Maddison Noble v Smiling Samoyed Pty Ltd T/A Smiling Samoyed Brewery
[2023] FWCFB 257
•20 DECEMBER 2023
| [2023] FWCFB 257 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Maddison Noble
v
Smiling Samoyed Pty Ltd T/A Smiling Samoyed Brewery
(C2023/2675)
| VICE PRESIDENT ASBURY | BRISBANE, 20 DECEMBER 2023 |
Appeal against decision [2023] FWC 941 of Deputy President Anderson at Adelaide on 24 April 2023 in matter number U2022/12078.
Overview and factual background
Ms Maddison Noble (the Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the FW Act), for which permission is required, against a Decision[1] of Deputy President Anderson (the Decision) issued on 24 April 2023. The Decision concerned an unfair dismissal application made by the Appellant in which she contended that she was dismissed within the meaning of s. 386(1)(b) of the FW Act by Smiling Samoyed Pty Ltd (the Respondent) and that her dismissal was unfair. The Appellant asserted that she was forced to resign because of the Respondent’s handling of a workplace bullying incident by another employee towards her. The Respondent raised a jurisdictional objection to the application asserting that the Appellant was not dismissed but rather, chose to resign.
The facts as set out in the Decision can be summarised as follows. Smiling Samoyed (the Respondent) is a small craft brewery located in the regional town of Myponga on the Fleurieu Peninsula South of Adelaide with operations being loosely divided between production (manufacturing and wholesaling) and venue services. The brewery is co-owned by Mr Simon Dunstone, Ms Katharine Henning and a third person. Mr Dunstone and Ms Henning deal primarily with the manufacturing and wholesaling part of the business in the positions of Head Brewer and Pack Leader respectively. They are also responsible for wholesaling and human resources. The Respondent employs a Venue Manager, Ms Karen Galvin, to manage its bar and venue services (such as food and beverage).
The Appellant began working for the Respondent in July 2015 as a Bartender. At the time of her dismissal, she had worked her way up to the role of Brewer. Given the relatively small scale of the business (22 employees), the Appellant also worked in the bar when required (as second in charge) and assisted Ms Henning with wholesale activities (including deliveries). The Appellant primarily reported to Mr Dunstone but when working in the bar, the Appellant worked alongside and under the supervision of Ms Galvin and when working in wholesale, the Appellant worked for Ms Henning.
On 2 December 2022, an incident occurred between the Appellant and Ms Galvin that led to the Appellant’s resignation. The Deputy President found that the incident and Ms Galvin’s conduct was serious, unprovoked and threatening to the Appellant and while some details of the incident were the subject of conflicting evidence, the Deputy President’s finding is not disputed. The Appellant reported the incident to Mr Dunstone shortly after it occurred and spoke to Ms Henning. On the evening of 5 December 2022, after attending for work and finding Ms Galvin in the workplace, the Appellant wrote a letter of resignation. On 12 December 2022 the Appellant resigned from her employment both verbally and by handing the resignation letter to Ms Henning. The Appellant did not perform any work for the Respondent after that date.
The Deputy President conducted a hearing in relation to the Respondent’s jurisdictional objection, and the issues of merits and remedy, and determined that the Appellant’s employment was not terminated at the Respondent’s initiative within the meaning of s. 386(1)(a) of the FW Act and nor was the Appellant forced to resign within the meaning of s. 386(1)(b). Accordingly, the Deputy President dismissed the application and issued an Order to that effect on 24 April 2023.[2]
The Appeal
On 12 May 2023, the Appellant lodged a Form F7 Notice of Appeal against the Decision. On 14 June 2023, amended Directions were issued requiring the filing of outlines of submissions concerning permission to appeal, the merits of the appeal and any application for permission to be represented at the hearing by a lawyer or paid agent. An amended Notice of Listing was issued on 22 June 2023.
The Appellant sought, and was granted, permission to be legally represented on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. A hearing was conducted before the Full Bench on 18 July 2023. At the hearing, the Appellant was represented by Mr A Wright of WK Lawyers, and the Respondent was represented by its co-owner, Ms K Henning.
Decision under Appeal
The Deputy President comprehensively set out the facts and evidence in the matter by firstly outlining his findings as to the credibility of the witnesses at paragraphs [11] to [31], before canvassing the facts of the matter at paragraphs [32] to [120] of the Decision. Before summarising the incident, the Deputy President outlined some events prior to 2 December which provide relevant context to the 2 December events. The Deputy President noted that the Appellant and Ms Galvin had been on staff together since Ms Galvin commenced employment in 2017. It was also noted that Ms Galvin held a more senior (managerial) role. At paragraph [47] of the Decision, the Deputy President listed several interactions between the Appellant and Ms Galvin which had created tension between the two. After the Appellant reported the first of these incidents, Ms Henning agreed to relocate her to the brewery, although Ms Henning said that this was because extra labour was needed in the brewery due to the introduction of a new bottling line rather than because the Appellant had complained about Ms Galvin.
The incident on 2 December 2022 occurred while both the Appellant and Ms Galvin were working in different parts of the brewery. The incident was a two-minute altercation, during which Ms Galvin went into the brewery room where the Appellant was working and confronted her about a spillage and mess she had allegedly left in Ms Galvin’s work area (the bar area). Ms Galvin was found by the Deputy President to have used a forceful, direct voice and loud accusatory manner and tone towards the Appellant that progressively became louder to the point of yelling. The Deputy President observed that the Appellant had attempted to calm Ms Galvin and de-escalate the situation. When Ms Galvin demanded that she clean up the mess, the Appellant agreed to do so after she had completed some work on her computer.
In response, Ms Galvin lost her temper further and picked up a glass of cordial and threw it onto the floor around the Appellant. Following this, Ms Galvin picked up the Appellant’s glass water bottle, squirted water on the floor and said to the Appellant “Fucking clean it up! How do you like it?”. The Deputy President found that the Appellant was fearful and felt cornered during the altercation. Once Ms Galvin left the brewery room, the Appellant tearfully called Mr Dunstone and recounted the incident. Mr Dunstone subsequently viewed the CCTV footage and confirmed the confrontation. Following Mr Dunstone relaying the events to Ms Henning, she received a call from Ms Galvin who volunteered that she had an altercation with the Appellant, had yelled at her, poured water on the brewery floor and that her actions were out of line. Ms Henning informed Ms Galvin that her conduct was unacceptable, the Company would give her a first warning, the Appellant would be informed of this, and that Ms Galvin would participate in a conflict resolution process with a human resource contractor, Ms Kate Russell of an organisation known as ‘The Huddle’. Ms Henning then called the Appellant and relayed these matters to her. The Deputy President noted that while it was disputed by Ms Henning, it was more probable than not that the Appellant told Ms Henning that she could no longer work with Ms Galvin.
Later that day, Ms Henning spoke with Ms Russell about speaking to both the Appellant and Ms Galvin separately and then trying to facilitate a joint discussion. Ms Henning also decided that Ms Galvin would be subject to a performance improvement plan (PIP). In the afternoon, Ms Henning informed the Appellant that Ms Russell would speak with her the next working day, being 5 December 2022.
From 5 December until the Appellant resigned, Ms Henning and Ms Russell undertook the agreed actions and spoke with the Appellant and Ms Galvin. The Deputy President summarised those events at paragraphs [72] to [98] of the Decision. Relevantly, when the Appellant attended work on 5 December 2022, Ms Galvin was also at work. The Appellant was surprised and uneasy and considered that an exchange she had with Ms Galvin that day was hostile. The Appellant’s evidence was that on arriving home from work on the afternoon of 5 December 2022, the Appellant formed the view that her employer was indifferent to her safety in the workplace and her desire to no longer work with Ms Galvin. The Appellant wrote a resignation letter by hand that evening, which stated as follows:
“5/12/22
Kate Henning
I request you accept this letter as my formal resignation from Smiling Samoyed Brewery.
Although I appreciate the skills and opportunities given over my years of service, I can no longer work alongside Karen Galvin as she has exhibited multiple examples of abusive behaviours throughout the term of her employment.
I would like to state clearly that the events leading up to and on Friday 2/12/22, and my dissatisfaction with the results are the role reasons for my contract termination.
I wish the company the best in their future endeavours.
Sincerely,
Maddison Louise Margaret Noble”[3]
The Appellant held onto the resignation letter to see how the following days would transpire. The Deputy President recorded that the Appellant “took the letter to each subsequent shift, ready to resign in writing if she felt that her interests were not being appropriately addressed including if her request not to work alongside Ms Galvin continued to be ignored”.[4] On 6 December 2022, the Appellant went to work but due to a machinery breakdown was advised to have the rest of the day off as well as the following day. Prior to leaving the workplace, the Appellant and Ms Henning had a brief face-to-face conversation where Ms Henning updated the Appellant about her upcoming meeting with Ms Galvin on 8 December. Ms Henning also told the Appellant that during her next rostered shift, Ms Galvin would be working but Ms Henning would also be working. To this, the Appellant said, “well, there’s not much more to say”.
During the meeting between Ms Henning and Ms Galvin, it was agreed that Ms Galvin would write an apology letter to the Appellant and that it would be best for the apology to be given personally to the Appellant. Due to the Appellant working off-site on her next shift (9 December 2022), the apology was not given to the Appellant, nor was she informed that it was forthcoming. The Deputy President also noted that when the Appellant completed work on 9 December 2022, she knew that her next rostered shift was Monday, 12 December, but did not know what, if any, arrangements the Respondent had put in place in that respect.
Over the weekend that followed (10 and 11 December 2022), Ms Henning and the Appellant exchanged text messages where Ms Henning informed the Appellant that she would be at work on the Appellant’s next working day and the Appellant informed Ms Henning that she would be more comfortable taking leave on the days when Ms Galvin was working. The messages are extracted at paragraph [93] of the Decision. The Deputy President noted that Ms Henning had concerns that the Appellant may resign, and Ms Henning spoke with Mr Dunstone about what she had planned to discuss with the Appellant on Monday (12 December 2022). The Deputy President also noted the evidence of Ms Henning and Mr Dunstone that neither wanted the Appellant to resign and that each also held the view that dismissing Ms Galvin was not justified given the warning, her remorse, the PIP and the imminent apology. Further, the Deputy President noted the views of Ms Henning and Mr Dunstone that because there was functional separation between the processing and venue services parts of the business, a temporary arrangement could be put in place so that the Appellant and Ms Henning would not be working in the same physical vicinity pending the finalisation of the conflict resolution process they had planned. Ms Henning made notes for a discussion that she intended to have with the Appellant on 12 December 2022 including the following points:
A formal performance management process was being conducted with Ms Galvin;
Ms Galvin had accepted that her actions were unreasonable and agreed to take steps to ensure that this would not be repeated;
There were some accommodations that could be made to limit contact between the Appellant and Ms Galvin which could be maintained pending discussions to get back to a position of mutual understanding and respect with Ms Galvin or on a more permanent basis if the Appellant wanted to take this option;
Detailed arrangements under which Ms Galvin would not go into the brewery and the Appellant would not go into the bar including toilet and other facilities being allocated so their paths would not cross and other accommodations nominated by the Appellant;
Options for the Appellant to take leave or implement accommodations until a facilitated discussion could take place and then assess whether accommodations needed to be ongoing; and
If the Appellant wanted to resign it was her choice and the Respondent would accept the Appellant’s decision either way.[5]
On 12 December 2022, the Appellant and Ms Henning had a meeting where the Appellant informed Ms Henning that she was resigning. The Deputy President accepted evidence that in a firm and direct manner the Appellant said that she was “disappointed” in Ms Henning and her leadership and expressed her criticisms of Ms Galvin. The Appellant handed her resignation letter, still dated the week prior, to Ms Henning who accepted it. The Appellant also asked that she personally inform Mr Dunstone of her resignation, to which Ms Henning agreed. Ms Henning and the Appellant also agreed that the notice period arrangements should be worked out between the Appellant and Mr Dunstone.
During her telephone discussion with Mr Dunstone, the Appellant told him that she had resigned but that she was willing to work out a two-week period of notice up to Christmas, which was what Mr Dunstone had requested. The Deputy President recorded that the Appellant added “I thought you would say that but I won’t come in if Karen is in”. In response, Mr Dunstone confirmed that it was not possible, and reiterated that the Appellant had been offered a temporary solution by Ms Henning of working without interacting with Ms Galvin. Before terminating the call, the Appellant told Mr Dunstone that she felt sick and was going home. The Appellant left and did not again return to the brewery.
At 11:02am, Ms Henning emailed the Appellant regarding certain work matters, unaware that she had left the workplace. At 11:30am, the Appellant wrote back to Ms Henning advising that she had “formally resigned from Smiling Samoyed and any future shifts [were] looking unlikely based on the discussion Simon and [the Appellant] briefly shared”. To this, Ms Henning responded by email at 12:36pm saying:
“…
The ball is in your court as to whether you wish to serve out your notice period or not.
Simon’s position is that it is not feasible to schedule around your ability to get transport/other people being able to forklift for you and also whether or not Karen is in the bar. As I am sure you understand, we have already made a significant effort to facilitate your return to work in recent months. To continue those accommodations and add more through a notice period is exceptionally difficult. Accordingly, we are prepared to mutually agree to waive the notice period if that is what you prefer. Please let me know either way. If you wish to finish your employment effective today then I will process your final pay on Wednesday.”
At 12:51pm, the Appellant responded to Ms Henning. Relevantly, the email said:
“…
My position, contrary to yours and Simon’s, is that it is considerably outrageous to expect me to be told to continue to work alongside someone who has exhibited that level of uncontrolled anger and hostility, with complete disregard for company policies this person enforces so heavily themselves. …
It’s clearly not going to end with Karen’s termination despite theft, abuse and neglect of duties riddling her history with reports from countless past employees.
I can no longer represent a company who turns a blind eye to serious infractions to policies and the law, and certainly not this many times. I think it’s best for all to terminate my contact effective immediately.”
The Deputy President noted that the Appellant did not work out a period of notice and that her employment terminated effective immediately as per her email of 12:51pm. On 14 December 2022, Ms Henning issued the Appellant’s final pay with a termination date effective from 12 December.
Turning to the Appellant’s submissions, the Deputy President noted that the Appellant agreed that she had resigned. However, it was the Appellant’s submission that she was forced to do so because of the conduct or course of conduct engaged in by the Respondent. The Appellant submitted that she was forced to resign because the Respondent had failed to appropriately address its responsibilities in light of the incident including its responsibility to ensure so far as reasonably practicable that her health, safety and wellbeing whilst at work was not put at risk. The Appellant contended that the Respondent’s conduct reasonably led her to lose trust and confidence in its handling of the matter, become fearful of her safety if remaining in the workplace and resulted in her resignation.
Further, the Appellant submitted that her dismissal was unfair as there was no valid reason for her dismissal and the Respondent’s conduct did not afford her a full measure of fairness. The Appellant considered re-instatement to be inappropriate given her loss of trust and confidence in the Respondent and sought an award of the maximum level of compensation.
The Respondent contended that the Appellant was not terminated at its initiative, that she resigned, and that she was not forced to resign. On that basis, the Respondent submitted that the Appellant was not dismissed within the meaning of the FW Act or at all. The Respondent also submitted that it neither intended to dismiss the Appellant nor gave her no real or effective choice but to resign. In relation to the incident, the Respondent emphasised that it had taken steps to resolve the conflict with the Appellant and Ms Galvin, and kept the Appellant informed of its process to do so. The Respondent considered that it had taken all reasonable steps to meet its responsibilities to ensure, so far as reasonably practicable, the Appellant’s health, safety and wellbeing whilst at work.
It was the Respondent’s submission that as there was no dismissal, there could be no unfair dismissal. In the alternative, the Respondent contended that there was no relevant deficiency in its processes so as to characterise its conduct as unfair. In relation to remedy, the Respondent asserted that the Appellant could have worked during her notice period and earned two weeks’ wages, but chose not to accept the interim working arrangement that sought to separate her from Ms Galvin.
Considering the decision of a Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[6], the Deputy President noted that it was not contended that the Appellant’s employment was terminated at the initiative of the employer and went on to find that consistent with that submission, the Appellant’s employment was not terminated within the meaning of s. 386(1)(a) of the FW Act. In terms of the Appellant’s resignation, the Deputy President found that it was not contested, and the evidence clearly established that the Appellant resigned on 12 December 2022 by oral and then written notice (as per the resignation letter dated 5 December) to Ms Henning. The Appellant’s reasons for resignation were further expanded on in her subsequent emails to Ms Henning at 11.30am and 12.51pm that day. The Deputy President found that the Appellant’s resignation had immediate effect given that mutually agreeable terms to work out a notice period could not be reached, and as such, she was not required to work out a notice period.
In relation to whether the Appellant was dismissed within the meaning of s. 386(1)(b) of the Act, the Deputy President found that the Respondent’s conduct was not “conduct with the intention of bringing the employment to an end”. The Deputy President noted that Ms Henning and Mr Dunstone sought to keep the Appellant in employment given her long and loyal service, and both wanted her to remain at work to work out her notice period, though only on the terms they considered the business could accommodate. In the Deputy President’s view, these factors in combination pointed strongly to a finding that, in objective terms, the Respondent did not intend to bring the Appellant’s employment to an end.
In consideration of whether the Appellant had no effective or real choice but to resign, the Deputy President found, at paragraph [155] of the Decision, that there were three interconnected reasons for her resignation:
‘• “events leading up to 2 December”. I find that in this respect Ms Noble was referring to her past dissatisfaction with the owners passing, in her view, a blind eye to Ms Galvin’s earlier conduct, as well as her view (which had been communicated to Ms Henning) that Ms Galvin was not a person with whom she could effectively work;
· the “events of 2 December”. I find that in this respect Ms Noble was referring to the altercation in the brewery room between Ms Galvin and herself that morning; and
· Ms Noble’s “dissatisfaction with the results”. I find that to be a reference to Ms Noble’s dissatisfaction with her employer’s response to and management of the 2 December incident at least as it concerned its responsibilities to her.’
The Deputy President was satisfied that the Appellant no longer wanted Ms Galvin to be employed or, at the very least, to not be rostered on the days when the Appellant was rostered, and that she did not feel that her workplace was safe (physically and psychologically) if Ms Galvin was also present. The Deputy President made this finding on the basis that:
‘• the timing of Ms Noble’s resignation; it followed her being told of the “functional separation” plan by Ms Henning on the morning of 12 December. Ms Henning had immediately replied “I think that things are pretty clear then. Can I meet with you in person”;
· Ms Noble expressed as much in her 12.51pm email on 12 December (“It’s clearly not going to end with Karen’s termination…”);
· Ms Noble had earlier told Ms Henning on 5 December and by text on 11 December that she did not want to work in the presence of Ms Galvin;
· Ms Noble had told Ms Russell this at least on 6 December; and
· Ms Noble declined to work out a two week notice period because Ms Galvin would also be working on days she was rostered (“I think it’s best for all to terminate my contact effective immediately”).’[7]
Further at [159] of the Decision, the Deputy President concluded that:
“[159] Ms Noble’s belief that working in the vicinity of Ms Galvin was inimical to her health was genuinely held, consistent and sincere. It was borne of a legitimate and proper concern for her wellbeing, particularly but not exclusively in the context of the health challenges she had experienced over the preceding six months. It was driven not by a flight of fancy but by her having been the target of an unprovoked verbal and threatening altercation in the workplace at the hand of Ms Galvin on 2 December.”
The Deputy President then considered whether the Respondent had engaged in a course of conduct that forced the Appellant’s resignation in the sense of her being denied a real and effective choice but to resign. The Deputy President found that some conduct by the Respondent weighed in favour of finding that the Appellant had no real or effective choice but to resign, and some did not.
In relation to the incident on 2 December 2022, the Deputy President found that it was serious, unprovoked and threatening to the Appellant and her wellbeing. The Deputy President was critical of the Respondent’s lack of attention to the incident and Ms Henning’s failure to adequately secure the Appellant’s version of events, thereby failing to appreciate the seriousness of the incident and its impact on her. As repeated in Ms Henning’s evidence, she did not consider that Ms Galvin presented an actual threat to the Appellant’s health or wellbeing at the time of the incident or thereafter. Due to the Respondent’s investigation of the incident after it occurred, it was the Deputy President’s view that it was reasonable for the Appellant to have lost trust and confidence in the Respondent’s handling of the incident. The Deputy President found that this weighed in favour of a finding that the Appellant was denied a real or effective choice and was forced to resign.
In relation to Ms Henning’s actions after the incident in undertaking to give Ms Galvin a verbal warning, putting her on a performance improvement plan, and requiring her to give a personal apology to Ms Noble, the Deputy President found the steps to be reasonably open and within the ambit of the Respondent’s discretion. However, the Deputy President found that the verbal warning was an inadequate disciplinary response and the lack of a written or final warning underscores the lack of insight that Ms Henning had into the seriousness of the incident. The Deputy President recorded that the Respondent did act reasonably in notifying the Appellant promptly about issuing the warning. The Deputy President also had regard to the written apology that Ms Henning suggested that Ms Galvin personally give to the Appellant. Although the Deputy President acknowledged that it was reasonable for Ms Henning not to inform the Appellant that the apology was forthcoming, he concluded that Ms Henning did not act with sufficient urgency to ensure that the written apology was in fact given. In any event, the Deputy President noted that Ms Henning should have told the Appellant of the imminent apology in advance of her resignation.
The Deputy President recognised that the Appellant wanted the Respondent to take more decisive disciplinary action against Ms Galvin. However, while omission can be conduct for the purposes of s. 386(1)(b), objectively considered, the Deputy President could not conclude that dismissing Ms Galvin was the necessary disciplinary response. When weighed against the inadequate verbal warning and lack of advice about the apology, the Deputy President concluded that to a material degree, the Respondent’s conduct also weighed in favour of a finding that the Appellant’s loss of trust and confidence in the Respondent’s handling of the incident was reasonably founded such that it denied her a real or effective choice and forced her resignation.
However, the Deputy President found that the Respondent’s communications with the Appellant and the functional separation proposal between the Appellant and Ms Galvin were acts that did not weigh in favour of a finding that the Appellant had no real or effective choice but to resign. The Deputy President noted that the Respondent had been in regular communication with the Appellant about Ms Galvin’s warning, Ms Russell’s engagement and any relevant meetings. Further, the Deputy President was satisfied that the functional separation proposal was a reasonable response by which the Respondent was seeking to manage, so far as practicable, its obligation to ensure the Appellant’s health and wellbeing whilst at work. It was doing so in the context of its continuing obligations and duties to the business, its customers and to other employees including Ms Galvin who remained its employee and entitled to work.
Overall the Deputy President rejected the Appellant’s contention that she had no real or effective choice but to resign. At paragraph [204] of the Decision, the Deputy President concluded that:
“[204] Based on the aforementioned findings, one element of the conduct of the employer clearly points to a finding of forced resignation (its inadequate investigation of the 2 December 2022 incident resulting in its failure to appreciate its seriousness and impact on Ms Noble) and one other element does so to a material degree (the measures taken concerning Ms Galvin including the lack of advice about the apology). Other elements of the employer’s conduct do not do so.”
The Deputy President found that the Appellant had a number of choices other than resignation. The Appellant had a choice to allow the conflict resolution process to be completed by Ms Russell in an effort to re-establish a working relationship between the Appellant and Ms Galvin. Further, the Appellant had a choice to try the Respondent’s functional separation proposal on a temporary basis until Ms Russell’s process was complete. Alternatively, the Deputy President considered that the Appellant had a choice to seek leave at least until Ms Russell’s work was done.
The Deputy President acknowledged that the Appellant’s resignation after being a target of an unprovoked incident of workplace bullying was not unreasonable but did not amount to her resignation being forced. In the Deputy President’s view, the Respondent did not want the Appellant to resign and did not deny her an effective or real choice that forced her resignation. As such, the Deputy President found there was no forced resignation within the meaning of s. 386(1)(b) of the Act. Nor was her employment terminated by the Respondent within the meaning of s. 386(1)(a). Given there was no dismissal, there was no utility to deal with the merits or remedy, the jurisdictional objection was upheld, and the Appellant’s application was dismissed.
Appeal grounds and Appellant’s submissions
The Appellant’s grounds of appeal are discursive and are set out in the Notice of Appeal in terms that can be summarised as follows. In the first ground of appeal, the Appellant contends that the Deputy President failed to take into account a relevant consideration, being his finding at paragraphs [158] and [159] of the Decision that the Appellant could not work out her notice period because it would be inimical (damaging) to her health, and that the Appellant’s concern for her health was genuinely held, consistent, sincere and “… driven … by… an unprovoked verbal and threatening altercation in the workplace…”
Ground 2 of the appeal asserts that the Deputy President failed to take into account further relevant considerations being his findings that:
· the Appellant’s belief that working in the vicinity of Ms Galvin was inimical to her health was genuinely held, consistent and sincere and that the incident with Ms Galvin was an unprovoked verbal and threatening altercation in the workplace (at paragraph [159]);
· the Appellant’s loss of trust and confidence in the Respondent’s handling of the incident was reasonably based, such that it denied her a real or effective choice but to resign (at paragraph [167] and at [178] after also considering paragraphs [169], [172], [173] and [177]).
In support of these grounds the Appellant asserts that a fundamental part of any contract is the ability to trust and have confidence in the other contracted party and that when there are issues relating to the health and safety of workers, this then relates to the implied obligations of good faith and fair dealings. It is further asserted that the Appellant had no real or effective choice but to resign (as outlined at paragraphs [167] and [178] of the Decision) and that this establishes a termination at the hands of the employer.
The Appellant submits that it is in the public interest for the Commission to grant permission for the appeal on the basis that:
· It will promote safety at work, including measures that will reduce psychological injury on the basis that if the Appellant had continued her employment including working her notice period, she would have been working in an unsafe workplace which is contrary to her obligations under State and Federal work, health and safety laws.
· The common law definition of “constructive dismissal … needs to be vigorously checked as it relates to case law in the FWC” and the intention of the Act is that the term is given its common law definition.
In written submissions it also was contended that:
· It is in the public interest to promote safety at work including measures that will reduce psychological injury; and
· The “intention of the legislation as it relates to ‘constructive’ dismissal needs to be given its common law definition”.
The Appellant also submitted that the test in relation to whether someone has been “constructively dismissed” is not “an objective one alone”, and that having made the findings in relation to the Respondent’s conduct set out in the grounds of appeal, the Deputy President “did not then have the discretion to suggest [the Appellant’s] resignation was anything other than a constructive dismissal as he had made findings on her state of mind at the time of resigning”. The Appellant also submitted that the Deputy President suggested that the test was whether there were any other options available to the Appellant irrespective of whether she considered those options.
Further the Appellant submitted there must be consideration for the state of mind of the Appellant so long as it adheres to the “reasonable person test”. In this regard, it was submitted that any worker who feels unsafe at work and feels that they have no option but to resign (applying the reasonable person test) should still have the liberty to use the FW Act for their protection. The decision should also be made consistent with other work health and safety laws. The Appellant contended that it is in the public interest that a worker who reasonably decides that they have no choice but to resign, has the autonomy to immediately terminate their employment if safety is an issue.
The Appellant also contends that there were significant errors of fact and that “submissions were made and will be on the transcript so far as it relates to the ‘notice period’ the Appellant was not paid”. The appeal submissions made on behalf of the Appellant emphasised that she contended before the Deputy President at first instance that he needed to consider whether the direction to work out the notice period was reasonable on the basis that the Appellant would still have some (though likely limited) interaction with the other employees. It was also asserted in the appeal submissions that the Appellant’s agreement to work the notice period was on the basis that she would not be working with Ms Galvin, and because the resignation was not accepted on the terms proposed, there was no acceptance of the offer and no binding decision on the part of the Appellant to resign. The Appellant further submitted that the Deputy President needed to consider “what this meant at law” and failed to do so. In the Appellant’s view, this was a relevant consideration as it relates to whether the termination of the contract was at the initiative of the Appellant or the Respondent. The Appellant further contended that “the remedy in this scenario would likely have been payment of her notice period only if it were the case a finding was made that the contract would have ended two weeks hence” and that this was a relevant consideration that the Deputy President failed to take into account.
Respondent’s submissions in the appeal
The Respondent submits that there is no public interest in granting permission to appeal and, even if the Commission finds that there is public interest to grant permission to appeal, there was no error of law or any significant error of fact that would substantiate the appeal being successful. The Respondent understands the Appellant only submits one significant error of fact, being that the Appellant should have been able to either:
· fundamentally change her work conditions (by excluding another ongoing employee from the workplace during the Appellant’s notice period); or
· should not have been required to work her notice period but still have been paid for the notice period.
With respect to the Appellant’s submission that part of the terms of her resignation were that she work her notice period, the Respondent submits that this is at odds with the Appellant’s written resignation. The Respondent submits that the resignation did not mention a finish date or that the Appellant would work her notice period. Rather, the Appellant said in her Form F2 Application that: “I agreed to helping with the final 2 weeks of my notice period.” On a plain reading of this, the Appellant appeared to want her employment to finish immediately but at the request of the employer agreed, for the benefit of the employer, to continue working for two weeks. However, her offer was subject to conditions. The Respondent contends that those conditions could not reasonably be met by it and that accordingly, the Respondent rejected the offer. Further, in the Respondent’s view, the Appellant’s post-resignation actions do not support that she wanted to work her notice period.
The Respondent submits that the Appellant met with Ms Henning at 10:00am on 12 December 2022 and just over an hour later, Ms Henning emailed the Appellant with details of the work duty she was expecting the Applicant to undertake. At this point, the Appellant had already “packed her belongings and [gone] home”.[8] The Appellant then emailed Ms Henning at 11:30am and said, “I think it is best advised to organise another person to handle the bar order for this week and potentially all weeks going forward”.[9] Contrary to the Appellant’s submission that she would work her notice period if Ms Galvin was not at work, the Respondent contends that she actively avoided undertaking her ordinary work duties immediately after her resignation and when Ms Galvin was not present. In the Respondent’s view, the Appellant had decided not to proceed with her employment through the notice period irrespective of whether Ms Galvin was present or not.
Further, the Respondent submits that after the Appellant resigned and had already left the workplace, the Respondent specifically advised the Appellant by email “[t]he ball is in your court as to whether you wish to serve out your notice period or not”.[10] In response to that email, the Appellant replied that it was “best for all to terminate [her] contract effective immediately”.[11] The Respondent submits that the Appellant’s submissions in this appeal do not reflect the evidence.
The Respondent also emphasises that the Deputy President found that the Appellant’s employment ended by her own decision and as such, there was no unfair dismissal. In the Respondent’s view, the Appellant could have continued to work through her notice period, but she chose not to; and this was the Appellant’s own decision. The Respondent submits that it was flexible in understanding that the Appellant did not wish her employment to continue and allowed her to exit her employment at a time of her choosing and without imposing the penalty available to it under clause 34.1(d) of the Food, Beverage and Tobacco Manufacturing Award 2020.
The Respondent contends that there was no error of fact in the Decision, and even if there was an error of fact, it is not of significance to justify permission being granted to appeal. As is the case with the resignation, not working her notice period was an option that was open to the Appellant, and in the Respondent’s view, it did not give rise to a claim for unfair dismissal.
The Respondent noted that the Appellant made no submissions on merits. The Respondent emphasises that the Deputy President weighed up the evidence in a considered way and found that the Appellant had options available to her other than resigning. Particularly, the Respondent notes that at paragraphs [205] and [206] of the Decision, the Deputy President found that considered overall, he did not find that the Appellant had no real or effective choice but to resign and that the Appellant had a number of choices short of resignation.
It is the Respondent’s submission that it is uncontroversial that the Appellant resigned. The Respondent submits that it did not want the Appellant to resign and asserts that the issue in dispute was whether the Appellant had no choice but to resign. The Respondent contends that a finding that the Appellant had any option other than resignation would mean that her claim could not succeed, and submits that in the Decision, the Deputy President found that the Appellant had multiple options short of resigning. Accordingly, the Respondent submits that the Appellant’s claim was destined to fail, and the Deputy President made the correct decision. The Respondent contends that permission to appeal should be denied or in the alternative, the appeal should be dismissed.
Consideration
Permission to Appeal
The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s. 400(2)). Section 400 of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.[12] The public interest might be attracted where:
· a matter raises issues of importance and general application;
· there is a diversity of decisions at first instance so that guidance from an appellate court is required;
· the decision at first instance manifests an injustice;
· the result is counter intuitive; or
· the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[13]
The test set out in s. 400 has been described as “a stringent one”.[14] To be characterised as significant, a factual error must vitiate the ultimate exercise of discretion.[15]
We are not satisfied that it would be in the public interest to grant permission to appeal in this case. The matter does not raise issues of importance or general application and there is no diversity of decisions at first instance. The Decision is not counter intuitive and nor does it manifest an injustice. The legal principles applied by the Deputy President to his consideration of the matter are not disharmonious with other recent decisions and his approach was orthodox. Further, no error is disclosed.
The finding that the Appellant was not dismissed
Section 386(1) of the FW Act defines what constitutes a dismissal for the purpose of the scheme of provisions concerning unfair dismissal in Pt 3-2 of the FW Act as follows:
“(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The above provision operates subject to certain exceptions in s. 386(2) which are not presently relevant.
As the Deputy President observed in the Decision, the approach to determining whether an employee has been dismissed within the meaning of s. 386(1) of the FW Act, was explained by a Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[16] (Tavassoli):
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[17]
Significantly for the present case, the Full Bench in Tavassoli went on to observe that:
“[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”
The case advanced on behalf of the Appellant by her legal representative before the Deputy President was that she was dismissed within the second limb of the definition in paragraph (b) of s. 386(1) – that is the conduct of the Respondent forced her to resign. This contention is set out in the Appellant’s submissions at first instance, which state that the definition under s. 386(1)(b) applies to her dismissal.
The Appellant’s evidence at first instance was entirely directed to the conduct of Ms Galvin and her allegations that the Respondent failed to deal with that conduct, culminating in the incident of 2 December 2022. In relation to the aftermath of that incident, the Appellant’s case was that she was forced to resign because of the Respondent’s failure to address her concerns about feeling safe at work, fearing that remaining at work would cause harm to her mental health, and her desire not to work or interact with Ms Galvin.
There is no indication in the written material filed by the Appellant in the first instance proceedings that her legal representative (both at first instance and in the appeal) advanced a submission that her resignation was legally ineffective, on the grounds that it was conditional on an acceptance that she would work for the duration of her notice period and that the Respondent’s acceptance and subsequent rejection of that condition, ended her employment.
The manner in which this argument was advanced in the appeal is entirely unsatisfactory for the following reasons. The Appellant’s grounds of appeal and submissions in the appeal provide no reference to this argument being advanced in the hearing before the Deputy President and simply make a vague statement “submissions were made and will be on the transcript so far as it relates to the issue surrounding the notice period the Appellant was not paid”. The Commission’s records indicate that on 5 May 2023, the Appellant’s representative requested the transcript of the hearing before the Deputy President. Upon being informed that the Deputy President had not ordered the transcript and that access to the audio recording would be granted to either party, or that parties could order the transcript at their cost, the Appellant’s legal representative requested the audio recording of the hearing. Access to the audio recording of the first instance hearing was provided to the Appellant’s legal representative on 8 May 2023.
The Directions for the appeal required the Appellant’s submissions to be filed by Monday, 12 June 2023, and an extension was granted until 16 June when the Appellant did not comply with the Directions. If the Appellant’s legal representative sought that the Full Bench have regard to submissions made at first instance which were said to be “on the transcript” then specific reference to time frames in the audio recording should have been provided. The Appellant did not order or provide the transcript and it is not for the Full Bench to listen to the full audio recording of the hearing to see if the representative’s recollection is correct, in the absence of the Appellant identifying to the Full Bench and the Respondent the part of the audio recording that supports this contention. This issue or the fact that the Appellant would make a submission in relation to s. 386(1)(a) was not clearly identified in advance of the appeal. Neither the Full Bench nor the Respondent were informed that it was necessary to listen to the audio of the hearing for this purpose and the request was not pressed at the hearing of the appeal.
On the basis of the material that was before the Deputy President and is contained in the Appeal Book, we reject the Appellant’s submission advanced in the appeal that the Respondent’s refusal to allow her to work during her notice period brought about the termination of her employment within the meaning in either s. 386(1)(a) or s. 386(1)(b) of the FW Act for the following reasons.
Firstly, as the Full Bench in Tavassoli noted, in circumstances where the Appellant asserted that her employment was terminated because the Respondent acted on a communication of resignation on her part, it was necessary for the Appellant to articulate which limb in s. 386(1) was relied on. Given the Appellant was represented by Mr Wright at first instance and in the appeal, it would be expected that the submission would have been articulated in the Appellant’s submissions at first instance. As we have noted, this submission was not articulated and to the contrary, the Appellant’s written submissions at first instance specifically stated on behalf of the Appellant that “[t]he Applicant says that the definition under s. 386(1)(b) applies to her dismissal ” and that “The predominant issue that needs to be considered by the Fair Work Commissions is whether s. 386(1)(b) applies”.[18] We also note that the Appellant’s reply submissions at first instance did not go to the matters in s. 386(1)(a) and instead focused on the effect of the incident on the Appellant’s psychological wellbeing, whether the incident and the employer’s response to it resulted in the resignation, and the Appellant’s psychological mindset/diagnosis at the time of the resignation and at the time the issue of working during her notice period was discussed with the Respondent.[19]
Secondly, the submission is entirely at odds with the evidence that was before the Deputy President. As the Respondent correctly points out, the Appellant’s resignation letter makes no mention of the resignation being conditional on the Appellant working and being paid for the period of notice that the Appellant was required to provide to the Respondent. Further, the Appellant’s evidence as set out in her witness statement, was that her offer to work during the notice period was made “under the one paramount condition” that the Appellant would not be required to work with Ms Galvin during the notice period. This was not a condition on the Appellant resigning. The evidence before the Deputy President establishes that the Appellant had made the decision to resign, informed the Respondent, and the resignation had been accepted, before the question of working during the Appellant’s notice period was discussed. The Appellant put conditions on working during the notice period which the Respondent was at liberty to accept or reject and the Respondent rejected those conditions. That rejection did not end the Appellant’s employment.
Further, the evidence is that while the Appellant maintained that Ms Henning agreed that she could work during her notice period, Mr Dunstone did not agree to this. Ms Henning maintained that she did not discuss notice with the Appellant and that this was to be discussed with Mr Dunstone. The Deputy President accepted the evidence of Ms Henning and Mr Dunstone on this point. That evidence is supported by the email exchanges between the Appellant and Ms Henning set out in the Deputy President’s Decision at Paragraph [113] – [116] in which the Appellant, after being given a choice as to whether she wanted to work during her notice period, stated that she wished to “terminate [her] contract immediately”.
Thirdly, the rejection of the Appellant’s condition in relation to working during her notice period, is not a matter that is part of any course of conduct on the part of the Respondent that could be said to relate to the Appellant being forced to resign. The Appellant had already resigned before discussions and correspondence in relation to working during her notice period occurred, and for reasons set out above, were not relevant to any consideration under s. 386(1)(b).
Fourthly, despite the contention not being advanced that the Appellant’s dismissal was a termination at the employer’s initiative within the limb in s. 386(1)(a), the Deputy President considered whether the Appellant had been dismissed by the Respondent within the meaning in s. 386(1)(a) and found that this was not the case. There is no evidence in the first instance proceedings to support a conclusion to the contrary and we discern no error in the Deputy President’s conclusions in this regard. We can only assume, in the absence of any reference to this issue in the written submissions filed by the Appellant at first instance, or a properly pleaded and supported appeal ground to this effect, that if s. 386(1)(a) was raised during oral submissions at first instance, this argument was not pressed.
In relation to the other significant error of fact contended by the Appellant in the grounds of appeal, we do not accept that the Deputy President failed to take into account the Appellant’s genuine belief that working in the vicinity of Ms Galvin could damage her health. Nor do we accept that the Deputy President failed to take into account that the Appellant’s loss of trust and confidence in the Respondent’s handling of the incident with Ms Galvin was reasonably based. Further, we do not accept that the Deputy President’s findings about the Respondent’s failure to deal effectively with the incident and the Appellant’s state of mind, were inconsistent with his findings that the Appellant was not forced to resign. Rather, the Deputy President acknowledged that some factors weighed in favour of a finding that the Appellant had been forced to resign. Despite these findings, the Deputy President made other findings that weighed against a conclusion that the Appellant was forced to resign. We see no error in the approach of the Deputy President or the manner in which he weighed the conclusions in relation to these matters. The Deputy President properly exercised his discretion consistent with the established approach to considering whether the Appellant was dismissed.
We also do not accept that there is any error in the Deputy President’s consideration of whether the Respondent engaged in a course of conduct with the intention of bringing the Appellant’s employment to an end. The Deputy President weighed the evidence and decided that in all the circumstances, the Appellant had an effective choice to remain in employment and despite the reasonableness of her decision to resign, the resignation was not forced. The Deputy President applied the proper test in an orthodox manner after weighing the evidence of both parties, including the fact that there were witnesses who were not called by the Respondent. No error in this regard is disclosed.
Further, we reject the attempt by the Appellant’s representative to argue in the appeal that had the letter of apology from Ms Galvin been given to the Appellant and the Appellant allowed to work during her notice period, that the outcome may have been different and the Appellant may have remained in employment. As with the s. 386(1)(a) argument raised for the first time in the appeal, the Appellant’s submissions at first instance do not indicate that this argument was raised. In any event, the evidence before the Deputy President establishes that there was little, if any, prospect of the employment relationship between the Appellant and the Respondent continuing, and that it would not have continued unless the Respondent dismissed Ms Galvin, which the Respondent was not prepared to do. The Appellant exercised her right to resign her employment and the Deputy President’s conclusion that this was not a dismissal within the meaning in s. 386(1)(a) was in our view, correct. We also note that the Appellant’s legal representative confirmed at the hearing of the appeal that a claim by the Appellant for workers’ compensation had been accepted. In those circumstances assuming that a claim for lost remuneration for the notice period not worked had merit the loss would be mitigated by the payment of workers’ compensation amounts. Finally, a claim for unpaid wages in the form of an entitlement to payment in lieu of notice is not a matter within the jurisdiction of the Commission.
Conclusion
We are satisfied that the Deputy President did not err in the application of the relevant principles to the facts and evidence as presented to him. We do not consider that it is in the public interest to grant permission to appeal. We also discern no appealable error in the Decision.
Order
We order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
A Wright for the Appellant.
K Henning, Respondent.
Hearing details:
2023.
Melbourne–Sydney (via Microsoft Teams):
July 18.
[1] [2023] FWC 941 (‘Decision’).
[2] PR761253.
[3] Decision at [77].
[4] Ibid at [78].
[5] Decision at [97].
[6] [2017] FWCFB 3941.
[7] Decision at [158].
[8] Decision at [110].
[9] Decision at [113].
[10] Decision at [115].
[11] Decision at [116].
[12] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[14] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[15] Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43].
[16] [2017] FWCFB 3941.
[17] Ibid at [47].
[18] Appeal Book page 109.
[19] Appeal Book page 37.
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