Mrs Chanell Van Der Westhuizen v Butter Fish Future Fund Pty Limited
[2024] FWC 1237
•10 MAY 2024
| [2024] FWC 1237 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Chanell Van Der Westhuizen
v
Butter Fish Future Fund Pty Limited
(C2024/2174)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 10 MAY 2024 |
General protections application involving an alleged dismissal – whether the applicant was dismissed – whether application was filed more than 21 days after the dismissal took effect.
Introduction
On 4 April 2024, Ms Chanell Van Der Westhuizen (Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is the Applicant’s former employer, Butter Fish Future Funds Pty Ltd (Respondent).
The Applicant contends that the Respondent contravened one or more of the general protections provisions in dismissing her from her employment. The Respondent raised two jurisdictional objections to the application. The Respondent contends that it did not dismiss the Applicant. The Respondent also contends, in the alternative, that if the Applicant was dismissed, then the dismissal took effect on 2 March 2024, with the result that the application was lodged more than 21 days after the dismissal took effect.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections.[1]
On 7 May 2024, I conducted a hearing in relation to the question of whether the Applicant was dismissed by the Respondent and the question of whether the application was filed out of time.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
The Applicant relies on both s 386(1)(a) and, in the alternative, s 386(1)(b) of the Act.
General principles
The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]
Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings.[5] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[6]
The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) 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.[7] The requisite employer conduct is the essential element.[8]
Relevant facts re alleged dismissal and out of time question
On 12 March 2024, the Applicant informed Mr Don MacAskill, Managing Director, of her decision to resign from her employment with the Respondent.
At 4:13pm on 12 March 2024, Ms Kelly Peverill, Manager, People & Culture, sent an email to the Applicant in the following terms:
“Hi Shawn and Chanell,
Thank you for your time earlier and advising of your verbal resignations.
Can you please send me an email confirming your resignations and your last day with BFS.
Should you have any questions please let me know.”
Later on 12 March 2024, the Applicant provided the Respondent with her resignation letter in the following terms:
“As discussed at the meeting earlier today.
I hereby tender my resignation.
I trust that we can come to a mutual agreement around the notice period and my leave applied for (for the birth of my granddaughter in NZ), a few weeks ago, which has not yet been approved to date (together with annual leave loading, as per the Award and Superannuation payments etc.)
My last day of work will be 2 April 2024.
Thanking you very much for the opportunity you have given me for a change in career after 20 years in the law.”
On 13 March 2024, the Applicant met with Mr MacAskill and Ms Peverill. They discussed when the Applicant would cease employment with the Respondent. It is contended by the Respondent that an agreement was reached with the Applicant for her to finish employment on 14 March 2024. The Applicant denies this assertion. The Applicant gave evidence in her witness statement that the Respondent offered to let her go with immediate effect on the basis that it would not require her to work out the balance of her notice period under her employment agreement. The Applicant says that she asked whether she would receive a payment in lieu of notice, to which the Respondent said “no”. The Applicant then says that she declined the Respondent’s offer to finish on 14 March 2024 and said that she was happy to work out her notice period as per her employment agreement.[9] I prefer the Applicant’s evidence in relation to this issue over the assertion by the Respondent that an agreement was reached at the meeting on 13 March 2024. The Respondent was offered the opportunity to file and serve witness statements, documents and submissions to support its jurisdictional objections that the Applicant was not dismissed and filed her application out of time. The Respondent chose not to take up that opportunity, instead informing the Commission that it just wished to rely on its Form F8A Response, including the documents referred to and copied within that Response.[10] As a result, the Respondent did not call any witnesses to give evidence in support of its jurisdictional objections. Nor did the Respondent take up the opportunity I gave it to cross examine the Applicant. In the result, I am left with a contest between a bare assertion in a Response and evidence to the contrary given by the Applicant in her witness statement. Further, the Applicant’s contention that no such agreement was reached is consistent with her written communications with the Respondent in the period from 14 March 2024 to 18 March 2024. Those communications are set out below.
On 14 March 2024, the Applicant sent an email to the Respondent in which she offered to “leave today” on certain terms. The email states:
Hi Don and Kelly
Further to our meeting of yesterday in which you offered me to leave immediately, without having to do work my 4 weeks’ notice and without remuneration (for that period); just to leave.
As I have declined the same, this is how I see it, as per my resignation offer:
·Three (3) weeks’ notice – Pay due (inclusive of PAYE): $1,107.69 x 3 = $3,323.07
·Last day of work: 2 April 2024 – leave due as at that date – 33 Hours, 41 minutes = $1,217.62 (incl.)
TOTAL: $4,540.69
·Plus, Superannuation payment to be paid immediately upon due date
Trust this can be agreed upon, as you have not yet confirmed this, or approved my leave.
However, if you would like to cause me more stress (in the office) (and not agree to the above ‘resignation’), then as per the Agreement:
·Four (4) weeks’ notice – Pay due (inclusive of PAYE): $1,107.69 x 4 = $4,430.76
·Last day of work: 9 April 2024 – Leave due as at that date – 36 Hours, 1 minutes = $1,312/35 (incl.)
TOTAL: $5,743.11
·Plus, Superannuation payment to be paid immediately upon due date.
Nevertheless, I would like to offer you the following:
If I was to leave today, with:
·Two (2) weeks’ notice – Pay due (inclusive of PAYE): $1,107.69 x 2 = $2,215.38
·Two (2) weeks’ notice end 26 March 2024 – Leave due as at that date – 31 Hours, 21 minutes = $1,137.45 (incl.)
TOTAL: $3,352.83
Or,
If I was to leave today with a 'general damage’' amount of $3,000 paid (in full and final settlement) into my bank account today, I’m happy to leave today. No PAYE or Superannuation payments to be made for this period payment, for you to pay.
Otherwise, I’m happy to cost you any of the abovementioned figures.
I trust that all my taxes have been accurately calculated and paid over to the ATO, as well has my Superannuation.”
At 12:15pm on 14 March 2024, Ms Peverill sent a message to the Applicant in the following terms:
“Hi Chanell,
If you want to leave today that’s your choice. However, if you leave today the separation will be as per your employment contract. Thanks Kelly”
At 12:16pm on 14 March 2024, the Applicant sent a message to Ms Peverill in the following terms:
“All good, I’m still happy to work. Thank you for your consideration.”
At 12:25pm on 14 March 2024, Ms Peverill sent a message to the Applicant in the following terms:
“Hi Chanell, clearly you’re not happy to work by your letter.
As per you [sic] letter it has been agreed you can leave today and the terms and conditions of your employment contract will stand.
Please ensure all BFS property is returned today.
I wish you all the best.
Thanks Kelly”
At 12:27pm on 14 March 2024, the Applicant sent a message to Ms Peverill in the following terms:
“Hi Kelly, you did not accept my offer, and I did advise that I will be happy to stay, thus I’m staying for my notice period. Thanks”
At 12:35pm on 14 March 2024, the Applicant sent another message to Ms Peverill, stating, “Herewith my offer is withdrawn and happy to work my notice period”. The message then contained a copy of the email sent by the Applicant to the Respondent earlier that day in which the Applicant offered to “leave today” on certain terms, but the Applicant had handwritten the following words on the message:
“WITHDRAWN HAPPY TO WORK NOTICE AS PER CONTRACT”
Between 4pm and 10:18pm on 14 March 2024, the Applicant and Ms Peverill exchanged the following text messages:
16:00 “Hi Chanell,
Matt said you left for an appointment? I didn’t know anything about an appointment? I knew Shawn was leaving early but nothing from you.
Thanks Kelly”16:18 “Hi Kelly, with all that’s been going on this week and the stresses you may be under, I thought that you may have forgotten. We still spoke about the mood swings ect, perimenopause or something and you said that’s fine. I’ve worked my lunch in today for that reason and would also do so for 2 days next week, but happy if you wanted to take an hour or so of my leave. Sorry, I don’t have an opportunity today to speak with you again re same today, and by the time I had to leave, you were still in a meeting with Daniella. See you next week.
Have a good weekend.… plus, I left yesterday at 5:20pm doing claiming, as you insisted I finish the PRODA claiming after you kept me from completing my work on time due to the meeting you called for and declined your offer”
22:18 “Hi Chanell, don’t bother coming back”
Although the Applicant received Ms Peverill’s message at 10:18pm on 14 March 2024 stating “don’t bother coming back”, the Applicant wished to continue working out the balance of her notice period and was not certain that her employment had been terminated. As a result, the Applicant attended work on 18 March 2024. She sat down at her desk and attempted to log on to the Respondent’s computer system but could not do so because her email address had been deactivated.
At 9:59am on 18 March 2024, the Applicant sent a text message to Ms Peverill in the following terms:
“Hi Kelly,
I’m in today but note all access on PC has been cancelled? What do you want me to do?”
At 10:08am on 18 March 2024, Ms Peverill sent a text message to the Applicant in the following terms:
“As I told you on Thursday you were not to return. You have so many issues with BFS why turn up today?”
At about 10:36am on 18 March 2024, the Applicant hand delivered and texted a copy of a letter in the following terms to Ms Peverill:
“Further to my resignation on Tuesday, last.
I confirm that I have received your message/s and that you have told me not to return and work out my notice period.
On this basis, I confirm that I have been dismissed during my notice period and look forward to receiving my payment in lieu of notice.
I will leave site today and confirm your instructions not to return.”
The Applicant says that because she knew she would not be paid for the day just sitting there doing nothing and not having access to the programs she worked on, and being ignored, she left the Respondent’s office at about 11:20am on 18 March 2024.
Consideration
Subject to an argument about being forced to resign, had the Applicant remained employed during her notice period, there could be no question that the Applicant’s employment with the Respondent came to an end at her initiative by way of her resignation. In that case, the Applicant’s resignation would have taken effect according to its terms and her employment would have ceased at her initiative by reason of her resignation.[11] Similarly, if, following receipt of the Applicant’s notice of resignation on 12 March 2024, the parties had reached an agreement to reduce the Applicant’s notice period from four weeks to two days, such that the Applicant would finish work on 14 March 2024, then her employment would have ceased at her initiative. But that did not happen because no such agreement was made.
It is arguable that the Applicant’s employment came to an end on 14 March 2024 when the Applicant received Ms Peverill’s message at 10:18pm telling her to not “bother coming back”. However, given the Applicant’s clear expression of her wish to work out the balance of her notice period and the communications back and forth between the Applicant and Ms Peverill in the period between 14 and 18 March 2024, I do not consider that a reasonable person in the Applicant’s position would have understood that her employment with the Respondent was at an end on 18 March 2024.
In contrast, any reasonable person attending work on 18 March 2024, finding out that their access to the computer system had been cancelled and receiving a message from Ms Peverill that they had been told “not to return” would have understood that Applicant’s employment with Respondent was at an end. It was Ms Peverill’s action, taken on behalf of Respondent, in sending this message to the Applicant on 18 March 2024, together with the step of cancelling her access to the Respondent’s computer systems, that brought her employment with Respondent to an end.
Alternatively, even if I had found that the Applicant’s employment with the Respondent had come to an end on 14 March 2024, it still would have been a termination on the Respondent’s initiative because the Applicant had expressed her desire to work out her notice period and the Respondent had sought to end the Applicant’s employment prior to the end of the notice period by telling the Applicant to not “bother coming back”.
Having regard to all the circumstances, I am satisfied that it was the action of Respondent that was the principal contributing factor which resulted, directly, in the termination of Applicant’s employment on 18 March 2024, or alternatively on 14 March 2024. It follows that the Applicant’s employment with the Respondent was terminated on the Respondent’s initiative within the meaning of s 386(1)(a) of the Act.
In light of my conclusion in relation to s 386(1)(a) of the Act, I do not need to address the Applicant’s alternative argument that she was forced to resign because of conduct engaged in by the Respondent within the meaning of s 386(1)(b) of the Act.
The Applicant lodged her general protections application in the Commission on 4 April 2024. On any view of the facts, the Applicant was still employed by the Respondent on 14 March 2024. It follows that whether the dismissal took effect on 14 or 18 March 2024, the Applicant’s general protections application was lodged within the 21 day period provided for in the Act. There is absolutely no merit in the Respondent’s argument that the Applicant’s “resignation was effective 12.03.24 and as such 21 days to file would end on 02.04.24 not the 04.04.24”.
Conclusion
For the reasons given, the Applicant was dismissed within the meaning of s 386 of the Act and her application was filed within time. I therefore reject the jurisdictional objections raised by the Respondent.
The matter will shortly be listed for conciliation.
DEPUTY PRESIDENT
Appearances:
Ms Van Der Westhuizen, Applicant
Ms K Peverill and Mr D MacAskill, for the Respondent
Hearing details:
2024.
Newcastle
May 8.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]
[2] NSW Trains v James[2022] FWCFB 55 at [45]
[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[4] Ibid
[5] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[6] Ibid
[7] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[8] Ibid
[9] Ex A1 at [1.42]-[1.45]
[10] Ex R1
[11] ABB Engineering Construction Pty Ltd v Doumit AIRC Full Bench, 9 December 1996, Print N69999, page 8
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