Josie Williams v Kovac Care Pty Ltd
[2022] FWC 3308
•15 DECEMBER 2022
| [2022] FWC 3308 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Josie Williams
v
Kovac Care Pty Ltd
(C2022/3702)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 15 DECEMBER 2022 |
Application to deal with contraventions involving dismissal.
On the 23 June 2022, Ms Josie Williams (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 3 June 2022 by Kovac Care Pty Ltd (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that being the Applicant was not dismissed.
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(1)(a) or (b).
Following allocation of the matter to my Chambers on 2 September 2022, it was listed for an initial conference on 19 September 2022. That conference and two subsequent conferences conducted on 14 October 2022 and 28 October 2022 failed to resolve the matter. Directions were subsequently issued on 28 October 2022 for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 14 December 2022.
In advance of the hearing the Respondent filed material in accordance with the directions while the Applicant failed to file any material. The Applicant did however continue to communicate regularly with my Chambers regarding claims of wages and superannuation underpayment by the Respondent, matters she had ventilated during the above-referred conferences and which were unable to be resolved between the parties during the conferences.
At 12.36pm on 13 December 2022 the Applicant emailed my Chambers, again setting out various underpayment complaints and in doing so also advised that she had decided not to attend the hearing set down for 14 December 2022. No explanation as to why she had decided not to attend the hearing was provided. My Associate then responded on my behalf advising that the hearing would proceed as listed and requested confirmation from the Applicant on whether she wished to withdraw her application. The Applicant was also advised in that correspondence that if she failed to appear at the hearing there was potential for the matter to be determined in her absence.
At 1.21pm on 13 December 2022, the Applicant replied to my Associate’s email and again confirmed that she would not be attending the hearing listed for 14 December 2022. After correspondence was received from the Respondent at 3.48pm on 13 December 2022 in which concern was expressed by the Respondent regarding alleged threats made by the Applicant, my Associate again confirmed to the parties that the hearing listed for 14 December 2022 would proceed.
At the hearing on 14 December 2022, Ms Tammy Kovacevic who is Director of the Respondent appeared on behalf of the Respondent and gave evidence. Ms Kovacevic also called Ms Renee Cachia to give evidence. The Applicant did not attend the hearing and failed to provide a reason as to why she would not be attending the hearing. Given that I had foreshadowed that the hearing would proceed in her absence if she failed to attend, I determined in the circumstances to proceed with the hearing in order to deal with the Respondent’s jurisdictional objection.
Background and Evidence
Before turning to the evidence, it is necessary to observe that the quality of material filed in this matter in advance of the hearing was limited and shed little light on the circumstances leading to the Applicant’s dismissal. Oral evidence was necessarily adduced at the hearing from Ms Kovacevic and Ms Cachia, which was not challenged as the Applicant failed to attend the proceeding. Both witnesses were forthright and appeared credible in their evidence.
The Applicant commenced as an NDIS Personal Care Assistant in July 2021. She worked between 60-65 hours per fortnight and received an ordinary hourly rate of pay of $30 on which penalties were paid for weekend work. She was based at the Respondent’s McKenzie St Melton premises where Ms Kovacevic also allowed her to live with her son rent free from December 2021. Ms Kovacevic states that she agreed to this accommodation arrangement as she had known the Applicant for approximately 13 years and had considered her a friend arising from which relationship she had also offered the Applicant a job.
Ms Kovacevic gave evidence that in or around May 2022, the Applicant’s behaviour became increasingly erratic. This led she said to complaints from the Manager at Melton Willows, a supported residential site at which the Applicant was deployed, regarding the Applicant’s behaviour towards residence and staff. Complaints were also received from Respondent staff, including Ms Cachia, regarding the Applicant’s behaviour. Ms Cachia states that the Applicant bullied, abused her and pressed her to lend her money, the effect of which behaviour was to impact her mental health for which she sought treatment[3]. Ms Kovacevic states that the impact on Ms Cachia was such that her husband contacted her and requested that something be done to address the Applicant’s behaviour.
A further incident occurred in late May 2022 according to Ms Kovacevic whereby the Applicant picked up medication for clients/residents from the Melton Central Chemist on behalf of the Respondents and allegedly delivered the medication with less tablets (five) than the seven tablets prescribed. According to Ms Kovacevic the Applicant denied taking two of the tablets although Ms Kovacevic states that the chemist confirmed that the medication issued had seven tablets, two more than delivered by the Applicant.
Ms Kovacevic agreed that the Applicant had raised issues regarding her pay on a number of occasions. Her complaints related to claimed inaccuracy and irregular payment. Ms Kovacevic denied the Applicant had been underpaid and referred to significant sums she had loaned to the Applicant, the rent free accommodation she provided to the Applicant and that she also paid for the Applicant’s food.
Events came to a head on 2 June 2022 according to Ms Kovacevic when the Applicant requested payment for her accrued annual leave. Ms Kovacevic states the request was made via text late at night and did not constitute a request for annual leave but rather, payment for her accrued leave in addition to payment for hours worked. The request was declined by Ms Kovacevic, in response to which the Applicant advised her via text on 3 June 2022 that she was not prepared to be “treated like a cunt” and would find a job elsewhere. Ms Kovacevic accepted this advice from the Applicant as constituting a resignation and agreed to have her pay made up. Ms Kovacevic also asked the Applicant to move out of the accommodation provided to her by the Respondent as soon as possible, which occurred approximately one week later.
Ms Cachia who is also employed by the Respondent as an NDIS Personal Care Assistant, confirmed she had worked with the Applicant for approximately 12 months and claimed she had been bullied and harassed by her, treatment which she felt compelled to accept. That treatment included demands on Ms Cachia to lend money to the Applicant or to allow the Applicant to borrow her car. She also states that the Applicant had been unhappy in her work with the Respondent and shortly before her resignation had made comments to her that she did not need the job with the Respondent and could go back to a factory job she had previously held.
Statutory framework and case authority
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.
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.
The authorities in respect of the meaning of the term ‘dismissed’ are well traversed and it is useful to detail some of them at this point. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[4] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’
“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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee.”
and at 5:-
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
In a more recent Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[5] (Bupa), the Full Bench was dealing with an appeal of a decision in which the member at first instance found that the dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a ‘forced’ resignation and how the passage of the FW Act impacted prior authorities when it stated as follows;
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“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.”
Having identified there were two elements to s.386(1) and after extensively considering the authorities, the Full Bench then said;
“[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.” (our emphasis added)
In the present matter the Applicant has not articulated in the proceedings which limb of s. 386(1) she claims to have been dismissed under although it is apparent from her Form F8 that she contends she was terminated by the Respondent within the meaning of s. 386(1)(a). However, out of an abundance of caution I will consider whether the Applicant was dismissed within the meaning of either the first or second limb of s. 386(1). It is to that I now turn.
Consideration
Whether Applicated terminated at the Respondent’s initiative (s. 386(1)(a))
On the unchallenged evidence of the Respondent’s witnesses which I have no reason to reject, the Applicant’s behaviour became increasingly erratic in or around May 2022, culminating late in the evening on 2 June 2022 with a plea by the Applicant to the Respondent that it pay out her accrued annual leave. That request was declined by Ms Kovacevic following which the Applicant made clear to Ms Kovacevic on 3 June 2022 in less than subtle terms of her intent to seek alternate employment elsewhere because of the manner she felt she had been treated.
While it is true the Applicant had raised complaints with Ms Kovacevic regarding the accuracy and timelines of her pays, there was no evidence before me that indicated underpayment of the Applicant. In fact, the evidence of Ms Kovacevic was to the effect that the Respondent had extended to the Applicant the loan of money, free accommodation as well as employment to assist her with her financial situation.
Returning to the ‘resignation,’ Ms Kovacevic was entitled to accept the language used by the Applicant as communication of her resignation of employment. I am satisfied that the Applicant made clear that she would not continue to be treated as she felt she had and would seek employment elsewhere. Ms Kovacevic confirmed in response that she would have her outstanding pay and entitlements made up and requested that the Applicant vacate the company provided accommodation as soon as practicable. In the circumstances this was a reasonable request and was not challenged by the Applicant at the time. If Ms Kovacevic misunderstood the Applicant’s intention, no steps were taken by the Applicant to disabuse her of that understanding.
As to whether the resignation was an impulsive decision of the type referred to in Bupa, the evidence from Ms Cachia to the effect that the Applicant had been unhappy in her employment in the lead up to 3 June 2022 tells against such a conclusion. She had openly communicated that she did not need the job she held with the Respondent’s and could return to her former factory job.
The evidence before me indicates that the Applicant was unhappy in her employment with the Respondent in the period prior to 3 June 2022. The decision of Ms Kovacevic to decline the annual leave pay out requested by the Applicant, a decision I make no criticism of, appears to have been the last straw for the Applicant. She then communicated her intention to seek alternate employment elsewhere citing her treatment by the Respondent as the reason for that decision. While unhappy with the Respondent’s decision to decline the pay out of her annual leave, I am not persuaded that the subsequent decision to resign was made in the ‘heat of the moment.’
I am satisfied and find that the Applicant’s dismissal was not at the initiative of the Respondent within the meaning of s. 386(1)(a) of the Act.
Whether Respondent’s conduct or course of conduct forced the resignation of the Applicant (s. 386(1)(b))
Based on the earlier authorities referred to above, the conduct or course of conduct engaged in by an employer must be such as to leave an employee no choice but to resign. While the Respondent concedes that the Applicant had complained of the accuracy and timeliness of her pay, it rejects there were any systemic underpayments and referred to other benefits extended to the Applicant.
It is not possible on the evidence before me for me to conclude that the Applicant’s pays were irregular and inaccurate such that she had not received pay for the hours she had worked. Had such evidence been before me it may have been open for me to consider whether such conduct left the Applicant no choice but to resign. In the circumstances I am unable to draw such a conclusion. There is no evidence that the Respondent engaged in 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.”
It follows from the above that I am not satisfied that the Applicant’s resignation was forced by the conduct of the employer such that she was dismissed within the meaning of s. 386(1)(b) of the Act.
Conclusion
I find that the applicant has not been dismissed within the meaning of s. 386(1)(a) or (b) of the Act. Accordingly, at the time the applicant made the s. 365 application, the applicant was not a person who has been dismissed for the purposes of s. 365 of the Act. The Respondent’s jurisdictional objection is therefore upheld.
The application is therefore dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
T Kovacevic for the Respondent.
Hearing details:
2022.
Melbourne.
December 14.
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[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] Exhibit R1, Letter of Support from Westcare Family Medical Centre, dated 14 November 2022
[4] [1995] IRCA 625; 62 IR 200.
[5] [2017] FWCFB 3941.
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