engaged a lawyer shortly after receiving the details of the matters which were to be investigated, and which had been provided to her by letter dated 23 November 2023. Her lawyer responded to the allegations on the Applicant’s behalf on 21 December 2023.
On 17 January 2024, the Respondent replied to the 21 December 2023 correspondence. Relevantly for these proceedings, the Respondent noted that the medical certificates provided by the Applicant did not indicate whether she was fit to participate in ongoing communications regarding the investigation, and there were follow up questions the Respondent had for the Applicant. The Respondent asked that her doctor provide an indication as to when she might be likely to return to work, with or without reasonable adjustments. The Respondent also offered support for the Applicant in the form of assistance from its Health Management team and its employee assistance program.
The Applicant received a text message on 9 January 2024 from a former employee of the Respondent who informed her she had been told by an employee of the Respondent that the Applicant would not be returning to the employ of the Respondent because she had resigned.
The same former employee sent a further message to the Applicant on 2 February 2024 indicating she had been speaking with other employees of the Respondent who thought the Applicant had not replied to text messages from them because she was “following the strict rule of not liaising with anyone while you’re on gardening leave”.
On 8 February 2024 the Applicant’s lawyer wrote to the Respondent suggesting the delay in concluding the investigation was unreasonable and was causing ongoing stress for the Applicant. It also included the following:
“It has come to our client’s attention that staff members have been informing a third party that our client has resigned from her employment. In our view, this conduct shows an intention of PwC to no longer be bound by the contract of employment.
It is our client’s position that PwC has consequently and unfairly taken disciplinary action against her and treated her less favourably than other employees, whilst also changing her role during her employment. In these circumstances, it is unsafe for our client to return to the workplace and it is clear that the employment relationship has broken down and is irreparable.
Our client therefore, on consideration of the above conduct, has been left with no alternative than to resign from her employment with PwC. Please take this as our client’s official notice, noting the requirement for 3 months’ notice under the Contract of Employment …”.
The Respondent replied on 7 March 2024 in a letter which addressed the matters the Applicant complained of, and relevantly included that:
“Having discretely made some general inquiries, we are not aware of any employees referring to Ms Kundi as having resigned. It is inconsistent with our messaging, being that she is currently on leave. Again, absent any details of these matters, we are unable to enquire into the allegations. Please advise which third party and which employees are being referenced so we may make some enquiries into these allegations. We will share with you the outcome of our inquiry in due course.
It is difficult to suggest that a reference two unknown employees alleging Ms Kundi has resigned, as tantamount to PwCS as her employment no longer intending to be bound by the contract of employment. Noting that Ms Kundi, as we know it has been on unpaid approved personal leave since the commencement of our investigation on 23 November 2023.
…
PwC considers while there are reasons that may motivate Ms Kundi to resign from her employment, including the serious investigation which is on foot, there are no circumstances referenced in your letter that suggest she has no alternative but to resign as a result of the conduct of PwC. To the contrary Ms Kundi as a number of alternative options, including that she can simply remain on unpaid personal leave (where a further medical certificate is provided) while she continues to recover. Additionally, when medically able to, she can cooperate with PwCS’s investigation and in due course receive the outcome.
Where Ms Kundi elects to resign her employment, she will need to do so in writing to her team leader, providing 3 months’ notice as required within her employment contract. Until that time, we will continue to approve Ms Kundi’s leave of absence on provision of the medical certificate to support the absence in accordance with our policies.
…
As noted, we would be pleased if you could remind Ms Kundi that her current medical certificate extends to 29 February 2024 after which time she will need to produce a further medical certificate to support a further application for unpaid personal leave ...”
The Applicant did not reply to this correspondence.
On 15 April 2024, the Respondent wrote to the Applicant indicating it had come to the Respondent’s attention, via her LinkedIn profile, that she had commenced employment with another entity and as a result it would accept her resignation, as previously tendered, as of 1 April 2024, which aligned with her commencement of her new employment. The Respondent advised it waived her 3 months’ notice requirement and advised it would make her final payment comprising her untaken annual leave within 14 days.
This application was made on 29 February 2024, with the Applicant recording 8 February 2024 in the application as the date her dismissal took effect.
When is a person ‘dismissed’?
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following:
(1)There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the ‘heat of the moment’ or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although ‘jostling’ by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2)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 probable 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.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams noted the following when considering whether the applicant was dismissed:
a.Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as:
‘initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.’
b.This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.’
c.In Mohazab, the Full Court also said:
‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’
d.A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘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 ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].
Finally, it is the case that “considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign”.[4]
Consideration
The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. The onus is on the Applicant to prove that she had no real or effective choice in the circumstances but to resign because of the Respondent’s conduct.
Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that she was not dismissed at the initiative of the Respondent, nor was she forced to resign because of conduct engaged in by the Respondent.
The Applicant contends that she was forced to resign because representatives of the Respondent had advised several people that her employment would not be continuing, and it was clear that their conduct meant the Respondent had no intention of continuing the Applicant’s employment.
A short time prior to her resignation, the Applicant had engaged in a text exchange with a former employee of the Respondent, in which the Applicant was asked whether she had resigned. In my view, this exchange at best demonstrates speculation on behalf of the former employee and possibly other current employees as to the reason for the Applicant’s absence, rather than any conduct of the Respondent aimed at repudiating the employment relationship.
The other alleged conduct relied on by the Applicant involving other employees of the Respondent telling her they had been told she had resigned, was not known to her at the time of her resignation and cannot therefore be conduct that contributed to the Applicant’s decision to resign.
I agree with the Respondent that the Applicant had options available to her at the time she resigned which she could have exercised instead of resigning, which included to:
a.make inquiries with the Respondent as to the status of her employment;
b.remain on personal leave;
c.participate in the investigation; or
d.pursue other employment opportunities to avoid the investigation being finalised if she so chose.
She also had the benefit of legal advice, having engaged her lawyer some months earlier, and it was correspondence from her lawyer which relayed to the Respondent the Applicant’s decision to resign.
The investigation of the Applicant’s alleged conduct was not completed at the time the Applicant resigned and so the outcome of that investigation was unknown. Further, there is nothing in the evidence which supports a finding that the decision to investigate the allegations made against the Application was in itself conduct that forced the Applicant to resign.
The Applicant contended that the Respondent’s failure to file evidence should result in a ‘Jones and Dunkel’ inference, in that those witnesses of the Respondent would not have assisted it. I disagree with this contention. In circumstances where the onus is on the Applicant, and the Respondent takes the view (which it submitted it did in this case) that the Applicant has not discharged her onus, there is no requirement for the Respondent to file evidence. Further, it was open for the Applicant to subpoena any employees of the Respondent to give evidence if she thought they would assist her in discharging her onus.
The Applicant has not discharged her onus to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act.
Accordingly, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
J Jamieson of Gibson Howlin Lawyers for Jaslene Kundi.
M Pillay for PricewaterhouseCoopers Services Pty Ltd.
Hearing details:
2024.
By video:
May 29.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[2] [2017] FWCFB 3941.
[3] [2012] FWA 2473.
[4] Sathananthan v BT Financial Group Pty Ltd[2019] FWC 5583.
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