Jasmine Williams v Mind Australia Limited
[2024] FWC 861
•5 APRIL 2024
| [2024] FWC 861 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jasmine Williams
v
Mind Australia Limited
(U2023/12365)
| COMMISSIONER CONNOLLY | MELBOURNE, 5 APRIL 2024 |
Application for unfair dismissal remedy – jurisdictional objection – whether the applicant was dismissed – no dismissal at the initiative of the employer - jurisdictional objection upheld - application dismissed.
On 12 December 2023, Jasmine Williams (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Mind Australia Limited (the Respondent) on 11 December 2023 was harsh, unjust or unreasonable.
On 22 December 2023, the Respondent filed a Form F3 Employer Response and raised a jurisdictional objection, asserting that Ms Williams had not been dismissed. The Respondent contended that the Applicant had voluntarily resigned from the company on 28 November 2023 and that this resignation was formally accepted by the company the following day.
I am required to determine the jurisdictional objection, whether the Applicant was dismissed, before I can exercise powers under s.394 of the Act to deal with the dispute about whether the dismissal was in contravention of the unfair dismissal provisions.
On 13 February 2024, Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 20 March 2024. These Directions were later amended, the Hearing date remained unchanged.
A conciliation conference was conducted on 6 March 2024, however, this was unsuccessful.
In summary, I have found that whilst Ms Williams’ employment has ended in unfortunate circumstances, the cessation of this employment relationship does not constitute a dismissal within the meaning of s.386 of the Act. This finding was provided to the parties at the Hearing on 20 March 2024 ex tempore and I advised that my reasons for this decision would be issued subsequently.
The basis of this finding and the Order made by the Commission are set out in these reasons.
Relevant Background
Ms Williams commenced employment with the Respondent as a part-time support worker at Laverton Haven in March 2023. The Respondent is a Mental Health support provider maintaining a number of facilities throughout the Victorian community, including Laverton and Williamstown. Ms Williams’ work involved providing care and support to residents as required.
In approximately May 2023, Ms Williams alleges that she first began being subjected to harassment and targeting from co-workers, which she brought to the attention of a supervisor, Ms Hatfield. On approximately 20 September 2023, Ms Williams was informed of complaints made against her by co-workers and provided with a copy of the Respondent’s grievance policy and expectations of attendance. On 26 September 2023, she requested a transfer to another work location and was granted a temporary transfer to the Respondent’s Williamstown facility where she continued to work until her employment ceased on 11 December 2023.
On 26 October 2023, Ms Williams made a formal complaint of bullying against a colleague. On 15 November 2023, she was advised that the Respondent had investigated her complaints and while recognising Ms Williams’ experience at Laverton had been an “unhappy one”, resolved that it would not be taking further action or investigating the complaint further. The correspondence also advised that the Respondent’s preferred course of action was to:
“…focus on positive interventions which would build the relationship and regain trust – and facilitate your move back to your substantive position at Laverton.”[1]
The correspondence further confirmed to Ms Williams that her substantive position was that of a Mental Health Support Worker at Laverton and that her current work location at Williamstown was a temporary one, arranged to support her whilst her complaints of bullying were being investigated. Further, it stated that if Ms Williams did not want to return to her substantive position at Laverton and be considered for a move to the casual relief list then:
“…we would ask you confirm in writing that you want to resign from this permanent role.
…
If you have reflected that this is not your preferred course of action, we will arrange a time to meet to discuss the timeline for returning to Laverton and what supports you feel you would need to allow you to be effective in your role.”[2]
On 20 November 2023, Ms Williams was advised of allegations of misconduct being made against her that were to be formally investigated by Mr Phil Dunn, General Manager Western Region for the Respondent. On 21 November 2023, Ms Bianca Pho (HR Business Partner for the Respondent) emailed Ms Williams at 4:40pm providing her with a copy of the correspondence in relation to Mr Dunn’s investigation and advising her she was stood down from duties on pay whilst the investigation was being completed.
On 23 November 2023, Ms Williams attended a meeting with Ms Pho and Mr Dunn for the purposes of the investigation into her alleged misconduct. The purpose of this meeting was focused on Ms Williams’ response to the allegations made against her and did not provide an opportunity for the Applicant to provide additional background or contextual information. It is not disputed that Ms Williams made it clear she did not want to return to the Laverton facility and would rather resign if that was her only option at this meeting.
On 28 November 2023, Ms Williams sent an email to Ms Pho and Mr Dunn in the following terms:
“Dear Bianca,
This email is to certify, that I Jasmine Williams, a part-time employee of Laverton Haven at Mind Australia, wish to resign from my position.
I however would like to put forward my interest in working on a casual basis at Williamstown SIL, as I particularly enjoyed working there, and would like to continue to do so on a part-time basis.
I thank you for the opportunity I’ve had working at Laverton SIL, and wish all the residents and staff the best for the future.
Kind Regards,
Jasmine Williams”[3]
At noon the following day, Ms Pho responded to Ms Williams’s email in the following terms:
“Dear Jasmine,
This email serves as formal confirmation and acceptance of your resignation from Mind Australia.
As per your request, we acknowledge your interest in working on a casual basis. We will review this once the investigation has concluded. We will keep you updated on the progress of the investigation and the decision regarding your casual employment.
Kind regards
Bianca”[4]
On 7 December 2023, Ms Williams attended a meeting with Mr Dunn and Ms Bianca Pho, where she was provided with an opportunity to provide further information and was formally advised that the findings of the investigation into her misconduct had been partially substantiated. After a short break the meeting reconvened and Ms Williams was formally advised that the Respondent’s response to these findings was to issue her with a First and Final Warning.
On 11 December 2023, Ms Williams received a formal letter from Mr Dunn outlining the partially substantiated findings of misconduct against her and providing her with a written First and Final Warning. On the same day, she was also provided with another formal letter from Mr Dunn accepting her resignation and advising her that as a consequence of the findings of misconduct against her she would not be considered for the casual work. The terms of this communication were as follows:
“Dear Jasmine,
The purpose of this letter is to formally acknowledge your resignation in email dated 28 November 2023.
On November 29, 2023 we accepted your resignation and acknowledged your interest in casual work. We further noted our intention to review your interest in casual work after the investigation of allegations presented to you in letter dated 20 November was concluded.
Having now considered your request in light of the investigation’s findings, we regret to inform you that we are declining your interest in moving to the casual pool.”[5]
The remaining text of the letter set out the payment of Ms Williams’ notice period, entitlements, return of property and equipment, confidentiality and details of EAP support services available. Ms Williams filed her F2 unfair dismissal application on the following day.
The Applicant’s Submissions
Ms Williams provided written submission and gave sworn evidence in the Hearing.
Ms William’s contends that she was let down by her employer’s failure to address her legitimate complaints of bullying, harassment, an overall failure to follow policies and procedures and provide a safe working environment.[6] Further, that this inaction, or ineptitude, ultimately left her with no other option but to resign from her job, which she did in the hope of being provided with an opportunity for on-going casual work.
Ms Williams submitted that she first raised her complaint about being targeted, bullied and harassed with both her employer and their Employee Assistance Program (EAP) from as early as May 2023. She states that as a person recovering from cancer treatment, she sought accommodations to assist in the performance of her duties that only seemed to exacerbate how she was being treated and complained about by other members of staff.
On 20 September 2023, Ms Williams received a formal letter of correspondence from her employer setting out a series of complaints made by co-workers against her, providing her with a copy of the company grievance policy and reminding her of company expectations.
Approximately a week later, Ms Williams was involved in an incident where she was required to prevent a patient attempting self-harm. When Ms Williams made her employer aware of what occurred she felt it was her actions that were again being questioned, which she felt was just another instance of her being targeted.
She indicates she is a highly professional health care provider and that following this incident she contacted the NDIS Quality and Safeguard Commission who vindicated her actions. Feeling that her concerns were not being addressed by her employer and that things were not improving, on 26 September 2023, she requested a transfer to another work location in Williamstown, which was granted. Subsequently, a person who she had made a complaint against was also transferred to the Williamstown facility.
On 26 October 2023, Ms Williams made a formal complaint of bullying against a colleague. On 15 November 2023, she was advised that the Respondent had investigated her complaints, found them unsubstantiated and would not be taking any further action. At the same time, she was advised she would be required to return to her substantive position at Laverton. Ms Williams was not satisfied with the outcome of the investigation into her complaint and was not comfortable returning to Laverton. She sought alternative options, including converting to the casual labour pool and seeking additional work at Williamstown on this basis.
In evidence, Ms Williams indicated to a question from the Commission that at no time was she made a promise or given a clear reason to believe that if she resigned from her substantive position, she would be given a casual role.
Ms Williams accepts that she received a letter on 20 November 2023 advising her that allegations of misconduct have been made against her, that these would be investigated by Mr Dunn and that she was to be stood down on pay for the purposes of the investigation.
Ms Williams submits that Mr Dunn was not an impartial investigator, that she was not provided with an opportunity to provide additional background and context in response to the allegations against her. Further, that she felt the outcome of this investigation was pre-determined to be against her on the basis of her experience with previous complaints and her lack of trust and confidence in her employer’s capacity to conduct a fair, thorough and impartial investigation.
On this basis she submits that:
“…I feared the outcome of the investigation would have been severely detrimental and thus as mentioned earlier I was left with no option but to resign which was a constructive dismissal.”[7]
Ms Williams also accepts that she sent an email confirming her decision to resign to Ms Pho and received an email in reply the following day accepting her resignation, confirming she would be considered for the casual work once the misconduct investigation underway had concluded.
In explaining this email, Ms Williams indicated it was sent following a phone call she had received from Mr Dunn informally telling her that the outcome of the investigation into the misconduct allegations against her would be a first and final warning and asking her if she still wanted to resign. In response Ms Williams states:
“I was now reluctant to do so, as I’d thought about it, and wished to confirm a casual position at MIND first. Mr Dunn regardless stated that I would have to return to my substantive position in Laverton, as I had only been approved to stay in Williamstown temporarily.”[8]
The Respondent’s Submissions
The Respondent made written submissions in support of its position and provided a witness statement of Ms Bianca Pho (HR Business Partner) along with supporting documents: including the resignation letter, acceptance of the resignation letter and a copy of the advice regarding the resignation and casual work list.
The principal position of the Respondent is that Ms Williams has clearly resigned from her position and this resignation has been accepted by the employer.
The Respondent acknowledges the Applicant’s request to be considered for casual work but maintains that on 29 November 2023 when confirming their acceptance of Ms Williams’ resignation, it was stated that they would consider her request for casual work once the misconduct investigation was completed. The Respondent’s position is that this condition was clearly communicated to Ms Williams and was not disputed or questioned by her at the time.
The misconduct investigation was completed on 7 December 2023. On 11 December 2023, the Respondent informed Ms Williams that on the basis of the partially substantiated findings of misconduct against her she would not be considered suitable for casual work at Mind.
The Respondent also submits that Ms Williams was not without other options when she made her decision to resign. For example, she could have taken leave, lodged a workers compensation claim, or another claim or dispute with the Fair Work Commission. Further, that on 28 November 2023, Ms Williams was not yet provided with the outcome of the misconduct investigation and was not forced to resign in any way. Finally, that the outcome of the investigation was a first and final warning and that she could have discussed a proposed return to her substantive position at Laverton as she was invited to do.
In evidence, the Respondent accepted that Mr Dunn made a phone call to the Applicant on or around 5 December 2023 in which he informed her that the likely outcome of the misconduct investigation was a first and final warning and asked if she still wanted to resign as indicated in her email on 28 November 2023.
In summary, it is the Respondent’s position that Ms Williams clearly resigned and was not in any way left with no other choice but to resign by any act or failure to act of her employer.
Legislation
Section 386 of the Act provides the meaning of dismissed:
“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.”
Consideration
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)[9] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of dismissed under s.386(1) as follows:
“(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 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 period of 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 her is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was a probable result of the employer’s conduct such that the employee had no effective choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
This question was further considered by the Full Court of the Industrial Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd[10] where at page 205 it 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.”
…
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 and important feature is the act of the employer results directly or consequently 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.” (emphasis added)
In O’Meara v Stanley Works Pty Ltd,[11] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:
“In our view the full statement of the reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of the 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 relationship 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.” (emphasis added).”
In the present case, the Applicant has submitted that her employer failed to properly address concerns raised about bullying and harassment by her in her employment. That this failure left the Applicant with a lack of trust and confidence that a misconduct investigation she was being subjected to would not be detrimental to her to the extent that she felt she had no choice but the resign with the aim of securing an opportunity for ongoing casual work.
The evidence that has been presented to this Commission does not support this version of events. Critically, there is insufficient evidence before me to find that Ms Williams was justified in her concern that the misconduct investigation into her had a pre-determined negative outcome.
Whilst Ms Williams was clearly dissatisfied that her previous complaints had not been heard and concerned to be the subject of a misconduct investigation, there is no evidence to suggest that the Respondent did not take Ms Williams complaints seriously and investigate them appropriately.
I accept Ms Williams’ evidence that she has some basis for feeling aggrieved in how her complaints were not resolved to her satisfaction and in particular, how an individual she had raised concerns about was also allocated to work from the Williamstown facility. Given she felt her concerns had not been heard or properly investigated, I accept that the Respondent could have acted more appropriately in explaining the reasons for its decisions in order to address her concerns more fully.
Ultimately however, based on Ms Williams’ own version of events in evidence it was not until 5 December 2023 that she became aware of the proposed first and final warning in a phone call from Mr Dunn. Whilst there may have been some confusion on the Applicant’s part as to the date of this phone call, there is nothing before the Commission to support a contention that it was made before Ms Williams’ resignation email on 28 November 2023 and that objectively viewed, she was in any way forced, or left her with no choice, but to resign.
It was the evidence of both parties that Ms Willliams first indicated her intention to resign during a meeting with Mr Dunn and on 23 November 2023 where she was made aware of the allegations against her, indicating that she did not want to return to the Laverton site.
Whilst I accept that Ms Williams may have felt she would be in a better position to secure an offer of ongoing casual work if she resigned from her substantive position at Laverton, there is no evidence before the Commission that any act or failure to act by her employer forced or left her no other choice but to make this decision.
As to the allegations that the misconduct investigation into her actions was in any way biased or pre-determined, I have found no evidence to support this contention and the outcome being a first and final warning supports this conclusion.
With regard to the expectation of ongoing casual work, Ms Williams has not asserted or presented any argument or evidence to suggest that she was encouraged or led to an understanding by her employer that if she resigned her substantive position, she would be offered casual work. The Respondent denies this is the case and the evidence supports their version of events.
In relation to whether or not the employer should have done more to clarify Ms Williams’ intentions to resign, on the evidence presented, I do not consider this to be the case. In fact, the evidence suggests that at least on one occasion after the Applicant had made it clear her intention to resign from her employment the Respondent sought to confirm if this was still the case.
Finally, as to the submissions that the Respondent had a responsibility to make Ms Willliams aware of the options available to her to take leave, file a workers compensation claim or make another application to the Commission, Ms Williams has provided no basis for this assertion, and I am not satisfied that this is the case.
Conclusion
Accordingly, on balance, I have found that Ms Williams was not dismissed by the Respondent pursuant to s.386 of the Act, and for that reason, the Commission lacks the jurisdiction to allow her s.394 claim to proceed. The Application must be dismissed.
An Order reflecting this decision will be issued separately.[12]
COMMISSIONER
Appearances:
Ms J William as the Applicant
Ms L Coutts on behalf of the Respondent
Hearing details:
2024.
Melbourne.
20 March.
[1] Attachment 2 to the Applicant’s Supplementary Submissions, Court Book pages 22-23.
[2] Ibid.
[3] Attachment A to the Respondent’s Submissions, Court Book page 46.
[4] Attachment 7 to the Applicant’s Supplementary Submissions, Court Book page 36.
[5] Attachment C to the Respondent’s Submissions, Court Book page 48.
[6] Applicant’s Supplementary Submissions, Court Book page 13.
[7] Ibid.
[8] Ibid.
[9] [2017] FWCFB 3941.
[10] (1995) 62 IR 200.
[11] PR973462.
[12] PR773168.
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