Leonie Thomas v Concentrix Services Pty Ltd
[2023] FWC 744
•14 APRIL 2023
[2023] FWC 744 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.365—General protections
Leonie Thomas
vConcentrix Services Pty Ltd
(C2022/6489)
COMMISSIONER HUNT
BRISBANE, 14 APRIL 2023
Application to deal with contraventions involving dismissal – jurisdictional objection – applicant resigned – was resignation caused by conduct, or a course of conduct on the part of the respondent – employee not forced to resign – jurisdictional objection upheld
[1] On 21 September 2022, Ms Leonie Thomas made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Thomas stated that she had been dismissed from her employment with Concentrix Services Pty Ltd (the Respondent) on 2 September 2022.
[2] In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms Thomas was not terminated on the employer’s initiative pursuant to s.386(1) of the Act, and that she had resigned from her employment.
[3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Thomas was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Thomas was dismissed in contravention of the general protections provision.
[4] The matter was originally listed for hearing on 21 December 2022, however on account of Ms Thomas suffering an illness which lasted several months, the matter was heard before me on 15 February 2023. Ms Thomas represented herself. The Respondent was represented by Ms Judith Fletcher, Director, People Solutions and Ms Platt, Business Partner People Solutions.
[5] The following people gave evidence and were cross-examined:
· Ms Thomas;
· Mr David Drew, Operations Manager;
· Mr Gabriel Najarro, Team Leader;
· Mr Atish Sayed, Team Leader;
· Mr Shane Legg, Team Leader; and
· Ms Ashlea Turner, Quality Manager.
[6] Other Respondent witnesses provided witness statements following the hearing. Ms Thomas was afforded an opportunity to rebut the evidence of those witnesses.
[7] This decision deals only with the jurisdictional objection to be determined.
Legislation
[8] Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[9] The meaning of “dismissed” is provided at s.386 of the Act:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
The resignation letter
[10] On 2 September 2022, Mr Najarro and Ms Thomas met over WebEx. The account each person has of that discussion is detailed in their evidence given before the Commission. What is factually known is that Mr Najarro provided to Ms Thomas a template resignation email as follows:
“DD/MM/YYYY (write the date of submitting this Resignation Advice)
Manager Name: <insert manager full name>
Dear <insert manager full name>,
I am writing to you to tender my resignation from Concentrix. The reason for my resignation is <insert reason>.
I am providing you with X weeks of notice OR I request my resignation to be effective close of business today, with my last day of employment being today, DD/MM/YYYY.
I understand and acknowledge the NDA I signed during the hiring process.
I will return the equipment on DD/MM/YYYY.
Yours sincerely
<Employee Full Name>”
[11] Ms Thomas emailed Mr Najarro a resignation email at 10:12am that morning:
“02/09/2022
Manager Name: Gabriel Najarro
Dear Gabriel,
I am writing to you to tender my resignation from Concentrix.
The reason for my resignation is I’m not suited to this specific job and was struggling with the role, so was not providing the best customer support with the Avalon account.
I request my resignation to be effective close of business today, with my last day of employment 02/09/2022.
I understand and acknowledge the NDA I signed during the hiring process.
I will require a courier for collection of my equipment.
Yours sincerely
Leonie Thomas
Employee ID: [number]”
[12] The ‘Avalon account’ is the codename used by the Respondent and its employees to refer to the work performed by the Respondent for its client, Apple. The Respondent’s employees assist with online and telephone inquiries from Apple customers.
Evidence of Ms Thomas
[13] Ms Thomas is aged 61 and commenced with the Respondent on 6 June 2022 as a Technical Support Specialist. Substantial training is required to ensure an employee is ready to assist customers. The work is performed from home utilising technology provided by the Respondent.
[14] Shortly after commencing, Ms Thomas became unwell with Covid-19 and influenza, necessitating her absence from work between 20 and 24 June 2022. Ms Thomas was telephoned by Mr Chuck Cheng of the Respondent and was informed that if she didn’t return to work on 27 June 2022, the Respondent would find it difficult to place her into training. Ms Thomas felt threatened and reluctantly returned to work on 27 June 2022, even though she was unwell, including vomiting and issues with her left ear.
[15] Ms Thomas described the training which included meeting other participants online, downloading software, navigating the software, learning about different types of customers, breaking into small groups and making mock calls. Of the four week training block, she understood the last two weeks would be more technical than the first two weeks.
[16] She stated that she had never spoken to or met Mr Najarro, her Team Leader until late July/early August. She said that he never explained the ‘nesting’ process to her until their first meeting.
[17] Ms Thomas was declared unfit to work between 3 and 11 August 2022 on account of illness, however she returned to work on 11 August 2022 instead of 12 August 2022. She acknowledges that she missed important training on account of being ill. On her return she was informed she would need to be given more training and put into a nesting group, however this did not occur.
[18] Ms Thomas stated that she kept on asking Mr Najarro for catch-up training, however it was not forthcoming. She wanted to do Self-Guided Training (SGT) as others were permitted to do so who had missed training, however she was not permitted to do so.
[19] She also stated that she was the only person in her team not being shown how to apply for shifts. Ms Thomas wanted to apply to work one weekend day so that she could have one day during the week to get urgent blood tests performed at her GP, and to have an electrician attend her house to fix a light and ceiling fan in the room in her house in which she worked. She also wanted to work four longer days and have one day off per week. She considered that ‘all the others got what they wanted’.
[20] Ms Thomas considers she was bullied on 11 August 2022 by Ms Ashlea Turner, a call Quality Evaluator (QE) in a one-on-one evaluation. Ms Thomas sent the following email to Mr Najarro on 12 August 2022. It is noted that some of the email has been cut and pasted into an email sent by Mr Najarro to others, so some parts of it are not legible:
“THANK YOU SO MUCH for your time yesterday.
I was very upset after a Webex session with Ashlea the day before (Thursday, the day I came back ….
…I should be doing than what I have been, and felt like I was being berated and felt I was told I’m …..wasn’t happy with my wanting to ask questions and wasn’t even happy I was looking for where Stickies……stickies previously and so was looking for where they were on the desktop and dock.
She was also discussing a call, that I had read her assessment of previously and passed most of the ….. Ashlea had always been very nice but not on this webex session that now I’m not wanting to ask her….. lose my job as she stated I should be much better than what I am, and stated I’m asking questions in….. looking for, and see others from my group also asking questions and being referred to Kbase articles…..I was already feeling disconnected after being away for 8 working days, as I had no contact with… on my first day back (I had been told by a class mate) I’d be put into a new training group to catch …..clocked on in Human Force and Quick Connect) as was expecting to be in a Webex training group ….. chat group and saw a link for everyone to CLICK HERE, that led to Joshua Burrow’s MSS training……class and messaged Joshua and left the Webex class.
I now know to follow whatever my schedule states, as you mentioned yesterday.
After speaking with you yesterday, my confidence rose and made such a massive impact …. Thursday was a bad day and was not feeling 100% still, and was making a lot of mistakes and not at …..Concentrix’s time as she stated I should be doing a lot better than I am.
I wasn’t going to say anything about that, but I’m not happy with how I was made to feel and how …….
[21] The above was included in an email Mr Najarro sent to various managers on 14 August 2022 where he added:
“I received an email from Leonie Thomas on Friday at my request to try and help her get through the time she’s had off, and some knowledge gaps that she had expressed during my conversation with her. I’ve included some excerpts from the email via screen shots below as they were relating to Ash Turner’s coaching session that she had with Leonie which left Leonie feeling defeated. I addressed how she was feeling about the role on Friday and assured her that we would be able to work together to help improve her knowledge and understanding and help her become more confident in the role.”
[22] Ms Thomas stated that she didn’t get a response from Mr Najarro about her complaint with respect to Ms Turner. She noticed that Ms Turner did not do any call evaluation with her that week but did so with others.
[23] Ms Thomas recalled reading what her peers were writing in the group chat and she did not consider that her own questions were stupid, as Ms Turner had asserted. Accordingly, she attempted to join the Australian Services Union/Together (ASU) union that night. Below is the email she sent to the ASU:
“They told me if I didn’t come back to work ASAP when I was off sick in June this year, that ‘they’d find it hard to find a place for me’.
Even though I had a medical certificate as I had COVID AND influenza, with an ear infection and blocked ear, they didn’t care. I had just started training with them 2 weeks prior.
I was sick all throughout training and last week went off sick as the ear infection was back and was having trouble hearing properly.
I returned to work today after being off sick for 7 working days, and so missed some training and a co-worker told me she had been told I would be being put in with another training group when I return to catch up on what I’d missed, but this did not happen. I cannot get hold of my Team Leader and was told to try another Team Leader, but was told he was too busy. So they docked me for the 15 minutes while I was trying to get onto a team leader.
They have treated me much better prior to me taking 7 days off sick (which I don’t get paid for due to my only having started the job in June this year.
I noticed a major difference today in how they are all treating me.
They later told me they can’t just put me in with another training group (even though they have weekly training groups ongoing), and was not getting help at all.
I had feedback about a call via email I’d read yesterday and was told in that email I passed. Today I was called into a private chat room and was told I failed – for this same call. They stated I should be doing better than what I am and that is not the fault because I’d missed 7 days of extra training and etc. And they stated I’ve been trained on most things and should be doing better.
Prior to going off sick, they said the opposite. They clearly don’t like people going off sick – even when I had a medical certificate to cover my 7 days off.
They are now not willing to help me and appears to me their difference in attitude towards me, and not wanting to help, and complaining about my handling of the calls I take, when I asked for help, they said I should know this stuff already and that this is an issue for me as is my job dealing with some of these issues customers call about.
But I saw someone else ask a really basic question and she was not treated with disrespect.
This has only happened AFTER I had to have 7 days off work after illness, which I have a medical certificate for.
I have been reading all the google reviews about this company and is clear there is an issue with how they treat their employees, especially if off sick. They very clearly have a bad bad name and many people warning people not work for this company.
I suspect they are setting me up to fail by not giving me the extra training I need, yet I was told prior if I need any extra coaching at any time, to ask and they’ll help, claiming they want to succeed, but this is NOT how I’m being treated.
I worry because of my age and cannot go just get another job, I’m the oldest in the group I went through training with.”
[24] On 13 August 2022, Ms Thomas was messaging with her colleague, Mandy as follows:
“I just sent my TL an email asking a few questions …….
I had the best sleep last night. And a very enjoyable day at work yesterday after talking with my TL.
I’m still going to look at what other jobs are available, over the weekend. No harm in looking.
FOXTEL last week had some call centre jobs and the pay was much better and far less hours! And they also give you free Foxtel on top of that! And you don’t work on your birthday!”
[25] In respect of being ‘docked’ 15 minutes’ pay, in her reply evidence to the Commission, Ms Thomas stated that she complained to Mr Najarro about this issue, and although he didn’t confirm that he would have it corrected, it was.
[26] Due to Ms Turner’s comments about her supposedly asking ‘stupid’ questions, Ms Thomas began asking team members, with more experience than she had, questions, which she considered was permitted to do. She did not think that doing so was considered a ‘transfer’, however she was informed on 1 September 2022 that it was considered a transfer and would work against her statistics.
[27] On 29 August 2022, Ms Thomas logged on and noticed she had not been provided with a day off work that week, as she had requested. Mr Najarro was not working, so she discussed via messaging with two team leaders and one QE about the situation. One of the people she spoke to took her into a virtual private room, where Ms Thomas complained about Mr Najarro not providing sufficient training, not allowing her to do nesting and other complaints. She requested another Team Leader. The Team Leader looked at her statistics and informed her that her statistics were normal for the stage of employment she was in.
[28] Ms Thomas stated that on 30 August 2022, Mr Najarro had been informed that she was complaining about him and requesting another Team Leader. Mr Najarro asked Ms Thomas if she wanted to speak to him. I understand this was virtual, and not in person. Mr Najarro stated that she would be provided with the training she had missed, her probationary period would be extended, and he would show her how to bid for shifts. The additional training and learning how to bid for shifts did not eventuate as the employment ended so shortly thereafter.
[29] At 7:54pm on 30 August 2022, Ms Thomas sent the following text messages and Mr Najarro responded as follows:
Ms Thomas:Hi, is Leonie Thomas from your team. So sorry to text and contact you outside of work, wanted to mention this before making any changes to my schedule. I can see another GP on Saturday and can get blood test Saturday morning. Following week can get new prescription from same weekend Dr. It takes about 2 weeks to adjust back with thyroid. Am thinking is it possible to start [Apple] training not next week but week after so thyroid levels back to normal by time I finish training and start with calls? If needed, I can get a medical certificate saying something to support? Sorry to think of it now, just been thinking
Mr Najarro: Medical report could be useful
I’ll discuss with Ops on Thursday – may not be able to but will try
Ms Thomas: OK, thanks. I’m 100% sure Dr will support
[30] On 1 September 2022, Ms Thomas and Mr Najarro had an online meeting. She considered that he bullied her. He informed her she would do the next level training, either on 5 September or 12 September, to which she elected 12 September 2022. She considered that Mr Najarro was not happy with that answer, and asked her why she chose 12 September 2022. Ms Thomas explained she needed to catch up on earlier product training before moving onto the next level training. Her evidence is that Mr Najarro said there was no time as the business was coming up to the busy period of mid- September to end-October. He informed her she would have to resign.
[31] Ms Thomas’ evidence is that she informed him she can do the job if she can receive the necessary training. Her evidence is he repeated that there is no time and she’d need to resign. She informed him she has a mortgage to pay and asked if there were other jobs she could transfer into? He informed her he would check with his manager and get back to her later that day. At the end of the day he informed her hadn’t been able to speak to his manager, and she was to log in the following day.
[32] On 2 September 2022, Mr Najarro informed her there were no other jobs she could transfer into and provided her with the resignation template at [9] and told here ‘exactly what to write.’ He told her to log out but to leave the computer on so that it could be wiped.
[33] Ms Thomas’ evidence is that because she had been asking others for help and had no other contact details to query the way Mr Najarro was treating her, she felt she had no option but to resign.
[34] She later learned from her former colleagues that they were afforded time to catch up on training and were permitted to work weekends. Ms Thomas considers she was lied to by Mr Najarro and forced to resign. She stated she would never voluntarily leave when she has a mortgage to pay and other living expenses.
Evidence given during the hearing
[35] In evidence given during the hearing, Ms Thomas stated that while she attempted to join the ASU on 11 August 2022, she didn’t make contact with the ASU when she considered she was being forced to resign. She said that she didn’t know what else she could do, and because of the hours she was working, she couldn’t speak to the ASU on the phone. In cross-examination she conceded that the ASU can be contacted by email.
[36] In answering questions from me, Ms Thomas said she did reach out to the ASU, and read an email onto the record that she had sent on 29 August 2022. Following the hearing, Ms Thomas provided a copy of her correspondence with the ASU. She sent an email at 7:23am on 29 August 2022 as follows:
“Hi,
I’m still waiting to hear from someone about my membership, it’s now almost 3 weeks since I joined but have NOT had ANY contact from anyone, have no membership number nor anything.
Can someone please email me ASAP. I cannot take calls at all during work hours, so can you please email.”
[37] At 10:49am on 29 August 2022, a membership officer of the ASU sent the following email to Ms Thomas:
“Hi Leonie,
Thank you for contacting us.
Where abouts did you work (name of employer and location)? We haven't received your application form yet, but it could have been sent to a different Branch of the ASU.
Please also note that I have forwarded your enquiry to our National Office so that they
may assist in locating your form.
Apologies for any inconvenience caused.”
[38] Ms Thomas provided further emails where she was contacting the ASU on 29 August 2022, expressing her disappointment at not being able to log on. At 9:21am on 30 August 2022, a Membership Officer with a direct line in her email signature sent the following email:
“Hi Leonie,
I am sorry to hear this.
If you could please call me when it is convenient I can assist.”
[39] Ms Thomas responded at 11:16am:
“Hi, I’ll try call when I can, it’s just I work long hours, so am not available Mon to Friday 8:30 am to 6 pm.”
[40] On 29 August 2022, Ms Thomas spoke with Mr Shane Legg, a trainer, and two female Team Leaders. Ms Thomas can’t recall the name of one of the female Team Leaders, but confirms she spoke with her for approximately 30 minutes. Ms Thomas requested a new Team Leader.
[41] Following the hearing, Ms Thomas sent further correspondence to chambers. She stated that on 29 August 2022, she spoke with Mr Shane Legg in a private chat room in Quick Connect. He then put Ms Thomas onto two female Team Leaders whom she spoke to separately about her issues with Mr Najarro. Both of those Team Leaders, one named Jacqui, stated that they would speak with Mr Najarro. She does not know if Mr Legg spoke with Mr Najarro.
[42] Ms Thomas stated that she had been informed by a colleague named Mr Atish Sayed, that Mr Sayed had spoken to Mr Najarro about Ms Thomas’ concerns with him.
[43] It is Ms Thomas’ contention that the reason why Mr Najarro approached her via Quick Connect on 30 August 2022 to ask if she wanted to speak with him is because he had been approached by various people informing him of her concerns.
[44] In answering questions from me, Ms Thomas stated that she only agreed to see a doctor on a weekend, instead of her usual GP, because she was scared she would be in trouble if she took another day off work as a sick day. She claimed that Mr Najarro threatened her. She did not provide any date as to when this was said. In answering questions from me she accepted that if she did not attend for work on account of a medical issue, it would be unpaid leave as she had exhausted paid sick leave.
[45] In cross-examination, Ms Thomas stated that Mr Najarro offered her a choice as to whether she’d commence the next training on 5 or 12 September 2022. When she nominated 12 September 2022, Mr Najarro questioned her as to why, declaring he would have to let operations managers know why she didn’t want to commence on 5 September 2022. Ms Thomas explained to Mr Najarro that she wanted to catch up on self-guided training before she commenced the next training.
[46] Ms Thomas stated during the hearing that when she and Mr Najarro spoke again on 1 September 2022, he again questioned her why she wanted to commence the training on 12 September 2022 and not 5 September 2022. She again repeated that she wanted to do catch-up training. Her evidence is that he informed her that could not be accommodated, and she would need to resign.
[47] I questioned Ms Thomas as to why, if she considers Mr Najarro informed her she would need to resign, why didn’t she wait to be terminated? She responded that she was in shock and she didn’t know what to do. She informed Mr Najarro that all she needed to do was the catch-up training. Ms Thomas and I had the following exchange during the hearing:
Commissioner: Did you think he was going to dismiss you?
Ms Thomas: Yes.
Commissioner: Well, why didn't you make him do that?
Ms Thomas: Well, he did. He told me I had to resign. He said - - -
Commissioner: No, but did you think if you sat there and you went back to work the next day, that you would have been issued with a termination letter?
Ms Thomas:I would have been what, sorry?
Commissioner: Issued with a termination letter?
Ms Thomas: No. I said – I told him I can't be without a job. I can't resign.
Commissioner: Okay. If you hadn't resigned that day, what do you think would have happened?
Ms Thomas:I would have – I don't know.
Commissioner: You don't know?
Ms Thomas: Sorry, I don't understand what you mean.
Commissioner: If you didn't issue a resignation letter, what do you think would have happened?
Ms Thomas:I would have had the same problems of not being given the catch‑up training and then I would have been put in Mac training, and I think I would have – I don't know. That worried me. I don't know that that would have - - -
Commissioner: This is the clincher?
Ms Thomas: Sorry?
Commissioner: This is the clincher?
Ms Thomas:I don't know what – I would never ever have quit. I just asked for catch‑up training and he kept promising it, and he kept saying, 'We have put off - - -'
Commissioner: If you can't convince me that you would have been dismissed by them, then you can't succeed in this application?
Ms Thomas:I don't know what else I can say. I'm telling you in all honesty - - -
Commissioner: But do you understand what I'm saying?
Ms Thomas: I understand from your point of view and that's what I wish - - -
Commissioner: Do you think Mr Najarro had authority to dismiss you?
Ms Thomas:I did not know. He was my senior. I did not have anyone else I could contact. I had already spoken to two other team leaders on the 29th and they said they'll talk to him and gave - - -
Commissioner: Did he have the authority to dismiss you?
Ms Thomas: I don't know.
Commissioner: Do you think he had the ability to speak to others and say, 'She needs to go. We need to dismiss her and we will dismiss her'?
Ms Thomas:Yes, yes, I do believe that. Yes, he has that authority. He was my team leader - - -
Commissioner: You think you would have been dismissed if you had gone to work the next day?‑‑‑(No audible reply)
If you hadn't sat there at a computer and typed out your resignation letter, what do you think would have happened?
Ms Thomas:I would have still – I would have had the same problems of asking, 'Can I please get given the catch‑up training'. I was behind in myself, so - - -
Commissioner: So you would have been at work on 3 September and 4 September - - -?
Ms Thomas:Yes.
Commissioner: - - - and 5 September?
Ms Thomas:Yes, definitely. I would have asked – I mean, I would have asked for my job back. I still would ask for it back. I did not resign.
Commissioner: I'm asking you if you didn't write out your resignation on 2 September, would you have been at work on the 3rd, the 4th, the 5th, the 6th, the 7th - - -?
Ms Thomas:Yes, 1000 per cent yes, yes.
Commissioner: And you would have been having ongoing discussions with your employer, would you?
Ms Thomas:I would have been asking again, 'I need catch‑up training', the same thing that I had been asking for weeks.
Commissioner: You would be getting paid?
Ms Thomas:Yes. I would have asked for a new team leader, like I originally asked.
Commissioner: So you wouldn't be without a job?
Ms Thomas: No.
Commissioner: But you're out of a job because you resigned?
Ms Thomas: I was forced to resign.
Commissioner: I'm asking you if you didn't do what you did, would you still have a job and you're telling me yes?
Ms Thomas:If I didn't go along with what he was saying?
Commissioner: If you didn't type out your resignation letter of 2 September, would you have still been employed on 3 September?
Ms Thomas:Yes.
Commissioner: You said yes?
Ms Thomas: Yes.
Commissioner: And 4 September, yes?
Ms Thomas: Yes.
Commissioner: And 5 September, yes?
Ms Thomas: Yes. I was still on probation.
Commissioner: Yes?
Ms Thomas:And he had told me they would be extending my probation, and that's where you find out at the end of probation if you have the job 100 per cent or not.
Commissioner: When would that have been then?
Ms Thomas:He told me they can extend it – first of all he said because I had had some time off he was going to extend it and then he said he'll extend it up to six months.
Commissioner: So you would have had a job until, what, early December?
Ms Thomas: Yes.
Commissioner: Well, why didn't do that?
Ms Thomas:I honestly didn't know. I have worked myself - because of the problem with my arm I couldn't get a job, so I started a business doing Web design, et cetera, and I don't know the laws.
Commissioner: What is this Web business design that you're talking about?
Ms Thomas:Sorry?
Commissioner: What is this Web business design that you're talking about?
Ms Thomas:That was what I was doing prior to this job.
Commissioner: Right. I'm not sure you're grasping what I'm saying, because if you didn't resign on 2 September you're confirming to this Commission that you would have remained employed possibly right up until the beginning of December?
Ms Thomas:Well, I would hope because I was on probation. I would hope so. I was concerned because that week I had complained about Gabriel Najarro, my team leader, and I said, 'I want a new team leader', I said, 'because he's not giving me the catch‑up training, et cetera', and then he started not being so nice. The day after the other team leader spoke to him, he was very nice to me and that was great.
Commissioner: So if you hadn't resigned in September – on 2 September – do you think you still would have been employed throughout September?
Ms Thomas:Yes, because I don't think they can get rid of you while you're still on probation.
Commissioner: Right, so you think you still would have been employed in October then?
Ms Thomas:I don't know, I don't know, I don't know. David told me he was going to increase my probation for the weeks that I missed out on and then another time he said he can extend it up to six months. I don't know when my probation would have been - - -
Commissioner: It sounds like a business that is wanting to keep you on to see if you've got the goods?
Ms Thomas:I would have loved to have stayed on and I would have stayed on if I felt I had been given a choice.
Commissioner: Well, I have just asked you if you thought you would have been employed throughout September and you said yes?
Ms Thomas:Well, yes, if they hadn't told me I have to resign I would have been - - -
Commissioner: And I've asked you if you hadn't typed out that resignation letter what would have happened, and you've said that you still would have been employed?
Ms Thomas:I would have turned up for work on the – well, I did on the Friday. I would have worked on Friday, I would have worked on the Monday. I don't know. I don't know if I would have been bullied, I don't know if I would have been struggling still with – you know, I was behind in my self‑guided training modules and some coaching I had missed. I needed that to be able to do the job properly.
Commissioner: It's not very convincing that if you hadn't resigned you would have been terminated?
Ms Thomas:But I didn't. I'm not the one and I say that looking at you in the eye. It was Gabriel Najarro that told me I would have to resign. He even told me what to type in that - - -
Commissioner: And I've asked you if you didn't do what you say he asked you to do, what do you think would have happened?
Ms Thomas:I think I would have ended up falling behind more and struggling if I wasn't still being given - - -
Commissioner: And being employed?
Ms Thomas:Sorry?
Commissioner: And being employed?
Ms Thomas:Yes. I don't know how long for.
[48] In answering questions from me, Ms Thomas said that she completed the resignation letter while she was on a WebEx call with Mr Najarro and he was informing her what to put in the letter, including resigning on 2 September 2022.
Further material provided following the hearing
[49] Following the hearing, Ms Thomas sent the following to my Chambers, copying in the Respondent. It is a message with Ms Jennifer Bell, her colleague at the time. She stated that the message is from a few days prior to 29 August 2022, and appears to flow into 29 August 2022:
Ms Thomas:I don’t think they want me working here and is stressing me out
I was talked to by Ashlea 2 weeks ago and she was really nasty. I complained to my TL, and he was okay, but he never does anything he says he’ll be doing. They said if I have any more time off, I won’t have a job. I had medical certificates to cover me for when I was sick.
I don’t believe they’ll give me the job once probation is up. They way I’m being treated is very different to how you and Mandy are being treated.
I’m just not at all happy
Ms Bell: He shouldn’t talk to you like that…should be encouraging you..
Ms Thomas: EXACTLY
That’s why I don’t believe I’ll have this job for long. I believe they’ll tell me to go find another job once my probation is up
Ms Bell:See if you can have a chat to Shane Legg..He is pretty amazing and so easy to talk to..
And see if there is something he may be able to do in regards to a different TL..
???
Ms Thomas: Yeah, I’m not really happy. I actually like Isaac.
I’m finding some days, like today, a bit unorganised.
Ms Bell: I’m hearing you.!
Ms Thomas: I can’t get any response from Isaac.
But Shane tried to help.
Ms Bell: What did Shane say?
Ms Thomas:Shane opened a private chat room with Isaac, but he’s not getting any response either
I don’t know the other TLS and have spoken with Isaac before and Mandy always had such a good response with Isaac, he’s very hands on and supportive
Ms Bell: Very weird..
I’m sure he’ll get back to you soon..
Ms Thomas:Shane’s trying to find me someone to talk to. Said I want to talk with a diff team leader than mine
I’d rather Isaac as he’s very hands on
That was a waste of time. Shane got me another TL and she said to speak with my TL and is asking him to speak with me.
But I don’t feel supported by my TL!!!
He just seems pissed off when I don’t understand what he’s saying
Ms Bell:Explain how you are feeling..Better to be honest about it and if nothing changes then I will get in contact with Atish for you..
Ms Thomas: Is Atish supportive?
And is he hands on?Isaac showed his team how to bid for schedules and etc and got them all the shifts they wanted
I already told this TL I’m not feeling supported and she just doesn’t get it
He was meant to fix a few things and hasn’t
He just doesn’t seem interested
Ms Bell:Atish is super supportive.. I have a full week off from Thursday for my shoulder procedure.. He explains everything to me and has been amazing through it all.. I also like to ask questions and he answers everything for me.. Explains things in detail if I ask too..
Ms Thomas: Wow
I don’t get that at all
Ms Bell:All good.. I’ll have a chat with Atish.. I just asked him to msg me so I can talk with him
Ms Thomas:Now I’m stuck with this stupid TL that is going to task my TL to talk with me again. But he doesn’t care.
OK, thanks.He’ll make me feel stupid.
I meant my TL
Ms Bell:I understand..
I’m seeing if Atish can jump on a WebEx call to explain to him what is happening
Ms Thomas:I’m just on a break. I’m seriously unhappy
Ms Bell:I just spoke with him..
Atish is pretty good and explained to me that I am an amazing [colleague] trying to help out another team member..
He is going to look into it for you and see what options are available..
Hang in there.! You got this.!
Ms Thomas:And we’re meant to start calls @ 11:40
Ms Bell:Yes
……
Ms Thomas:I can’t get anyone to listen to me
Ms Bell:Atish listened to me and he is doing something about it..
Ms Thomas:Shane put me onto a totally useless TL who ignored what I said
She said she’s getting my TL speak with me again! How thick is she when I said I don’t feel supported by him and confused me on Friday
Ms Bell:She prob didn’t read it right
Ms Thomas:I said I don’t feel supported by my TL and what he said doesn’t make sense
And told her
Ms Bell:I don’t mean to sound like I’m sticking up for her but as my TL said, they have so many things to do on the day during time restriction, each thing takes time and she might have been doing something else and not really got what you meant
…….
Ms Thomas:Ashlea said I am using QC for things I should know and went off at me about it
I spoke with Shane again and he’s getting me some extra support as I can’t stop sobbing
Ms Bell:That’s good. Now you have Shane and Atish helping
Ms Thomas:Thank you SO MUCH Jenn! I got to have a Webex chat with a TL I’ve never dealt with before but she was great and really supportive.
I think my TL has been a bit lacklustre with me, and hard to get hold of. He promised me extra coaching when I came back from being sick, but I’m still waiting for it and am always left waiting for anything I ask.
It’s a shame I didn’t get a more sensitive and hands on TL. My TL has been sick from after effects of Covid, but I have that same issue.
She assured me they wouldn’t be getting rid of me as I had thought they wanted.
Evidence of Mr Drew
[50] Mr Drew is the Respondent’s Operations Manager. He oversees new training intakes.
[51] Ms Thomas commenced employment on 6 June 2022 with a planned four-week training course in Wave 113. After two weeks of training, Ms Thomas was unwell and unable to complete the wave’s training. Mr Drew and Mr Chen then assigned Ms Thomas to a new training intake, Wave 115, in order to provide Ms Thomas the best chance of success by starting training again from the beginning, as opposed to trying to catch her up on five days of missed training content.
[52] On 22 July 2022, Ms Thomas completed the four-week training course and successfully passed the required assessments.
Evidence given during the hearing
[53] In evidence given during the hearing, Mr Drew stated that Mr Chen had resigned so was unable to rebut Ms Thomas’ evidence as to what he is supposed to have said to her. Mr Drew considered it fortunate that another wave of training was available for Ms Thomas to commence upon her return from being ill.
[54] Following the hearing, Mr Drew provided a supplementary witness statement. He stated that relevant to how long the meeting between Ms Thomas and Mr Najarro lasted on 30 August 2022, local reporting tools only last three months, so cannot say how long the meeting lasted. The Concentrix global reporting team has provided a productivity report showing Ms Thomas spent 1.59 hours of meeting/coaching time on 30 August 2022. Mr Drew infers this time was spent with Mr Najarro, unless she had supplementary coaching. In rebuttal evidence, Ms Thomas stated that she had training in a group session with Ms Turner for approximately two hours. She only had a very brief chat with Mr Najarro on 30 August 2022.
[55] With respect to the group chat on 2 September 2022, where Ms Thomas is purported to have said farewell to her colleagues, no evidence is available.
Evidence of Mr Najarro
[56] Mr Najarro commenced employment with the Respondent as a Team Leader in 2016. Ms Thomas was assigned to his team on 16 June 2022, and was then unwell for one week. Upon her return, Ms Thomas was assigned to a new class. Mr Najarro recalls having a welcome back meeting with Ms Thomas to confirm she would be OK to be in training since it was repeating the beginning of training. Ms Thomas told him about her conversation with Mr Chen in respect of being in the latest wave of recruits.
[57] Mr Najarro stated that Ms Thomas was in ‘nesting’ between 25-29 July 2022. Mr Najarro only worked three days that week. He recalls having a conversation with Ms Thomas, explaining the nesting process, and assuring her that if she had pressing medical appointments, she can attend them, and any missed sessions can be followed up. He recalls Ms Thomas mentioning the need to book an electrician to fix her lighting.
[58] On 26 July 2022, Ms Turner sent Mr Najarro an email outlining concerns she had with respect to Ms Thomas’ understanding of processes and assisting with calls. Ms Turner’s email notes that she tried to assist Ms Thomas, but Ms Thomas had said that she was confused.
[59] Mr Najarro was aware that Ms Thomas was unwell and declared unfit for work from 3-11 August 2022. He did not work 11 August 2022, but learned that Ms Thomas returned to work early, despite being declared unfit to work that day.
[60] On 11 August 2022, Ms Turner sent the following email to Mr Najarro:
“Hey Gabe
I’m concerned with Leonie as it seems she is not retaining the information we have gone through. In week 1 we spoke about continuing an existing case and how to do it. In Week 3 (this week) I marked her down for it and when speaking to her she didn’t know how to do it. The coaching session took just over an hour as she has so many questions in regards how to use Core and different issues like Activation Lock, Passcode Lock, Account recovery and there was a few other things. She is asking for a coaching session with someone to go over the 3 missed Live Session from last week (Wednesday-Friday), activation lock, account recovery and a few other things. In the one hour I had her share her screen so I could show her how to continue on cases and we went through a few other things as well.
I have advised her when the customer has an issue bring up the kbase straight away instead of asking chat as she should be using her resources.”
[61] Mr Najarro sent the following reply email on 12 August 2022:
“Hi Ash,
Thanks – I have to speak with Leonie about her current performance as well to ensure that we’re up to date as she was absent last week when her review was supposed to occur. I will reach out to her today.”
[62] On 12 August 2022, he and Ms Thomas had an extensive conversation covering some of the content she had missed, along with her feedback of the coaching session she had the day earlier with Ms Turner. He requested Ms Thomas send him an email, which she did, so he could escalate it and have it investigated, if necessary.
[63] In the conversation of 12 August 2022, Mr Najarro informed Ms Thomas he was going to extend her probationary period as it would be unfair to judge her performance with the lack of calls made.
[64] On 14 August 2022, Ms C’Nedra Lyall-Lawrence, Quality Lead sent an email to Mr Najarro, copying in others, in response to Mr Najarro’s email at [20]. Ms Lyall-Lawrence sent the following email:
“Hi Gabe,
I appreciate the below screenshots however, this coaching session has already been discussed with Ash and off the back of that discussion I had her send you the below Advisor concern. Ash is a very supportive nesting lead (as even Leonie herself mentions), however in this situation she spent 70 minutes with Leonie repeating information they had already discussed and answering 101 questions, therefore suggesting her resources is a good step to take and we should be encouraging Leonie to take on board feedback as a way to improve.
From the email you sent screenshots of its seems that Leonie is unhappy that Ash gave her feedback and unfortunately that is how PQS works, you’ll note she said she read the feedback and she did well but as you know even one attribute marked down is a fail on the PQS form so this is likely just a misunderstanding on her part.
I see no reason to action this further. Thank you.”
[65] Mr Najarro responded:
“Thanks!
Just wanting to make sure there is visibility if feedback is provided.”
[66] Mr Najarro held a coaching session with Ms Thomas on 30 August 2022 after she had come out of her training class during the period 22-26 August 2022. Mr Najarro raised with her the messages that she was sending in the group chat rooms where she was declaring that she was feeling panicked about making calls. Ms Thomas speculated that her emotional state might be tied to her physical health. Mr Najarro estimates the conversation was for approximately two hours.
[67] Mr Najarro also made inquiries of the Quality Team to see if Ms Thomas could catch up on missed training sessions. Ms Lyall-Lawrence outlined the sessions missed by Ms Thomas, stated that the sessions now have old content, and suggested Mr Najarro could discuss the main parts of each keynote with Ms Thomas.
[68] The text message conversation between Ms Thomas and Mr Najarro regarding her seeking a doctor’s appointment on a weekend at [29] then occurred.
[69] During the coaching session held with Ms Thomas on 1 September 2022, Mr Najarro’s evidence is that Ms Thomas expressed many concerns with respect to not knowing what questions to ask, her inability to comprehend the technical information quickly, which was causing her to panic during calls. She said that she was continuing to struggle. Ms Thomas said she wished to resign due to the stress the role was putting on both her physical and mental health.
[70] Mr Najarro responded by asking Ms Thomas if she felt she could continue in the role if she is experiencing declines in both her physical and mental health? Ms Thomas replied that she didn’t think she could perform in the role but had been sticking it out as she has a mortgage to pay. She stated that she didn’t think she was suited to the role and discussed the prospect of resignation. She asked if there were any other positions available within the Respondent that were not related to the Apple account.
[71] Mr Najarro responded that he would reach out to his operations managers to discuss the request, and to give Ms Thomas the day to consider her options and decisions. At around 4:00pm that day, Mr Najarro asked Mr Drew and Mr Chris Gowers if there were other roles available. Mr Gowers responded that he was not aware of any current in-takes and suggested that Ms Thomas could review the Respondent’s careers website.
[72] Mr Najarro’s evidence is that he distinctly remembers the end of the conversation, as Ms Thomas stated that she was very relieved to finally be able to voice that she may not be suited to the role. She explained that she had been struggling throughout her tenure, but she had wanted to give it a ‘red hot go”. She hoped that they would be able to find her footing after a rocky start.
[73] Mr Najarro recalls that Ms Thomas stated that she is a qualified pilot and it’s less stressful to practice stall recovery when flying a plane than to working ‘here’.
[74] Mr Najarrro met with Ms Thomas on 2 September 2022 to inform her that he was unaware of any in-takes she could be transferred into and encouraged her to review the Respondent’s careers webpage. They spent time reviewing it together but were unable to find any positions that she could apply for at the time. Ms Thomas said she wished to go through with her resignation as she doesn’t feel she could provide an experience to both her customers and the client due to her ongoing physical and mental health concerns.
[75] During this meeting, Mr Najarro provided Ms Thomas with a template for the Respondent’s ‘best practices resignation letter’ to ensure relevant information was inserted to allow the Respondent so successfully progress a resignation.
[76] After providing the resignation letter, Ms Thomas discussed her departure with members of a team group chat. The transcript of the chat is unable to be produced due to the passage of time.
[77] Mr Najarro informed her that as per the Respondent’s processes, her computer would be locked prior to packing it into a suitable box, and a courier would be organised to collect it. In addition, her accounts could be locked after she signed out of the system.
Evidence given during the hearing
[78] In cross-examination, Ms Thomas put to Mr Najarro that she was not welcomed back by him when she returned to work after having Covid-19. Mr Najarro recalls the meeting by WebEx.
[79] With respect to shift bidding, Mr Najarro stated that despite Ms Thomas’ absences from work, she would have been eligible for shift bidding within the window it was available.
[80] In cross-examination, Ms Thomas asked why the feedback he gave to her was always corrective and not informative as to what she should have done? Mr Najarro stated that the coaching sessions provided gave critical feedback as well as constructive information on how to improve.
[81] It was put to Mr Najarro that he initiated a catch-up with Ms Thomas on 30 August 2022 because he had been informed that Ms Thomas had been making complaints about him. Mr Najarro denied that anybody informed him that Ms Thomas had made complaints about him. He did say that the meeting went for approximately two hours. I had the following exchange with Mr Najarro:
Commissioner: Do you say that on 30 August the discussion was about Ms Thomas's physical health and not her mental health?
Mr Najarro:Part of it would have been physical - sorry, was physical, and part was also the mental health relating to stress on the calls. To my best recollection would have answered any questions that she might have had during that time as well.
Commissioner: Two hours is a long time. How did you fill up two hours?
Mr Najarro:The conversations that we can have in private meetings or conferences of these types can cover multiple things. It could also be dependent on the questions that are asked. So it could include technical information, technical assistance, ways of helping with mental/physical stress, anything that happens to come up during that time. Typically we do try to limit the amount of time, but it is dependent on each adviser.
Commissioner: What was your take away from that meeting?
Mr Najarro:My take away was to the best of my recollection that there will be a lot of technical assistance required and some time off maybe - maybe had in the future depending on medical conditions.
Commissioner: All right. Had you thought that she might not pass probation?
Mr Najarro:At this point there was not enough information because there hadn't been a lot of call taking to determine whether or not a passing mark would have been provided for probation. During this time our goal is to try and help everyone get up to the general aptitude to be able to take phone calls for us a company. We don't typically look until closer to the end of probation if that is something that needs to be discussed, or whether or not it is a consideration.
[82] During the hearing, Ms Thomas began asking Mr Najarro questions about their conversation on 1 September 2022. Mr Najarro was unable to answer any questions about 1 September 2022 and pleaded complete memory failure. He stated that he was feeling stressed.
[83] Mr Najarro sought to refer to written notes that he had made on 1 September 2022. I was provided with them and read them onto the record:
“Points of discussion - Discussed, advised difficulties:
And the following is in dash point –
· Discussed probing concerns
· Inability to gather information
· Advise or expresses that they never know what questions to ask
· Advise or expresses that they aren't able to quick comprehend the information provided, at least with them panicking
· Advise or expresses that they feel that they've been struggling since the beginning and continue to struggle
· Advise or expresses that they feel that the knowledge gaps they have in the role most likely won't be able to be filled
· Advise or expresses they wish to resign
· After additional discussion, advisor thought it best to finalise resignation.”
[84] Mr Najarro stated that he was beginning to recall parts of the 1 September 2022 conversation. I reminded him that only a short while earlier he could not remember the conversation at all. He went on to say the following:
Commissioner: She been sticking it out because she's got a mortgage to pay?
Mr Najarro:Yes, correct.
Commissioner: And you can only remember that because I've reminded you of your written evidence?
Mr Najarro:No, it's a very specific part of the conversation that is available.
Commissioner: Is there anything else that you can remember?
Mr Najarro:We talked about in the conversation that led to the resignation, I offered to find out if Leonie would like to have an extra day to think about it. We also discussed the mortgage, that she is living on the Gold Coast and paying for an apartment, and that on top of the information that would've been discussed during the coaching plan about the probing questions, the stress that she's under. She has felt that her hormones were not balanced, potentially due to the medication or the change in medication, and different parts of that conversation.
Commissioner: She expressed some concern with her mental health, did she?
Mr Najarro:Mental health being related to stress and being unable to cope with, and not being able to recall information, yes.
Commissioner: Your written evidence is that:
She stated that she doesn't think she's suited to the role and she began discussing the prospect of resignation or if there were any other options for her. She asked if there's any other positions available within Concentrix.
And you said that you'd reach out to the operations manager to discuss this. So she mentioned resignation, did she?
Mr Najarro:Yes, correct, either resignation or transfer to a department that didn't have the technical aspect of the role that she was in at the time. I reached out to - - -
Commissioner: Before you get there, we haven't finished the meeting of 1 September - what did you say to her when she said that she was contemplating resigning?
Mr Najarro:To my recollection, when we were contemplating this, when Leonie was discussing contemplation of resignation I suggested that we would offer whatever coaching we could offer at the time through the coaching plan. We would design it around trying to help improve her abilities and help support her throughout it, but if that is the suggestion that she wants, whether or not she would like to resign or if she would like me to try and find other departments, if we are hiring for other departments, or if there are other intakes available, I can discuss that with the operations management at the time, who could have been Chris Gowers and David Drew.
Commissioner: She said something like a 'red hot go', did she?
Mr Najarro: Yes, correct. Gave it a 'red hot go'.
Commissioner: She spoke to you about having been a pilot?
Mr Najarro: Yes, correct.
Commissioner: What do you remember about that now?
Mr Najarro:……So, she talked about the role being more stressful than being a pilot. She was a licenced pilot that has practised some very stressful manoeuvres and has – and indicated that this was more stressful than being in those situations.
Commissioner: What did you think when she was discussing resignation?
Mr Najarro:At that point I thought – I thought that we can either try and continue to work with Leonie, or we could look into resignation or look into the possible transition into another client or department if there was the opportunity available. My mind was mostly on the processes, not necessarily what – I guess what is in front of me. I was looking towards trying to find solutions at that point.
Commissioner: Was it a preferable solution that she leave the business?
Mr Najarro:I think there was concerns regarding Leonie's technical aptitude in the application of her skills, and for myself, I understood if Leonie would continue with the Avalon account there would be ongoing coaching and support provided. So, for myself, I knew that there would be more work, yes, but outside of that I can't recall.
Commissioner: She says that you told her she needed to resign on 1 September?
Mr Najarro:I deny that claim. I gave – I offered Leonie the opportunity to think about the decision that she could make, whether or not she wanted to resign or if she would wait for me to look into other options to find a transition to another team, discussed with the operations management the same day.
Commissioner: All right. Do you want to put anything, Ms Thomas, about this meeting of 1 September about - you can use your words that you say he said?
Ms Thomas:Yes. I just do want to ask about one thing, that you mentioned that I – you're saying that I stated that I have an issue with retaining the training. Can you explain then why did I get the top marks in all the exams?
Mr Najarro:So - - -
Ms Thomas: And passed?
Mr Najarro:Yes. So, within training we felt that your theoretical knowledge was good, you were able to do that with - while not under pressure of handling a client or customer, but the application of said skills was where there was a breakdown.
[85] There was further evidence given as to what was said during the 1 September 2022 meeting between Ms Thomas and Mr Najarro:
Ms Thomas:Like the first of September, me saying, I can do the – do you recall me saying, 'I can do the job as long as I get given the extra training', which we were all – like everyone was always told, 'We want you to succeed so we will provide this, just ask'. And I was continually, continually, continually asking?
Mr Najarro:Yes, and the coaching – so my understanding was provided whether it was by me or by quality coaches or anyone else that was doing evaluations.
Commissioner: So Mr Najarro, I've got a contest of evidence here. I've got Ms Thomas saying that on the 1 September, she's saying, 'I can do the job. If I can catch up with training', and you're saying – she says that you said, 'No, I don't have time to give you catch up training'. You're telling me, she's almost rocking back and forward in a mental and physical heap on 1 September saying, 'I'm throwing the towel in'. So which one is it?
Mr Najarro:So with this conversation lasting for quite a while, the beginning of the conversation was let's try and provide support to get – to get there. As the conversation continued it led to Leonie suggesting that she would like to resign.
Commissioner: And that she's relieved?
Mr Najarro: Yes.
Commissioner: Because she can finally vocalise this?
Mr Najarro: Yes. Correct.
Commissioner: And you're sure about that now, are you?
Mr Najarro: Yes.
Commissioner: Because you weren't sure about this 15 minutes ago?
Mr Najarro: No, I understand it.
Commissioner: And you understand I have to say things in evidence – in my decision about this. About your credibility?
Mr Najarro:Yes.
Commissioner: All right. So what happens. You go away, do you? And undertake to speak to David Drew and Chris Gowers?
Mr Najarro:Yes. Correct. So I sent a Teams message to Chris Gowers asking whether or not there were any other opportunities on other accounts or if there were any potential hires or intakes. Chris Gowers said no, to my understanding. There would have been more to that statement, but the gist was that he doesn't believe it. And there are any current opportunities that he knows of and suggested to go to the careers page for concentric to check for other opportunities.
Commissioner: Okay. So on the 2 September, you're meeting?
Mr Najarro: Yes, in the morning. Yes, first thing in the morning.
Commissioner: And what if it's – can you recall that meeting?
Mr Najarro: I can recall some of that meeting, yes.
Commissioner: Well, off you go. Tell me what happened?
Mr Najarro:So on 2 September, first thing when I've arrived, I've discussed getting Leonie into a session in order to discuss the – the decision. Leonie continued to suggest that she would like to proceed with the resignation. We went through – I provided the resignation email template that we offer which has portions of the email to be edited by the advisor or whoever is resigning. Discuss the process of returning the equipment, whether it was via courier or if it was to be done in person. I believe to the best of my recollection, we organised a courier for that. And afterwards, at the end of the conversation and once the email, the resignation email had been retrieved, we processed the resignation and Leonie suggested that she wanted to stay in the chat for a few moments to say good bye to whoever was left in the team chat. I remember a few brief messages. I don't recall the exact statements, but things like, 'Thanks', and 'I'm off, I hope to see you guys in the future. I few responses from various advisors and then she signed out and the iMac was wiped as per our process and then that was the end of the - - -
[86] Mr Najarro estimated the meeting on 2 September 2022 lasted for approximately 45 minutes. Ms Thomas estimated the meeting lasted approximately 1.5 hours. The following exchange occurred:
Commissioner: That's a long time, isn't it.
Ms Thomas: Yes.
Commissioner: You're saying that he's insisting on you resigning.
Ms Thomas: Yes.
Commissioner: That's her evidence. That you're insisting. 'You've got to resign, you've got to resign, you have to resign'. What do you say about that?
Mr Najarro:I deny that. I don't ask anyone to resign. I give people options and choices based on previous conversations that I've had with people that have been struggling. In this particular instance, to my recollection, exact same thing to suggest that if it is something that she would like to do, we can process it. And then the conversation, whether or not you work the additional week for the one week's notice or if you don't think that you can last that particular week or if you think that there's – there might be something that prevents you from working, we can process it early with approval from office management.
Commissioner: Well, what did she say in response to that?
Mr Najarro:My – in response to asking whether or not she would like to resign, she – Leonie had suggested that she wouldn't be able to provide the best service or assistance to her customers and would like to process the resignation immediately. At the end of the conversation. Which is what led to all of the emails.
Commissioner: If she hadn't resigned what would have happened?
Mr Najarro:If Leonie hadn't resigned, we would have continued with the coaching plan, going through, gathering evidence through call based listening. Reviews determining the best behaviours to focus on. This includes the information within the advisor engagement section of the coaching plan that was shown momentarily ago, that included information about Leonie struggling with probing questions, asking the right – asking for the right information and then finding articles and information to assist her customers.
Commissioner: What authority to you have to speak to more senior people to say, 'She's not cutting it, let's cut her loose now'?
Mr Najarro:Not a lot. We can – we can – for our processes in terms of terminating or asking people to resign, we have to go through our processes of creating a coaching plan, implementing the coaching plan for at least four weeks can be extended to six weeks. If that is unsuccessful, we move into a secondary plan, called a performance improvement plan and then that runs for anywhere between six to eight weeks of additional coaching.
Commissioner: You mentioned asking people to resign. Is that something that you do?
Mr Najarro:Not often. Only if the information that they provide throughout the conversation indicates that they are struggling and unable to pull themselves out of the – the mental state that they're currently in at that time. Asking if somebody would like to resign is based on the conversation, not a prerogative of mine.
Commissioner: Is that what you did here?
Mr Najarro:I – based on the information, I did ask if there would be some – after the conversation, the initial conversation on September 1st, where she had said that she may not be able to continue, that was a question that I had asked, yes.
Commissioner: You asked that on the 1 September?
Mr Najarro: Yes, from my recollection, yes…..
Commissioner: …. So and then on 2 September she says she wants to resign. Her evidence is that you said she has to resign.
Mr Najarro:I had asked in the morning of 2 September during that first meeting if her decision was still the same and if she still wanted to process it or if she would like to continue with the coaching plan.
Commissioner: There were two meetings on 2 September, were there?
Mr Najarro:I misspoke, sorry. It was the only meeting that was on 2 September. The first – well, the meeting that was held that included both the confirmation and then the process of resignation.
…….
…….
Commissioner: To be clear, if she hadn't provided the resignation letter she would have been at work on 3 September - - -?
Mr Najarro:Yes.
Commissioner: - - - 4 September, 5 September?
Mr Najarro:Yes. There would have been no reason for us to prevent her from working during that time.
Commissioner: What influence do you have to have her dismissed?
Mr Najarro:None, unless they provide – unless an adviser provides a resignation email that states the date, they would continue to work.
Commissioner: You can't lean on anybody senior?
Mr Najarro: No.
Commissioner: Unless you jump through those hurdles of performance approval plans and the like?
Mr Najarro:Yes, correct.
Commissioner: Is that something you would have recommended?
Mr Najarro:It depends on the performance during the coaching plan, so the coaching plan would have to be implemented first. We would then determine the results based on the coaching plan and then determine whether or not we move into the performance improvement plan afterwards.
Evidence of Ms Turner
[87] Ms Turner was contacted during the hearing and requested to give oral telephone evidence. Ms Thomas asked Ms Turner about their WebEx call on 11 August 2022. Originally, she did not recall the meeting, but then was able to recall parts of it.
[88] Ms Turner stated that on some occasions when she was coaching Ms Thomas, Ms Thomas would say that as soon as she took a phone call from a customer, she would forget everything she had been told. Ms Thomas put to Ms Turner that was incorrect as she had been taking calls with customers and providing solutions. Ms Turner stated that she regularly marked Ms Thomas down on her calls when she was ‘logging’.
[89] Ms Thomas informed Ms Turner that she had made her cry following a coaching session. Ms Turner stated that she provided more coaching to Ms Thomas than anyone, including four sessions, in which one that went for one hour, when they should only last 20 minutes. Ms Turner reminded Ms Thomas that at the end of the lengthy coaching sessions she had said that Ms Thomas needed to return to taking calls as customers were waiting.
[90] Ms Turner was able to recall that Ms Thomas had said on 11 August 2022 that she was feeling disconnected and somewhat unwell. Ms Turner confirmed that she sympathised with Ms Thomas, but informed her that workforce planning required her to be available to take calls and she couldn’t be off the calls for the time she wanted to do SGT.
[91] Ms Thomas put to Ms Turner in cross-examination that on 30 August 2022, Ms Turner had informed her that she was asking stupid questions. Ms Turner denied she ever said such a thing to Ms Thomas.
Evidence of Mr Legg
[92] Mr Legg was contacted during the hearing and requested to give oral telephone evidence. He stated that he was not able to view chat conversations held with advisors in QuickConnect, but was able to in Microsoft Teams. He read onto the record a chat conversation held with Ms Thomas on 29 August 2022 that went to the following:
Mr Legg: Hello
Ms Thomas: Shane, I've been sitting here bawling my eyes out.
Mr Legg: What's wrong
Ms Thomas: I'm meant to take a call in 10 minutes. I'm not getting anywhere.
That TL said I should speak with my TL, because that's part of the issue. Everything I do is wrong and I feel really unsupported.
Mr Legg: I’m really sorry to hear, but I know you were doing your best.
Ms Thomas:I don't believe I'll be offered a job when my probation ends. I do what I was told in training, but I'm being told I should be doing better. I got told off by Ashlea the other week, and if I didn't need the job I would have quit on the spot. I'm sitting here crying and now my (indistinct) call's in three minutes.
Mr Legg: Don't worry about jumping on the calls right now.
Ms Thomas: Jacqui didn't help at all and told me to talk with my TL.
Mr Legg: Was it Ashlea? I believe you just spoke to Ash.
Ms Thomas:She was in a bad mood. It was about two weeks ago. I had just come back off being sick. She said I'm asking questions in QuickConnect that I should know. She said I wasn't doing good, and wasn't at all happy with me. My stats aren't great.
Mr Legg:Not to defend anyone but I think everyone just feels stressed with the amount of (indistinct) at the moment. That's (indistinct) and it's just about trying your best to improve.
Ms Thomas:I got three negative surveys that I don't think were fair as I did what I was taught to do in training, but Gabe, one of the managers, said I should have assisted more.
Mr Legg:Do you mind if I let my manager know so we can try and get you additional support?
Ms Thomas:Yes, please
Mr Legg:In relation to those surveys, you're always going to get feedback on what you could do to try and avoid it. You shouldn't view that as a negative thing. That's something that helps to improve.
Ms Thomas:But one was from a customer asking about another company, and I told her I'm not trained in that and she needs to go to the other company for the issue. She got angry and hung up, and my TL told me I should have assisted her even though I'm not trained.
Mr Legg:I have read the feedback. Basically when it comes to referring to a third party our goal is to do everything possible to ensure that our (indistinct) working as expected. We can do that through isolation and making sure there's nothing we can do to help out. It doesn't mean you can fix the issue, but it will make the customer feel more comfortable.
[93] Mr Legg was asked if he reported Ms Thomas’ concerns to Mr Najarro. He stated that he did not. He in fact took the concerns to Ms C’Nedra Lyall-Lawrence. Following the hearing, Mr Legg made a witness statement where he confirmed that Ms Lyall-Lawrence instructed him to get a neutral Team Leader, Ms Tammy-Lee Burnett to reach out to Ms Thomas. Mr Legg did not address Ms Thomas’ concerns with Mr Najarro.
Evidence of Mr Sayed
[94] Mr Sayed was contacted during the hearing and requested to give oral telephone evidence. Ms Thomas asked Mr Sayed to recall events of August 2022. He recalled that Ms Jennifer Bell, Team Leader informed him that Ms Thomas was having conflict with her Team Leader. Mr Sayed informed Ms Bell that he would reach out to Mr Najarro and see what can be done about it. He said that he can’t recall if he did reach out to Mr Najarro.
[95] During the hearing, Mr Sayed reviewed his chat conversations with Mr Najarro and discovered a chat conversation dated 29 August 2022. Following the hearing, the chat was provided and is transcribed below:
Mr Sayed:hey Gabe
how you going man
hope you had a good weekend
when you get a chance
I received feedback regarding yourself from Leoni Thomas, from one of my team members
Happy to discuss this further quickly over teams so you’re in the loop
Mr Najarro:hello
what’s the feedback
Mr Sayed:hey
Mind you, one of my team member relayed this across to me, from Leoni Thomas
Mr Najarro:yeah
leonie’s going to be a problem for me
but I’ll deal with it
Mr Sayed:Leoni reached out to one of my team members via Facebook
Spoke to her TL regarding a chat, he didn’t quite explain properly, was told she needs to do a better job, and ask more questions
She doesn’t feel supported
This has happened over a couple of interactions
just paraphrasing the above
Mr Najarro:cool same feedback
Mr Sayed: same feedback meaning?
Mr Najarro:very good. If she probed more she wouldn’t be complaining about getting DSATs
Mr Sayed:Of course
I just thought I'd pass this on to you
so you can action it accordingly.
Mr Najarro:yea she chatted with jacqui this morning and passed on a similar chat.
[96] Following the hearing, Mr Sayed made a witness statement where he confirmed that he did not have any other interaction with Mr Najarro regarding Ms Thomas other than the above chat.
Evidence of Ms Burnett
[97] Following the hearing, Ms Tammy Burnett, Team Leader provided a witness statement. On 29 August 2022, Ms Lyall-Lawrence messaged her via Microsoft Teams advising that she had directed Mr Legg to contact her regarding Ms Thomas, and to gain her assistance.
[98] Mr Legg contacted Ms Burnett at 12:08pm via Microsfoft Teams. Ms Burnett assured him she would reach out to Ms Thomas via QuickConnect.
[99] Ms Burnett contacted Ms Thomas via QuickConnect and invited her to join her Webex link audio conversation. They met between 12:25pm and 1:30pm. At no time did Ms Burnett report her conversation with Ms Thomas to Mr Najarro.
Evidence of Ms Lyall-Lawrence
[100] Following the hearing, Ms Lyall-Lawrence, Quality Manager provided a witness statement. On 29 August 2022 at 12:02pm, Mr Legg sent her a transcript of his conversation with Ms Thomas.
[101] At 12:06pm, she opened a separate chat with Ms Burnett and sent her a transcript of Ms Thomas’ conversation with Mr Legg. She asked Ms Burnett if she was free to speak with Ms Thomas. Ms Burnett confirmed that she was. Ms Lyall-Lawrence returned to her original chat with Mr Legg to advise that Ms Burnett would reach out to Ms Thomas.
[102] At no time did Ms Lyall-Lawrence discuss Ms Thomas with Mr Najarro.
Consideration
Has Ms Thomas been dismissed?
[103] Although applied under the previous Act,[2] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[3] in my view remains generally apposite to the consideration of s.386(1) of the Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘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.’
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)
[104] A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[4] in the following terms:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
[105] Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
· the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
· a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
· the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· conduct includes an omission;
· considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous, and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
Was Ms Thomas forced to resign?
[106] In light of the terms of the Act and the authorities, it is necessary to consider whether Ms Thomas was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.
[107] The onus is on Ms Thomas to establish that she did not resign voluntarily, proving that the Respondent forced her resignation.[5] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Ms Thomas and the Respondent to an end.[6]
Mr Najarro’s conduct
[108] I am certain that Mr Najarro was particularly stressed by his attendance in giving evidence before the Commission in this matter. Early on in his evidence he presented as evasive, incompetent and hopeless. He had prepared a witness statement in December 2022, had not read it prior to attending the Commission in February 2023, and then claimed not to remember the events of early September 2022.
[109] Upon Ms Thomas asking further questions of Mr Najarro, he was able to somewhat recall the events of 1 and 2 September 2022, and then did so with credibility.
[110] Ms Thomas was hectic and persistent in her efforts to complain about Mr Najarro on or around 29 August 2022. It appears to me that Ms Thomas took up many hours speaking with Mr Legg, Jacqui and one other Team Leader, later discovered to be Ms Burnett. She also spent a considerable amount of time in typed chat to her colleague Ms Bell, complaining about Mr Najarro. Ms Bell assured her that her own Team Leader, Mr Sayed, would address her concerns with Mr Najarro. Ms Thomas’ assertions that she had no other contact details to make complaints against Mr Najarro is not credible.
[111] On the evidence before me, I am satisfied that Mr Najarro was aware only through Mr Sayed and Jacqui that Ms Thomas was upset and had been complaining about him. He wasn’t made aware through Mr Legg, Ms Burnett or Ms Lyall-Lawrence in very late August 2022 that she was broadcasting her dissatisfaction with him and requesting a new Team Leader.
[112] After Mr Najarro reached out to her on 30 August 2022, and following a coaching session, Ms Thomas declared that she was very happy with Mr Najarro extending her probationary period. She gave evidence that he was ‘really nice’ to her.[7] She had also been very appreciative of his efforts when she returned to work on 11 August 2022. While Mr Najarro had informed Mr Sayed that Ms Thomas was going to be a ‘problem’ and he would deal with it, the coaching session that he had with her on 30 August 2022 was an appropriate course of action and she reported that she was happy following it.
[113] Ms Thomas had been struggling in the role largely on account of her absences due to short-term ill health. She was unlucky to have had a bad run of illnesses in her short period of employment with the Respondent.
[114] I am satisfied that on 1 September 2022, Ms Thomas had proposed resigning her employment to Mr Najarro, and requested the Respondent determine if there were other roles she could perform. I prefer Mr Najarro’s evidence over Ms Thomas’ and am satisfied that if the conversation went as Ms Thomas claims, her resignation would have occurred on 1 September 2022, and not the following day. Instead, Mr Najarro committed to asking senior managers if an alternative role could be found for Ms Thomas.
[115] I do not consider Mr Najarro’s clarification as to why Ms Thomas preferred relevant training to commence on 12 September 2022 instead of 5 September 2022 to be overbearing. He was entitled to make appropriate inquiries of her why she could not commence the training on 5 September 2022. She gave medical reasons as to why she would have greater clarity on 12 September 2022 to competently complete training on account of the medication she would be taking. I am not satisfied that Mr Najarro firmly told Ms Thomas she could not start the training on 12 September 2022 and must commence it on 5 September 2022 or resign.
[116] When Ms Thomas was advised on 2 September 2022 that no other roles could be found for her, she decided to resign her employment with immediate effect. She used the template provided to her by Mr Najarro and typed it out while he was on the line to her. As unpalatable as that act is, and should not be followed by any employer, I do consider that Ms Thomas had many available choices to her which did not include resigning her employment.
[117] I note that the various conversations over the dates of 30 August 2022, 1 September 2022 and 2 September 2022 spanned many hours. The conversations with Mr Najarro were not abrupt or dismissive. To discuss matters for so many hours across these days, a great deal of conversation was had.
[118] Ms Thomas confirmed in oral evidence that if she had not resigned on 2 September 2022, she would have likely been working until December 2022. She gave clear evidence that she would have been in employment for all of those months, and her fear was that she may not have passed her probationary period when it expired. It does not correlate that Mr Najarro forced her to resign on 2 September 2022. It makes no sense for Ms Thomas to have resigned her employment on 2 September 2022 out of fear that she might not pass her extended probationary period, sometime in December 2022. I have also had regard to the assurance Ms Burnett gave her that she was not at risk of being dismissed.
[119] Ms Thomas did not request Mr Najarro speak with more senior managers about her complaints about him, nor did she bring any complaint to the HR department within the Respondent.
[120] Regrettably, Ms Thomas was not able to obtain assistance from the ASU for various reasons but primarily on account of a membership technical issue. I don’t suspect the ASU would have given advice to Ms Thomas to resign her employment with immediate effect.
[121] Mr Najarro does not hold a senior position within the Respondent’s business. In fact, he holds very little influence at all. He is a Team Leader of 15-20 or so employees. I am satisfied he was not able to exert any material pressure on Ms Thomas to resign her employment, and her resignation was at her suggestion and her conviction on 2 September 2022 that it was appropriate in the circumstances to do so.
[122] I am not satisfied that Mr Najarro engaged in any conduct or a course of conduct which intended to bring the employment relationship to an end or had that probable result. Further, I am not satisfied that Mr Najarro’s conduct meant that Ms Thomas had no effective or real choice but to resign.
Ms Turner’s conduct
[123] Having considered the detailed feedback given to Ms Thomas by Ms Turner in respect of some of the calls received from customers, Ms Turner’s feedback was not, in my view, overly critical. I do not consider that Ms Turner was out to see Ms Thomas fail. While Ms Thomas was upset by Ms Turner at various times in her short employment with the Respondent, I am not satisfied that Ms Turner engaged in any conduct or a course of conduct which intended to bring the employment relationship to an end or had that probable result. Further, I am not satisfied that Ms Turner’s conduct meant that Ms Thomas had no effective or real choice but to resign.
The conduct of Mr Legg, Ms Lyall-Lawrence and Ms Burnett
[124] Mr Legg was aware on 29 August 2022 that Ms Thomas was distressed. On the evidence before me, he gave her appropriate reassurance and asked if he could take it up with his manager. Ms Thomas agreed that he could. He raised the matter with Ms Lyall-Lawrence.
[125] What is now clear is that Ms Lyall-Lawrence reached out to Ms Burnett who spoke with Ms Thomas that day. Ms Thomas was not impressed and was later informing Ms Bell that she considered Ms Burnett as a ‘stupid’ Team Leader for informing her that she would reach out to Mr Najarro and ask that he speak with Ms Thomas.
[126] It is understandable that on account of Ms Thomas seeking advice from various Team Leaders, including conversations of one hour in length, she might expect somebody senior to reach out to her. Clearly, however, she did not give the Respondent adequate time to digest or act on her concerns. However, by 30 August 2022, Ms Thomas was again comfortable and pleased with Mr Najarro.
[127] I consider that neither Mr Legg, Ms Lyall-Lawrence or Ms Burnett could have known that Ms Thomas was likely to resign her employment several days later. They certainly did not engage in any conduct or a course of conduct which intended to bring the employment relationship to an end or had that probable result. While Ms Burnett had committed to speaking with Mr Najarro, but I accept did not, it was not even a course of action Ms Thomas wanted to occur. I am not satisfied that any conduct of the above people meant that Ms Thomas had no effective or real choice but to resign.
Conclusion
[128] In this matter I do not consider that any person employed by the Respondent conducted themselves in a manner that would bring about Ms Thomas’ resignation.
[129] For the reasons set out above I have determined that the resignation of Ms Thomas was not caused by conduct, or a course of conduct, on the part of the Respondent.
[130] I have not found that Ms Thomas’ employment was terminated by the Respondent at its initiative within the meaning of s.386(1)(a) of the Act. I have not found that Ms Thomas’ resignation was forced within the meaning of s.386(1)(b) of the Act. Accordingly, Ms Thomas was not dismissed from her employment.
[131] The jurisdictional objection by the Respondent is upheld. Ms Thomas’ application under s.365 of the Act fails for want of jurisdiction and must be dismissed.
[132] An Order [PR761099] will be issued together with this decision.
COMMISSIONER
[1] [2020] FCAFC 152.
[2] Workplace Relations Act 1996 (Cth).
[3] [2006] AIRC 496 (PR973462).
[4] [2017] FWCFB 3491.
[5] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,
[(2009) 185 IR 359].
[6] O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at
para. 23, [(2006) 58 AILR 100].
[7] Transcript PN1159.
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