Katherine Boyd v Kinda Kapers Family Trust T/A Kinda Kapers Long Daycare
[2023] FWC 2865
•31 OCTOBER 2023
| [2023] FWC 2865 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Katherine Boyd
v
Kinda Kapers Family Trust T/A Kinda Kapers Long Daycare
(C2023/5096)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 31 OCTOBER 2023 |
General protections application involving an alleged dismissal – whether applicant was dismissed.
Introduction
On 22 August 2023, Ms Katherine Boyd lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is Ms Boyd’s former employer, Kinda Kapers Holdings Pty Ltd as trustee for the Kinda Kapers Family Trust (Kinda Kapers).
Ms Boyd contends that Kinda Kapers contravened one or more of the general protections provisions in dismissing her from her employment. Kinda Kapers raised jurisdictional objections to the application. Kinda Kapers contends that it did not dismiss Ms Boyd. Kinda Kapers also contends, in the alternative, that if Ms Boyd was dismissed, then the dismissal took effect on 26 July 2023, with the result that the application was lodged more than 21 days after the dismissal took effect.
The Commission must determine whether Ms Boyd was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Boyd was dismissed in contravention of the general protections.[1]
On 24 October 2023, I conducted a hearing in relation to the question of whether Ms Boyd was dismissed by Kinda Kapers and the question of whether the application was filed out of time. Ms Boyd gave evidence. Mr Ryan Peden, General Manager of Kinda Kapers, gave evidence for Kinda Kapers.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
Ms Boyd relies on both s 386(1)(a) and, in the alternative, s 386(1)(b) of the Act.
General principles
The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]
Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings.[5] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[6]
The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) 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.[7] The requisite employer conduct is the essential element.[8]
Relevant facts re alleged dismissal
Kinda Kapers operates several childcare centres including the long day care centre at Warners Bay Road, Mt Hutton, where Ms Boyd worked in an administration position on a part-time basis each Monday, Tuesday and Wednesday.
Ms Boyd commenced employment with Kinda Kapers in September 2017. Her written contract of employment required her to “give the correct period of notice of termination in writing in accordance with the NES”. As at 26 July 2023, Ms Boyd had been employed by Kinda Kapers for more than five years, with the result that the “correct period of notice of termination” she had to give to Kinda Kapers, in writing, was four weeks.[9]
In mid-July 2023, Ms Boyd filed an application in the Commission in relation to the decision by Kinda Kapers to stand her down, without pay, in relation to a non-work-related injury. On 19 July 2023, the parties participated in a conciliation conference in the Commission and agreed to resolve the stand down dispute on the following terms:
“1. Ms Boyd will remain absent from the workplace on pay until a further Independent Medical Examination can be organised and the report of the Independent Medical Examiner is provided to both the respondent and Ms Boyd.
2. Ms Boyd will consent to the provision to the Independent Medical Examiner of any medical information or records requested in writing by the Independent Medical Examiner.
3. The respondent will credit Ms Boyd for 0.5 days of annual leave in respect of Tuesday, 27 June 2023.
4. The respondent will pay Ms Boyd her normal pay for 17, 18 and 19 July 2023. These days will not be deducted from Ms Boyd’s accrued annual leave”
Following some events which I do not need to address in detail for reasons that will become obvious, Ms Boyd sent a letter (by email) in the following terms to Kinda Kapers on 26 July 2023:
“Dear Jann,
I am writing to formally resign from my position as Administration at Kinda Kapers Mount Hutton.
This decision has been made due to the ongoing unreasonable treatment I have been subjected to by Management of Kinda Kapers. I consider I have been given no option but to resign from my employment due to this conduct. This includes:
·Unreasonable refusal to allow me to return to work from 21 June 2023 despite medical certificates from treating specialists that I was fit to perform my role;
·Unreasonable refusal to allow me to return to work from 27 June 2023 despite an IME, who was notified of the nature of my injury during the consultation, that I was fit to perform my role;
·Unreasonable refusal to allow me to return to work from 29 June 2023 despite further medical certificates from my treating specialist and GP that I was fit to perform my role;
·Unfairly treating me less favourably to other employees of Kinda Kapers who have returned to work after an injury;
·Failure to adequately communicate with me regarding the basis for my ongoing • exclusion from the workplace or consult with me as required under section 47 of the Work Health and Safety Act 2011 (NSW);
·Failure to provide any support or reasonable adjustments to allow for a return to work as required by the Disability Discrimination Act 1992 (Cth);
·Failure to pay me my wages during the period of exclusion until after I lodged a stand down dispute with the Fair Work Commission and a conference was held on 19 July 2023;
·Issuing me with two formal warnings on 21 July 2023 - only 2 days after the Fair Work Commission conference - for alleged breaches on 13 July 2023 of the Employee Code of Conduct policy and failure to follow a reasonable direction.
oNo details of the alleged breaches were put to me for response prior to the decision being made by Kinda Kapers;
oThe alleged breaches do not warrant written warnings to be issued;
oThe date of the alleged breaches is a non-working day and I was at the centre in my capacity as a parent picking up my child.
·Berating me in emails for raising complaints that the warnings were being issued because I had made the application to the Fair Work Commission when it is my workplace right to make such allegations. Being advised on 25 July 2023 that payment of additional childcare fees is owing for my child despite receiving an email on 19th June confirming $10 per day for childcare fees, as well as this being advertised on Seek.
It is clear that Management has engaged in a course of conduct designed to force me out of employment. First you did not allow me to return to work or pay me. Now you have issued me with 2 warnings and allege I owe Kinda Kapers money less than a week after the Fair Work Commission tells you that your failure to pay me was unlawful.
You have decided to focus your attention on taking this adverse action against me, instead of engaging in any meaningful discussions with me regarding my L return to work which is supported by medical evidence.
Prior to the actions of Management, I had truly enjoyed my time at Kinda Kapers. The relationships I have formed with both the children and their families have been incredibly rewarding and have shaped me both personally and professionally. It is very upsetting that I have been subjected to the recent treatment and my dedicated service of 7 years is treated with such little regard.
As I am currently not allowed to return to work because of Kinda Kapers actions, please arrange for my final termination payment including payment in lieu of my 4 weeks notice period.
Sincerely,
Katherine Boyd”
On 31 July 2023, Kinda Kapers paid Ms Boyd her wages in respect of the period from 24 July 2023 to 30 July 2023, which included her entitlement to be paid, pursuant to the agreement reached in the Fair Work Commission on 19 July 2023, while she was absent from the workplace on her usual work days of Monday, 24 July, Tuesday, 25 July, and Wednesday, 26 July 2023.[10] The payment made to Ms Boyd on 31 July 2023 did not include any amount in respect of her entitlement, on the termination of her employment, to accrued but untaken annual leave.[11]
On 1 August 2023, Mr Peden emailed the following response to Ms Boyd:
“Hi Kate
Kinda Kapers accepts your resignation that was provided on Wednesday, 26 July 2023. We note you have indicated ‘in lieu of notice’, and we accept this resignation with immediate effect when provided.
Kinda Kapers understands you are about to start other employment and provided the circumstances waive the required notice period.
All entitlements including any annual leave will be paid with a final pay to be done next week.
We would like to take this opportunity to thank you for your valued contribution to Kinda Kapers and wish you all the best for the future.”
On 7 August 2023, Ms Boyd received her final pay from Kinda Kapers. She was not paid any amount in respect of a payment in lieu of notice,[12] nor did she receive any payment for her usual work days of Monday, 31 July, Tuesday, 1 August, or Wednesday, 2 August 2023. The payment Ms Boyd received on 7 August 2023 was for her entitlement, on the termination of her employment, to accrued but untaken annual leave.
Consideration re dismissal
It is plain from Mr Peden’s email to Ms Boyd on 1 August 2023 that he did not consider Ms Boyd’s letter sent on 26 July 2023 to constitute a resignation with immediate effect. So much is clear from the fact that Mr Peden purported to “waive the required notice period”. I am satisfied that a reasonable person would have construed Ms Boyd’s letter sent on 26 July 2023 in the same manner. In particular, I consider that in her letter sent on 26 July 2023 Ms Boyd communicated her decision to resign and effectively gave Kinda Kapers four weeks’ notice. This is apparent from the final paragraph of the email where Ms Boyd stated:
“As I am currently not allowed to return to work because of Kinda Kapers actions, please arrange for my final termination payment including payment in lieu of my 4 weeks notice period.”
At the time Ms Boyd sent her letter to Kinda Kapers on 26 July 2023, she was “absent from the workplace on pay until a further Independent Medical Examination [could] be organised”.[13] This was the context in which Ms Boyd stated, in the final paragraph of her letter, that she was “currently not allowed to return to work because of Kinda Kapers’ actions”. Ms Boyd then, in the final sentence of that paragraph, made a request for Kinda Kapers to make a payment to her in lieu of her remaining employed, on paid stand-down, during her four week notice period. Ms Boyd’s letter sent on 26 July 2023 does not state that her resignation is to take place immediately. Objectively construed, the letter sent on 26 July amounted to the giving by Ms Boyd of four weeks’ notice of the termination of her employment by resignation and a request for Kinda Kapers to make a payment to her in lieu of remaining employed during the notice period.
Had Ms Boyd remained employed, on pay but absent from the workplace, during the four week notice period, there could be no question that Ms Boyd’s employment with Kinda Kapers came to an end at her initiative by way of her resignation. In that case, Ms Boyd’s resignation would have taken effect according to its terms and there would have been no need for an’ “acceptance” of the resignation.[14] Similarly, if Kinda Kapers had acceded to Ms Boyd’s request to be paid in lieu of her notice period, her employment would have ceased at her initiative by reason of her resignation.[15] However, neither of those events occurred. Instead, Mr Peden purported to “accept [the] resignation with immediate effect when provided”, “waive the required notice period”, inform Ms Boyd that her entitlements would be paid in “a final pay to be done next week”, and thank Ms Boyd “for her valued contribution to Kinda Kapers and wish [her] all the best for the future”.
Kinda Kapers had no right to waive the four week notice period provided by Ms Boyd. A clause in a contract that is purely for the benefit of one party may only be waived by that party.[16] The clause in Ms Boyd’s employment contract which required her to provide notice of her termination by way of resignation to Kinda Kapers was not purely or predominantly for the benefit of Kinda Kapers. It benefitted Kinda Kapers by giving time for Kinda Kapers to find a replacement employee or reorganise its business, but it also benefitted Ms Boyd because it gave her a right to income while she worked (or in this case, was absent from the workplace on pay) during the notice period. Further, given that Ms Boyd had provided four weeks’ notice of her resignation in accordance with her contract, the National Employment Standards, and clause 41.1 of the Clerks Private Sector Award 2020, Kinda Kapers did not have any right under clause 41.1(d) of that award to “deduct from wages due to the employee … an amount that is no more than one week’s wages for the employee”.
Any reasonable person reading Mr Peden’s email would have understood that Ms Boyd’s employment with Kinda Kapers was at an end. It was Mr Peden’s action, taken on behalf of Kinda Kapers, in sending his email to Ms Boyd on 1 August 2023 that brought her employment with Kinda Kapers to an end. In similar circumstances, Commissioner Roberts held that an employer’s “action in purporting to accept the resignation but making it immediate was indisputably a termination at the initiative of the employer”.[17]
Having regard to all the circumstances, I am satisfied that it was the action of Kinda Kapers, in sending the email to Ms Boyd on 1 August 2023, that was the principal contributing factor which resulted, directly, in the termination of Ms Boyd’s employment on 1 August 2023. It follows that Ms Boyd’s employment with Kinda Kapers was terminated on Kinda Kapers’ initiative within the meaning of s 386(1)(a) of the Act.
In light of my conclusion in relation to s 386(1)(a) of the Act, I do not need to address Ms Boyd’s alternative arguments under s 386(1)(a), or that she was forced to resign because of conduct engaged in by Kinda Kapers within the meaning of s 386(1)(b) of the Act.
Ms Boyd’s dismissal within the meaning of s 386(1)(a) of the Act took effect when Mr Peden’s email of 1 August 2023 was sent to and received by Ms Boyd on the same day. Given that Ms Boyd lodged her general protections application in the Commission on 22 August 2023, her application was lodged within the 21 day period provided for in the Act.
Conclusion
For the reasons given, Ms Boyd was not dismissed within the meaning of s 386 of the Act and her application was filed within time. I therefore reject the jurisdictional objections raised by Kinda Kapers.
The matter will shortly be listed for conciliation.
DEPUTY PRESIDENT
Appearances:
Ms J Phillips, solicitor, for the Applicant
Mr J Stanton, solicitor, for the Respondent
Hearing details:
2023.
Newcastle:
24 October.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]
[2] NSW Trains v James[2022] FWCFB 55 at [45]
[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[5] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[6] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[7] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[8] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[9] Section 117 of the Act
[10] Court Book at p 173
[11] Ibid
[12] Court Book at p 134 [62]
[13] Court Book at p 98
[14] State of New South Wales v Paige [2002] NSWCA 235 at [277]-[278]
[15] ABB Engineering Construction Pty Ltd v Doumit AIRC Full Bench, 9 December 1996, Print N69999, page 8
[16] Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 543 (Gibbs CJ), at 552 (Mason J), at 560 (Wilson J), at 565 (Brennan J).
[17] Nohra v Target Australia Pty Ltd[2010] FWA 6857 at [10]
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