Mark Lyndon Stoodley v Ticketek Pty Ltd
[2023] FWC 2932
•14 NOVEMBER 2023
| [2023] FWC 2932 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mark Lyndon Stoodley
v
Ticketek Pty Ltd
(C2023/5487)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 14 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – employee not dismissed.
Mark Lyndon Stoodley’s application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the FWAct), alleges that he was dismissed from his employment by Ticketek Pty Ltd in breach of the Part 3-1 General Protections provisions of the Act. Where an employee alleges that a dismissal was in contravention of Part 3-1 they may apply to the Commission for the Commission to deal with the dispute.
Ticketek objects to the application on the grounds that Mr Stoodley resigned on his own initiative and so was not dismissed within the meaning of the FW Act. In Lipa Pharmaceuticals v Mariam Jarouche[1] the Full Bench stated that where a respondent contends that an application is not validly made because the applicant was not dismissed, the objection must be determined prior to the Commission dealing with the dispute.
Background
The facts of the matter are largely uncontested.
Mr Stoodley commenced employment with Ticketek in 2007. At the time his employment terminated, in July 2023, he held the position of Customer Solutions Manager. In March 2022 he was in a traffic accident. As a consequence, he was absent from work for five months before returning to work on a graduated return to work plan. From April 2023, Mr Stoodley was back to working full time, working one day per week in Ticketek’s Sydney office and four days at home.
On 18 April 2023, Mr Stoodley sent his line manager, Taila Lindsay, an email informing her that he was travelling to South Korea the following week and would work the days he usually worked at home from a hotel room in Seoul. He received a reply from Ms Lindsay the same day indicating that a change of work location required approval. The following day, Mr Stoodley responded by apologising for failing to request approval, he indicated that he was not aware that he was required to seek approval. Mr Stoodley sought approval from Ms Lindsay and asked if he needed to do anything further to formalise his request. Ms Lindsay responded that he should seek approval from senior management.
On 20 April 2023, Mr Stoodley spoke with Lee Jones, Head of Ticketing. He requested approval to work from Seoul the following week. Ms Jones responded that a number of factors needed to be considered including whether Mr Stoodley’s doctor had cleared him to fly. After the call Mr Stoodley sent Ms Jones an email attaching a doctors’ certificate approving travel to South Korea. The covering email explained how Mr Stoodley would perform his work whilst in Seoul, including that the hotel room he would be staying in had a desk and ergonomic chair. The email sought Ms Jones’ approval.
The following day Ms Jones replied, she indicated that the proposal to work remotely would impact on work arrangements in the office as another manager was away, the request was made late, should have been a request for paid leave, and failed to meet the usual arrangements for such requests. Ms Jones also expressed concern that the request was to work contrary to the current arrangements whereby Mr Stoodley was approved to work from home. In the email, Ms Jones refused the request to work from Seoul due to the matters raised.
Mr Stoodley replied by email on the same day. He expressed disappointment at Ms Jones’ response. He provided an updated medical certificate confirming the working arrangements and making it clear that he was fit to fly. He also asked to be provided with the policy that applied to the circumstances, whether he had been provided with the policy, and an explanation of the decision to refuse his request. He otherwise reserved his rights.
Mr Stoodley attended the office on 24 April 2023. The day before his intended trip to South Korea. Ms Jones called him and advised that the medical certificates sent the week before were insufficient, approval to work remotely in South Korea was denied, his request should have been for annual leave and advice about the need to seek approval for remote working had not been sent to him previously. Ms Jones followed up the conversation with an email. The email reiterated that the request to work remotely from another country was not approved and provided reasons for that decision. The email also stated again that the request should have been for annual leave. The email concluded:
We will consider this period as you on annual leave and therefore I will require a hand over including the full weeks plan for the team in writing this afternoon as I will have to pick up your workload.
We will discuss this further and more formally when you return.
Shortly after receiving the email, around 2.00 pm, Mr Stoodley suffered anxiety and a panic attack. He left work to see his doctor. Around 5.00 pm he sent Ms Jones an email providing a doctor’s certificate which indicated he was unfit for work for the period 24 April 2023 to 2 May 2023. The email concluded:
As you know I am presently recovering from a serious accident and have had many anxiety issues with returning to work over the course of the past year, including returning to work full-time and also physically returning to the office itself. As I have already indicated, my failure to make this request earlier was entirely inadvertent and had I been aware of the process to seek approval for the location from which I could work remotely, I would have followed it. The way in which this request has been handled over the past week however, has caused me so much stress, angst and anxiety for which I attended an appointment with my usual treating GP this afternoon. He has serious concerns about my recovery from the accident being affected as a result of such stress and is concerned about its impact on me. Accordingly, attached is a doctor’s certificate dated today indicating that I will be unfit for work from today until 2 May 2023.
On 27 April 2023, Mr Stoodley attended an online consultation with his treating psychologist. Following the consultation, the psychologist sent an email to Mr Stoodley’s doctor to the effect that Mr Stoodley was experiencing problems at work that had led to increasing stress and anxiety. The psychologist asked the doctor to support Mr Stoodley taking extended sick leave.
On 1 May 2023, Mr Stoodley sent an email to Ms Lindsay with a further medical certificate from his doctor which indicated that he would be unfit for work from 1 May 2023 until 29 May 2023. On 3 May 2023, Ms Jones attempted twice to contact Mr Stoodley by phone. On the first occasion Mr Stoodley did not answer. On the second, Mr Stoodley’s partner answered and advised that a medical certificate had been sent. Ms Jones had not seen the certificate. A copy had been received but was in her junk mail.
On 29 May 2023, Lauren Cavana, Group HR Manager, who had returned from parental leave in May, sent a text message to Mr Stoodley in the following terms:
Hi Mark, I understand you’ve been on some leave and are due back tomorrow. I wanted to reach out to see how I can support your return to work. Please call me back when you can. Lauren
Mr Stoodley replied:
Hi Lauren. Thank you for reaching out. I am about to send you an updated certificate of capacity for a further period from tomorrow until 3 July for which I have been assessed as unfit for work. I will send this from Bens email address to ensure you receive it as I am not logging onto my work computer at present, and previous email form my Gmail were being directed to junk mail for some reason
Later that day Mr Stoodley’s partner, Mr Allen, sent an email attaching a medical certificate indicating that Mr Stoodley was not fit for work for the period 29 May 2023 to 3 July 2023. Ms Cavana replied to Mr Allen:
Thanks for sending this through Ben. I hope Mark is okay.
I’ve just returned from maternity leave, and I wondered if Mark would be open to a discussion with me to understand where he is at, it’s been so long since we have spoken.
I am currently working Monday, Wednesday Thursday if Mark does want to connect, please let me know.
If not, I respect this, I hope he starts to feel better soon and ill reach out before he is due to return.
Kind Regards
Lauren.
On 29 June 2023, Ms Cavana attempted to call Mr Stoodley but he did not answer. She followed the call with an email asking when he would be available to speak.
On 3 July 2023, Mr Allen sent an email with a further medical certificate which stated Mr Stoodley was unfit to work until 24 July 2023. Ms Cavana responded to Mr Allen on 6 July 2023 in an email that was copied to Mr Stoodley, thanking him for the email and suggesting that she speak with Mr Stoodley when he was up to it. A further email to the same effect was sent by Ms Cavana to Mr Allen, copied to Mr Stoodley on 17 July 2023. The email included an explanation that Ms Cavama wanted to support Mr Stoodley in his return to work the following week.
On 24 July 2023, Mr Allen sent Ms Cavana an email attaching a resignation letter and a medical certificate that indicated Mr Stoodley was unfit for work until 21 August 2023. The letter read:
By this letter I give 4 weeks’ notice of the termination of my employment contract with Ticketek as required by the terms of my contract.
Can you please provide this information to my supervisor.
It is regrettable that I feel I have no choice but to end my career with Ticketek after 16 years of dedicated employment, however based on the way in which I have been treated, the recovery from my accident has been set back considerably and my employment with Ticketek is no longer tenable.
Can you please advise by return the arrangements for my annual leave and long service leave entitlements.
Ms Cavana replied to the email on 25 July 2023 accepting Mr Stoodley’s resignation in the following terms:
Hi Ben,
Thank you for sharing this.
Mark, I am writing to confirm acceptance of your resignation received 24 July 2023. As requested via your letter, your resignation will be become effective in 4 weeks’ time, with your final working day with us being 21 August 2023.
You will be paid in the normal way up until this point, this will be processed as sick leave, and your final payment will be paid directly to your nominated bank account on 23 August. As of your final day, all monthly superannuation contributions and other employee benefits will cease.
Mark, I am saddened to read how you are feeling in your letter. You have always been a valued member of our team and I hope when you are ready you might reach out to discuss with me. We of course respect your decision and wish you all the best.
Yours sincerely, Lauren
Consideration
On 8 September 2023, Mr Stoodley filed with the Commission an application for the Commission to deal with a general protections dispute involving a dismissal under Part 3-1 of the Act.
In the application Mr Stoodley alleges that Ticketek, contrary to s.340 of the Act has taken adverse action against him because he exercised a workplace right being a complaint made in his 20 April 2023 and subsequent emails about the manner in which he was required to change his remote working location in the week of 24 April 2023. The adverse action that Ticketek is alleged to have taken is declining to approve the request to change the remote working location, demanding that Mr Stoodley take annual leave, demanding medical certification, various misrepresentations in emails going to the terms of policies, the difficulties in approving the request to work remotely, questioning medical evidence and Mr Stoodley’s capacity to perform his role, and threatening to subject him to formal discussions.
Mr Stoodley further alleges that contrary to s.351 of the Act, Ticketek has taken adverse action because of his physical disability. Effectively, the adverse action is said to be allowing others to work overseas who do not have a disability.
The remedies in the application include compensation, penalties for contraventions of Part 3-1 of the Act, interest, costs and the return of personal effects. Reinstatement is not sought.
As I understand Mr Stoodley’s case he also wishes to proceed on the basis that he was dismissed contrary to Part 3-1 of the Act and he seeks the Commission to deal with that dispute in accordance with s368. For its part, Ticketek resists that course claiming that there was no dismissal. The dispute between the parties for current purposes is whether Mr Stoodley was dismissed.
The Full Federal Court in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 summarised such a dispute this way:
[67] To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply.
Section 12 of the Act defines ‘dismissed’ by referring to s386. Section 386(1) provides that 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.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
A Full Bench of the Commission considered the two limbs of s.386(1) in Bupa Aged Care Australia Pty Ltd v. Tavassoli.[2] After considering in detail the case law associated with the expression “terminated on the employer’s initiative” including notions of constructive dismissal and forced resignation, the Full Bench said at [47]:
[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 probabl(e) 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.
Mr Stoodley’s email of 24 July 2023 was an ostensible communication of a resignation albeit that he stated in it that he felt he had no choice but to resign due to the way he had been treated and that ongoing employment with Ticketek was untenable.
Mr Stoodley submits primarily that he was dismissed within the meaning of s386(1)(b) because his resignation was forced by conduct or a course of conduct on the part of Ticketek. That conduct is said to be the email exchanges and phone calls between April 18 and 3 May 2023. Mr Stoodley submits that a number of inferences can be made about those communications which lead to a conclusion that Ms Jones, on behalf of Ticketek engaged in a course of conduct which forced him to resign. Those inferences being that Ms Jones’ denial of the request to work overseas for three days was so unreasonable that it led Mr Stoodley to conclude that he had no choice but to resign or else face dismissal upon his return to the office when the matter would be ‘dealt with more formally’. Mr Stoodley submits that the words ‘dealt with more formally’ in the email of 24 April 2023 meant that he would be performance managed by Ticketek and would have to ‘exit the business’.
I do not accept that Ms Jones’ conduct in April 2023 forced Mr Stoodley to resign. Ms Jones’ conduct was in response to what she believed to be an unreasonable request by Mr Stoodley to work remotely from Seoul. Her emails cite the lateness of the request, the unusual nature of the request, and the logistical difficulties associated with granting the request as reasons for refusing to allow Mr Stoodley to work from Seoul. Ultimately, and to accommodate Mr Stoodley, Ms Jones said annual leave would be approved to allow him to travel. I do not accept the submission that Ms Jones’ email of 24 April 2023, which stated the matter would be dealt with more formally upon Mr Stoodley’s return, should be read to indicate Mr Stoodley would be performance managed and have to exit the business. I read that sentence as an indication that Ms Jones wished to discuss with Mr Stoodley the circumstances of the request free of the urgency associated with the short time frames and related complications of receiving the request only days before Mr Stoodley was planning to travel.
Ms Jones’s evidence was that she wished to meet to discuss what had happened and what the revised medical information provided during the exchange of emails the previous week meant for Mr Stoodley’s return to work plan. I accept that evidence and believe that it accords with the words used in the email. I do not consider that Ms Jones’ phone calls on 3 May 2023 taken on their own, or in the context of the earlier emails, was anything more than an attempt to ascertain Mr Stoodley’s status and when he would return to work. Similarly, the communications from Ms Cavana after Ms Jones proceeded on parental leave were no more than attempts to facilitate Mr Stoodley’s return to work.
Consequently, I do not believe Ticketek’s conduct falls into the category of conduct which had the intention of bringing the employment to an end. Nor was termination of the employment the probable result of that conduct such that Mr Stoodley had no effective or real choice but to resign. Mr Stoodley had an immediate adverse health reaction to Ms Jones conduct. He did not resign at that time. Instead, he sought medical treatment, obtained a medical certificate, and took leave. He obtained further certificates and remained on leave until his resignation on 24 July 2023. The statement in his letter that he felt he had no choice but to resign due to the way he had been treated and that ongoing employment was untenable may well have been his view, but it was not a view supported by an assessment of Ticketek’s conduct.
For these reasons, I find that Mr Stoodley was not dismissed as described in s386(1)(b) of the FW Act.
Mr Stoodley also submits that the failure of Ticketek to confirm his decision to resign and to take advantage of the decision amounted to termination at the initiative of the employer for the purposes of s386(1)(a). The Full Bench in BUPA identified that a termination brought about by accepting a resignation made ‘in the heat of the moment’ or when the employee was in a state of emotional stress or mental confusion without the employer clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, may be characterised as a termination of the employment at the initiative of the employer.
I do not consider that the Mr Stoodley’s circumstances fall within the description by the Full Bench in BUPA concerning s386(1)(a). Mr Stoodley resigned on 24 July 2023, some three months after the conduct he relies upon as forcing the dismissal. This cannot be said to be a resignation in the heat of the moment. In submissions it was put that Mr Stoodley’s circumstances should be considered in light of his personal situation as a vulnerable employee who had suffered serious injuries in a car accident in 2022, was returning to work under medical supervision, had been and continued to suffer mental health problems, and had an adverse reaction to the conduct of Ticketek concerning his request to work in Seoul in April 2023. These matters may go to the emotional stress referred to in BUPA, but I do not consider in Mr Stoodley’s circumstances they were sufficient to warrant a conclusion that the termination was at Ticketek’s initiative. While I have some sympathy for Mr Stoodley’s circumstances, I am of the view that those factors are not sufficient to find that the termination of his employment was at Ticketek’s initiative nor that Ticketek was required to enquire further before accepting the resignation. A reasonable time had passed from Ms Jones’ 24 April 2023 email that led Mr Stoodley to believe that he would be performance managed. The communications from Ticketek in the months that followed made no suggestion that Mr Stoodley would be treated adversely upon his return. They were supportive. Accordingly, I find that the termination of employment was not a dismissal within the meaning of s386(1)(a).
Conclusion
Having found that Mr Stoodley was not dismissed within the meaning of s386(1) the application under s.365 to deal with a dispute alleging a contravention of Part 3-1 of the Act is dismissed.
DEPUTY PRESIDENT
[1] [2023] FWCFB 101.
[2] [2017] FWCFB 3941.
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