Michelle Eggenhuizen v G.P. Corporation (S.A.) Pty Ltd
[2024] FWC 187
•15 MARCH 2024
| [2024] FWC 187 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Michelle Eggenhuizen
v
G.P. Corporation (S.A.) Pty Ltd.
(C2023/6164)
| COMMISSIONER THORNTON | ADELAIDE, 15 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.
On 9 October 2023, Ms Michelle Eggenhuizen (the Applicant or Ms Eggenhuizen) lodged a general protections application against G.P. Corporation (S.A.) Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 21 September 2023, she was dismissed in contravention of the general protections provisions of the Act.
On 31 October 2023, the Respondent filed an F8A – Employer response and raised a jurisdictional objection that the Applicant had resigned from her employment and was not dismissed.
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal 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.”
This matter was allocated to me to determine the jurisdictional objection as whether or not the Applicant was dismissed from her employment. A person must have been dismissed to be entitled to make a general protections involving dismissal dispute application.[1] Accordingly, the Commission must determine whether an applicant has been dismissed before it can exercise its powers under s.368 to deal with a dispute about whether the applicant was dismissed in contravention of the general protections set out in the Act.[2]
The parties filed outlines of submissions, witness statements and documents pursuant to my directions. A hearing was held on 20 December 2023, at which Ms Eggenhuizen represented herself and gave evidence on her own behalf, and Mr Lobendhan, Business Manager for the Respondent, represented and gave evidence on behalf of G.P. Corporation (S.A.) Pty Ltd.
For the reasons set out below, I find that the Applicant’s employment was not terminated at the initiative of the employer and her claim is therefore dismissed.
Factual Background from evidence
Much of the factual background in this matter was agreed by the parties. Where their factual recollections differ, I have noted the differences. Both Ms Eggenhuizen and Mr Lobendhan gave evidence in an honest manner, albeit with different perspectives of the relevant events. I have no reason to doubt the evidence given by either witness.
Ms Eggenhuizen began her employment with the Respondent as a Medical Receptionist on 17 February 2023 on a permanent part-time basis. Mr Lobendhan’s title is Business Manager and he was the Applicant’s supervisor who manages day to day operations of the business, including human resource management, finance, maintenance and rostering.
The practice is a small general medical practice based in Gawler. The administrative team in which the Applicant worked had four employees, three permanent part-time employees and one ‘junior’ school aged employee engaged to work only on weekends. Mr Lobendhan explained the struggle he experienced in having to cover leave of any administrative employee and when Ms Eggenhuizen had recently taken leave, the other part-time employees had worked full-time. Mr Lobendhan gave evidence that the practice required employees who could work flexibly to cover leave and if someone falls sick it is a “burden on me as a manager to find cover”.
Both parties agreed that their working relationship prior to the event that occurred 22 September 2023 was a relationship that involved mutual flexibility with respect to work hours and days. Ms Eggenhuizen agreed that Mr Lobendhan had allowed her to change shifts from time to time just as Mr Lobendhan h agreed that Ms Eggenhuizen had worked different or additional shifts if the business required it.
The Applicant met with Mr Lobendhan on 4 September 2023 to inform him that she would not be available to work the following day, 5 September 2023, as she needed to accompany her mother to an appointment at Flinders Hospital. The Applicant’s mother had recently been diagnosed with breast cancer and the Applicant is her carer. The Applicant also informed Mr Lobendhan that she may need to change her rosters at the last minute in order to provide care or assistance to her mother.
On 6 September 2023, the Applicant emailed Mr Lobendhan a list of dates she would be unable to work because she would be attending appointments as her mother’s carer. The Respondent replied approving leave on the dates leave dates sought.
The witnesses also agreed that Mr Lobendhan had tried to contact the Applicant on 20 September 2023 to see if she was available to work in place of another co-worker who was ill. Ms Eggenhuizen agreed that she had not been contactable on that day and was unable to therefore attend for work.
The Applicant’s mother was initially scheduled for surgery on 29 September 2023 and Ms Eggenhuizen had leave approved for that day. She was later asked by Mr Lobendhan if she could work on that date but confirmed she was unavailable because of her mother’s surgery.
On 21 September 2023, the Applicant’s mother was offered an earlier surgery date of 22 September 2023 because of a cancellation.
The Applicant was rostered to work from 7:30am to 5:00pm on 22 September 2023. There is some dispute as to whether Ms Eggenhuizen’s shift was to conclude at 5:00pm or 5:30pm, but this has no impact on my findings in this matter. Ms Eggenhuizen approached Mr Lobendhan and asked if she could change her rostered shift the following day and work the following Friday when Mr Lobendhan had previously asked her to work.
Both witnesses agreed that Mr Lobendhan said words to the effect that if the Applicant could arrange for another employee named Jenn to attend work in her place, then he would approve the Applicant having the day off. Mr Lobendhan said to Ms Eggenhuizen that he was not confident Jenn would agree to work as she was sick.
Ms Eggenhuizen then contacted her co-worker Jenn, who confirmed she was able to work between 7:30am and 3:00pm the following day. When Ms Eggenhuizen informed Mr Lobendhan of Jenn’s availability, the witnesses agree that he agreed for Jenn to work in Ms Eggenhuizen’s place, however that he expected Ms Eggenhuizen to attend for work from 3:00pm until the end of her shift.
The Applicant said in her submissions at the hearing that she felt Mr Lobendhan was “pressuring [her] to come to work” on 22 September 2023 at 3:00pm.
The witnesses then agree that Ms Eggenhuizen advised that she would not be attending for work the following day because she would be at the hospital with her mother and said words to the effect “family comes first”. There is further agreement that after those words were said that Ms Eggenhuizen and Mr Lobendan moved the conversation from the reception desk to another room.
There are slight differences in the recollection of the witnesses about what was said after that point.
Mr Lobendhan says that the meeting was moved from the public waiting area because Ms Eggenhuizen was raising her voice, and he asked her to lower her voice and move to a consultation room for more privacy. Ms Eggenhuizen said that Mr Lobendhan was already speaking to her in a raised voice from the point in time that he advised her she was required to work from 3:00pm the following day but did ask her to move into a consultation room, which she agreed to do.
Once in the consultation room, Mr Lobendhan’s evidence is that he said to the Applicant:
“I have approved all prior leave requests without hesitation and you just returned from almost 2 weeks’ leave. However, on this occasion I’m afraid I can’t approve this as I don’t have cover. It is becoming an inconvenience and difficult to manage your roster with your availability. On the 20th [of September] I asked for your help and you didn’t respond until much too late. You need to try and manage work and personal commitments better and if you can’t do that maybe this job might not be the right fit for you.”
Ms Eggenhuizen’s evidence with respect to the conversation is very similar. However, Ms Eggenhuizen set out in her evidence that she responded by saying: “I sent you a text message explaining I wasn’t available to work yesterday and I am only contracted for 15 hours a week.” It was her evidence that it was at this point Mr Lobendhan said: “It doesn’t work that way and maybe you aren’t suitable for this position.”
Ms Eggenhuizen gave evidence that she then asked for a separation certificate at that time. The witnesses again both appear to agree that Mr Lobendhan then said to the Applicant: “are you leaving?” To which she replied: “no, you are firing me.”
Mr Lobendhan gave evidence that he then said to the Applicant: “I am not firing you, I’m just trying to give you feedback and find an appropriate compromise for your leave tomorrow.”
Again the witnesses agreed that Ms Eggenhuizen then left the room and went to the reception area, collected her belongings and left the building.
Mr Lobendhan says that she left the building before he had left the consultation room (however, gives evidence that she removed her personal belongings from the reception desk). Ms Eggenhuizen says that she was distressed and emotional, apologised to her co-worker for the workload that she was leaving that afternoon, took her personal belongings and left the medical practice at 3:20pm.
On 26 September 2023, the Applicant sent an email to Mr Lobendhan asking for a separation certificate, all leave entitlements accrued, payment for hours worked and payment of four weeks’ notice. Mr Lobendhan responded by email on the same day that the discussion that occurred was:
“intended solely to provide constructive feedback about your availability and the excessive amount of leave taken since you started with our company on March 23rd. My intention was never to terminate your employment, but rather to have an open dialogue and find a solution that would suit both parties. Unfortunately, you made the decision to walk out during the discussion which was unexpected and unprofessional. The primary concern raised was regarding your availability, as it has become increasingly challenging for the business to schedule and coordinate work due to the amount of leave you have taken thus far.” Mr Lobendhan goes on to say “I will make arrangements to have your final salary and separation certificate ready before the end of this week.”
Later the same day Mr Lobendhan sent a further email to the Applicant confirming that she would be paid any outstanding annual leave and hours worked up until 21 September 2023 and refused any notice pay. The Separation Certificate was provided to the Applicant on 3 October 2023.
The Applicant made submissions that she felt Mr Lobendhan was trying to “bully” her into working when she had to be with her mother. She repeatedly asserted that the Respondent had used her unavailability to work on 20 September 2023 “against me.” The Applicant submitted that she felt that she had no option but to leave work because she felt she had to choose between her mother and her job. The Applicant conceded that during her conversation with Mr Lobendhan, he did not say any words to the effect of you are terminated, or sacked, fired or the like.
However, Ms Eggenhuizen said in evidence that she took Mr Lobenhan’s requirement that she attend for work from 3:00pm on 22 February 2023 as a termination of her employment because he had previously agreed to allow her to take leave for her mother’s appointments and showed her a “lack of empathy”. She expressed an understanding that she had been granted leave for her mother’s future appointments and surgery and it seems, took this as an acceptance by the Respondent that she could take leave to assist her mother with her cancer treatment as she needed, irrespective of the amount of notice she could give her employer of her absences.
On 26 September 2023, the Applicant emailed Mr Lobendhan seeking a separation certificate and her entitlements. Mr Lobendhan replied by email that it was never his intention to terminate the Applicant’s employment. When giving evidence at the hearing, Mr Lobendhan communicated that he took the Applicant’s email to mean she was not returning to work.
When pressed on why she understood Mr Lobendhan’s words or actions to be communicating a termination of employment, she said: “it was the way he spoke to me, and the aggressive manner and the behaviour, and that I had no option, that that was the way it was going to be”. She gave evidence that Mr Lobendhan had discussed her mother’s private diagnosis in front of co-workers and patients. She expressed feeling “threatened and intimidated.” Ms Eggenhuizen made these statements in her oral evidence but had not included references to aggressive behaviour, threats and intimidation in her written witness statements prepared prior to the hearing.
Ultimately, Ms Eggenhuizen responded, when pressed as to why she thought her employment had been terminated by Mr Lobendhan: “I had no option but to leave and put my family first” and that: “I don’t believe he was trying to find a fair resolution for both parties.”
In his oral evidence, Mr Lobendhan advised the Commission that he does not have the authority to hire or fire employees, and would need to consult with the Managing Director who would make the decision whether to terminate an employee. Mr Lobendhan further stated that on the day Ms Eggenhuizen asserts she was terminated, he had not had any conversations with the Managing Director to obtain permission to dismiss Ms Eggenhuizen, as it was not his intention to terminate her employment. He gave evidence that in saying what he said to the Applicant, he was not encouraging her to resign.
Mr Lobendhan gave evidence that he would have approved Ms Eggenhuizen’s request for leave on the entire day of 22 September 2023 if he and other employees had been available to work for the day. As it was, he indicated his flexibility to allow another employee to work instead of Ms Eggenhuizen for the time the other employee was available.
Mr Lobendhan said in his evidence that it was his intention during the meeting of 21 September 2023 to come up with a solution for the following day and convince the Applicant to be “more of a team player”, to be more flexible and to consider the needs of the business and her co-workers.
Mr Lobendhan said that he thought Ms Eggenhuizen may come back to work and only knew for sure that she would not return when he received her email of 26 September 2023.
Consideration
In Coles Supply Chain Pty Ltd v Milford,[3] the Full Court of the Federal Court outlined the task of the Commission in similar cases, as follows:
“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. .... It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[4]
Section 386(1) of the Act defines the meaning of ‘dismissed’ as follows: [5]
“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.”
The Full Bench in Mihajlovic v Lifeline Macarthur[6] (Mihajlovic), citing the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2)[7] referred to the following passage in the decision of the Full Court:
“…a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
…
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[8]
Despite Ms Eggenhuizen expressing the view that she was forced to choose between her job and family, she maintains that she was dismissed and not forced to resign. She has not advanced a case that she resigned. She maintains that she understood she was dismissed because of the manner in which she alleges Mr Lobendhan spoke to her in their exchange on 21 September 2023. Consequently, section 386(1)(b) does not apply in this matter.
Ms Eggenhuizen accepted in her evidence that Mr Lobendhan did not use any word that expressly conveyed her employment was being brought to an end by him, including words such as termination, dismissal, fired or sacked. It is the Applicant’s evidence that Mr Lobendhan’s aggressive manner was sufficient to convey to her that he was dismissing her from employment.
Ms Eggenhuizen also appears to have formed a view that Mr Lobendhan had agreed to allow her to take any and all leave she required, irrespective of the notice she could give, in order to support her mother through cancer treatment. When Mr Lobendhan confirmed that the Applicant was required to work on 22 September 2023, for a portion of time she was rostered for work and could not find a co-worker to replace her, Ms Eggenhuizen viewed that decision to be in contravention of Mr Lobendhan’s earlier agreement to accommodate her need for leave to support her mother. Ms Eggenhuizen seems to have then understood the refusal to allow her to be absent between 3:00pm and the close of the business on 22 September 2023 to be a dismissal from her employment.
I accept that Mr Lobendhan’s evidence that he had no intention to dismiss Ms Eggenhuizen on 21 September 2023 and that he wanted to find a solution to the problem of the business requiring a receptionist to be at work for all of the opening hours on 22 September and Ms Eggenhuizen’s need to be with her mother. His lack of authority to dismiss the Applicant in my view supports his assertion that he had no intention and did not dismiss Ms Eggenhuizen.
I find that there was no termination of the Applicant’s employment at the initiative of the employer. On the Applicant’s own version of the events of 21 September 2023, there were no words used by Mr Lobendhan capable of conveying a termination of the Applicant’s employment.
Ms Eggenhuizen did not include in her witness statement any reference to conduct on the part of Mr Lobendhan that could objectively be understood to be communicating a termination of her employment. She did refer in her witness statement to Mr Lobendhan using a loud voice. However, at the hearing, she made a point of describing Mr Lobendhan’s conduct as being sufficiently aggressive that she understood that he would not resolve the dispute regarding her attendance at work and was terminating her employment.
I do not accept that Mr Lobendhan was aggressive in his communications with Ms Eggenhuizen in the exchange of 21 September 2023. I have formed that view based on Ms Eggenhuizen’s failure to mention conduct of that nature or level in her witness statement and Mr Lobendhan’s presentation in evidence. His evidence was given in a measured, respectful way and did not demonstrate any anger towards the Applicant.
In any event, even if he was aggressive in his communication with Ms Eggenhuizen, I do not accept that aggressive communication in itself conveys a termination of employment in the absence of any other words or conduct that make clear the employment relationship is being brought to an end. Ms Eggenhuizen described feeling intimidated by the discussion, which I accept as being the case. I can understand why she would feel confronted by a direct conversation with her supervisor that included robust statements about her suitability for the role.
However, the facts of this matter, even as advanced by the Applicant, do not demonstrate that there was an act of the employer that resulted directly or consequentially in the termination of her employment.
Whilst Ms Eggenhuizen’s evidence was that she felt she had no choice other than to support her mother even when it conflicted with her obligations to her employer, it is clear that it was Ms Eggenhuizen who chose to leave the workplace on 21 September 2023. She was not asked to do so by the Respondent.
Ms Eggenhuizen asked for a separation certificate in the absence of any words or conduct that could objectively be understood to be terminating her employment. On the agreed version of events, Mr Lobendhan then asked the Applicant if she was leaving, evidencing his surprise at a statement that on its face was conveying and intention to end the employment relationship. It was then that the Applicant made it clear she had inferred that her employment was terminated and responded to Mr Lobendhan, “no, you are firing me.”
I find that Ms Eggenhuizen voluntarily left the employment relationship. I understand why in her mind she felt she had no choice, but objectively, Ms Eggenhuizen had other options available to her including attending the hospital with her mother in the morning, and then undertaking a significant commute to work that afternoon, before returning once again to the hospital. I understand that option would have been at great expense and inconvenience to Ms Eggenhuizen, but remained a choice for her to make.
Again, this is not a case about forced resignation, and as such, I must determine if the termination was on the employer’s initiative.
It cannot be said in this case that had it not been for the Respondent’s actions, Ms Eggenhuizen would have remained in the employment relationship. Mr Lobendhan did not take any action or say any words to convey a termination of employment. Ms Eggenhuizen reached an erroneous conclusion that her employment was being terminated and voluntarily left the workplace, asking for a separation certificate and failing to return to the workplace again.
Ms Eggenhuizen was not dismissed within the meaning of section 368(1)(a) of the Act. Her application is dismissed.
COMMISSIONER
Appearances:
M Eggenhuizen, Applicant on her own behalf.
R Lobendhan and R Betts for G.P. Corporation (S.A.) Pty Ltd.
Hearing details:
Adelaide
2023
20 December.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [51]-[54].
[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67].
[3] [2020] FCAFC 152.
[4] As above at [67].
[5] See Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 at [30] where it is noted ‘the provisions of s.386 have been applied by the Courts to s.365 General Protections matters’ (reference to footnote omitted).
[6] [2014] FWCFB 1070 at [10].
[7] (1995) 62 IR 200.
[8] [2014] FWCFB 1070 at [13].
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