Julie Hawkins v LR Florist Pty Ltd
[2023] FWC 896
•17 APRIL 2023
| [2023] FWC 896 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julie Hawkins
v
LR Florist Pty Ltd
(U2022/12129)
| DEPUTY PRESIDENT EASTON | SYDNEY, 17 APRIL 2023 |
Application for an unfair dismissal remedy – dismissal – resignation – employee resigned because of alleged bullying by manager – not a heat of the moment resignation – real alternatives to resignation were available – employee was not dismissed.
On 13 November 2022 Ms Hawkins resigned her employment with LR Florist Pty Ltd by email. Ms Hawkins gave four weeks’ notice and worked throughout the notice period. Ms Hawkins’ employment finished on 11 December 2022.
On 21 December 2022 Ms Hawkins made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (“the Act”), alleging that she had been unfairly dismissed from her employment. Ms Hawkins seeks the following remedy: “to return to work (but can only return if Manager is removed).”
Section 386, dismissals and resignation
The first question to be resolved in Ms Hawkins’ unfair dismissal claim is whether in fact she was dismissed. This question was dealt with is a discrete issue and there has not been any hearing about the merits of Ms Hawkins’ unfair dismissal claim.
There is no disagreement that Ms Hawkins in fact sent an email to her employer advising that she was resigning. In some circumstances a resignation is treated as a dismissal. Section 386 deals with the meaning of “dismissed” for the purposes of the unfair dismissal regime and the relevant parts of s.386 are:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli (2017) 271 IR 245, [2017] FWCFB 3941 (“BUPA”) the Full Bench reviewed the legislative history and the earlier authorities in relation to dismissal and resignation (at [27]-[46]) and provided the following summary at [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 probably 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.”
Ms Hawkins’ claim and the Evidence
Ms Hawkins alleges that her manager, whom I will refer to only as Elizabeth, engaged in bullying behaviour that made her resign.
Ms Hawkins said:
“I have been in the industry for over 35 years, having owned my own business and managed a store for others over that time, so I can confidently say I come with a wealth of experience and a solid knowledge of the industry.
…
Elizabeth made my work life miserable, I didn’t need to be working with her in store to feel that way, it was mainly toxic via text so there was no escaping her. The only way to escape was to leave, it was a hard decision to do so because I really did love my job. Additionally, I had just had a hand in getting [a new employee] … a part time position at Flower Train at the end of October to start beginning of November and felt a responsibility to her, which made my resignation even harder... I wanted to make sure [the new employee] was secure in her position before I left, which is the only reason for giving 4 weeks’ notice. As much as it pained me to go to work, I knew I had to for [the new employee’s] sake, she needed to be nurtured and be given all the guidance and tools in 4 weeks so she could continue once I was gone and I wasn’t convinced that other staff would invest the same time or effort.
…
I love flowers, I have memories from age 7 that I always wanted to be a florist, I wasn’t wanting to leave Flower Train, but I knew I couldn’t keep working regularly in such a toxic environment, industry weeks are only three times a year and I could justify that with myself that it would be enough to “fill my bucket”.
Elizabeth’s communication style was described by another staff member as “abrasive which we had to manage and accommodate.”
Elizabeth gave evidence and said that there were a number of issues involving staff members at the Castle Hill store and that the common pattern in these issues was always that Ms Hawkins was involved. Another employee gave evidence that Ms Hawkins’ behaviour made the workplace toxic.
There is no need to recite in detail the competing accounts of the working and personal relationships of those who worked at the Castle Hill store. At this preliminary stage of the process Elizabeth’s management style is not on trial, nor is Ms Hawkins’ conduct at the Castle Hill store.
By the end of Ms Hawkins’ employment she was very unhappy working under the supervision of Elizabeth. Ms Hawkins said some days she arrived home from work in tears.
Ms Hawkins said that 21 October 2022 was a “tipping point” that led to her decide to resign. On 21 October 2022 Elizabeth sent a long message to the Castle Hill staff, which Ms Hawkins describes as “an essay”. Later that day Elizabeth followed up with an allegedly “aggressive” message suggesting that staff had ignored her and were not taking her seriously. The messages were sent on the “Deputy” communication platform.
Elizabeth’s long message is not relevant. Elizabeth’s short message said:
“Hi Team today I asked a communication message to be read out to the whole team today and I asked that each individual message me saying they understand what I was saying. I yet still haven’t received a confirmation. Please explain to me why I am being ignored or not taken seriously.”
After receiving the short message, Ms Hawkins pushed back and sent several messages to Elizabeth and the rest of the group. In one reply message Ms Hawkins asked “what is your problem?” Ms Hawkins also explained in messages that it was a busy day in the store and that all staff had taken a screenshot of Elizabeth’s message to read later. Ms Hawkins also said in one message “it is quite offensive, you have a team that tries to do their best and you constantly put them down. It’s very disappointing.”
If the tense public exchange on Deputy on 21 October 2022 was in fact the tipping point for Ms Hawkins, she did not actually resign her employment for another three weeks. Ms Hawkins said her delay in resigning came from a concern about a new employee that she had introduced to the business and her desire to delay her resignation until after this new employee had started.
As such, it could not be said that Ms Hawkins resigned her employment in the heat of the moment. In any event the text of Ms Hawkins’ resignation email was relatively considered and on its face disclosed no duress. In fact to the contrary Ms Hawkins said that she was “open for discussion” to do further work:
“… I wish to leave on a positive note and thank you all for the opportunities that were presented to me during my time of employment.
In saying that, I am open for discussion and would be more than happy to return if you find it hard to fill a Sunday shift, if you have staff on holidays or if you need additional help with Valentines Day and Mothers Day preparations.”
There is no evidence of Ms Hawkins being singled out or treated any differently to any other employee under Elizabeth’s supervision. Some messages were sent to all staff and some messages were sent to selected staff depending on the subject matter of the message. Ms Hawkins was adamant in alleging that other employees suffered in the same way that she did. In this regard it is difficult to see how Elizabeth’s conduct, even if it was conduct that caused Ms Hawkins to resign, was conduct undertaken with the intention of causing Ms Hawkins to resign.
I do not need to decide whether the employer’s conduct was reasonable or fair, I need to decide whether the employer engaged in conduct with the intention of bringing the employment to an end, or alternatively whether the probable result of the employer’s conduct was that the employee had no effective or real choice but to resign.
Where earlier cases and the summary in BUPA refer to an employee having ‘no real or effective choice but to resign’, what is usually referred to is an employee being in a situation where they have no real or effective choice to continue in employment, and therefore no option but to resign.
Importantly, there is no persuasive evidence in this case that continuing in employment was not a real or effective option available for Ms Hawkins.
Ms Hawkins said that she believed that the only way to stop the bullying behaviour was to resign. Sadly this is a common experience for employees who think they have been bullied. As Ms Hawkins said, it is very hard to tell a bully that they are a bully. Ms Hawkins said that she resigned because she thought resigning was “the only way to end it.”
In this case Ms Hawkins did have other options available to her to address what she considered to be bullying behaviour. She could have sought a meeting with Elizabeth and voiced her concerns. She could have raised a complaint, formally or informally, to LR Florist’s principal, Ms Liu. Ms Hawkins could have sought a stop-bullying order in the Commission. There is no guarantee that any of these measures would have been successful – Ms Liu capacity to deal with and prevent bullying is unknown, Ms Hawkins’ stop-bullying application might not have been successful or worse still, Ms Hawkins’ allegations could be misguided or even mischievous. However each was a real or effective choice available to Ms Hawkins that would have allowed her employment to continue.
Although Ms Hawkins pushed back on Elizabeth’s messages on 21 October 2022, she did not formally or informally raise a complaint of bullying to Ms Liu, or anywhere else prior to giving notice to resign.
After Ms Hawkins resigned there were emails between Ms Hawkins and Ms Liu in which Ms Hawkins told Ms Liu the “real” reasons for her resignation. Ms Hawkins said she intentionally raised “red flags” in her emails to Ms Liu and expressed disappointment that Ms Liu did not attempt to discuss these matters with her.
Despite Ms Hawkins holding the view that she had been bullied, and holding the view that the only way to make the bullying stop was to resign, I do not find that the employer engaged in conduct forced the employee to resign.
More precisely, I do not find that Ms Hawkins was dismissed from her employment and therefore I will make an order accordingly (PR761138).
There is one final point to note: the only matter determined in these legal proceedings is the specific question of whether Ms Hawkins was dismissed. Ms Hawkins made criticisms of and allegations against her supervisor Elizabeth. Those allegations were ventilated but were not fully tested or contested because it was not necessary to make any findings about them. I have refrained from including Elizabeth’s surname in this decision because she was not Ms Hawkins’ employer, was not directly a party to this litigation and did not have the opportunity to properly know the allegations against her, nor defend them in full.
DEPUTY PRESIDENT
Appearances:
Ms J Hawkins, Applicant
Ms R Liu for the Respondent
Hearing details:
2023.
Sydney
March 13.
Printed by authority of the Commonwealth Government Printer
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