Kylie Anne Hehea v Swanfurn Pty Limited
[2022] FWC 1338
•18 JULY 2022
| [2022] FWC 1338 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kylie Anne Hehea
v
Swanfurn Pty Limited
(C2021/8464)
| DEPUTY PRESIDENT BELL | MELBOURNE, 18 JULY 2022 |
Application to deal with contraventions involving dismissal – no dismissal – application dismissed
On 9 December 2021, Kylie Anne Hehea (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.
On 19 January 2022, Swanfurn Pty Ltd (Respondent) filed its F8A Response to the general protections application, raising a jurisdictional objection to the application on the ground that the Applicant had not been ‘dismissed’ as is contemplated in s.365(a) of the Act. In particular, the Respondent states that the Applicant resigned from her employment on 14 November 2021 and that she did so by a written letter given on that date, which expressed her last day of work to be 26 November 2021.
The matter was listed for conciliation on 10 February 2022 but was unable to be resolved. Following the issuing of directions, the matter was listed for hearing to determine whether I should be satisfied the Applicant was ‘dismissed’.[1] The Respondent additionally contends that the Applicant’s claim, as currently expressed, does not clearly express what contraventions are alleged, or a nexus between any workplace rights and any alleged adverse action, although the proceeding before me was confined to the jurisdictional question.
Applicable principles
Section 365 allows for a person, who has been “dismissed”, to make an application that they were dismissed in contravention with Part 3-1 of the Act.
The term “dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is as follows:
“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 Quirk v Construction, Forestry, Maritime, Mining, and Energy Union [2021] FCA 1587 (Quirk), Perram J stated in respect of s.386(1)(a) that:
“216 The Dictionary in s 12 of the FW Act defines ‘dismissed’ as having the meaning set out in s 386. It provides that a person has been dismissed if ‘the person’s employment with his or her employer has been terminated on the employer’s initiative’. A termination will be on the employer’s initiative if the act of the employer directly or consequentially results in the termination: Mahony v White [2016] FCAFC 160; 262 IR 221 (‘Mahony’) at [22] citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (‘Mohazab’) at 205-206.”
At paragraphs [222] – [223] of Quirk, Perram J also stated:
“222 It is established that the use of the passive verb ‘terminated’ does not require the legal event which ends the relationship to be the employer’s. Thus in Mohazab, the employer accused the employee of the theft of an item of stock. It invited him to resign otherwise the police would be called in to investigate. The employee resigned. The question was whether the termination of the employment relationship was at the initiative of the employer. It was held, notwithstanding the fact that it was the employee who had brought the employment relationship to an end by resigning, that what had occurred was a termination of the employment at the initiative of the employer (and hence a dismissal). The correctness of this analysis was affirmed in a considered obiter dictum by the Full Court of this Court (Jessup, Tracey and Barker JJ) in Mahony at [21].
223 The question at hand is the meaning of the word ‘terminated’ in s 386(1). What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer to pull the trigger but only to load the gun. In my view, the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this occurred.”
In respect of s.386(1)(b), a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 considered some of the circumstances where resignation (particularly ‘heat of the moment’ resignations) might be considered under either limb of s.386(1). The Full Bench stated:
“[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.
“Conduct”, as the term appears in s.386(1)(b), includes an act or omission: Act, s.12.
In Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248 ABB; [2011] FWAFB 3769 a Full Bench cited, with evident approval, the following statement from an early decision of the Full Bench of the Australian Industrial Relations Commission in Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRC (FB), N6999, 9 December 1996):
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”
As to the operation of the exceptions in s.386(2), a Full Bench majority in NSW Trains v Mr Todd James[2022] FWCFB 55 recently clarified that the question of whether a person has been “dismissed” is determined by satisfaction of either limb of s.386(1). At [34], the majority stated “Section 386(2)(c) clarifies that s.386(1) does not apply to certain circumstances. It does not give rise (by implication or otherwise) to a category of dismissal that is separate to s.386(1).”
Factual findings
The Respondent is a company whose business consists of an independently owned and operated furniture and bedding retailer. It trades under the name “Harvey Norman Furniture Swan Hill” and it operates a business under a franchise agreement that, among other matters, permits it to trade under the well-known ‘Harvey Norman’ name. Its retail presence is physically located within a Harvey Norman complex at Swan Hill. The Respondent also has an off-site warehouse.
The sole director and shareholder of the Respondent was Ms Beth Gibson, who gave evidence for the Respondent. The Respondent has seven employees. Four of those people are ‘on the floor’ as salespeople within the Respondent’s area of the Harvey Norman complex and three are in the offsite warehouse. The Respondent has no dedicated human resources advisor, other than effectively as performed by Ms Gibson.
As part of its franchise relationship, the Respondent may report matters to its franchisor from time to time, including workplace issues. Yoogalu Pty Ltd (Yoogalu) is the franchisor’s appointed representative for those purposes.
There was some confusion in the Applicant’s written material as to who her employer was. This is understandable at one level, as many people might not be considered familiar with corporate structures, particularly where there are franchisee arrangements operating under a group’s trading name, trade marks and other material (e.g. badges and business cards). However, notwithstanding the Respondent’s association with the wider Harvey Norman business, it was a separate legal entity operating the business as I have described.
The Respondent’s trading hours were generally 7 days, from 9am to 5.30pm, with slightly reduced hours on Saturdays and Sundays.
The Applicant was employed by the Respondent, initially as a casual salesperson in around July 2018 at the Respondent’s business in the Harvey Norman Swan Hill complex. In December 2018, she became a permanent part-time employee.
As the Applicant later asserts that she had a verbal agreement with the Respondent, it is convenient to address that here. In her written statement, the Applicant states “The respondent and I had a verbal agreement from commencement or my employment in June 2018. The is aware that I have carer’s duties on weekends and am unable to work some hours and days.”
In her oral evidence, the Applicant stated “we had a verbal agreement when I – before I started my employment, when we had a meeting, I said I have a young son who is in day care and I'll have to work around hours for him, in day care and when he started school, and that was all made clear.”
I do not accept there was a verbal contract with such terms. The Applicant’s written contract is detailed and clear. The express terms of the written contract contradict any alleged verbal agreement. I accept that there was clearly a discussion about her hours and parental needs. By mutual interest, the Applicant’s carer responsibilities were broadly accommodated. Generally, the Applicant worked 28 hours per week, albeit over a three-week cycle in which at least one weekend was rostered free. As indicated below, on at least two occasions, the Applicant’s roster was adjusted to accommodate the Applicant’s requirements. But these conversations do not rise to a contractual term requiring the Respondent to accommodate all requests or that would prevent changes to her roster without the Applicant’s consent.
In 2020, the Respondent employed another salesperson, Ms Maureen Richardson. The Applicant says this occurred sometime around 2021. Ms Gibson states it occurred on 23 March 2020. I accept Ms Gibson’s evidence on this date. As will become evident below, a conflict arose between the Applicant and Ms Richardson that became particularly prominent since about May 2021. In respect of the performance both employees outside of these disputes, Ms Gibson’s evidence (which I accept) is that both employees were “consistent” and each nearly always made their gross profit percentage targets.
In July 2020, the Applicant was made “2IC”. A form recording the change described her position as “Sales Person/key holder/ 2IC”. The reason stated was “Previous key holder resigned and I wish to promote Kylie to Key holder and 2ic”.
The Applicant accepted that her main duties as 2IC were opening and closing the store, making sure the sales floor was clean and tidy and to bring matters to Ms Gibson's attention, if she wasn't in the store, that she needed to know about. The Applicant was also given a key to the store for opening.
In February 2021, the key was returned as it was needed elsewhere. Ms Gibson states that the Applicant was unable to be available to open the store as much “ahead of the trading hours, or to close the store at the end of the day.” (I describe the rosters below but the Applicant’s hours during weekdays were generally 9am to 3pm, which is consistent with Ms Gibson’s explanation). There was no disagreement about the return of the keys at the time and the Applicant retained her “2IC” title, albeit now performing some more limited duties (i.e not having to open the store). Her pay remained unchanged following the return of the key.
On Saturday, 1 May 2021, an incident occurred between the Applicant and Ms Richardson. It is an incident that had some significance for the Applicant and, in short, initially involved a dispute between her and Mr Richardson over alleged poaching of ‘their’ respective sales. A more significant verbal altercation then followed.
The Applicant describes the event beginning with Ms Richardson “cutting in on my sales”. The Applicant referred to a particular customer for a sofa whom the Applicant was speaking to on the sale floor about. The Applicant says she then walked the customer towards the sales counter, where Ms Richardson claimed the customers were “hers” (i.e. Ms Richardson’s). The Applicant says, and I accept, that Ms Richardson called her a “swooping seagull” in front of the customer.
Ms Gibson did not directly observe the event as it unfolded but she clearly noticed the aftermath, at least at the point of sale for the customer. Ms Gibson’s evidence, which I accept, is that she perceived “obvious tension” between the Applicant and Ms Richardson and also saw them speaking to the same customer about different sales, which (in Ms Gibson’s view) said the customer looked a little confused.
Ms Gibson then recalls that the Applicant walked away for a short time after the customer left, and then returned before saying to Ms Richardson words to the effect:
“You embarrassed me in front of the customer. I would never do that to you. You called me a swooping seagull in front of the customer.”
Ms Gibson describes an exchange that included the following:
Ms Richardson said to the effect, “That was my customer. I already had an invoice started and was waiting for them to come back from electrical. When I looked up, you were there serving them. You always do this to me”.
Ms Richardson also said something like: "That's why I said we would split the sale. You can have the sofa bed and I will have the mattress".
The Applicant then said something like: "They asked me about the sofa bed and I'm not going to ignore them".
Ms Richardson then said something like: "I am only doing to you what you've done to me".
Unsurprisingly, Ms Gibson sought to separate the two and asked them both to take some space away from each other and cool off. As it happened, Ms Richardson left the store for that day.
On Monday, 3 May 2021, the Applicant requested a meeting between Ms Gibson, herself, and Ms Richardson. A meeting occurred that day with those three and, additionally, Ms Terri McCormick, who was the administration manager. Ms McCormick and Ms Gibson took notes.
There was some contention about these notes, which had been sought by the Applicant in this proceeding. Her submissions ask about those notes and other items “Why has the evidence I requested gone missing?” The implication being was that the notes were withheld (and I note other allegations by the Applicant that other evidence was missing). Ms Gibson says she typed up her notes “in around June 2021”. Ms Gibson did not keep her hand-written notes. While in hindsight that would have been preferrable to have also kept her written notes, I consider there was no improper motive behind that fact. In relation to Ms McCormick’s notes, Ms Gibson says (and I accept) she and others have looked “everywhere” for them and cannot find any record of them, whether hand-written or typed.
A similar issue arose about video footage of one of the events. Store security cameras are maintained by the franchisor (or agent). Ms Gibson says she requested to review footage for the relevant period and was given access to it. At that time, the meeting notes indicate she replayed the footage a few times but saw nothing conclusive. She was examined on these issues and I accept Ms Gibson’s explanation. The Respondent itself does not have a copy of any footage.
Ms Gibson deposes her belief that her typed notes are an accurate summary of the “key points” of what was said in the meeting. I consider those notes reflect the best record of what was said, or at least the key points, noting also Ms Gibson’s evidence about the meetings.
The meeting was explained to the Applicant and Ms Richardson at the time as an informal mediation. In that sense, it reflected an opportunity for the airing of grievances with a view to reaching some agreed or acceptable position for future conduct. It is clear from the notes that the relationship between the Applicant and Ms Richardson was strained. A key theme concerned the issue of sales.
The Applicant accused Ms Richardson of “stealing sales”. The reverse position was evidently held by Ms Richardson, who said it was what has been done to her on numerous occasions, although no detail of these “numerous” instances are given. The notes record Ms Richardson saying that she “already had an invoice halfway done and that she was waiting for them to come back from electrical” (being a reference to the dispute about the customer on 1 May 2021 set out above). The Applicant complained about Ms Richardson being rude to her, and about her, in front of the customers. Ms Richardson denied she did so.
In the section of the notes under the heading “Action to the Taken”, the following is recorded:
“It was discussed that none of this was good behaviour by either party especially in front of the customers.
Both parties agreed that in the future to let the sales go through, to be courteous and nice in front of the customers and to not air their differences on the shop floor ever again.
After the sales are completed then come and discuss with me. If I am not in the store then call me or, wait for me to get back into the store before ever discussing this on the floor.
The interference of the sales process is minor compared to the actions displayed on the floor but interfering is to be avoided and is not good customer service.
Protect the customers no matter what and it does not matter if the customers have left, it is still not to be discussed on the floor.
This is never to happen again.
Both parties agreed that this was the best action to be taken and if there are any other problems to come and talk to me about them before they escalate.”
I would make some other observations about conduct that might have occurred before this event. On the Applicant’s claim, she says that “Beth [Gibson] always treated me fairly from commencement of my job up until Maureen started her bullying incidents and I would bring this to Beth’s attention on many occasions about what was happening and how this made me feel, there was many incidents- too many to mention and become more and more frequent” (emphasis added).
The Respondent’s counsel submitted that there were really only two incidents arising from the evidence, being an event on 1 May 2022 and a subsequent event on 24 September 2022. With some minor qualifications, I accept that submission. The qualification is that it appears likely that tensions between the Applicant and Ms Richardson did not arise from a vacuum on 1 May 2021 nor did they fade away until the next clear event. Various meeting notes record both protagonists accusing each other of various grievances “all the time” (or similar phrases). The key underlying cause of tension appeared to be sales to “their” respective customers and the verbal conduct that followed. I doubt this arose completely out of nothing on 1 May 2021 but, regardless, from that point forward the material before me indicates those two continued to critically assess each other’s conduct through a prism of suspicion and mistrust, which created fuel for future incidents.
Despite those simmering tensions, however, I accept that Ms Gibson was not aware of the extent of them, except as she described in her evidence. She indicated in response to a question in her oral evidence that there might have been a total of five instances in a 12 month period in 2021 where one or both of the Applicant or Mr Richardson raised an issue of the other “cutting in” on sales and having it brought to Ms Gibson’s attention. It would appear that this tension did not come to a head in a serious way before 1 May 2021 and no one described any event with specificity to that effect. At least after the meeting on 3 May 2021, Ms Gibson believed matters were in hand (up until about 24 September 2021). In doing so, I note the following:
· The first is that there were no specific dates of allegations or incidents put. While the Applicant made various statements in her evidence (and at least once at the time to Ms Gibson) that Mr Richardson’s alleged conduct was happening ‘all the time’ or ‘never stopped’, aside from the two key events just described, no events were advanced.
· Ms Gibson’s evidence indicates that the events in May 2021 was the first time she was aware of disputes between the Applicant and Ms Richardson then. She also states, and I accept, that she did not believe there were incidents between May and September.
· I consider that the Applicant was not reluctant to make a complaint if she felt aggrieved. That is exactly what she did in May 2021. At the end of the meeting on 3 May 2021, it was also made clear that either the Applicant or Ms Richardson should come to Ms Gibson if there are other problems before they escalate.
On 10 May 2021, the Applicant requested to no longer be rostered on Saturdays. The request appeared to reflect possible issues with childcare. This presented difficulties for the Respondent, because that day would be required to be worked by someone else, however, a compromise position was arrived at where the Applicant would work one full weekend in a three-week cycle. Other sales staff would generally work two weekends out of three.
Ms Gibson’s optimism or hope that the issues between the Applicant and Ms Richardson that flared at the beginning of May had resolved appeared, however, to have been misplaced.
On 24 September 2021, Ms Gibson received a telephone call from Ms Richardson. At the time, Ms Gibson was at home in isolation (following COVID requirements).
During that call, Ms Richardson said, “Apparently I’ve done it again” and then went on to explain, when queried, that she and the Applicant had had another dispute about sales. The explanation of the circumstances provided to Ms Gibson described a young woman who was in the store with her father and mother.
According to Ms Richardson, she had served that family a few weeks earlier. On Ms Richardson’s account to Ms Gibson, while the Applicant was serving the young woman the father beckoned to Ms Richardson who then spoke about a table he had asked for a quote on earlier. The father apparently then told Ms Richardson he wanted to buy the table. Ms Richardson explained to Ms Gibson that she thought that, as the Applicant was serving the daughter, she could serve the father. Ms Richardson said that she felt bullied by the Applicant and that the Applicant had often finalised sales with customers that Ms Richardson had served first. Ms Gibson perceived Ms Richardson to be very upset.
On 27 September 2021, Ms Gibson then received a call from an administrative staff member in Yoogalu (i.e. the franchisor representative). In that call, Ms Gibson was told that the Applicant had made a bullying complaint about Ms Richardson.
On 28 September 2021, the Applicant met with Ms Gibson. Ms Gibson made a note of the meeting, which I consider is generally accurate. That note records the Applicant describing Ms Richardson’s interference with sales, the taking of customers, and Ms Richardson “screaming” at her when confronted and telling her to “leave”. Ms Gibson’s account, which I accept, is that Ms Gibson also said she’d thought that this had been sorted out and the two were getting along. The Applicant said it had never stopped.
Ms Gibson’s statement records she then asked “If this has been going on for months, why am I now just hearing about it?” and the Applicant said “you never asked me”. Ms Gibson then apologised to the Applicant but also said it “works both ways” and they agreed for a further meeting. Both parties recognised that “stocktake” was occurring, which was evidently an intense time for the business.
Ms Gibson’s evidence was that she was not sure who to believe – the Applicant or Ms Richardson. I accept that evidence and note that she was being presented with competing allegations by two staff members, both of whom were upset and both of whom were more of less accusing each other of stealing or cutting in on “their” customers, which in turn led to verbal arguments and other comments.
While I do not consider it necessary in order to make findings on the extensive claims about “cutting in” to answer the question of the Applicant’s dismissal, I would make some observations, as far as I consider the evidence permits. The first observation is that I am not satisfied that there was extensive “cutting in” or “stealing” (or the other labels used) of customers by either the Applicant or Ms Richardson. While both protagonists clearly made accusations to Ms Gibson that the other was engaging in such conduct, no satisfactory evidence was led at all about such practices, other than perhaps the specific instances on 1 May 2021 and 24 September 2021.
As to the instance on 1 May 2021, the evidence of that would indicate that Ms Richardson would appear more in the wrong on that day. Ms Richardson apparently sought to justify her position on the basis that the customers were “hers”, because she was already “halfway” through a quote and was only waiting for the customers to return from “electrical”. Yet even if all that was correct, it did not justify her reaction that followed in front of the customers. As Ms Gibson counselled both protagonists on 3 May 2021, if such disputes arose again, they should be brought to Ms Gibson. If there were disputes, then unfortunately none were brought to Ms Gibson’s attention until 24 September 2021.
The events of 24 September 2021 had a similar theme. Ms Richardson’s complaint was that she had done a quote for the customers in question that day a few “months” back. Even if correct, this would appear to demonstrate a misplaced view on the ability of when a customer is “hers”, whatever that might mean in any case.
The Applicant was not immune from such beliefs. She put to Ms Gibson in cross-examination an example of a different quote she had given to a customer to, followed by a second quote by Ms Richardson to the same customer. The quote by Ms Richardson was said to show “cutting in”. Unfortunately, the examples the Applicant gave were all undated. What does appear to be the case is that the customer contacted the store through the Harvey Norman website with a query about a sofa. That query was directed to Ms Gibson. The Applicant issued a quote, which was expressed to last for 14 days. The final document is a message from Ms Richardson to the potential customer with a marginally lower quote – it begins “Hi Sharon (stranger) ”, indicating the potential customer was known to Ms Richardson. There was no evidence before me as to the timing of these events, although it appears they occurred before the meeting on 12 October 2021. It is unsurprising that Ms Richardson would make a pitch to someone she apparently knew. It is not clear, for example, if the customer contacted the store after the initial quote or anything else. There was no satisfactory evidence that this example of “cutting in”, such as it could be described as that, was brought to Ms Gibson’s attention or even that there was anything improper in Ms Richardson doing so. Ms Gibson was not challenged about how she considered customer leads needed to be managed. In a retail sales context, it is expected that there will be instances where customers have initial dealings with one staff member and then continue their dealings with another staff member. There are many reasons why this might occur.
These three examples (i.e. 1 May 2021, 24 September 2021, and the undated quote for a sofa) confirm what is otherwise apparent to me, which is that the working arrangement between the Applicant and Ms Richardson was severely impaired and that each viewed the other’s conduct with customers through a lens of suspicion if not outright mistrust.
The Applicant’s evidence describes another event on 26 September 2021, when Ms Richardson allegedly told a customer that the Applicant was a “bitch” and the Applicant was “putting knives” in Ms Richardson’s back. In other parts of the Applicant’s written statement, she asserts that Ms Richardson variously called her a “feral” and “bitch”. The event on 26 September 2021 is the only specific incident that the Applicant identifies. Ms Gibson says, and I accept, that the Applicant did not ever tell her that Ms Richardson called her such names. Ms Gibson also says, and I accept, that if she was told about that, she would have taken it seriously.
Ms Gibson then arranged meetings with each of the Applicant and Ms Richardson. Unlike the previous meeting, separate meetings were arranged based on advice Ms Gibson received from Harvey Norman “human resources”. The meetings were arranged for 12 October 2021.
On 11 October 2021, Ms Richardson took sick leave, although this did not prevent her attending a meeting on 12 October 2021.
On 12 October 2021, Ms Gibson and the Applicant met first. Ms Megan Middlebrook was also in attendance. Ms Megan Middlebrook was the administration manager of “Harvey Norman” at Swan Hill at the time. She was not an employee of the Respondent.
Ms Middlebrook was called as a witness by the Applicant. In her oral evidence, Ms Middlebrook identified handwritten notes at the meeting, which were in evidence before the Commission. Her evidence was that after the meeting, she then reviewed those notes and typed them up, which she then signed. The signed notes were also in evidence. Ms Middlebrook agreed in evidence that meeting notes she typed up and signed were accurate. The typed version of the notes was also signed by Ms Gibson, who separately stated her belief the notes were an accurate summary of the key points of the meeting. I accept those notes are the best evidence of what was said at the meeting. The relevant parts are:
“Beth [i.e. Ms Gibson] started the conversation by saying that she has spoken directly to Harvey Norman's HR and that they have advised her to speak to each staff member privately as apposed to having a meeting with the 2 members of staff as this has been done before and was not effective the last time. Beth was advised by HR to directly speak on the matter of the behaviour of the staff on the floor and how it is affecting the customers, the business and Beth herself and not on the issue the 2 staff members have with each other.
Kylie [i.e. the Applicant] expressed she did not feel like she was being heard and that she is being bullied. Kylie felt humiliated that Maureen [i.e. Ms Richardson] had allegedly spoken to customers about Kylie behind her back, again allegedly that Maureen had called Kylie a swooping seagull. Kylie stated she has been made to feel intimidated and uncomfortable in her place of work. Kylie also mentioned that she is the 2IC of the furniture department and that she has no Authority over Maureen who is a casual staff member.
Kylie expressed that she is always professional at the workplace and has tried to address this issue several times in several ways including speaking directly to Maureen, speaking directly to Beth and for insisting on this second meeting so she could feel heard.
Beth has again stated she will be talking to Maureen about her behaviour later in the day as well as the remaining floor staff in a meeting tomorrow.
Beth has said she doesn't want to lose either of the 2 staff members as they are both beneficial to her business but that the behaviour of the staff needs to be addressed. Beth stated she has heard both sides of the story and that it is hard to say who is in the right or wrong, and that they must come to some sort of compromise to make everyone feel safe at work.
Kylie has said that she has already been in contact with fair work and if the matter isn't resolved she will be putting in a formal complaint with them.”
The Applicant’s documentary evidence contains some typed notes (“Kh10”, to use the Applicant’s notations) she wrote for herself to help her at the meeting on 12 October 2021. The Applicant says she never got to address those matters. There is some force to the Applicant’s complaint. Ms Middlebrook’s statement written statement describes, in a somewhat conclusionary way, that the Applicant indicated she wanted to address her issues, but Ms Gibson “shut her down”. Ms Gibson broadly agreed that the Applicant was not given an opportunity to make a statement at that meeting. Ms Gibson said that was because she was acting on advice from her HR support team. Ms Gibson said the meeting had to do with the behaviour on the floor and that is what she sought to address between the Applicant and Ms Richardson for the particular day on which the incident was raised.
The Applicant’s documentary evidence also refers to a second document (labelled “kh11”), which are also described by the Applicant as notes that she was going to address at the meeting on 12 October 2021. These notes are shorter and, while they appear to cover a subset of much the same material as the other notes, they also describe events occurring after 12 October 2021. I do not consider they add to the balance of the evidence and I do not consider at least parts of those notes could have been prepared prior to the meeting on 12 October 2021.
However, while it is clear that the Applicant did not have the opportunity to make the full statement she obviously wanted to make at the meeting, Ms Gibson had already been told about some of the exact matters that the Applicant’s notes sought to describe (in particular, the complaints of bullying, the cutting in of sales, the particular event on 24 September, and that the conduct hadn’t stopped since the events in May).
While Ms Gibson’s intention (informed in part by her understanding of what the franchisor recommended about the conduct of those meetings) was to focus on the conduct on the floor in particular, and ensuring it did not happen again, it would have been prudent to have given more time to the Applicant to say her piece. An extra fifteen minutes for the meeting was unlikely to be disruptive in the circumstances and could have provided her with better insight. If nothing else, it might have satisfied the Applicant that she was given a chance to fully present her story.
The next meeting on 12 October 2021 was with Ms Richardson. Again, Ms Middlebrook attended and took notes, which she then typed and signed. I find those notes are the best evidence of that meeting. The same introduction was given in this meeting. Excluding the introductory section and formalities, the relevant parts are:
“Beth mentioned she has watched the camera footage back numerous times and that it was inconclusive as to what was said and who was in the right or wrong. Beth did notice the body language between the 2 staff members.
Maureen said that she has many friends in Swan Hill and she will say hello to anyone she knows and that's just who she is as a person and that that would not ever change.
Maureen stated that the other floor staff Jenette went and whispered in Kylie's ear, are uo going to let Maureen get away with taking your customer like that and this is where allegedly Kylie has approached Maureen and the incident took place.
Maureen stated it is black and toxic working on the floor and that she feels like the other 2 staff members have been ganging up on her or excluding her and that Kylie had done this before to a previous employee Pete who ended up leaving. Maureen went on to say that Kylie gets intimidated about losing sales and then turns on whoever is intimidating her.
Maureen stated that she is going to the doctor and asking for stress leave and that she wont return to work until this matter is sorted and that if the matter isn't resolved by this Friday that she will be calling fair work to make a complaint.”
The reference to “Jenette” is to another staff member of the Respondent, Ms Jenette Burgess. Ms Gibson also arranged a meeting with Ms Burgess.
On 15 October 2021, Ms Gibson met with Ms Burgess. Again, Ms Middlebrook attended and took notes, which she then typed and signed. I find those notes are the best evidence of that meeting. The relevant parts are:
“Speaking about the event that took place between the 21C and a casual staff member, Jenette witnessed the whole event and this is how she explained it.
It was quite busy in the furniture department and Jenette was serving 1 customer while both Maureen and Kylie were serving 2 customers each. A daughter and her mother were being served by Kylie and the husband of the customer Kylie was serving was looking at a dining table. Jenette was at the counter and she observed Maureen approach Kylies customer. Jenette noticed because she knew that Maureen was already dealing with 2 other customers. The customers left to go and get some money from the bank.
Kylie then calmly approached Maureen and said, "did you realise that was my customer?" To which Maureen just started yelling and telling Kylie to go home. Kylie did not raise her voice at all in the incident.
Maureen stated she would call the customer to which Kylie said that calling the customer would not be appropriate. Maureen was still telling Kylie to go home to which Kylie responded with "I am the 21C and I am in charge here when Beth isn't here.
By this point the customers returned and Jenette stayed within close range of the customers to make sure another fight did not break out.
Maureen ended up leaving early that day.”
Despite having attended the meeting on 12 October 2021, Ms Richardson remained on sick leave until 22 October 2021. At some point between her taking sick leave and 22 October 2021 – although it appears to be after the 15 October 2021 meeting with Ms Burgess – Ms Richardson told Ms Gibson she was going to resign from the store. She said she would agree to stay on until a replacement was found. As part of that discussion, it appears Ms Gibson also indicated that she would roster Ms Richardson on shorter shifts in the afternoon, to ensure she was unlikely to come into contact with the Applicant.
I also observe that both Ms Richardson and the Applicant also sought to support their accusations of each other by reference to other staff members who had left, apparently because of the same kind of conduct. Ms Gibson’s evidence explains in my view why those employees all left. The reasons were mixed, but were unrelated to the conduct of the Applicant or Ms Richardson.
On 19 October 2021, the Applicant lodged a bullying complaint with the franchisor. It is not clear if the Applicant intended this to go to the Respondent or not, but it never did so and the Respondent was not told about it (by the Applicant or the franchisor) before this proceeding. I accept Ms Gibson’s evidence that she was unaware of prior to receiving the Applicant’s evidence on about 16 May 2022. It is not necessary to set it out in detail. Suffice to say, it reflects the Applicant’s claims of bullying by Ms Richardson. The specific events identified were those of 1 May 2021, 24 September 2021 and 26 September 2021. It describes the meetings in October 2021 and reflects her belief she was not being heard.
The lodging of this complaint reflects the Applicant’s understanding of various bullying policies and training. She had referred to “Vibe” training (being the name of the training) and included extracts of that in her documentary evidence. The Applicant made numerous submissions about these policies requiring a “zero tolerance” toward bullying. The exact source of the “zero tolerance” claim is not clear from the material before me, but I infer there is some statement to that effect within the Harvey Norman policies. The extracts contained of the policy in the evidence stated that, where there is a complaint of bullying (or harassment or sexual harassment, which were also explained), then there would be “action taken to investigate and resolve the complaint”. The policy also makes references to complaints being “thoroughly investigated fairly and impartially.” The policy explained that the action to be taken “may depend on the circumstances”. At least for harassment, action “will be taken to make sure that harassment stops and disciplinary action may be taken if appropriate”.
The Applicant’s contract of employment imposed an obligation on her to comply with policies but clearly stated the policies did not “impose any binding obligation on the Company to provide you with any benefits conferred on you under any of the Policies. You and the Company acknowledge that the Policies do not form part of the terms of this agreement unless expressly agreed in writing between you and the Company.”
On 25 October 2021, Ms Gibson met with the Applicant and Ms Burgess to discuss roster changes. It would appear from the Applicant’s evidence that she, and possibly also Ms Burgess, were aware by this stage that Ms Richardson’s resignation had been announced. Ms Gibson prepared notes of the meeting. Those notes record (and I find) Ms Gibson discussing that:
·they will be losing Ms Richardson,
·a replacement will need to be found, and
·roster changes will be necessary.
Ms Gibson also indicated, at that stage, that the rosters will stay the same before the changes are made.
Other matters discussed at the meeting included sales targets (conversion rates), customer service (not sitting in a chair when talking to customers) and clocking on at the correct time (not 15 minutes before work actually starts). The “GP” targets were noted as being “excellent”.
By this stage, the bespoke roster change to separate Ms Richardson and the Applicant had been implemented. The Applicant’s written statement makes the following reference to it: “I was told Maureen was leaving - but she never left – nothing changed accept Beth bringing her in a 3pm when I finished my shift, but this also made no difference she still managed to redo quotes I had with customers and took sales from me….”. I have addressed my findings about other allegations of “cutting in” or taking sales above.
In late October – the exact date is not clear – Ms Gibson had a potential new salesperson identified, who would be available to start from the end of November 2021. During her first discussion with him, he indicated an interest in ultimately becoming a proprietor of a Harvey Norman store (i.e. similar to the Respondent’s franchisee business). Ms Gibson considered this was a good idea and stated that he would be required to undertake an extensive training program called “Proprietor in Training” first.
On 27 October 2021, the Applicant joined a union to get further help. She refers to sending an email to the union on 1 November 2021 and, although the email was not in evidence, I accept that she did.
The Applicant’s statement also refers to her making “numerous calls to fairwork ombudsman, workers union, lawyers, as I was trying to get myself help with what I was enduring from Maureen and Beth, after bringing this to Beth’s attention and not getting any help or support from my manager”. The dates of those calls are not clear, although her statement indicates they occurred progressively after 1 November 2021.
On 4 November 2021, Ms Gibson spoke to the Applicant at work. Ms Gibson told her about the new salesperson and that he would be beginning on 29 November 2021. She also told her he had expressed an interest in the Proprietor in Training program. Also during this conversation, Ms Gibson informed her that the new staff member would be put into the “2IC” role and the Applicant would take on the role of Returns/Customer Service. It was explained her pay would not change. The Applicant said in her oral evidence that she “still had to do the severance reports, the credits and still basically do the role that I was doing, except for I wouldn't be 2IC, yes.”
The Applicant asked at this meeting why she hadn’t been considered for the Proprietor in Training Course. Ms Gibson says the question threw her, as she hadn’t considered that the Applicant wanted to do it and Ms Gibson said that to the Applicant. The Applicant gave no evidence prior to this date of her being interested in the training.
On 9 November 2021, Ms Gibson circulated a proposed roster to the Applicant and Ms Burgess, which would take effect on 29 November 2021. For the Applicant, the ‘old’ and ‘new’ rosters each provided for 6 days off during the 3-week cycle. Sundays were unchanged, in that two Sundays would be worked in the cycle and one off. The main change was to Saturdays, where in the ‘old’ roster (at least since May 2021), the Applicant had two Saturdays off in the cycle, the ‘new’ roster would only provide for one Saturday off. There would be an additional day off in the Monday-Friday parts of the cycle, with the Applicant being rostered off on two Fridays in the cycle (where there were previously none). In the new roster, the Applicant’s work during any school/weekday remained scheduled to finish at 3pm.
On 12 November 2021, the Applicant saw a counsellor, referred through the Harvey Norman EAP service. A letter from the counsellor dated 30 November 2021 was included in the Applicant’s evidence. The counsellor did not give evidence. That letter sets out various high-level complaints about alleged workplace conduct. So far as it does, I do not rely upon it as those matters were clearly based upon what the counsellor had been told and my findings about those matters are based on my findings above. The letter does state, and I accept, that the Applicant was experiencing stress and anxiety about the preceding events. Symptoms described were “poor sleep, ruminating thought patterns, nervousness, and worry.”
On 14 November 2021, the Applicant tendered a letter of resignation. The letter itself is dated on 12 November 2021, suggesting drafting commenced on that date. Omitting formalities, it stated:
“Dear Beth,
Please accept this letter as my formal Notice of Resignation from my position- 2IC Manager, Sales.
My last day of employment will be the 26th of November 2021.
Thankyou for allowing me to show you my great work ethic, friendly nature and my enthusiasm for sales since my employment started in 2018.
I believe I have a great rapport with my customers as I have built great relationships with them over the years, thus I will miss them dearly.
Unfortunately due to discrepancies that have been overlooked, my mental health and wellbeing have declined immensely as Harvey Norman's zero tolerance for workplace bullying has not been adhered to.”
There was a short conversation that followed the tendering of the resignation. On the Applicant’s account, Ms Gibson read the letter and then said “I’m sorry this has happened”, to which the Applicant replied “Yes, I know”. Ms Gibson recollection is that she said “Kylie, this is not what I wanted”, to which the Applicant replied “I know”.
It was put to the Applicant that she thought long and hard about the resignation letter before typing it up and giving to Ms Gibson. The Applicant conceded that yes, “maybe she did”. I find that the Applicant did give the preparation of that letter considered thought. That is not simply from the fact that the resignation was in writing, although that would be sufficient, but also the Applicant’s confirmation in evidence, and that drafting of it appeared to begin on 12 November 2021. The letter was certainly not given in the heat of the moment.
The Applicant continued to work up until 18 November 2021, when she sent a text message saying she would be unavailable the following day. A medical certificate dated 19 November 2021 stated that the Applicant was unable to work from 19 November 2021 to 28 November 2021. In any event, Ms Gibson had indicated that the Applicant was not required to work the remaining days (and otherwise confirmed she would be fully paid).
Notwithstanding that she tendered a resignation letter, the Applicant says she was forced to do so. It is necessary to consider the reasons why the Applicant says she was forced to resign.
In her witness statement, the Applicant states:
“I resigned due to the bullying I endured
I had no other option but to leave”
The Applicant’s Form F8 makes no reference to her letter of resignation, although it states that the notification date for the dismissal was 12 November 2021. This date is perhaps a reference to the fact that her letter was dated 12 November 2021. This date of dismissal was not otherwise explained.
The letter of termination itself reflects the Applicant’s concern about bullying. In her oral evidence, the Applicant suggests that the words “due to discrepancies” mentioned in her letter, that her reason for resignation included her parental responsibilities and the proposed roster changes.
Another aspect of the Applicant’s written statement sheds no light and simply records “14.11.21 - I resigned – clearly stating my reason why - no other option”.
In another aspect of the Applicant’s written statement again, she states:
“… I had no other option to resign I feel Beth knew I was going to resign from Maureen’s behaviour. I resigned from Maureens behaviour and treatment from them both as I was being pushed out of my job everything leading up to this shows I had no other option
Beth was always aware what’s was happening to me and how I felt but now I question whether all the times I boght to her attention if I was actually being heard and if she did really talk to her
Beth failed me as a manager by not dealing with what was continually occurring and putting a stop to the bulling”
In her oral evidence, the Applicant contended:
“so basically the bullying, and then being told that I'm losing my 2IC position, so I was being demoted to my roster changes; you know, three years of everything being in place and everything at the commencement of my employment, to have that verbal agreement, you know, and then all of a sudden to this happen, of me not being heard; everything being in place and then feeling disregarded, I just – yes, I think basically because Beth must have thought, you know, that it was going to clash with my duties of care.
I just don't feel as though I had fair treatment. So all of this, you know, to me, with my stress, anxiety, my hurt feelings, and all that is in the evidence with the counsellor report, and that's basically – I just felt unheard. I couldn't speak – yes, I had no other option but to leave.”
The Applicant tendered a statement from Ms Debbie White. Ms White is the Applicant’s mother. She was not required for cross-examination. Ms White’s statement was prepared for the proceeding. As Ms White was not a witness to any of the events described above, the matters she describes about them cannot go any higher than what she was told. I do not give weight to those parts of her statement, although I accept it does provide some further support to my finding that the Applicant was feeling stressed and upset, and that the Applicant believed she was being bullied. Ms White’s letter suggests that the reasons for resignation including bullying, not being heard, and (possibly) the loss of the 2IC role.
The counsellor support letter, while preceding the resignation, nonetheless described a meeting only two days beforehand. It referred only to the alleged bullying and a lack of “supporting Ms. Hehea’s version of events.” The letter sought an “acknowledgement of wrongdoing by her manager and colleague…”.
I find that the reasons for resignation are her belief that she was treated poorly – bullied, in her view – coupled with a failure for her version of events to be fully investigated and accepted. These matters were broadly also described by the Applicant as the bullying conduct, the cutting in conduct, the language, the undermining in front of customers and, in Ms Gibson’s case, not being “heard”, among other similar statements.
I do not accept that the change to the roster or the change in her “2IC” designation were operative reasons. Those reasons were not described in her resignation letter. The 2IC issue only was known since 4 November 2021 and the actual roster change from 9 November 2021. Before then, the Applicant had already commenced steps to have her complaints vindicated – joining a union, calling lawyers, etc. While a roster change was foreshadowed on 25 October 2021, no details were known at the time. Neither of these issues were described by in the letter from the counsellor, either – that letter focussed on the complaints about Ms Richardson and acknowledgement of wrongdoing by her manager.
Consideration
This then raises the question of whether the termination was “at the initiative” of the Respondent, in the sense described in the authorities above.
I do not consider the termination was at the employer’s initiative.
The core aspect of the Applicant’s concern focused on her assessment of Ms Richardson’s conduct. I do not make findings about whether that was “bullying” or not (or other allegations as alleged). It is plainly clear that relations were “toxic” between the Applicant and Ms Richardson. I consider it tolerably clear that Ms Richardson made more than one statement that was inappropriate (the “swooping seagull” reference in particular).
I am at least prepared to accept that Ms Richardson behaved unprofessionally and discourteously and occasionally rudely, even if (as appears to be the case), she believed that the Applicant herself was at fault for “cutting in” on sales.
Ms Gibson’s attempts to manage the first incident at the meeting on 3 May 2021 specifically stated that interference in sales was not acceptable but worse was conduct on the floor in front of customers. She thought she had an agreement where “if there are any other problems to come and talk to me about them before they escalate”.
By 24 September 2021, it was clear that matters had escalated. In the days that followed, Ms Gibson was hearing competing allegations of bullying and other conduct. By 11 October 2021, Ms Richardson was on leave due to stress. The Applicant was clearly also upset.
Ms Gibson was in a difficult situation and didn’t know who to believe. In relation to the issues between the Applicant and Ms Richardson, it is not clear to me that Ms Gibson could ever have got to the bottom of who was really at fault or to the extent fault lay at both parties’ feet or should be shared. Other than the two specific events in May and September, both parties made sweeping accusations to the effect that conduct had never stopped and was continually ongoing.
Ms Gibson’s initial solution was a practical one – she separated the parties. By changing Ms Richardson’s roster, she sought to ensure they would not be in a position to have disputes in front of customers and that confrontation would be avoided.
Even if Ms Gibson had the time and resources to undertake an exhaustive investigation (which I do not consider she did), from 11 October for the next ten days, Ms Richardson was substantially unavailable.
Ms Gibson was, however, presented with an unexpected long-term solution, in that Ms Richardson said she was going to resign. That announcement was made during the time she was on sick leave.
At this point, the situation meant that, in practical terms, there would be no bullying in the short term (because of the roster change) and none at all once a replacement was found (due to Ms Richardson’s resignation). This was known to the Applicant by 25 October 2021.
The Applicant’s evidence is that Ms Richardson’s foreshadowed resignation should not be believed because she is “still employed”. I reject that. So far as the Applicant considered that she would be subjected to further bullying (if that was what had occurred), it was not reasonable for her to consider it would continue from this point.
I do not consider that, by 14 November 2021, the resignation letter tendered by the Applicant was on the Respondent’s initiative or that the Respondent engaged in any conduct that directly or consequentially resulted in the termination: s.386(1)(a).
Nor do I consider that the Applicant was forced to resign, as contemplated by s.386(1)(b). The Respondent did not engage in conduct with the intention of bringing the employment to an end or that the 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. Since at least 25 October 2021, the employer’s conduct was aimed at separating the disputing parties and it included a permanent solution where one of the parties would be leaving altogether.
The Applicant’s reason for resignation seemed to also require the Respondent to have investigated the conduct and to have made findings of wrongdoing. While the fact that that did not occur is, in my view, an operative reason why the Applicant resigned, I do not consider it results in the resignation being “at the initiative” of the Respondent or “forced” in the sense required by either limb of s.386(1) in the circumstances I have described.
So far as the roster change was an operative reason for the Applicant’s resignation (which I do not accept), it was misplaced. There was no oral contract and the Respondent was entitled to make reasonable changes to the roster. The changes proposed were reasonable and were necessary to accommodate an old staff member leaving and a new one beginning. The changes were on the magnitude of the changes implemented in May 2021.
Similarly, so far as the change from 2IC status was an operative reason for the resignation (which I do not consider it was), I do not consider that change was a termination “at the initiative” of the Respondent or “forced” in the sense required by either limb of s.386(1). The Applicant’s pay remained unchanged. While she lost the title “2IC”, it should be recalled that the “main duties” of 2IC were (on the Applicant’s evidence) “opening and closing the store, making sure the sales floor was clean and tidy and to bring matters to Ms Gibson's attention, if she wasn't in the store, that she needed to know about”. The opening and closing of the store had long been removed, primarily to accommodate the Applicant’s carer responsibilities. Of the duties that remained, it seems doubtful in a practical sense how they changed beyond the change in title – the Applicant said she would “basically do the role that I was doing, except for I wouldn't be 2IC”. But in any case, the Applicant appears to have been assigned some new responsibilities for the role of the role of Returns/Customer Service. In the circumstances of the overall employment, these changes are reasonable alterations within the spectrum of changes that are often made to an employee’s tasks or duties from time to time. The Applicant’s primary task as a salesperson remained unaffected. For this task, the evidence indicates she was very good at her job.
Having found that the Applicant was not “dismissed”, the Respondent’s jurisdictional objection is upheld.
An Order dismissing the application (PR743859) will be published in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
K Hehea on her own behalf.
C McDermott for the Respondent
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
30 May
[1] Coles v Supply Chain Pty Ltd v Milford (2020) 279 FCR 591; [2020] FCAFC 152, [67].
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