Jessica Richards v Woolworths Group Limited

[2023] FWC 1082

[2023] FWC 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jessica Richards
v

Woolworths Group Limited

(U2023/1577)

DEPUTY PRESIDENT BOYCE SYDNEY, 17 MAY 2023

Application for an unfair dismissal remedy — jurisdictional objection — whether there was a
“dismissal” within the meaning of s.386 of the Fair Work Act 2009 — Applicant resigned - Applicant not forced to resign — no dismissal – no jurisdiction to determine Applicant’s claim — application dismissed.

Introduction

1. On 27 February 2023, Ms Jessica Richards (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Woolworths Group Limited (Respondent).

1. The Respondent raises a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.

1. At the hearing, the Applicant appeared for herself, and the Respondent was represented (with permission) by Ms Alice DeBoos, Partner, Kingston Reid lawyers.[1]

Evidence and submissions

1. The Applicant relies upon her Witness Statement dated 22 April 2023, undated response to the Witness Statement of Mr William Daly dated 17 April 2023, her email to Chambers dated 3 May 2023, and the documents attached to her (Form F2) Application.

1. The Respondent relies upon its Outline of Submissions dated 17 April 2023, the Witness Statement of Mr William Daly (Group Manager – Proactive Services) dated 17 April 2023, and its Submissions in Reply dated 1 May 2023.

Factual findings

1. On the basis of the evidence tendered by the parties and given at the hearing, I make the factual findings that follow.

1. The Applicant commenced casual employment with the Respondent on 18 February 2022 in the position of Store Team Member (Substantive Role) at the Woolworths Fairfield Heights Store. On 30 May 2022, the Applicant’s default location of work was changed from the Woolworths Fairfield Heights Store to the Woolworths Green Valley Store.[2]

1. On 5 September 2022, the Applicant commenced a temporary placement as a casual Team Leader at the Woolworths Cabramatta Store which continued until 15 January 2023.

1. In late December 2022 / early January 2023, the Applicant was offered the opportunity to undertake a temporary placement as a full time Team Leader at the Woolworths Emerton Store (Secondment Role), which was for the period between 16 January 2023 and 19 February 2023 inclusive. The Applicant accepted this Secondment Role via the Respondent’s electronic HR Information System.[3]

1. During a discussion with Mr Daly on 2 January 2023, Mr Daly’s unchallenged evidence (which I accept and find accordingly) is that it was explained to the Applicant that at the end of the Secondment Role (on 19 February 2023), the Applicant would either:

   (a)   Remain in the Team Leader role (i.e. the Secondment Role) on a permanent basis, provided her performance was satisfactory and she was interested in continuing in the role; or

   (b)   Return to her Substantive Role (being the role of casual Store Team Member at the Woolworths Green Valley Store).[4]

1. The Applicant commenced the Secondment Role on 16 January 2023, however, after two weeks, performance issues in respect of the Applicant were communicated to Mr Daly by the Store Manager of the Woolworths Emerton Store.[5]

1. On 6 February 2023, Mr Daly and the Applicant had a meeting via Google Meet video. At this meeting, Mr Daly informed the Applicant that various concerns as to her performance in the Secondment Role had been raised with him.[6]

1. As a result of the performance concerns that had been raised about the Applicant, Mr Daly’s unchallenged evidence (which I accept and find accordingly) is that he ultimately provided the Applicant (at the 6 February 2023 meeting) with two options:

i)   Immediately return to her Substantive Role at the Woolworths Green Valley Store from 7 February 2023 (and be paid in accordance with the Substantive Role); or

ii)     Remain in the Secondment Role (and be paid at the Secondment Role rate of pay) until the end of the secondment (i.e. 19 February 2023), and thereafter return to the Substantive Role at the Woolworths Green Valley Store (at the Substantive Role rate of pay). During the period 7 February to 19 February 2023 the Applicant would be paid the Secondment Role rate of pay, but would not be required to act as Team Leader (with another employee to undertake the Team Leader role during this interim period).[7]

1. Post the foregoing meeting, at 12.58pm on 6 February 2023, the Applicant sent Mr Daly the following text:

“I’ve decided that I will stay on until the 19^th doing trolleys”.[8]

1. The following text exchange between Mr Daly and the Applicant thereafter occurred on 6 and 7 February 2023:

Mr Daly:

Thanks Jess
Please see Beth / Adrian for what it required

Applicant:

Hey Will,
After consideration from our chat I've decided it would not benefit my mental health to return to woolies, I will send back my uniforms & name badge in via post.

Please arrange for my correct termination payment including lieu of notice to be paid promptly.

Mr Daly:

Morning Jess

Thanks for reaching out in relation to mental health
Woolworths can support you through what you may be going through with the use of sonda if you would like to use this free service please let me know and I can talk you through it. there is no need to post your name badge or uniforms.

When I upload your resignation through success factors your final payments will be made through the standard payrun timelines and your entitlements that are owed to you if any will also be paid accordingly.

Today your resignation will be processed as of today and there is no in lieu payments to be made given your resignation

If I can help or support any further please give me a call and we can discuss further.
Thanks
Will

Applicant:

I didn't resign you terminated me ........ you exact words were ...... you have a choice be terminated now or be terminated at the end of your
contract on the 19th

Mr Daly:

No Jess I was asking if you wanted to finish up at Emerton as of yesterday or if you wanted to stay at Emerton until the 19th as per your contract then you would go back into richis group as a casual as this is what you were previously.

You had then contacted me saying you will stay on until the 19th at Emerton Then last night you advised that you did not want to return back to Woolworths due to mental health.

Please advise ?

Mr Daly:

Can you please give me a call to understand what you are wanting to do with your employment

Applicant:

Will, please process my termination as you understand
Jess

Mr Daly:

So I'm confirming that your voluntary resignation will be processed as of today[9]

1. As a result of the text messages being exchanged between the Applicant and himself, Mr Daly sought to make telephone contact with the Applicant on 6 and 7 February 2023 to obtain clarification from her as to her decision to resign. When the Applicant did not answer the phone, and did not return any of Mr Daly’s telephone calls,[10] her expressed decision to resign via text message was accepted.

Legislation and case law

1. Section 386(1) of the Act reads:

“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.”

1. 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.[11]

1. In this case, the Applicant says that whilst she did in fact resign, she was forced to do so because of the conduct of the Respondent.[12]

1. Under s.386(1)(b) of the Act, a forced resignation 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.[13] 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.[14] 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 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.

1. 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 question) and act accordingly.[15]

Respondent’s submissions

1. In summary, the Respondent submits that the facts and circumstances of this case identify that:

a)   the Respondent, objectively, displayed no intention to dismiss the Applicant;

b)   the actions of the Respondent, on any analysis, cannot be interpreted as having the probable result of bringing the employment of the Applicant to an end; and

c)   the Applicant resigned of her own initiative, and subsequently confirmed her intention to resign after the Respondent sought to clarify her decision directly with her.[16]

Applicant’s submissions

1. The Applicant has made a number of assertions and claims in these proceedings that are not supported by evidence. Whilst many of these matters might be relevant to an overall assessment of the merits of the Applicant’s claim as to unfair dismissal, these proceedings only concern whether, as a matter of fact and law, the Applicant was “dismissed” because she was forced to resign.

1. For the purposes of these proceedings, the Applicant’s core contention is that at the meeting with Mr Daly on 6 February 2023 she was given only two options. Firstly, she could be dismissed right there and then. Or, secondly, she could continue to work until the expiry of the Secondment Role on 19 February 2023 and cease her employment immediately thereafter. If she chose to remain in the Secondment Role until 19 February 2023, she would only be “doing trolleys” and would only be allowed into the store premises to do weekly tasks if the store desperately needed someone. The Applicant also says that “I then was told that I was not allowed to step foot into the store unless I had to push trolleys into the trolley bay, I was also told that I couldn’t use the centre’s public bathrooms & I had to purchase my own water at another store instead of getting a water from the cool room that was provided by the store for people doing trolleys collection out in the heat & sun.”[17]

1. I do not accept that the evidence in this matter supports the foregoing core contention of the Applicant. Mr Daly totally denies that these were the two options put to the Applicant at the 6 February 2023 meeting, and he was not cross-examined about same. His text messages to the Applicant make it abundantly clear that the Applicant’s core contention was wrong.[18] Further, the Applicant herself departed from her core contention during cross-examination, and acknowledges that she could have remained employed by the Respondent (post the end of the secondment period) but for her resignation.[19]

Respondent’s submissions in reply

1. The Respondent relevantly made the following Submissions in Reply (citations omitted):

“6. The onus is on the Applicant to prove that the Respondent forced their resignation, and to do so, the Applicant must establish relevant conduct on the part of the Respondent, which they have, to date, failed to do.

7. In the absence of any conduct that demonstrates that the Respondent intended to bring the employment to an end or that the Respondent’s conduct would probably have that effect (such that the Applicant had no real choice but to resign), there cannot be a dismissal for the purposes of section 38[6] of the FW Act.

8. The particular circumstances surrounding the cessation of the Applicant’s resignation do not amount to a forced resignation because the Respondent did not, at any time, engage in conduct that intended to bring the Applicant’s employment to an end. Rather, the Respondent, among other things:

a.actively engaged with the Applicant on their career progression within the Respondent’s business, which is demonstrated by the Respondent having put the Applicant on a temporary placement in a full-time Team Leader role (noting that the Applicant had initially commenced employment with the Respondent as a casual Store Team Member); and

b.when it became clear to the Respondent that the Applicant was not performing well in their temporary placement position, it gave the Applicant the option of returning to their substantive role at the Woolworths Green Valley Store immediately or to work out the term at the Woolworths Emerton Store in their substantive role while still being paid at the secondment rate of pay.

9. Both options offered by the Respondent were for the Applicant to continue their employment, albeit in the Applicant’s substantive role as a Store Team Member. In short, the Respondent’s intention for the employment relationship to continue was expressly stated and is conceded by the Applicant.

10. The Respondent’s conduct in notifying the Applicant of its intention to return them to their substantive role was not of such a nature that resignation was the probable result. This is because in circumstances where the temporary placement was to end, the Applicant was then entitled and expected to return to their substantive role and continue their employment relationship with the Respondent. Further, even if the substantive role did not exist, the Applicant’s conduct in submitting her resignation was not in response to formal notice of termination being provided by the Respondent but rather a choice being given as to the nature of her employment moving forward.

11. Indeed, the Applicant’s interpretation of the events on 6 February 2023 is entirely misconstrued. The Applicant’s employment was neither being terminated, nor was it to end on 19 February 2023. Instead, in circumstances where the Applicant’s performance in the Team Leader role was below the Respondent’s expectations, the Applicant was to return to their substantive role. However, the Applicant was generously provided flexibility and choice by the Respondent as to how this would play out, and, in particular, whether the Applicant would return to the Woolworths Green Valley Store immediately or remain at the Woolworths Emerton Store until the placement’s end date on 19 February 2023. Neither of those options could be taken to be a termination of the role, or a forced resignation by the Respondent, including because it was evidently always the intention of the Respondent for the Applicant to continue their employment.

12. Further, and in any event, the text message of the Applicant on 6 February 2023 in which the Applicant resigned from their employment used unambiguous words, which the Respondent was entitled to treat as an effective resignation that operated to terminate their employment. This is especially so because the Applicant plainly confirmed their intention to resign in subsequent text messages sent to Mr Daly the following day, after Mr Daly took several steps to confirm whether that was, in fact, their intention. It was clearly a considered and voluntary decision by the Applicant to leave their employment,8 and it cannot be said that the Applicant was forced to do it, or that the Applicant otherwise acted in the heat of the moment.”[20]

Consideration

1. I am unable to identify (on the evidence before me) any conduct of the Respondent that can be described as demonstrating an intention to bring the Applicant’s employment to an end. The evidence does not show that the Respondent intended anything other than to maintain the employment relationship with the Applicant on the contractual terms that had been agreed between them.[21]

1. I am equally unable to identify any conduct of the Respondent that might be said to bring about a “probable” end to the Applicant’s employment. In my view, it was not “probable” that the Applicant would resign in response to the options that were actually presented to her by Mr Daly at the meeting on 6 February 2023.[22] They were both options that are consistent with the contractual terms that had been agreed between the parties.[23]

1. Even taking the Applicant’s case at its highest, and assuming for a moment that the Applicant’s claims as to the two options that were put to her by Mr Daly at the 6 February 2023 meeting concerned immediate dismissal, or dismissal on 19 February 2023, those two options (or choices) evaporated when Mr Daly sent his clarifying text message to the Applicant advising her that she would be going back to her Substantive Role (at the Woolworths Green Valley Store) either immediately or post 19 February 2023.[24] In other words, the Applicant’s decision to thereafter reconfirm her resignation to Mr Daly was an unequivocal choice she made wholly on her own, which the Respondent was entitled to accept.

1. In view of paragraphs [27] to [29] above, I find that the Applicant was not forced to resign by the Respondent, and was not otherwise “dismissed” by the Respondent within the meaning of s.386 of the Act.

Conclusion

1. Given that I have found that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, I will issue an Order dismissing the Applicant’s Application (to be published contemporaneously with this decision).

DEPUTY PRESIDENT

Appearances:

The Applicant (Ms Jessica Richards) appeared for herself.

Ms Alice DeBoos, Partner, Kingston Reid, appeared with permission for the Respondent.

[1] Permission was granted at the commencement of the hearing, and was unopposed by the Applicant: Transcript, PN3-PN7.

[2] See Letter of Offer of Employment dated 1 June 2022, Daly Statement, Annexure “WD-1”.

[3] Daly Statement, Annexure “WD-2”.  Transcript, PN121-PN129.

[4] Daly Statement, at [7]. The Applicant did not cross-examine Mr Daly on this evidence (see Transcript, PN84-PN89).

[5] Daly Statement, at [9]. Transcript, PN132-PN133.

[6] Daly Statement, at [11].

[7] The Applicant did not cross-examine Mr Daly on this evidence (see Transcript, PN84-PN89).

[8] Daly Statement, Annexure “WD-3”.

[9] Ibid, Annexures “WD-3” to “WD-6”.

[10] Ibid, at [18] and [20].

[11] 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.

[12] Applicant’s undated response to the Witness Statement of Mr William Daly dated 17 April 2023, p 4.

[13] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941.  See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279.

[14] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47].

[15] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378.

[16] Respondent’s Outline of Submissions, 17 April 2023.

[17] Form F2, at Item 3.1. Applicant’s undated response to the Witness Statement of Mr William Daly dated 17 April 2023, pp.4-5.  Transcript, PN134, and PN142-PN143.

[18] Transcript, PN180-PN189.

[19] Transcript, PN170, see also at PN135-PN140 and PN180-PN189.

[20] Respondent’s Outline of Submissions in Reply, 1 May 2023.

[21] Daly Statement, Annexures “WD-1” and “WD-2”.  There was no suggestion during the hearing that either of these contractual documents were other than valid and enforceable agreements.

[22] See paragraph [13] of this decision.

[23] Ibid.

[24] Ibid, Annexures “WD-3” to “WD-6”.

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