Jodi Johansen v Blackwood & Co Pty Ltd
[2024] FWC 2806
•9 OCTOBER 2024
| [2024] FWC 2806 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
JODI JOHANSEN
v
BLACKWOOD & CO PTY LTD
(C2024/5487)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 9 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant dismissed – jurisdictional objection upheld – found that Applicant was not dismissed within the meaning of s 386(1) of Act – application dismissed.
On the 8 August 2024, Ms Jodi Johansen (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 7 August 2024 by Blackwood & Co Pty Ltd (the Respondent) was in contravention of her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s 386 of the Act.
Following allocation of the matter to my Chambers, Directions were issued on 29 August 2024 for the filing of material in relation to the jurisdictional objection. Both parties filed material in advance of the hearing listed for 7 October 2024. At the hearing on 7 October 2024 the Applicant appeared and gave evidence while Ashley Sher of Sparke Helmore Lawyers sought and was granted permission to appear on behalf of the Respondent pursuant to s 596(2)(a) of the Act. Mr Sher called the Respondent’s CEO Andrew O’Hare and the General Manager Joanne Ely to give evidence.
Background and evidence
The Applicant commenced employment with the Respondent on 21 March 2022 in the position of Senior Operations Manager.[3] She states that in the nine months prior to her dismissal she had been subject to constant bullying, harassment and threats from other employees about her health, knowledge of the industry and working abilities. She said her employer’s response to this conduct was to move her into another office with a partition separating her from the other workers.
Ms Ely was cross-examined on the Applicant’s claims of having been bullied and harassed over several months. She confirmed in response that the Applicant had raised several allegations in relation to the Operations Manager Jake Page in or about March 2024. She stated that the Respondent conducted and closed out a formal investigation approximately two months later resulting in the substantiation of 2-3 allegations. Specifically, it was found that Mr Page had made inappropriate comments to the Applicant, apparently not appreciating that what he regarded as humorous and inoffensive comments were unfavourably received by the Applicant.
Ms Ely confirmed that Mr Page was counselled in relation to his conduct and the Applicant’s workstation was moved away from Mr Page and located with Ms Ely. Ms Ely further stated that the investigation was closed out to the Applicant’s satisfaction at least several weeks prior to her resignation and that from her observations Mr Page had changed his behaviour. Ms Ely confirmed that the Applicant made no further complaints about Mr Page following the close-out of the investigation. Mr O’Hare was also questioned on the Applicant’s formal complaints and confirmed the events, timeline and outcome outlined by Ms Ely, although he could not be specific about the dates.
On the morning of 6 August 2024, the Applicant states that on attendance at work, Mr Page quipped that it was cold and that perhaps they should ‘just burn Jodie (the Applicant) to stay warm’. She further states this remark had been made several days in a row which she says Ms Ely was aware of and took no action. The Applicant states this was the last straw which caused her to type up her resignation. Ms Ely rejected during cross-examination that she overheard the comment attributed to Mr Page, and states that on the morning of 6 August 2024, she was advised by a staff member, Kylie-Ann Carrol, that she (Ms Carroll) thought the Applicant was going to resign that day. Sometime later that morning the Applicant approached her and provided a written resignation in the following terms;
“………….
I am writing to formally resign from my position of senior operations manager at Makesafe traffic management. Effective 2 weeks from today. My last working day will be August 20th 2024.
I appreciate the opportunities and experiences I have had during my time here. I am committed to ensuring a smooth transition of handing over my responsibilities. Thank you for your understanding and support, I have valued my time at Makesafe traffic and
with [sic] the team continued success.
……………”[4]
Ms Ely states that on reading the resignation letter she asked the Applicant her reasons for resigning to which the Applicant responded that it was for reasons related to her health which she wanted to focus on.[5] Ms Ely says she subsequently spoke with Mr O’Hare when he arrived in the office that day, advised him of the Applicant’s resignation and provided him with a copy of the resignation letter. Mr O’Hare states that he also spoke with the Applicant that day during which conversation she again confirmed she was leaving for health reasons.[6]
Ms Ely further states that throughout the rest of the day she overheard the Applicant and another employee, Michelle Wickham discussing the Applicant’s move to a rival company, ATM. The Applicant gave evidence that was not disputed by the Respondent that Ms Ely left a mobile phone on ‘record’ on her desk when she left the office during the day which explained how the Applicant’s conversations could be overheard.[7] Concerned at the risks of the Respondent’s confidential information being shared by the Applicant with ATM, Ms Ely and Mr O’Hare agreed it was appropriate to restrict the Applicant’s access to the Respondent’s electronic database.[8]
Prior to the Applicant leaving to go home on 6 August 2024, Ms Ely states that she requested that the Applicant return her company mobile phone as Ms Ely did not want the Applicant receiving calls from clients in light of the aforementioned confidentiality concerns. After the Applicant complied with this request, Ms Ely discovered on the Applicant’s mobile phone what she described as concerning text messages[9] with clients and employees of the Respondent. According to Ms Ely, those texts caused her to be concerned that the Applicant might take some of the Respondent’s customers over to ATM. One of the text messages sent at 6.44pm on 5 August 2024[10] to a ‘Brendan’ (a client of the Respondent) indicated that the Applicant was intending to resign the following day when she advised him as follows, “Hey mate was giving you a heads up I’m resigning tomorrow”.
In a separate text message exchange on 6 August 2024 with a ‘Brad’ (an employee of the Respondent), the Applicant advised that she had resigned and in a response to a query from ‘Brad’ on whether her resignation raised any issues for him to worry about, the Applicant replied, “Well if Omexom don’t come back fully there may not be a business. If you decide you want work elsewhere my personal number is 0490231163.”[11] Later that evening, Ms Ely restricted the Applicant’s access to the Respondent’s electronic database, which included changing passwords of various accounts and programs of the Respondent.[12]
When cross-examined on the events leading up to her resignation letter being provided to Ms Ely on 6 August 2024, the Applicant gave the following evidence;
Mr Page had harassed and bullied her over several months including in the days leading up to her dismissal. This she says included Mr Page holding a cigarette lighter near her when making the comments about ‘burning Jodie.’ The behaviour of Mr Page on 6 August 2024 was the ‘last straw’ she said. The Applicant acknowledged that the reference to the cigarette lighter had not been included in her witness statement and nor had she put that matter to Ms Ely when cross-examining her.
She claimed Ms Ely overheard and laughed at the above comments made by Mr Page but took no action.
She rejected that the 5 August 2024 text message to Brendan indicated she had already made her mind up to resign her employment prior to her claimed interaction with Mr Page on 6 August 2024.
She agreed that she had not made a formal complaint about Mr Page arising from his alleged comments to her either on the 6 August 2024 or in the days immediately preceding her resignation.
While confirming that she accepted and subsequently commenced employment with ATM on or about 14 August 2024, she rejected that she had resigned her employment with the Respondent because of her intention to move to the ATM, which role she stated was not offered to her until after her 7 August 2024 departure from the Respondent’s office.
She explained that her text message exchange with ‘Brad’ on 6 August 2024 and the reference to him contacting her on her personal phone if he wanted to work elsewhere was not a reference to ‘Brad’ moving to ATM. Rather, it was a reference to opportunities of working in her partner’s business. She accepted however that the text was sent to ‘Brad’ after she resigned her employment with the Respondent and made no reference to her partner.
She also explained that while her resignation letter made no reference to her concerns about Mr Page, her health or any threats against her, she no longer felt safe working within the business.
She also clarified that the reasons for resigning were related to her ‘mental health’ which she says was put at risk by Mr Page.
A meeting was then held on the morning of 7 August 2024, at which the Applicant, Ms Ely and Mr O’Hare attended. Mr O’Hare gave unchallenged evidence that during the meeting a number of matters were raised with the Applicant including; the Applicant would not be required to work out her notice period and that it would be paid out, the Respondent’s suspicion that the Applicant was going to work for ATM, and the clause in the Applicant’s employment contract that imposed restrictions on the Applicant’s ability to move to a competitor. Mr O’Hare also provided the Applicant with a letter[13] that set out the Applicant’s post-employment obligations (the Obligations Letter). Ms Ely and Mr O’Hare both state that on these matters being raised with her, the Applicant became angry and upset and wanted to leave, which she did soon after, taking the Obligations Letter with her. She did not return to the office after that day.[14]
The Applicant agreed during cross-examination that she became upset during the meeting on 7 August 2024 and claimed that Mr O’Hare had stated to her that her services were no longer required, which she took as terminating her employment with immediate effect. She further claimed that Mr O’Hare was aggressive and passionate during the meeting which along with the allegations levelled against her made her feel unsafe, leading to her leaving the meeting and office shortly after.
Ms Ely states that she took the Applicant’s resignation to have been made on 6 August 2024 and on the basis of two weeks’ notice provided, her final date of employment was 20 August 2024. Although the Applicant did not return to the office or perform any further work after 7 August 2024, Ms Ely states that she remained employed and was paid up to 20 August 2024 consistent with the notice she had provided.[15] Payslips[16] confirming payment of the Applicant up to 20 August 2024 were furnished by the Respondent. The Applicant agreed that she was paid up to 20 August 2024, consistent with the resignation letter.
Has the Applicant been dismissed?
The threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
A Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[17] (Bupa) considered the meaning of s 386(1) when dealing with an appeal of a decision in which the member at first instance found that a dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was particularly concerned with a ‘forced’ resignation and how the passage of the FW Act impacted prior authorities. After having considered various authorities, the Full bench relevantly stated as follows
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised 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 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.”
While not clearly articulated, I discern from the Applicant’s material and evidence that she claims to have been terminated at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act. In the alternative the Applicant contends that she was forced to resign because of the Respondent’s conduct which means she was dismissed within the meaning of s 386(1)(b). I will now proceed to consider whether the Applicant was dismissed within the meaning of either s 386(1)(a) or (b).
Whether Applicant was dismissed within meaning of s 386(1)(a)
The Applicant, during closing submissions, confirmed that she believed she was dismissed during the meeting on 7 August 2024 when told by Mr O’Hare that the Respondent no longer required her services. That submission is rejected for the reasons that follow.
Firstly, and most importantly, at the time of the 7 August 2024 meeting the Applicant had already tendered her resignation on 6 August 2024 when she provided her letter of resignation to Ms Ely. The Applicant states the letter was typed up following a conversation she had with Mr Page that left her feeling unsafe. That conversation with Mr Page was said by the Applicant to be the last straw after months of harassment. I will shortly return to the reason for the Applicant’s resignation when I turn to consider s 386(1)(b). It is sufficient to say at this point that the Applicant gave notice of her resignation on 6 August 2024 which was prior to her alleged dismissal on 7 August 2024.
Secondly, there is no evidence that the resignation of the Applicant was given in the heat of the moment or that there was ‘jostling’ by the Respondent in the manner referred to by the Full Bench in Bupa, that may have contributed to her resignation. In fact, the evidence points to pre-meditation of the resignation by the Applicant. This can be readily seen in the text message exchange between the Applicant and ‘Brendan’ on 5 August 2024 when she gave him the ‘heads up’ of her intention to resign the following day, which she subsequently did. The Applicant’s evidence on the text message was unconvincing. She sought to downplay its significance and claimed that it did not indicate a final decision had been made on her part to resign. That evidence is rejected as a plain reading of the text makes clear that the Applicant had a made a decision to resign on 5 August 2024. Moreover, it is unlikely in my view that the Applicant would have made such a definitive statement to an external client if it were not her intention to resign the following day.
I accept that there may have been some emotion expressed by the Applicant during the 7 August 2024 meeting. In fact. she agreed that she became upset when pressed by Mr O’Hare about her rumoured move to ATM and the post-termination contractual restraints. The fact that she may have become upset during this meeting does not demonstrate ‘jostling’ or pressure being applied by the Respondent to elicit her resignation or that she had resigned in the ‘heat of the moment.’ That ‘moment’ had already passed on the previous day when she furnished her resignation to Ms Ely in circumstances where she did not raise with Ms Ely that Mr Page’s conduct had caused her to complete her resignation letter. There is no evidence that the Applicant’s resignation decision was taken in the ‘heat of the moment’ or by ‘jostling’ by the Respondent on either the 6 or 7 August 2024.
Thirdly, I approach with caution the Applicant’s evidence that she was told by Mr O’Hare during the meeting on 7 August 2024 that her services were no longer required. She made no claim in her witness statement to that effect and did not put that proposition to Mr O’Hare when she had the opportunity to do so during his cross-examination. I prefer Mr O’Hare’s evidence that he explained to the Applicant during the meeting on 7 August 2024 that she would not be required to work out her notice period and would in fact be paid for that period of notice. That evidence was entirely consistent with how the Applicant was in fact treated. I accept that Mr O’Hare’s advice to the Applicant may have been misunderstood by her as effecting her immediate dismissal. It was not however the case that the Applicant was dismissed with immediate effect on 7 August 2024 as the evidence reveals she continued to be paid up until 20 August 2024, consistent with her letter of resignation. That the Respondent chose to not require the Applicant to work out her notice period, but nonetheless paid her for it, was within the Respondent’s rights and does not render the dismissal as being at its initiative.
Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship. I am not satisfied in the circumstances of this matter that the principal contributing factor to the dismissal of the Applicant was the conduct of the Respondent. Rather, the principal contributing factor to the termination of employment was the Applicant’s letter of resignation dated 6 August 2024. The Applicant was consequently not dismissed within the meaning of s 386(1)(a).
Whether Applicant was dismissed within meaning of s 386(1)(b)
The Applicant also contends that her resignation was caused by conduct or a course of conduct of the Respondent that left her no choice but to resign, that conduct being the harassment and bullying over several months by Mr Page which left her feeling unsafe and with no alternative but to resign and look after her health. Unhelpfully, the Applicant did not lead any evidence on the nature of the alleged harassment or bullying beyond her reference to the incident on 6 August 2024. Nor did she put any evidence viva voce when given the opportunity to do so and nor did she put any questions to either Mr O’Hare or Ms Ely in respect of the unspecified allegations of bullying and harassment against Mr Page.
Notwithstanding the above, it emerged in questioning of Ms O’Hare and Ms Ely by the Commission that the Applicant made a formal compliant earlier in 2024 about Mr Page, that those allegations were investigated and closed out on or about June 2024, and actions were taken to address a small number of substantiated allegations. Specifically, Mr Page was counselled regarding his inappropriate comments directed at the Applicant, and the Applicant’s workstation was moved away from Mr Page, with which measures the Applicant was satisfied. According to Ms Ely, Mr Page’s behaviour changed such that no further issues or complaints were raised by the Applicant following resolution of her complaints. None of the evidence given by Ms Ely and Mr O’Hare on the Applicant’s complaints, the investigation or its outcome was challenged by the Applicant. In these circumstances I find that the complaints raised by the Applicant in early 2024 were closed out to the Applicant’s satisfaction at least several weeks prior to her resignation and that there was no evidence that any further issues arose between the Applicant and Mr Page following the investigation close-out that warranted reporting to either Ms Ely or Mr O’Hare.
As to the specific incident that is alleged to have taken place on 6 August 2024 between the Applicant and Ms Page, the Applicant’s version of events shifted during proceedings. In her witness statement, the Applicant says Mr Page suggested that they ‘burn Jodie’ to keep warm. During cross-examination she expanded on this and claimed that Mr Page had held a cigarette lighter behind her and that Ms Ely overheard these comments and laughed. Ms Ely denied that she had either overheard or observed the claimed conduct of Mr Page. While there is no direct evidence from Mr Page to contradicts the Applicant’s version of events on 6 August 2024, it is significant that the Applicant did not raise the alleged actions of Mr Page in separate conversations with Ms Ely and Mr O’Hare on 6 August 2024 when questioned on her reasons for resigning or during their subsequent meeting on 7 August 2024. While it was the Applicant’s evidence that the conduct of Mr Page on 6 August 2024 was the ‘last straw’, it is telling that she made no mention of it to either Mr O’Hare or Ms Ely prior to or after communicating her resignation decision on 6 August 2024. This along with other matters discussed below causes me to distrust the Applicant’s evidence on the claimed behaviour of Mr Page on 6 August 2024.
The Respondent points to other factors that may have led to the Applicant’s resignation. Specifically, that the Applicant was motivated to resign by a decision to accept a role with a competitor of the Respondent called ATM. The Applicant rejected that contention and while acknowledging that she had been approached several months earlier, denied she had accepted employment prior to her resignation. I found the Applicant’s denial of her intention to accept employment with ATM prior to her resignation unconvincing for the following reasons.
Firstly, the Applicant commenced employment with ATM on or about 14 August 2024, which was prior to her employment ending with the Respondent on 20 August 2024. That is an extraordinarily quick hiring process to say the least, if the Applicant’s evidence is to be believed that she had no intention of joining ATM when she tendered her resignation on 6 August 2024. Such a short recruitment and hiring period is more consistent with an earlier decision having been made by the Applicant to join ATM.
Secondly, the Applicant’s advice to ‘Brad’ on 6 August 2024 to call her about other opportunities if things didn’t work out with the Respondent is also consistent with her intention of moving to ATM. I found the Applicant’s explanation that she was referring to opportunities with her partner’s business unconvincing when considered with other pointers of pre-meditation of her resignation (the 5 August 2024 text message to ‘Brendan’) and her move to ATM.
Thirdly, the Applicant’s explanation, offered to Ms Ely and Mr O’Hare, of resigning to look after her health appears in hindsight to be disingenuous in circumstances where she commenced employment with a competitor only one week later. If the Applicant’s health concerns, on which there was no evidence before me, were such as to prompt the Applicant’s resignation, one might have expected a longer period of rest and/or recovery. The explanation offered by the Applicant on 6 August 2024 for her resignation cannot be easily reconciled with the short turn-around between leaving the Respondent and commencing with ATM.
The above matters when viewed together tell in favour of a finding that the real reason for the Applicant’s resignation was not her claimed health issues on which there was no evidence before me, or the conduct of Mr Page, or the history of alleged bullying and harassment. Rather, the above matters tell in favour of a finding that the Applicant resigned to accept employment with ATM. The Applicant’s denial of that motivation was unconvincing.
Even if I am wrong in my conclusion as to the Applicant’s resignation motive, I would nonetheless find that the Respondent had not engaged in conduct or a course of conduct that left the Applicant no real choice but to resign. It is correct that the Applicant had previously made complaints about Mr Page. These complaints were investigated, were partially substantiated and closed out by the Respondent to the Applicant’s satisfaction some two months before her resignation. If the Applicant had concerns about Mr Page’s conduct on 6 August 2024, she had the ability to raise those concerns with either Ms Ely or Mr O’Hare. The fact that she did not raise these concerns or mention the alleged conduct on either the 6 or 7 August 2024 undermines her claims that the conduct actually occurred and reinforces my earlier finding as to the true reasons for her dismissal.
Beyond the alleged 6 August 2024 exchange between the Applicant and Mr Page on which I have made findings above, there is no evidence of any further specific conduct, or a course of conduct engaged in by the Respondent that had the intention of bringing the employment relationship to an end or would have had that probable result. I am consequently not persuaded that the Applicant was left in a position of having had no effective or real choice but to resign. As such, she was not dismissed within the meaning of s 386(1)(b).
Conclusion
I have found that the Applicant was not dismissed within the meaning of either s 386(1)(a) or (b) of the Act. Accordingly, at the time the Applicant made her application on 8 August 2024, she was not a person who had been dismissed for the purposes of s 365 of the Act. The respondent’s jurisdictional objection is therefore upheld, and the application must be dismissed.
The application is therefore dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
J Johansen, Applicant.
A Sher for the Respondent.
Hearing details:
2024.
Melbourne:
October 7.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] Exhibit R1, Witness Statement of Joanne Ely, dated 12 September 2024, Annexure JE-1, Employee Services Agreement, dated 20 December 2022
[4] Exhibit R1, Annexure JE-2, Resignation Letter, dated 6 August 2024
[5] Exhibit R1, at [10], Exhibit A1, at [5]
[6] Exhibit R2, Witness Statement of Andrew O’Hare, dated 12 September 2024, at [6]
[7] Exhibit A1, at [7]
[8] Exhibit R1, at [12]-[13], Exhibit R2, at [10]
[9] Exhibit R1, Annexure JE-3, Text message exchanges, at Court Book p. 58
[10] Ibid at Court Book p.58
[11] Ibid at Court Book p.59
[12] Exhibit R1, at [14]-[15]
[13] Exhibit R1, Annexure JE-4, Contractual Obligations Letter, dated 6 August 2024, at Court Book p.61
[14] Exhibit R2, at [12]
[15] Exhibit R1, at [20]-[21]
[16] Exhibit R1, Annexure JE-5, Applicant payslips for pay periods, 28/7/24-3/8/24, 4/8/24-10/8/24, 11/8/24-17/8/24 & 18/8/24-20/8/24
[17] [2017] FWCFB 3941.
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