Moore v Woolworths Group Limited T/A Big W

[2020] FWC 963

[2020] FWC 963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie Moore
v
Woolworths Group Limited T/A Big W
(U2019/11077)

DEPUTY PRESIDENT LAKE BRISBANE, 21 FEBRUARY 2020

Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – show cause process – no final outcome – no compulsion by the Respondent - application dismissed. Application for an unfair dismissal remedy.

[1] Mrs Jodie Moore (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with Woolworths Group Limited T/A Big W (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on 27 January 2001 and her employment came to an end on 11 September 2019. In her Form F2 Application filed on 26 September 2019, the Applicant states that she resigned from her employment on 11 September 2019 and was forced to do so due to a course of conduct engaged by the Respondent.

[3] The Respondent raised a jurisdictional objection to the Applicant’s application on the basis that she was not dismissed, submitting that she voluntarily resigned with immediate effect on 11 September 2019.

[4] It is not in dispute that the Applicant is a person protected from unfair dismissal and that the Respondent is not a small business employer. It is also the case that the Applicant’s employment did not end by reason of redundancy. The question of whether the Applicant was dismissed on the 11 September 2019 in circumstances that constituted constructive dismissal is a matter for determination.

[5] Directions were set for the filing of material and the matter was dealt with by way of hearing on 13 and 14 January 2020. Both parties sought permission to be represented by lawyers at the hearing and permission was granted on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity. The complexity was enhanced by the fact that the matter involved a jurisdictional objection.

[6] The Applicant was represented by Mr Wayne Hampton of Hampton Law Services. The Respondent was represented by Mr Andrew Wydmanski of Ashurst Australia.

Evidence

[7] The Applicant was employed by the Respondent in its Big W Browns Plains store (the Store) in the position of Softgoods Leader. The position did not require her to use machinery regularly. She stated that during her employment she did not receive any warning or complaints about her work.

[8] On 2 September 2019, the Applicant assisted in night fill duties with other team members in the store. The Applicant states that performing night fill was not part of her usual duties, and is something she only performs twice a year.

[9] The Applicant’s evidence is that prior to commencing the night shift on 2 September 2019, she was required to pick an item from another store in the morning. As a result of this, the Applicant asserts she was suffering from onset fatigue during her shift of 2 September 2019, when the incident occurred.

[10] On 3 September 2019, the Respondent states that the Store Manager, Ms Amanda McPhillip, received a report that managers, including the Applicant, had been observed using machinery, the Pallet Mover, without the correct safety equipment. Ms McPhillip confirmed this by viewing CCTV footage of the Store’s storage area on the night of 2 September 2019, in which she states to have observed the Applicant moving an electric pallet jack without:

•  wearing a safety vest;

•  wearing steel cap boots; and

•  putting up barricades. 1

[11] The Respondent tendered a procedure, “SOP-BW-09 – Pallet Mover”, which covers the safety requirements for electric pallets. Relevantly, the Procedure provides with accompanying images:

Isolate the work area with barricades prior to moving the Pallet mover

Always consider the safety of people, products and equipment when using the pallet mover

Always wear protective equipment: safety boots. Hi-Vis vest is to be worn while operating pallet mover outside

…

Isolate the designated work area with barricades prior to moving the Pallet Mover every time in use.

[12] The Applicant stated that she was aware their barriers were faulty, as it had been brought up in staff meetings. As such, the Applicant states that she did not attempt to use them as she was only moving the Pallet Mover a short distance. 2

[13] On 4 September 2019, the Applicant attended a meeting with Ms McPhillips and Lachlan Flew, Second in Charge. The Applicant was suspended with remuneration while the incident was being investigated. The Respondent states that during this meeting, the Applicant was upset and asked whether to resign, to which Ms McPhillips replied to the effect of “I cannot answer that question for you.” 3

[14] On 5 September 2019, the Applicant attended an investigation interview with Ms Candice Walker, Senior Culture and People Partner for the Northern Region, and Mr Robert Scott, Regional Safety Specialist. It is not in dispute that the Applicant admitted to the alleged safety breaches when using the Pallet Mover.

[15] In a meeting on 8 September 2019, a show cause letter was read out to the Applicant by Ms McPhillips. The Applicant was advised that the Respondent was considering terminating the Applicant’s employment, however she had an opportunity to tell the Respondent why it should not do so by 5:00 pm the following day. The Applicant states that she had not been advised a support person could attend this meeting with her.

[16] On 9 September 2019, the Applicant provided her response to the show cause letter by email to Ms McPhillips.

[17] On 10 September 2019, the Applicant received a phone call from Ms McPhillips requesting her to attend a meeting at 1:00 pm on the 11 September 2019 to discuss the outcome of investigation and show cause process. The Applicant was invited to bring a support person.

[18] The Applicant states that at 9:11 am on 11 September 2019, a Senior Manager called her to advise that her employment will be terminated during the meeting that was scheduled for 1:00 pm that day. Prior to the hearing, the Applicant did not tender evidence of the particulars of this phone call, but in the hearing stated that it was the Second in Charge, Lachlan Flew. The Applicant tendered into evidence screen shots of a computer screen. On the screen was a draft termination letter to terminate the Applicant’s employment. The letter was unsigned, but the signature line indicated the letter was from the Store Manager, Amanda McPhillips. The email attaching the letter stated for Ms McPhillips to “Please review.”

[19] At 11:00 am on the 11 September 2019, the Applicant attended Ms McPhillips office and provided a letter of resignation, while Ms McPhillips was on a call. The Respondent states that Ms McPhillips asked the Applicant to wait until the call was over so they could talk, however the Applicant refused and left the store. 4 The letter from the Applicant was as follows:

11/09/2019

Dear Amanda McPhillips

I would like to inform that I am resigning from my position of Softgoods Leader at Big W Browns Plans, effective immediately.

Sincerely,

Jodie Moore

Legislation and applicable case law

[20] Section 386 of the Act states:

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.

[21] Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal” and has created two clear grounds on which a claim could potentially proceed. 5 In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:

[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 (sic) 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.

(emphasis added)

[22] It is clear on the facts of this case that Ms Moore was not terminated in her employment. The Applicant’s case expressly relied upon s 386(1)(b) – the claim being that Ms Moore was forced to resign. No reliance was placed on s 386(1)(a) and the Applicant’s representative confirmed this at the hearing.

[23] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a foundational case in determining what is classified as a ‘forced resignation’. There it was stated: 6

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.

(emphasis added)

[24] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:

[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:

“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

(emphasis added)

[25] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. 7 Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”8

[26] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer. 9 In Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, Mr Bell resigned prior to the conclusion of a formal determination regarding his falsely signing of timesheets. He contented in his resignation letter that his resignation was “due to circumstances beyond his control”. Further, there was reliable evidence that the employer stated that “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own appreciation of the position.”10 A statement that an employee may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred.

[27] In the current case, the Applicant was put on notice of the investigation and show cause process and was aware that these could lead to a termination of the Applicant’s employment. However, this alone could not be enough to class the Applicant’s resignation as one forced upon her.

[28] The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd 11 provides instruction on how to interpret “forced”:

[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).

[15] Relevantly, the Macquarie Dictionary defines “force” as:

… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …

[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.

[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:

•  That she did not voluntarily resign her position or employment;

•  But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present. (emphasis added)

[29] There is no reliable evidence before the Commission that the Respondent engaged in any conduct that satisfies the requisite element of compulsion. It would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign.

[30] In Ashton v Consumer Action Law Centre, 12 Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:

[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.

[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.

[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.

[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.

[31] In determining whether an employer’s conduct has forced an employee’s resignation, it is important to consider the specific acts which are alleged to have forced the applicant to resign. In this case, the Second in Charge’s conduct in communicating the existence of the draft termination letter is significant. In communicating this, the Applicant alleges that she was forced to resign on the basis that she would have been terminated regardless. On the evidence before me I cannot consider the conduct of the Second in Charge forced the Applicant’s resignation. This is because:

•  Apart from his initial involvement, Mr Flew, despite being the Second in Charge was not involved the disciplinary process;

•  The Applicant was aware that Mr Flew was not responsible for dealing with the disciplinary matter, meaning it is difficult for his actions to be reflected as those of the Respondent;

•  The document which he showed the Applicant was not sent to Mr Flew, having gained access to it without authorisation;

•  There is no evidence to suggest that Mr Flew had any knowledge from the decision maker that there were plans to dismiss her, meaning he could not indicate to the Applicant her dismissal was inevitable; and

•  The Applicant had, during the meeting of 4 September 2019 questioned whether to resign – this was prior to viewing the photographs, meaning she had at least had in her mind contemplated resigning as a result of the show cause process more generally and not on being informed of the draft termination letter.

[32] The Applicant in cross examination made it clear she was aware that the conduct of the Second in Charge was not appropriate and she even asked to delete evidence of what had been sent to her: 13

Okay, but in your evidence earlier, you said that you asked the person, who you now say is Mr Frew, to take photographs of this letter, so how did he obtain those photographs?  - He went into the screen and it was on the screen.

Whose screen was that?  - Amanda’s. He had access to her emails.

Do you think it was appropriate for him to do that?  - Probably not, I’m not sure.

You said earlier that he asked you to delete what he’d sent you or delete the email?  - Correct.

So does that suggest to you that that was an official notification by the company that you were going to be terminated or dismissed?  - What do you mean? I knew I was going to be terminated, I knew I was going to get handed the letter.

Right, but that wasn’t through any official means, it wasn’t the company officially coming to you and saying, “Here’s your termination letter, either you are dismissed or you have the chance to resign.” You submitted your resignation letter before that official meeting was scheduled; isn’t that right?  - Correct. He is a senior leader, though.

Correct, but he’s not the leader who was dealing with the disciplinary outcome of this matter, was he?  - No.

[33] Given this context and on an objective analysis of the Respondent’s conduct it cannot be shown that there was any compulsion on the facts which led to the Applicants resignation.

[34] First, the show cause process undertaken by the Respondent had not come to a conclusion. The Respondent had not implemented any decision regarding the Applicant. On the evidence of Ms McPhillips, which I accept, she was the final decision maker responsible for signing the termination letter and notifying the Applicant. While the Applicant was made aware of an unsigned, draft termination letter, this was not done through any formal channel that could be considered the Applicant being advised of the Respondent’s final decision. The Applicant was made aware of the draft termination letter through the Second in Charge, Lachlan Flew, acting entirely outside of proper procedure; this unauthorised action of a rogue manager cannot be taken to be a formal confirmation of a decision by the Respondent.

[35] As a point of practice, draft termination letters are a standard template utilised by human resource managers; this is done for consistency and to ensure proper company practice and general legislative requirements are followed. The distribution of a draft termination letter cannot be conflated with a confirmed and final decision of the Respondent. This is consistent with the evidence of Amanda McPhillips, which I accept, that she was the final decision maker and was capable at all times of deciding what course of action to take – whether it be finalising the draft letter or some other course of action.

[36] Second, the Respondent has an obligation under the Work Health and Safety Act 2011 (Qld) (WHS Act) to ensure the safety, and take reasonable care of workers’ health and safety. Initiating a show cause process in response to breaches of safety is a legitimate action on the part of the employer. 14 If the employer failed to pursue safety breaches, they may breach their obligations under the WHS Act, therefore, it is unlikely that pursuing such a process was done with the intent of forcing the Applicant’s resignation.

[37] Taking into account all of the circumstances and the totality of the evidence in this matter, I am not satisfied that the Respondent’s actions – through their management staff – left Ms Moore no option but to resign. Ms Moore was not forced to resign because of conduct or a course of conduct engaged in by the Respondent. The Applicant was entirely capable of seeing out the process, but of her own volition decided to ‘jump before she was pushed’. 15 There was clear benefit in the Applicant doing so: she gained the ability to state that she resigned from her employment. However, in doing so she has foregone the right to pursue a claim that she was unfairly dismissed, as she was not in fact dismissed at all.

[38] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.

Conclusion

[39] I find that the Applicant was not dismissed in accordance with subsection 386(1) of the Act.

[40] Accordingly, I must dismiss the application and I do so.

DEPUTY PRESIDENT

Appearances:

Mr Wayne Hampton of Hampton Law Services for the Applicant

Mr Andrew Wydmanski of Ashurst Australia for the Respondent

Hearing details:

13 January 2020

14 January 2020

Printed by authority of the Commonwealth Government Printer

<PR716952>

 1 Witness statement of Amanda Katherine McPhillips at paragraph [33].

 2   Applicant’s outline of arguments: Merits at Q.4d.

 3 Witness Statement of Amanda Katherine McPhillips at paragraph [47].

 4 Witness Statement of Amanda Katherine McPhillips at paragraph [71].

 5   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].

 6   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).

 7   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

 8   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 9   See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 10   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].

 11   PR 973462, 11 August 2006.

 12   [2010] FWA 9356.

 13   PN105 – PN111.

 14   For example, Colin Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969, [102] where reference is made to conduct that might not be wilful or intentional, but that can imperil or put other employees in the workplace in jeopardy.

 15   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.