[2018] FWC 4979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Bromley-Hoult
v
Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre
(U2018/1221)

COMMISSIONER CRIBB

MELBOURNE, 27 AUGUST 2018

Application for an unfair dismissal remedy - jurisdiction - no dismissal - application dismissed.

[1] Ms Bromley-Hoult (the Applicant) has made an application for an unfair dismissal remedy in relation to her alleged dismissal by Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre (the Respondent, Ascot Vale Leisure Centre, Belgravia, the Centre) on 29 January 2018. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The Respondent made a jurisdictional objection on 27 March 2018 on the grounds that the employee was not dismissed.

[3] The matter was listed for jurisdiction and arbitration on Monday 7 May 2018. Evidence was given in relation to both the jurisdictional objection and the merits of the application. It was agreed that the Commission would make a decision in relation to the jurisdictional objection in the first instance.

[4] If the objection was dismissed, the parties would provide written submissions about whether the dismissal was harsh, unjust or unreasonable. After considering the submissions, together with the evidence given during the hearing, the Commission would then determine whether the dismissal was unfair.

[5] This decision will, therefore, deal with the Respondent’s jurisdictional objection.

[6] At the hearing, Ms Bromley-Hoult gave evidence as did Ms Pauline Champion, Customer Service Officer with the Respondent, on her behalf. For Ascot Vale Leisure Centre, Ms Aylie Spence, Centre Manager; Ms Catherine Ware, Assistant Centre Manager; Ms Cathie Radford, Operations Manager and Ms Moya Chadwick, Aquatics Coordinator, gave evidence. Ms Bromley-Hoult was represented by Mr Garry Dircks, consultant, while Ascot Vale Leisure Centre was represented by Mr Michael Farkas, Group Human Resources Manager.

Legislative framework

[7] Section 385 of the Fair Work Act 2009 (Cth) relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; … ”

[8] Section 386(1) of the Act sets out the meaning of dismissed 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.”

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

SUBMISSIONS

[9] It was common ground that Ms Bromley-Hoult resigned her employment. The parties disagreed about whether this occurred verbally on 24 January 2018 or by text message on 29 January 2018.

Applicant

[10] It was submitted on behalf of Ms Bromley-Hoult that she had resigned as she was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent (section 386(1)(b)). It was submitted that the Respondent’s course of conduct, which was intended to bring the relationship to an end or have that probable result, was:

• Ms Spence’s refusal to allow Ms Bromley-Hoult to continue to work in the contracted Programs Coordinator role (the level 6 role);

• Ms Spence’s refusal to allow Ms Bromley-Hoult to continue to work her contracted role (15 hours per week as Programs Coordinator and 18.25 hours per week in Customer Service);

• The manner in which Ms Spence treated Ms Bromley-Hoult on 29 January 2018. 1

[11] Whilst the Applicant had advised the Respondent that she had study commitments, it was contended that Ms Bromley-Hoult was amenable to discussing and varying the work arrangements. The Applicant stated that it was the response of the Respondent that led to the termination. This was because a decision was made by Ms Campbell and Ms Spence to put, on 24 January 2018, an unacceptable proposal of removing the program coordinator role. It was contended that removing the program coordinator role and offering only 8 hours’ customer service work was a deliberate action to force Ms Bromley-Hoult out of employment. This was because a reduction in customer service hours and the removal of the program coordinator role made employment unsustainable from Ms Bromley-Hoult’s perspective. 2

[12] With respect to the reduction in Ms Bromley-Hoult’s customer service hours, it was argued that it was put to the Applicant that she would only have 8 hours – her existing customer service hours. It was stated that Ms Bromley-Hoult had resigned on 24 January 2018 because she was told by Ms Spence that she would only get 8 hours. The Applicant argued that the reduction in her contracted hours from 33.25 hours to 8 hours was the action that ultimately caused the termination of employment. 3

[13] It was submitted that the Applicant had a contract for 15 hours per week as a program coordinator and 18.25 hours as a Customer Service Operator (CSO). It was stated that the contract stipulated the total number of hours and not the days of work. The Applicant contended that, in being told that she was not doing any of the 15 program coordinator hours, even though she could have worked one or two days of it, together with the significant reduction in customer service hours, this represented a significant change in the employment obligations under the employment contract. 4

[14] The Applicant contended that the removal of the more important and senior part of the employment role and reducing the amount of work offered can be considered to be actions that would have the probable result of bringing the employment relationship to an end, even if there was no actual intention to do so. 5

[15] In the alternative, the Applicant submitted that she was demoted without consent and that she accepted the repudiation of the employment contract and left the employment. It was stated that the Applicant was therefore dismissed as the demotion involved a significant reduction in duties or remuneration. 6 It was argued that the Respondent’s actions, in indicating that it no longer wanted to be bound by the contract in terms of the hours and roles, was a significant breach of the contract. It was stated that the Applicant was therefore entitled to treat herself as discharged from employment.7

[16] The Applicant contended that the Respondent could have said, when advised of Ms Bromley-Hoult’s different availabilities, that she had to continue with her contracted hours or there was no job for her. It was argued that the Respondent had instead said that Ms Bromley-Hoult couldn’t do that job any longer. 8 Further, there was said to be no evidence that the program coordinator’s hours needed to be done on Mondays and Wednesdays.9 It was stated that the Council did not set the Active Adults’ timetable and that there was no operational need for Ms Bromley-Hoult to necessarily be on the site to perform that role.10

Respondent

[17] The Respondent contended that it did not dismiss Ms Bromley-Hoult and that the Applicant resigned at her own behest. This was said to have been as the result of a personal decision to pursue nursing studies and was described as premeditated. 11

[18] It was argued that the Respondent was happy for Ms Bromley-Hoult to undertake studies and that Ms Bromley-Hoult had defined the limits of her availability to work whilst studying. The Respondent stated that it had wished to find a way to align the Applicant’s availability with the needs of the business. Discussions were held, in good faith, to allow Ms Bromley-Hoult to continue working with Belgravia based on Ms Bromley-Hoult’s availability and the needs of the business. It was submitted that the Respondent’s offer to the Applicant was always a minimum of 23.5 hours. 12 However, when Ms Bromley-Hoult resigned on 29 January 2018, it was said that she unilaterally put an end to good faith discussions between Ms Spence and Ms Bromley-Hoult.13

[19] The Respondent stated that it had no reason or want to dismiss Ms Bromley either directly or indirectly and that the Applicant resigned of her own accord. It was submitted that there was no action which could be attributed to the Respondent that could have led to the Applicant resigning. 14 The Respondent argued that, if the Applicant had not resigned, discussions would have continued to arrive at a sympathetic solution to the Applicant’s reduced availability to work and the business’s needs.15

CHRONOLOGY OF EVENTS

[20] It is helpful in this matter to set out a brief chronology of the relevant events. The chronology is as follows:

• Ms Bromley-Hoult was employed in the position of Customer Service Operator (CSO) 16 (Level 2) with two sets of duties and responsibilities: as a Program Coordinator (more senior at Level 6) for 15 hours a week and in Customer Service for 18.25 hours a week.17

• Friday 19 January 2018: Ms Bromley-Hoult enrolled in a Bachelor of Nursing. 18

• Monday 22 January 2018: Ms Bromley-Hoult went to see Ms Spence and told Ms Spence that she had been accepted into a Bachelor of Nursing. There was then a discussion about what Ms Bromley-Hoult’s hours would be once she started at Uni. Ms Bromley-Hoult and Ms Spence had different understandings of the outcome of the conversation. 19

• Monday 22 January 2018: following the conversation with Ms Bromley-Hoult, Ms Spence went and spoke to Ms Ware about Ms Bromley-Hoult’s hours.

• Tuesday 23 January 2018: Ms Bromley-Hoult emailed Ms Spence proposing the hours she could work during Uni. 20 These were: Wednesday 4.15-8.00pm Programs; Thu 8.00am-6.00pm Programs; Fri 7.15-7.30am Programs/7.30-12.30pm CSO and 12.30-2.30 Programs & or meeting.21

• Tuesday 23 January 2018: Ms Spence scheduled a meeting with Ms Bromley-Hoult for 2.30pm on Wednesday 24 January 2018 to talk about her hours. 22

• Tuesday 23 January 2018: after receiving Ms Bromley-Hoult’s proposed hours, Ms Spence went and spoke to the Regional Manager and Ms Ware about the proposed hours. 23

• Wednesday 24 January 2018: Ms Spence and Ms Bromley-Hoult met and discussed Ms Bromley-Hoult’s hours. Both parties had different recollections of what was said during the meeting. There were also differing accounts of what Ms Bromley-Hoult had requested regarding communication at the end of the meeting.

• Following the meeting on 24 January 2018: Ms Bromley-Hoult put on Facebook that she was looking for work on Thursday’s and Friday’s. 24 This was brought to Ms Spence’s attention on Thursday 25 January 2018 by Ms Ware.25 Ms Ware had been told about the post by Ms Chadwick.26

• Monday 29 January 2018: Ms Spence and Ms Bromley-Hoult met. The content of the meeting is disputed by the parties. After the meeting, Ms Bromley-Hoult left work as she was too upset to stay.

• At 9.36pm on Monday 29 January 2018: Ms Bromley-Hoult texted Ms Spence that:

“I have decided that the hours you are offering me will not be acceptable for me to continue working at AVLC and I don’t feel you will be able to get past our conversation today. I think returning to work in that environment will not be a good option for me. I wish you all the best” 27

• Tuesday 30 January 2018 at 9am: Ms Spence replied to Ms Bromley-Hoult’s email:

“thank you for letting me know. Can you please confirm this in writing either by email or in hard copy and also confirm your final work day. Thanks” 28

• Tuesday 30 January 2018 at 9.28am: Ms Bromley-Hoult responded with:

“shall do I hate that it’s come to this. This is certainly not how I wanted to leave. I will email you today that yesterday was my final day. I really do hope the best for you. Tx” 29

• Tuesday 30 January 2018: Ms Spence responded “I wish you all the best too.” 30

EVIDENCE

[21] Where there is common ground between the parties in relation to the facts, there is no necessity for the evidence to be summarised or for there to be specific findings of fact made.

[22] For those events in the chronology above, where there was a dispute between the parties about what had happened, the evidence will be summarised. Findings of fact, as necessary, on the balance of probability, will then be made.

Monday 22 January 2018

Meeting between Ms Bromley-Hoult and Ms Spence

Ms Spence

[23] It was Ms Spence’s evidence that:

• Ms Bromley-Hoult came into her office and told her that she had been accepted into university to study nursing. She congratulated Ms Bromley-Hoult and gave her a congratulatory hug. 31

• Ms Bromley-Hoult advised that her course was all day on Mondays, Tuesdays and Wednesdays and that she hoped that she could still work at the Centre. 32

• She recalled Ms Bromley-Hoult telling her that they would need to make it worth her while with a pay rise to keep her. She and Ms Bromley-Hoult had then discussed her current work arrangements of partly program coordinator and partly customer service. 33

• The program coordinator role took less than 50% of Ms Bromley-Hoult’s hours and was just as key as her customer service hours. 34

Ms Bromley-Hoult

[24] Ms Bromley-Hoult gave evidence that:

• She confirmed that she had said to Ms Spence that she had good news – that she was getting into nursing – and that she could stay (she had enrolled on 19 January 2018). 35

• She was positive that Ms Spence had responded that she hadn’t known that Ms Bromley-Hoult wanted to do nursing. This was because she remembered discussing with Ms Spence previously that she was feeling that she wasn’t going anywhere at Belgravia and that she might look at something like nursing. 36

• She told Ms Spence that her school hours were Monday, Tuesday and Wednesday. This meant that, what she was saying was that, she would be unavailable for the program coordinator role on those days but would be available for customer service shifts on those days. 37

• She confirmed that she had said that she could do the coordinator role on Thursdays and Fridays and a few hours on Wednesday night – 20 hours. Ms Bromley-Hoult also asked if she could be paid the casual rate. She denied that she had said to Ms Spence that Ms Spence would need to make it worthwhile with a pay rise for Belgrave to keep her. 38

• She agreed that she was looking for more money but not as a pay rise. Rather, Ms Bromley-Hoult had asked to be paid the coordinator rate and the customer service rate respectively when she was doing one or the other – not an average of the two rates and as a casual. 39

• She denied that she threw blackmail on Ms Spence by saying that they needed to give her a pay rise to make it worth her while to stay. Ms Bromley-Hoult stated that she wanted to be paid 15 hours at the coordinator rate and five hours at the CSO rate. 40

• When she went to speak to Ms Spence, she had no idea that Ms Spence would not be thinking that changing her hours would be okay. Ms Bromley-Hoult stated that she didn’t think that there would be an issue. 41

• As she had been able to choose her work days in the past, she expected to have no problem with doing either the coordinator or customer service roles while she was studying. 42

• She did not expect that changing her hours was going to be such an issue. This was because, over the last couple of years, she and Belgravia had always been quite flexible with swapping and changing hours. As most of her Active Adult hours at the Centre involved a lot of administrative work, she didn’t think it would be a big issue to change it to a Thursday or Friday. 43

• In the past, when she was unwell, she and Ms Spence would have a conversation about needing time off and swapping days. 44

• She would swap the day she ran the monthly events in consultation with Ms Spence. The event may not have been a one off but something that ran over more than one month. Even though she tried to make all of the events on Wednesday, there were things that could not be and so she would swap them around. Ms Bromley-Hoult explained that she might swap days five times a year. 45

• Even though she predominantly ran all of the monthly functions on a Wednesday, sometimes the function she wanted to take them to was on another day so she would swap days. The Active Adults groups ran Monday to Friday with classes provided by group fitness instructors in the morning which finished at different times. Her job included going in and having morning tea with the members and discussing what functions/events she was running etc. There was flexibility in that, if she didn’t have a cup of tea with them in the morning because of another commitment, she could ask Ms Spence if she could swap days. 46

• When Belgravia Leisure took over, she chose the days/hours she could work as she could speak to the managers and jointly work out what days was suitable for herself and what days were suitable for the members. 47

• She amended her statement to indicate that she attended team meetings rather than managers’ meetings on Thursdays from 12:30pm – 2.00pm. 48 Ms Bromley-Hoult explained that she represented the Active Adult members at the meeting and that the other attendees were other managers or coordinators.49

• By the end of the meeting with Ms Spence, she thought that there was agreement about changing hours and that the pay rate was the only issue. Ms Bromley-Hoult explained that she understood that it was fine for her to change the days. 50

• At the end of the meeting, they stood up and Ms Spence hugged her and congratulated her. 51

• When she left the meeting, she thought that all she was waiting for was for Ms Spence to discuss whether she could be paid the different rates of pay for the two roles. She and Ms Spence were to meet in two days’ time to discuss this. 52

Meeting between Ms Spence and Ms Ware

[25] Ms Ware confirmed that, on Monday, 22 January 2018, Ms Spence came into her office to speak about Ms Bromley-Hoult’s hours. Ms Spence advised her that Ms Bromley-Hoult was going back to university and that she had asked how she could be accommodated so that she could still work at the Centre. 53

[26] It was Ms Ware’s evidence that she and Ms Spence had discussed which customer service hours Ms Bromley-Hoult could commit to and had concluded that Wednesday evening shift and a weekend shift would be the most suitable for Ms Bromley-Hoult. This was because Ms Bromley-Hoult was unable to work on other days due to her Uni commitments. 54

Conversation between Ms Bromley-Hoult and Ms Radford in the safe room

[27] It was Ms Radford’s evidence that she and Ms Bromley-Hoult were in the safe room completing a till balance. During the conversation, it was stated that Ms Bromley-Hoult told her that she had got into Uni and was going to pursue a career in nursing and that she was going to resign potentially/has resigned, because she was waiting to hear what management has to say/has to offer me. Ms Radford expressed the view that, in Ms Bromley-Hoult saying “I have resigned” and then saying “Well, waiting on hearing what management has to say”, it could be taken either that Ms Bromley-Hoult had or had not resigned. 55

[28] Ms Radford stated that that was what Ms Bromley-Hoult had said but that Ms Bromley-Hoult had not said that she had submitted her resignation. 56 Ms Radford stated that she was busy and so hadn’t advised Ms Spence about the conversation.57

[29] Evidence was also given by Ms Radford that, a few days later, Ms Bromley-Hoult told her that she was only offered eight hours and how it was a disgrace. 58

[30] It was recalled that she had told Ms Ware about this conversation when, a few days later, word had got out around the Centre that Ms Bromley-Hoult had resigned and that her last day was 10 February 2018. 59

[31] On the other hand, Ms Bromley-Hoult denied telling Ms Radford that she had resigned. 60 This was because she had not resigned.61

Tuesday 23 January 2018

[32] It was common ground that Ms Bromley-Hoult sent Ms Spence an email proposing the hours, times and days she could work. 62 There were 15 hours of programmes and 5 hours as a CSO totalling 20 hours a week.63

[33] Ms Bromley-Hoult gave evidence that, if she had thought that she wasn’t going to be able to continue as program coordinator, she probably would not have written the email. 64 The Applicant stated that if there was a problem with the proposed coordinator work arrangement, she would have made a different proposal such as dropping the CSO work on Fridays and just doing the coordinator role.65 It was agreed that the problem that Belgravia had was to try and find her 20 hours at the times she was available, without affecting other people who were working at those times.66

[34] It was Ms Spence’s evidence that, after receiving the email from Ms Bromley-Hoult, she had discussed Ms Bromley-Hoult’s proposed hours with the Regional Manager and the Centre’s Assistant Centre Manager. Ms Spence stated that the Regional Manager and herself agreed that it was not possible to have a program coordinator who was accountable for a program that ran predominantly on Monday, Wednesday and Friday mornings to work on Wednesday night. In addition, they agreed that it was impossible for anyone to work hours that were out of sync with when the participants were in attendance. 67

Wednesday 24 January 2018

Meeting between Ms Spence and Ms Bromley-Hoult

Ms Spence

[35] It was Ms Spence’s evidence that:

• No written counterproposal was given to Ms Bromley-Hoult as she and Ms Bromley-Hoult were in discussions regarding a counter offer. 68

• She agreed that she had referred to herself and Ms Campbell having had discussions about the program coordinator role. Ms Spence did not agree that she had said what she was alleged to have said by the Applicant. 69

• During the discussion with Ms Campbell, they had decided that Ms Bromley-Hoult could not continue as the program coordinator. 70 This was because Ms Bromley-Hoult was no longer available to undertake the hours Ms Spence required of the position. Ms Spence told Ms Bromley-Hoult that the hours and days she was available did not meet the requirements of the program coordinator role nor the proper discharge of that role.71

• She recalled saying words to the effect that Ms Bromley-Hoult’s availability no longer suited the role and that, if that was Ms Bromley-Hoult’s ongoing availability, Ms Bromley-Hoult could not continue in the role. 72 Ms Spence stated that Ms Bromley-Hoult, due to her study commitments, was no longer able to undertake the duties of the program coordinator role. That is, Ms Bromley-Hoult was unavailable at the times the business needed her to be available.73

• Ms Bromley-Hoult had made herself available for times when the participants were not in attendance at the Centre. There would be no point in having someone coordinating a program that wasn’t running. The role was 15 hours a week and doing those hours when the participants were not in the facility was not useful for the business. 74 Ms Spence did not believe that she had used those words she was alleged to have used when talking with Ms Bromley-Hoult.75

• Ms Spence explained that the people that the program coordinator looked after attended the Centre on Monday to Friday mornings and their event was all day on a Wednesday. By becoming unavailable Monday, Tuesday and Wednesday, Ms Bromley-Hoult had counted herself out from being able to do that role on an ongoing basis. 76 Ms Spence agreed that the first time Ms Bromley-Hoult had heard this was on 24 January 2018.77

• The participants were certainly used to their outings being on a Wednesday on a very regular basis. It was explained that at the least monthly, there was a full day or a luncheon that the program coordinator was responsible for attending and supporting. The program coordinator being unavailable on Wednesday would be very detrimental to continuing in that position. 78

• The participants’ hours were Monday – Friday morning and mainly Monday, Wednesday and Friday mornings. 79 There was a consistent pattern of work shown in the rosters over a period of 2.5 years which was only changed on very minor circumstances.80

• Since starting work with Belgravia, the days on which Ms Bromley-Hoult worked in the program coordinator role (Mondays, Wednesdays and Thursdays) had not changed. 81

• Ms Bromley-Hoult did indicate that a lot of members would really like events to be run on Thursdays and that the members would be okay if she worked on a Thursday and Friday. 82 It was Ms Spence’s evidence that, in saying that, Ms Bromley-Hoult was referring back to the period before Belgravia when the YMCA was managing the Centre.83

• She had told Ms Bromley-Hoult that she could offer her hours as a CSO and that her current 5 hours on a Thursday and 3.5 hours on Friday could continue. Ms Spence agreed that, in telling Ms Bromley-Hoult that, she was saying that Ms Bromley-Hoult could not continue in the program coordinator role unless Ms Bromley-Hoult’s availability changed to fit the needs of the program. 84

• Ms Bromley-Hoult was seeking 20 hours a week work and she had offered Ms Bromley-Hoult a minimum of 23.5 hours and a maximum of 24.5 hours. Ms Spence proposed, in addition to Ms Bromley-Hoult’s current CSO 5 hours on a Thursday and 3.5 hours on a Friday, Wednesday close in the evening (five – six hours) and Saturday (up to 10 hours). 85

• Ms Bromley-Hoult’s response was recalled to have been that the proposed additional hours would not suit as the 11pm Wednesday finish was too late and Saturday was not suitable as she had to study and she wanted a life. 86

• She denied saying something like she had to share to Ms Bromley-Hoult. 87

• She denied saying that Ms Bromley-Hoult would have to work eight hours in customer service not 20 hours. Ms Spence did not know where the eight hours came from as she had offered Ms Bromley-Hoult at least 23.5 hours which was 3.5 hours more than Ms Bromley-Hoult had requested. 88

• She denied saying anything to Ms Bromley-Hoult about eight hours and stated categorically that she and Ms Bromley-Hoult did not have a conversation about eight hours. 89

• She was not sure why Ms Bromley-Hoult was proposing programs work for 15 minutes on a Friday morning and customer service then from 12:30pm to 2:30pm. Ms Spence stated that the team meeting was on a Thursday and that she would not be changing the team meeting (to the Friday). 90

• She was working on the basis of the Applicant’s proposed hours as Ms Bromley-Hoult had told her on 22 January 2018 that her Uni hours would be Monday to Wednesday. 91

• The new program coordinator is working on a Friday morning but also on Wednesdays. 92

• She did not understand the reference to the Council in Ms Bromley-Hoult’s witness statement. Ms Spence indicated that, when she was interviewed for her role, she made a commitment to the Council representatives to maintain the Active Adults program as it was then being delivered. 93

• The program runs to a timetable and there was a commitment to Council to run a certain number of classes and to maintain them on a regular basis. Ms Spence indicated that she did not have direct knowledge of whether any specific days were required by Council. 94

• She denied referring to Council in the way described by Ms Bromley-Hoult but may have raised it in passing. 95

• The team meetings on Thursdays were attended by staff representing operational areas. It was stated that Ms Bromley-Hoult was not a manager and did not have management status. 96

• She asked Ms Bromley-Hoult to take the (long) weekend to think about it and that they would meet again on Monday, 29 January 2018. The purpose of the second meeting was to ascertain Ms Bromley-Hoult’s views about the Wednesday night hours. 97

• She could not say exactly what Ms Bromley-Hoult had said on 24 January 2018. Ms Spence stated that Ms Bromley-Hoult had not previously chosen her days. It was the result of a mutual agreement regarding the needs of the business and what suited Ms Bromley-Hoult’s availability at the time. 98

• Ms Bromley-Hoult may have said something to the effect that all of the members who were at the Centre on Mondays and Wednesdays were also at the Centre on Thursdays and Fridays and so she would see them then. 99

• Ms Bromley-Hoult did mention the two previous program coordinators but their arrangements were irrelevant as they were employed by the YMCA. 100 Ms Spence did not believe that Ms Bromley-Hoult talked about the hours of the previous two program coordinators.101

• She did not think that Ms Bromley-Hoult had asked her if it meant that she would have to work 20 hours in customer service. 102

• Ms Bromley-Hoult did not say that she would need to resign because she couldn’t live on $160 a week or anything like that. 103

• She was not under the impression that Ms Bromley-Hoult was resigning, or had any discussion about it, during this meeting. 104

• Ms Bromley-Hoult did ask if she could write a goodbye and thank you in her newsletter as she would no longer be fulfilling the program coordinator role. 105 This was because they were discussing the programs coordinator role so it was a goodbye from the program role but not from the entire Centre.106

• She did not say no but had asked Ms Bromley-Hoult if she could have a few days to come up with a plan as the members concerned were quite delicate and she didn’t want to cause panic across the facility. 107

• She asked Ms Bromley-Hoult to wait because there was still time for the Centre to come to a resolution before informing members. Ms Bromley-Hoult could write in the newsletter that she was no longer going to be the program coordinator but once there was a plan. 108

• Ms Bromley-Hoult did not say that she would let the staff know that she wasn’t continuing on in the program coordinator role. Rather, it was recalled that Ms Bromley-Hoult had asked to let particular staff know (Pauline and Kim). Ms Spence indicated that that was okay but that it was to be on a confidential basis. 109 “Confidential” was said to have meant not other staff and members.110

• Ms Bromley-Hoult did not say that she would have to look for another job. 111

• She asked Ms Bromley-Hoult to reconsider her offer of Wednesday evenings and Saturdays and to let her know as soon as possible. She had suggested that Ms Bromley-Hoult take the weekend to think about it. 112

• She did not say that she and Ms Bromley-Hoult would catch up again on Monday as she would need Ms Bromley-Hoult’s resignation in writing. Ms Spence indicated that she asked for the resignation in writing in a text on 30 January 2018 after receiving Ms Bromley-Hoult’s text that she wasn’t coming back. 113

• She had scheduled the meeting on 29 January 2018 to discuss the offer of additional hours and was under the impression that Ms Bromley-Hoult would consider the offer and was going to respond to the offer. 114

Ms Bromley-Hoult

[36] It was Ms Bromley-Hoult’s evidence that:

• She felt that the program coordinator role was a more important role than customer service and stated that it was at a higher level – level 6 as compared with level 2 or 3 for customer service. Ms Bromley-Hoult stated that she felt that the program coordinator role (15 hours) was the main role she was there for and that the customer service hours were additional hours (up to 20 hours a week). 115

• Ms Spence told her that she had been in contact with Amber and that they did not think it was viable for her to continue in the programs coordinator role. Ms Spence had said that this was because there was an agreement with Council that they would run these programs and that Council would not approve and also that the members were used to seeing her on Mondays and Wednesdays and that events were usually on Wednesdays. 116

• She had responded that that wasn’t right and asked what Council had to do with it as she had chosen those particular days. Ms Bromley-Hoult had also stated that the members who were in the Centre on Mondays and Wednesdays were also there on Thursdays and Fridays and so she would still see them. It was recounted that she had also said that a lot of members would like the events run on Thursdays and that the previous two program coordinators did a lot of work from home; chose their hours and didn’t work in customer service. 117

• She had then asked Ms Spence if that meant that she would have to work in customer service for 20 hours. Ms Spence had responded “No. 8 hours.” 118 Ms Bromley-Hoult had replied by asking “… why not 20?”119 Ms Spence said then said that she had to share.120

• She had responded by saying that she would need to resign because she couldn’t live on $160 week and that she would leave on 10 February 2018. 121

• She denied being offered 23.5 to 24.5 hours. Ms Bromley-Hoult stated that she was offered her current Thursday and Friday morning shifts – 8 hours (and a Wednesday shift and Saturday work during the meeting on 29 January 2018 – but not on 24 January 2018). 122

• It was her understanding that she had resigned to Ms Spence on Wednesday 24 January 2018 and had said that “Obviously, I would need to resign because I can’t leave on $160 per week…”. 123 She had then told people that she had resigned.124

• She said to Ms Spence that she would like to write in her newsletter a goodbye and thank you. Ms Spence’s response was said to have been “No because the members will panic”. 125

• She said that she would need to look for another job and if something came up in the next two weeks, she would have to take it. 126

• Ms Spence had then said that they would catch up again on Monday because she would have to have it in writing. 127

• She had told Ms Spence that she wanted to tell Kim and Pauline that she had resigned. Ms Spence had said that was fine but to make sure they didn’t tell any of the members. 128

Thursday 25 January 2018

Interactions between Ms Radford, Ms Ware, Ms Chadwick

[37] Ms Ware also gave evidence that, around 4.00pm, she was informed by Ms Radford that Ms Bromley-Hoult was telling other staff that she had resigned and that her last day was 10 February 2018. 129 Ms Ware also stated that, around 4:30pm on the same day, Ms Chadwick telephoned and told her the same thing that Ms Ware had already told her.130

[38] In addition, Ms Chadwick was said to have also alerted her, on the night of Thursday 25 January 2018, to the Facebook post from Ms Bromley-Hoult saying that she was looking for a part-time job on Thursdays and Fridays. 131

[39] It was stated by Ms Ware that she sent the Facebook post to Ms Spence and had then rung Ms Spence and asked her if she had received a resignation letter from Ms Bromley-Hoult. Ms Spence had replied that she had not. 132 Ms Ware recalled that she had then told Ms Spence about the discussions she had had with Ms Radford and Ms Chadwick regarding Ms Bromley-Hoult telling people that she had resigned. It was stated that Ms Spence’s reaction was to ask why because it came as a shock to everybody that Ms Bromley-Hoult had resigned. Ms Spence had also told her that she had also found a post from Ms Bromley-Hoult on the Moonee Valley Buy, Swap and Sell Facebook page looking for part time employment.133

[40] Ms Radford gave evidence that Ms Meehan and Ms Chadwick came up and asked her what should they do about Ms Bromley-Hoult who was telling everyone that she had resigned. They didn’t think that Ms Spence or Ms Ware knew, which meant it would backfire. It was stated by Ms Radford that she had then gone and told Ms Ware what was happening. 134

Exchange between Ms Chadwick and Ms Bromley-Hoult

[41] It was Ms Chadwick’s evidence that, at approximately 12.15pm, when she was in the main office, she heard Ms Bromley-Hoult telling staff that she had resigned and was finishing on 10 February 2018. It was recounted that Ms Bromley-Hoult approached her and told her that she had resigned because she had only got offered eight hours and that she was finishing on 10 February 2018. 135 Ms Chadwick explained that she first heard that Ms Bromley-Hoult had resigned on Wednesday 24 January 2018. This was because a work colleague, Ms Meehan, had texted her saying that Ms Bromley-Hoult had resigned.136

[42] Ms Bromley-Hoult gave evidence that she told Ms Chadwick that she had resigned the day before. It was recalled that Ms Chadwick had asked her why and she had responded that Ms Spence was only offering her eight hours and she could not do the programs coordinator role. 137

Monday 29 January 2018

7.45am/8.00am

[43] Ms Ware gave evidence that, on arriving at work, she had met with Ms Spence and Ms Chadwick who were standing at the Membership Manager’s desk at the time. It was clearly recalled by Ms Ware that, when Ms Bromley-Hoult came in, they had stopped the conversation and that she had said good morning to Ms Bromley-Hoult and that Ms Bromley-Hoult had ignored her. 138

Meeting between Ms Bromley-Hoult and Ms Spence

Ms Spence

• The conversation opened with Ms Bromley-Hoult screaming at her so the conversation was definitely heated. 139

• Ms Bromley-Hoult had started the conversation by saying that she was really pissed off. Ms Bromley-Hoult went on to say that she had been working here for five fucking years and had also referred to her shifts having changed but not her hours. Ms Bromley-Hoult had also said that Ms Spence had not tried hard enough to keep her. 140

• She did not raise her voice but said to Ms Bromley-Hoult that if she continued to swear at her (the F word), she would have to end the conversation. 141

• Ms Bromley-Hoult said words to the effect that she didn’t understand why Ms Spence didn’t want her to stay and that she had thought that they could have accommodated her program coordinator hours in the hours she was available. It was recalled that Ms Bromley-Hoult had asked why she was only being offered eight hours when she was contracted for 20 hours and Ms Spence knew that she couldn’t survive on eight hours. 142

• Ms Bromley-Hoult said that the members loved her and that she was great at her job. Ms Bromley-Hoult referred to 20 hours but not to the contract or 18.25 hours. Ms Bromley-Hoult did not ask why Ms Spence would not offer her that. 143

• She then said to Ms Bromley-Hoult that she had offered her more than eight hours and that she had offered her 23.5 hours or 24.5 hours. It was recalled that she also said to Ms Bromley-Hoult that she had offered her Wednesday night and Saturday and that she had knocked them back. 144

• Ms Bromley-Hoult did not remember having discussed the Wednesday nights with her on 24 January 2018 when she had reminded her of that at this meeting. Ms Spence stated that she had again asked Ms Bromley-Hoult to reconsider. 145

• Ms Bromley-Hoult had denied any recollection of the conversation when Ms Bromley-Hoult had been offered shifts in addition to her Thursday and Friday hours of 8.25 hours – a week night and a weekend shift. 146

• Ms Bromley-Hoult said words to the effect that she would not get an adequate break between Wednesday night and the customer service shift on Thursday. 147

• Ms Bromley-Hoult had tried to suggest that Ms Spence had not mentioned Saturday work when this had been offered at the previous meeting. 148

• Ms Bromley-Hoult said words to the effect that the Centre was open seven days a week with plenty of shifts and requested that the Customer Service Manager sit in on the meeting so that she could discuss where she fitted in. 149

• Ms Bromley-Hoult did not say to her, during the meeting, that she was really hurt and disappointed in the company and Ms Spence. 150

• Ms Bromley-Hoult did say, with expletives, with severe effect that it was rubbish that Ms Spence was using Council as an excuse. 151

• She did not say that she (Ms Spence) had worked hard for these last years with Belgravia. 152

• She did not say No and that she would have a meeting with Ms Ware. This was because she had already had a meeting with Ms Ware (prior to the meeting on 24 January 2018 and the offer of the additional hours). 153

• Ms Bromley-Hoult stated that it was obvious that Ms Spence did not want to keep her and that she hadn’t tried hard enough to keep her. This was said to have been because Ms Spence could have seen if Ms Bromley-Hoult could have worked in the other centres and the cafe. Ms Spence explained that the Regional Manager came to the Centre at least once a week and Ms Bromley-Hoult could have asked her about working in the other facilities. She did not think it was appropriate to offer Ms Bromley-Hoult work in the cafe. 154

• Ms Bromley-Hoult said words to the effect that she would have liked Ms Spence to have at least offered that. 155

• She did not recall Ms Bromley-Hoult asking why Ms Spence had needed to discuss this with Amber. 156

• She suggested to Ms Bromley-Hoult that she take some time to think about this again and to let her know as soon as possible. 157

• Ms Bromley-Hoult had then said words to the effect that she was too upset to complete her shift that afternoon and would be leaving the Centre. 158

• She did not put in writing what Ms Bromley-Hoult was being offered because they had discussed it twice. 159

Ms Bromley-Hoult

[44] Ms Bromley-Hoult gave evidence that:

• She told Ms Spence that she was really hurt and was disappointed in Belgravia and in Ms Spence. Ms Bromley-Hoult recalled that she said that she didn’t understand why Ms Spence did not want her to stay and why she had only offered her eight hours when Ms Spence knew that she couldn’t survive on eight hours. She had also said that it was rubbish using the Council as an excuse and that the members loved her and she was great at her job. It was recalled that she had also asked why she was not being offered 18.25 hours in customer service as per her contract. 160

• She recalled Ms Spence saying that she had offered her Wednesday evening and Saturday and that she had knocked it back. 161 Ms Bromley-Hoult had responded that Ms Spence had not offered her Wednesday night because it was an illegal shift as there were insufficient hours between the Wednesday night shift and the Thursday morning shift.162

• She also said that they had never discussed Saturday. Therefore, Ms Bromley-Hoult said that she did not know that Ms Spence was offering her up to 10 hours on a Saturday. It was said that there was no discussion about what the Saturday hours would be. 163

• She denied that she had said to Ms Spence that she wouldn’t work on weekends because she needed a life and to study. 164

• She had requested that Ms Ware attend the meeting to discuss other shifts that she could work. 165 This was because there were other shifts she could work and Ms Spence was just “hammering on” about Wednesday night and Saturday.166 It was recalled that Ms Spence’s response was No and that she would meet with Ms Ware.167

• She said to Ms Spence that she had worked in the centre for five years in customer service and that her shifts and hours had changed a number of times. Ms Bromley-Hoult stated that she then said that, if Ms Spence wanted to keep her, Ms Ware and herself could come up with a solution. She then said that Ms Spence obviously didn’t want to keep her because Ms Spence could have seen whether Ms Bromley-Hoult could have worked in the other centres and the cafe. Ms Bromley-Hoult stated that she would have liked Ms Spence to have at least offered that. 168

• She agreed that she and Ms Spence were in discussions about what shifts she could work. Ms Bromley-Hoult stated that there was no discussion about what other shifts would be mutually suitable. 169

• She denied that Ms Spence had repeated the offer of 23.5 to 24.5 hours. 170

• She agreed that she had said that she was pissed off and that she had been working at the Centre for five fucking years and that she said that it was bullshit about Council. 171

• She walked out of the meeting because they had both decided that they had finished their discussion. 172

• She recalled saying that she was a bit too upset to work the shift that afternoon but if they couldn’t get anyone, she would work. Ms Spence was said to have responded that this was fine and to go home. 173

• She denied walking out of the meeting and that the meeting wasn’t finished. Ms Bromley-Hoult said that Ms Spence had finished the meeting and that she (Ms Bromley-Hoult) still wanted Ms Ware to be involved in the meeting. Ms Bromley-Hoult indicated that there was nothing offered to her to continue on with the discussion. This was because she was being given Saturday (shifts unknown) plus Wednesday night and Thursday/Friday. Ms Bromley-Hoult stated that no other shifts were offered to her. 174

• Ms Spence had not said anything about knowing that Ms Bromley-Hoult had resigned. 175

During/after the meeting

[45] It was Ms Ware’s evidence that her office was not far from Ms Spence’s office and that she heard yelling and screaming with Ms Bromley-Hoult yelling pretty loudly at Ms Spence. Ms Ware recalled hearing Ms Bromley-Hoult yell “this is unfair” and that she “should be able to get the hours I want”. As well, it was said that Ms Bromley-Hoult was yelling profanities such as “This is bullshit”. 176

[46] Ms Ware stated that Ms Spence does not use foul language and that she had never heard Ms Spence use profanities to another employee in an aggressive manner. 177

[47] Ms Ware stated that, after the meeting, Ms Bromley-Hoult was visibly upset and left the facility and didn’t return to work her 2:15pm – 6:15pm Customer Service Officer shift. 178

[48] It was Ms Radford’s evidence that she was in the main office and all she could hear was Ms Bromley-Hoult swearing at Ms Spence and shouting about how unfair everything was. 179 Ms Radford confirmed that she and Ms Spence were good friends.180 It was also Ms Radford’s evidence that she had never heard Ms Spence swear in the workplace and stated that Ms Spence does not do that.181

[49] It was also Ms Chadwick’s evidence that Ms Spence never used abusive language in her work role. 182

[50] On behalf of the Applicant, Ms Champion gave evidence that, whilst working on the reception desk (located near the entrance with a small safe room next to it then Ms Spence’s office), she did not hear a conversation between Ms Bromley-Hoult and Ms Spence. 183

[51] It was also Ms Champion’s evidence that she did not see Ms Bromley-Hoult leave the Centre after the meeting. 184

Late evening

[52] Ms Spence gave evidence that Ms Bromley-Hoult’s resignation took her by surprise as she was trying her best to find a way to give Ms Bromley-Hoult the 20 hours of work she had requested within the limited times and days she was available. 185

[53] It was Ms Bromley-Hoult’s evidence that:

• She confirmed that she had sent Ms Spence a text that evening and that that text said that the amount of hours she was being offered was not acceptable. 186 This was because, at that stage, she knew she was being offered her current Thursday and Friday hours (8) plus Wednesday night, which was offered on Monday, 29 January 2018.187

• She had said in the text that she did not feel that Ms Spence would be able to get past the conversation that day. This was because she had found, over the past two years, that if staff did not agree with Ms Spence, it was not a nice work environment. 188

• She recounted that she had asked Ms Spence during the meeting whether they could “… get past this?” 189 Ms Spence had said yes but she did not feel that they could get past it.190

• When she was leaving, Ms Spence had said to her not to take too long in sending her a hard copy of her resignation as she did not “…. want to wait up all night for you.” 191 Ms Bromley-Hoult recalled that she had left feeling that Ms Spence had not got past it and that, as they hadn’t discussed the Saturday shift, she had nothing to think about.192

• She agreed that she did not confirm in writing her resignation. 193

• She confirmed that she would want to work in the cafe and stated that her Facebook and Mooney Valley Buy and Sell posts expressed a preference for not retail or cafe. Ms Bromley-Hoult said that this was not a refusal to work in a cafe and stated that she had worked in the cafe doing Active Adults work three days a week. 194

• Her role had been filled by somebody who worked a couple of other days but also on a Friday. Ms Bromley-Hoult said that this person was not doing the whole program coordinator role. 195

[54] It was Ms Ware’s evidence that late on Monday, 29 January 2018, Ms Spence forwarded her a text message she had received from Ms Bromley-Hoult at 9:36pm that evening in which Ms Bromley-Hoult advised, in effect, that she had resigned. 196 Ms Spence also forwarded her (Ms Spence’s) response and Ms Bromley-Hoult’s reply.197

Considerations and conclusions

Findings of fact

[55] The evidence discloses a number of facts which were disputed by the various witnesses. The following findings of fact are made as are necessary to determine the jurisdictional objection:

• When Belgravia commenced as the Applicant’s employer, Ms Bromley-Hoult did not unilaterally set her own hours. The Applicant’s hours were agreed following discussions between management and Ms Bromley-Hoult taking into account the needs of the members.

• Ms Bromley-Hoult was able to swap her hours and also change the members’ event day, if required, from Wednesday to another day, following discussion with Ms Spence.

• During the meeting on 24 January 2018, Ms Spence offered, in addition to Ms Bromley-Hoult’s current Thursday and Friday customer service hours (8 hours), on the balance of probability, a Wednesday night shift and a Saturday shift (up to 10 hours).

• On the balance of probability, a total of 23.5 or 24.5 hours a week were offered to Ms Bromley-Hoult during the discussion on 24 January 2018. It was common ground that all of these hours were customer service hours and not program coordinator hours.

• At the meeting on 29 January 2018, it is probable that Ms Spence again discussed the Wednesday night shift and a Saturday shift. It appears that the specific hours of the Saturday shift were not discussed.

• It was undisputed that Ms Bromley-Hoult verbally resigned during the meeting on 24 January 2018. The parties disagreed about whether the resignation was from Belgravia or just from the program coordinator role. Having weighed up all of the evidence, on balance, I find that it is probable that there was a misunderstanding between Ms Spence and Ms Bromley-Hoult. Ms Spence’s evidence is accepted that she understood that Ms Bromley-Hoult had resigned from the program coordinator role only. It was Ms Spence’s evidence that Ms Bromley-Hoult’s resignation had taken her by surprise. It was also Ms Ware’s evidence that, when she told Ms Spence that Ms Bromley-Hoult was telling staff on 25 January 2018 that she had resigned, Ms Spence had asked why as it was a shock to everyone. Equally, Ms Bromley-Hoult’s evidence is accepted that she believed that she had resigned from Belgravia. Ms Bromley-Hoult advised other staff on 25 January 2018, that she had resigned and that her last day was 10 February 2018.

• The meeting on 29 January 2018, between Ms Spence and Ms Bromley-Hoult, was heated with Ms Bromley-Hoult yelling and swearing at Ms Spence. The meeting ended without an agreement about what hours Ms Bromley-Hoult would work.

Was the resignation a forced resignation (constructive dismissal)?

[56] The test for constructive dismissal was considered by the Full Bench in Kylie Bruce
v Fingal Glen Pty Ltd (in liq): 198

“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

“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”.

[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel)and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee...”

[17] In ABB Engineering, the Full Bench said that:

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of 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 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.” [Footnotes not reproduced]

[57] I will adopt the approach of the Full Bench in determining this matter.

[58] The primary submission on behalf of Ms Bromley-Hoult was that the Applicant was forced to resign due to a course of conduct by the employer. The course of conduct was said to have been that Belgravia told Ms Bromley-Hoult that she was no longer able to do the program coordinator role and that her customer service hours would be reduced to 8 hours a week. It was stated that the program coordinator role was the predominant one and a more senior (and prized) role of the two roles that Ms Bromley-Hoult was engaged to do at the time of her dismissal. Further, it was argued that the reduction in Ms Bromley-Hoult’s contracted customer service hours from 18.25 hours to 8 hours had also forced Ms Bradley-Hoult to resign.

[59] I have not been persuaded that this was a case of a forced resignation. At the time her employment ended, Ms Bromley-Hoult was employed as a Customer Service Officer (contract variation dated 14 December 2015) with her ordinary hours of duty being 18.25 hours CSO and 15 hours program coordinator per week – totalling 33.25 hours a week (contract variation dated 8 August 2017). It was Ms Bromley-Hoult’s evidence that typically she worked the hours for both roles between Monday and Friday. Ms Bromley-Hoult enrolled in a university nursing course on 19 January 2018 and advised Belgravia (Ms Spence) on 22 January 2018.

[60] Following the discussion between Ms Spence and Ms Bromley-Hoult on 22 January 2018, the next day (23 January 2018), Ms Bromley-Hoult emailed Ms Spence with her proposed new hours. These were a combination of 15 hours of program coordinator and 5 hours as CSO totalling 20 hours a week. These specific hours were proposed to be:

Wednesday: 4.15pm – 8.00pm (programs)

Thursday: 8.00am – 6.00pm (programs)

Friday: 7.15am – 7.30am (programs)

7.30am – 12.30pm (CSO)

12.30pm – 2.30pm (programs and/or meeting)

[61] Ms Spence responded to the proposal and advised that, given Ms Bromley-Hoult’s availabilities, Ms Bromley-Hoult would be unable to continue in the program coordinator role. This was on the basis of the days the Active Adults program ran and that the events day was a Wednesday.

[62] In putting this proposal, Ms Bromley-Holt was seeking to reduce her hours from 33.25 hours a week to 20 hours a week and to change her availability from Monday to Friday to from Wednesday at 4:15pm to Friday. The proposal also sought to change the relative proportion of programs shifts to customer service shifts from 45% to 75%.

[63] The changes in the Active Adults program that were being sought were not minor changes and would have involved moving the event day, which was routinely on a Wednesday, to a Thursday and the program coordinator not being with the members on Mondays and Wednesdays. It was common ground that the members who would be directly affected by these changes were sensitive/delicate.

[64] It is my view that it was reasonable for Belgravia to advise Ms Bromley-Hoult that, in effect, due to the change in her availability, she could no longer fulfil the program coordinator role. This was because Ms Bromley-Hoult’s hours had changed and the days she was available no longer matched the needs of the Active Adults program and therefore the business. Belgravia held the view that there was little or no utility in Ms Bromley-Hoult undertaking program coordinator work when the members were not at the Centre. Also, the significant changes in the programme that would be required to accommodate Ms Bromley-Hoult’s new hours were, from the Respondent’s perspective, too difficult to accommodate particularly given the nature of the members.

[65] The situation which caused Ms Bromley-Hoult to resign began when Ms Bromley-Hoult unilaterally sought to vary the number of contracted hours she worked with the Respondent and the days on which she performed those hours (which were not specified in the contract). Included in the variation, though, was the maintenance of the number of program coordinator hours that Ms Bromley-Hoult undertook per week. The Respondent was able to accommodate variation of the number of hours per week Ms Bromley-Hoult would work and the days of the week. Discussions had been taking place between the parties about the specific hours and times to be worked on the days sought but agreement had not yet been reached at the time Ms Bromley-Hoult resigned.

[66] However, Belgravia was unable to accept the unilateral variation by Ms Bromley-Hoult of her contract with respect to the maintenance of her program coordinator hours and the reduction in hours of her customer service role. As has been noted, Ms Bromley-Hoult’s weekly customer service hours were greater in number than the program coordinator hours. Whilst Belgravia could accept the reduction in Ms Bromley-Hoult’s total hours, it was unable to accommodate maintenance of the program coordinator hours. In Belgravia not being able to accept this aspect of the unilateral variation sought by Ms Bromley-Hoult, this does not result in it being a situation of a forced resignation by the Ms Bromley-Hoult. The initiator of the contract variation was not Belgravia but Ms Bromley-Hoult. Belgravia’s inability to accommodate all of the changes sought was reasonable based on the operational needs of the business.

[67] It was not a situation whereby the Respondent initiated the changes and decided that Ms Bromley-Hoult was no longer to perform the program coordinator role. Rather, it was the Applicant who was no longer able to perform those particular duties on the days the Active Adults programme required. The Respondent was agreeable to the reduction in the Applicant’s hours and the changes to the days she could work. The Respondent’s decision that it could not make the changes to the Active Adults programme that Ms Bromley-Hoult wanted was, in my view, reasonable in all of the circumstances. The Respondent was still trying to accommodate the Applicant’s other requests in relation to 20 hours per week within the Applicant’s availabilities at the time Ms Bromley-Hoult resigned. The employment relationship came to an end as a result of Ms Bromley-Hoult being dissatisfied with Belgravia’s response.

[68] With respect to the alternative argument put on behalf of the Applicant – that Ms Bromley-Hoult had been dismissed at the initiative of the employer through her demotion from the program coordinator position – I have not been persuaded that this is the case. As indicated above, Ms Bromley-Hoult sought to vary her contracted hours to fit in with her studies. The hours when Ms Bromley-Hoult was available no longer matched the Centre’s and the timetable needs of the Active Adults program, as she was no longer available to undertake those duties on a Monday or a Wednesday. Therefore, Ms Bromley-Hoult was unable to fulfil that role and Belgravia was, operationally, unable to make the changes Ms Bromley-Hoult expected that it would make, in order for her to continue in that role. The result of Ms Bromley-Hoult’s changed availability was that she could not continue to perform that role. It is my view that the situation was not one of Ms Bromley-Hoult being demoted from the program coordinator role. Rather, once Ms Bromley-Hoult commenced her studies, Ms Bromley-Hoult was no longer able to undertake that role.

[69] Therefore, I find that Ms Bromley-Hoult resigned and that Ms Bromley-Hoult’s resignation was not a forced resignation (as the result of the employer’s course of conduct or the likely result of a course of conduct). Neither was Ms Bromley-Hoult demoted in the sense that Belgravia repudiated Ms Bromley-Hoult’s contract by not offering Ms Bromley-Hoult the program coordinator role. Rather, Ms Bromley-Hoult was no longer able to perform the program coordinator role on the days that the business required. There was not a dismissal at the initiative of the employer.

[70] Accordingly, the Respondent’s jurisdictional objection is upheld. The application is therefore dismissed. An order 199 to this effect will be issued separately.

Appearances:

G Dircks of Just Relations – Consultantsfor the Applicant

M Farkas from the Respondent

Hearing details:

2018.

Melbourne:

May 7.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A1 at paragraphs 8 and 13-15

2 Ibid at paragraphs 9-12 and Transcript PN 542, 1036-1040 and 1152

3 Transcript PN 1075-1077 and 1099-1100

4 Ibid PN 1138-1139

5 Exhibit A1 at paragraphs 16-17 and Transcript PN1031-1032

6 Ibid at paragraphs 18-24 and ibid PN 1036

7 Ibid at paragraphs 28-29 and ibid PN 1036

8 Transcript PN 1047-1052 and 1151

9 Ibid PN 1054

10 Ibid PN 547 and 1050-1071

11 Exhibit R1 at paragraphs 8 and 15-16, Exhibit R2 at paragraphs 30-31 and Transcript PN 64

12 Ibid at paragraph 28, ibid at paragraphs 28, 30 and 42 and ibid PN 65

13 Transcript PN 64

14 Exhibit R2 at paragraphs 28, 30 and 45 and Transcript PN 65 and 67

15 Ibid at paragraphs 35, 45 and 47

16 Exhibit R7 at Attachment 2

17 Ibid at Attachment 3

18 Exhibit A3 at paragraphs 26-28

19 Ibid at paragraph 31-33 and Exhibit R3 at paragraphs 13-16

20 Ibid at paragraphs 42-43 and ibid at paragraph 17 and Attachment WS1B

21 Ibid at paragraph 43 and ibid at Attachment WS1B

22 Ibid at paragraph 44 and Exhibit R3 at paragraph 18 and Attachment WS1C

23 Exhibit R3 at paragraphs 19-22

24 Ibid at paragraph 32 and Attachment WS1D and Exhibit A3 at paragraph 59

25 Ibid at paragraph 32 and Exhibit R5 at paragraph 15

26 Exhibit R5 at paragraph 13

27 Exhibit R3 at Attachment WS1B

28 Ibid

29 Ibid

30 Exhibit R3 at Attachment WS1G

31 Ibid at paragraphs 13-14 and Exhibit R4 at paragraph 43 and 48

32 Ibid at paragraph 15 and ibid at paragraph 43

33 Ibid at paragraph 16 and ibid at paragraphs 47 and 80

34 Exhibit R4 at paragraph 9

35 Exhibit A3 at paragraphs 28 and 32 and Transcript PN 865-866 and 893

36 Ibid at paragraph 33 and ibid PN 867-872

37 Transcript PN 894-898

38 Ibid PN 873-875 and 878 and Exhibit A3 at paragraph 34

39 Ibid PN 876-880 and 903-904 and Exhibit A3 at paragraphs 37 and 90-92

40 Ibid PN 881-884 and Exhibit A3 at paragraphs 36 and 89

41 Ibid PN 861-864

42 Ibid PN 859 and Exhibit A3 at paragraph 30

43 Ibid

44 Ibid PN 798-805 and Exhibit A3 at paragraph 17

45 Ibid PN 807-814 and ibid at paragraph 17

46 Ibid PN 652-664 and ibid at paragraph 12

47 Ibid PN 646, 759-761 and 852-856 and ibid at paragraphs 7 and 30

48 Ibid PN 597-602 and 750-758 and ibid at paragraph 5

49 Ibid PN 635-639

50 Ibid PN 887 and Exhibit A3 at paragraph 41

51 Exhibit A3 at paragraph 39

52 Ibid at paragraphs 40-41 and 93 and Transcript PN 887-889

53 Exhibit R5 at paragraphs 6-7

54 Ibid at paragraph 8

55 Exhibit R8 at paragraphs 4-6, Exhibit R9 at paragraphs 5-7 and Transcript PN 489-495

56 Transcript PN 495 and 498

57 Ibid PN 496

58 Exhibit R8 at paragraph 7

59 Ibid at paragraphs 8-9 and Transcript PN 496-497

60 Transcript PN 890 and 988

61 Ibid PN 988

62 Ibid PN 889 and Exhibit R3 at paragraph 17 and Attachment WS1B

63 Ibid PN 921 and ibid at paragraph 17

64 Ibid PN 889 and 809

65 Exhibit A3 at paragraph 95

66 Transcript PN 922-923

67 Exhibit R3 at paragraphs 19-21

68 Transcript PN 168-169 and 191

69 Ibid PN 171-183 and Exhibit A3 at paragraph 46

70 Ibid PN 205

71 Ibid PN152-153 and 170 and Exhibit R3 at paragraph 11

72 Ibid PN 185-190

73 Exhibit R4 at paragraphs 78 and 83

74 Ibid PN 193 and 207

75 Ibid PN 194

76 Ibid PN 275

77 Ibid PN 202-203

78 Ibid PN 194

79 Ibid PN 208 and Exhibit R3 at paragraph 20

80 Ibid PN 216

81 Exhibit R4 at paragraph 11 and 32

82 Transcript PN 243-244 and 246

83 Exhibit R4 at paragraph 55

84 Transcript PN 201 and 274

85 Ibid PN 229-231 and 233 and Exhibit R3 at paragraphs 24-25

86 Ibid PN 233-234, ibid at paragraph 25 and Exhibit R4 at paragraph 88

87 Ibid PN 258 and Exhibit R4 at paragraph 53

88 Exhibit R3 at paragraphs 55-58

89 Exhibit R4 at paragraphs 79 and 84 and Transcript PN 236 and 249-253

90 Ibid PN 192

91 Ibid PN 204

92 Ibid PN 206 and Exhibit R4 at paragraph 76

93 Ibid PN 195 and 236 and ibid at paragraph 54

94 Ibid PN 353-355

95 Ibid PN 196

96 Exhibit R4 at paragraph 8

97 Ibid at paragraph 49 and Transcript PN 234

98 Ibid at paragraph 10 and ibid PN 237-238

99 Ibid PN 239

100 Ibid PN 240-242

101 Ibid PN 245

102 Ibid PN 248

103 Ibid PN 259 and Exhibit R4 at paragraph 59

104 Ibid PN 259-265 and ibid at paragraph 99

105 Ibid PN 266, Exhibit R3 at paragraph 26 and Exhibit R4 at paragraph 60

106 Ibid PN 266-267

107 Ibid PN 268, Exhibit R3 at paragraph 26 and Exhibit R4 at paragraph 60

108 Ibid PN 270-271

109 Ibid PN 272-273 and 283-284 and Exhibit R4 at paragraph 61

110 Ibid PN 286 and Exhibit R3 at paragraph 26

111 Ibid PN 287-288

112 Exhibit R3 at paragraph 28

113 Exhibit R4 at paragraph 62 and Transcript PN 289-290

114 Ibid at paragraphs 90 and 99 and Exhibit R3 at Attachment WS1C

115 Transcript PN 642-645

116 Ibid PN 678 and 892 and Exhibit A3 at paragraphs 46, 88 and 100

117 Exhibit A3 at paragraphs 47, 88 and 100-101

118 Ibid at paragraph 48 and Transcript PN 892

119 Ibid at paragraph 50 and ibid PN 892

120 Ibid at paragraphs 51 and 103 and ibid PN 892

121 Ibid at paragraphs 53, 108-109 and 124 and ibid PN 892

122 Ibid at paragraphs 97 and 106-107 and ibid PN 924-934

123 Ibid at paragraph 53

124 Transcript PN 675 and 991-992

125 Exhibit A3 at paragraphs 53-54

126 Ibid at paragraph 57

127 Ibid at paragraphs 58, 113 and 117

128 Transcript PN 988

129 Exhibit R5 at paragraph 10

130 Ibid at paragraph 11 and Transcript PN 418

131 Ibid at paragraph 13 and Attachment WS2A and ibid PN 396-400

132 Ibid at paragraph 14 and ibid PN 419

133 Ibid at paragraphs 15-16 and Attachments WS2A and WS2B and ibid PN 419-421

134 Exhibit R8 at paragraphs 8-9 and Transcript PN 499

135 Exhibit R10 at paragraphs 5-6 and ibid PN 526

136 Ibid at paragraph 4

137 Transcript PN 989-990

138 Ibid PN 401-407 and Exhibit R6 at paragraphs 5-7

139 Ibid PN 334 and Exhibit R4 at paragraphs 72 and 93

140 Ibid PN 322-332 and Exhibit R3 at paragraph 36

141 Ibid PN 335-336

142 Ibid PN 294 and Exhibit R3 at paragraphs 38-39

143 Ibid PN 303-307

144 Ibid PN 308-310

145 Ibid PN 234, 311 and 350

146 Ibid PN 348-349 and Exhibit R3 at paragraph 42

147 Ibid PN 312-314

148 Ibid PN 315

149 Ibid PN 316

150 Ibid PN 292-293

151 Ibid PN 295-300

152 Ibid PN 301

153 Ibid PN 318-321 and 337 and Exhibit R4 at paragraph 69

154 Ibid PN 333 and Exhibit R4 at paragraphs 70-71

155 Ibid PN 334

156 Ibid PN 338-342

157 Exhibit R3 at paragraph 43

158 Ibid at paragraph 44 and Transcript PN 345

159 Transcript PN 347

160 Exhibit A3 at paragraphs 64 and 102

161 Ibid at paragraph 65 and Transcript PN 934 and 936-945

162 Ibid at paragraph 66 and Ibid PN 945

163 Ibid PN 934-945 and Exhibit A3 at paragraph 112

164 Ibid PN 935

165 Ibid PN 945-946 and 979-980 and Exhibit A3 at paragraphs 66-67

166 Ibid PN 979

167 Exhibit A3 at paragraphs 68 and 72

168 Ibid at paragraphs 69-70

169 Transcript PN 936-937

170 Ibid PN 947-948

171 Exhibit A3 at paragraphs 119-120

172 Transcript PN 938 and 956

173 Ibid PN 938-939 and Exhibit A3 at paragraph 75

174 Ibid PN 981-983

175 Ibid PN 679-680

176 Ibid PN 413-417 and Exhibit R5 at paragraphs 17-19

177 Ibid PN 408-412

178 Exhibit R5 at paragraph 21

179 Exhibit R8 at paragraph 10

180 Transcript PN 487

181 Exhibit R9 at paragraph 9

182 Exhibit R11 at paragraph 4

183 Exhibit A2 at paragraph 4 and Transcript PN 571-572 and 578

184 Transcript PN 571 and 573-574

185 Exhibit R3 at paragraph 10

186 Transcript PN 940-944

187 Ibid PN 945-946

188 Ibid PN 951-953

189 Ibid PN 953

190 Ibid

191 Ibid PN

192 Ibid PN

193 Ibid PN 963-965

194 Ibid PN 967-969 and Exhibit A3 at paragraphs 78

195 Ibid PN 972-977 and ibid at paragraph 79

196 Ibid PN 393-395 and Exhibit R5 at paragraph 22 and Attachment WS2C

197 Exhibit R5 at paragraph 23

198 [2013] FWCFB 5279

199 PR620196

Julie Bromley-Hoult v Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre

[2018] FWC 4979

27 AUGUST 2018

DECISION